-----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, KCI9cvn4WXJ56BKsZ/2C3vQolNW+0xvZEXEeRhuDFQalJEUAwCN5FCrrDPDwZQw/ HXjq1YqRvnd+wzuPB1giyQ== 0000950172-04-002228.txt : 20040923 0000950172-04-002228.hdr.sgml : 20040923 20040923170603 ACCESSION NUMBER: 0000950172-04-002228 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 16 FILED AS OF DATE: 20040923 DATE AS OF CHANGE: 20040923 GROUP MEMBERS: VICTOR VEKSELBERG SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MOSCOW CABLECOM CORP CENTRAL INDEX KEY: 0000006383 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 060659863 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-19685 FILM NUMBER: 041043206 BUSINESS ADDRESS: STREET 1: 405 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2128268942 MAIL ADDRESS: STREET 1: 5 WATERSIDE CROSSING CITY: WINDSOR STATE: CT ZIP: 06095 FORMER COMPANY: FORMER CONFORMED NAME: ANDERSEN GROUP INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: ANDERSEN LABORATORIES INC DATE OF NAME CHANGE: 19790828 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Columbus Nova Investments VIII Ltd CENTRAL INDEX KEY: 0001303199 IRS NUMBER: 000000000 STATE OF INCORPORATION: C5 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: P.O. BOX N-7755 CITY: NASSAU STATE: C5 ZIP: 00000 BUSINESS PHONE: (242) 326-5528 MAIL ADDRESS: STREET 1: P.O. BOX N-7755 CITY: NASSAU STATE: C5 ZIP: 00000 SC 13D 1 was5181.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 -------------- SCHEDULE 13D (Amendment No. __)* INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Moscow CableCom Corp. -------------------------- (Name of Issuer) Common Stock, par value $0.01 per share --------------------------------------- (Title of Class of Securities) 033 501 107 ---------------------- (CUSIP Number) Olivier Chaponnier Columbus Nova Investments VIII Ltd. P.O. Box N-7755 Nassau, Bahamas (242) 326-5528 ------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 26, 2004 ----------------------- (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. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ------------------------------------------------------------------------------- CUSIP No. 033 501 107 13D Page 2 of 15 Pages ----------- ---- ----- - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS, I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Columbus Nova Investments VIII Ltd. - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [x] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NOT APPLICABLE - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Bahamas - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF None SHARES -------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 4,744,268 REPORTING -------------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH None -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,744,268 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 53.92% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- CUSIP No. 033 501 107 13D Page 3 of 15 Pages ------------ ---- ----- - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS, I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Victor Vekselberg - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [x] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NOT APPLICABLE - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Russian - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF None SHARES -------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 4,744,268 REPORTING -------------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH None -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,744,268 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 53.92% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - ------------------------------------------------------------------------------- Item 1. Security and Issuer. ------------------- This statement relates to shares of common stock, par value $0.01 per share (the "Shares"), of Moscow CableCom Corp., a Delaware corporation formerly known as Andersen Group, Inc. (the "Company"). The principal executive offices of the Company are located at 405 Park Avenue, Suite 1202, New York, NY 10022. Item 2. Identity and Background. ----------------------- (a)-(c) and (f). This statement is being filed jointly by Columbus Nova Investments VIII Ltd., a Bahamas corporation ("CNI"), and Mr. Victor Vekselberg, who is a Russian citizen ("Mr. Vekselberg" and together with CNI, the "Reporting Persons"). Mr. Vekselberg and entities related to him beneficially own CNI. The principal business address of CNI is P.O. Box N-7755, Nassau, Bahamas. The residential address of Mr. Vekselberg is 19 Bakhrushina Street, Bld. 2, Apt. 15, 113054 Moscow, Russia. CNI is a company that has been formed for the principal purpose of investing in the Company. The present principal occupation of Mr. Vekselberg is as an investor and businessman. Certain information pertaining to each executive officer and director of CNI is set forth in Annex A hereto and incorporated herein by reference. ------- (d). During the last five years, neither of the Reporting Persons nor, to the best of CNI's knowledge, any of the executive officers or directors of CNI, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e). During the last five years, neither of the Reporting Persons nor, to the best of CNI's knowledge, any of the executive officers or directors of CNI, 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. Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- In order to facilitate the consummation of the transactions contemplated in the Subscription Agreement (as defined and described in Item 4 below), CNI has entered into voting agreements on August 26, 2004 (the "Voting Agreements") with Moskovskaya Telecommunikatsionnaya Corporatsiya ("COMCOR"), Oliver R. Grace, Jr., Francis E. Baker, Andrew O'Shea, James J. Pinto and Thomas McPartland (collectively, the "Stockholders" and each, a "Stockholder"). CNI did not pay the Stockholders any consideration in connection with the execution and delivery of the Voting Agreements. Item 4. Purpose of Transaction. ---------------------- Page 4 of 15 Pages On August 26, 2004, CNI entered into a Series B Convertible Preferred Stock Subscription Agreement (the "Subscription Agreement") with the Company, pursuant to which CNI will purchase shares of a new class of Series B Convertible Preferred Stock, par value $.01 per share of the Company (the "Preferred Stock"), which are convertible into Shares at the option of the holder. The Subscription Agreement is subject, among other things, to stockholder approval, and, accordingly, does not currently confer beneficial ownership of any Shares. In connection with the Subscription Agreement, CNI and the Stockholders entered into the Voting Agreements, pursuant to which each Stockholder agreed to vote Shares owned by such Stockholder (the "Covered Shares") in favor of any matter that could reasonably be expected to facilitate the transactions contemplated in the Subscription Agreement (including the amendment of the Company's certificate of incorporation and the Company's 2003 Stock Option Plan and the issuance of the Preferred Stock), against approval of any proposal made in opposition to, or in competition with, the consummation of such transactions and against any other action that is intended, or could be reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect such transactions. Each of the Stockholders granted CNI an irrevocable proxy to vote the Covered Shares as described in the preceding sentence. Each of the Stockholders also agreed to refrain from transferring any Covered Shares without the prior consent of CNI other than to specified related persons that agree to be bound by the respective Voting Agreement. The Voting Agreements will each terminate upon the earliest to occur of (i) the valid termination of the Subscription Agreement pursuant to its terms, (ii) the consummation of the transactions contemplated in the Subscription Agreement, (iii) February 28, 2005, or (iv) the written agreement of the parties thereto to that effect. If the transactions contemplated in the Subscription Agreement are consummated as planned: (a) CNI will purchase from the Company 4,500,000 shares of Preferred Stock, which will have voting and other rights identical to those of the Shares, with the exception of having a liquidation preference over the Shares for a period of four years and will be convertible into Shares at the option of the holder thereof; (b) the Company will issue to CNI warrants to purchase an additional 8,283,000 shares of Preferred Stock pursuant to a Warrant Agreement to be entered into by the Company and CNI concurrently with the closing of the transactions contemplated in the Subscription Agreement; (c) the Company's certificate of incorporation will be amended to increase the amount of authorized Common Stock and to provide for the designation of the Preferred Stock; (d) the By-laws of the Company will be amended and restated to change, among other things, the maximum number of members of the Board; Page 5 of 15 Pages (e) the Company will grant options to purchase an aggregate of 1,161,050 Shares under its 2003 Stock Option Plan to new executive officers and consultants; and (f) (i) the board of directors of the Company (the "Board") will be expanded from the present nine members to eleven members, (ii) certain members of the Board will resign and six new members designated by CNI will be appointed or elected to the Board (with one such member being an independent director, as this term is defined under the listing standards of the National Association of Securities Dealers, Inc. and the Sarbanes Oxley Act of 2002), and (iii) one new member designated by COMCOR will be appointed or elected to the Board. In connection with the Subscription Agreement, CNI also entered into a Shareholders Agreement (as defined and described in Item 6 below) with COMCOR, a principal stockholder of the Company. Pursuant to the Shareholders Agreement, if the transactions contemplated by the Subscription Agreement are consummated, CNI and COMCOR agreed to vote their Shares and Preferred Stock in the manner described in Item 6 below. The preceding summary of certain provisions of the Subscription Agreement, form of Warrant Agreement, and Voting Agreements is not intended to be complete and is qualified by its entirety by reference to the full text of such agreements, copies of which are attached as Exhibits 2 through 4 to this Schedule, and which are incorporated by reference herein. Other than as described above, none of the Reporting Persons has, as of the date of this Schedule, any plans or proposals that relate to or would result in any of the actions described in paragraphs (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. ------------------------------------ (a) and (b). As of the date hereof, none of the Reporting Persons owns any Shares. The Reporting Persons may, however, be deemed to have shared voting power with respect to the 4,744,268 Shares that are covered by the Voting Agreements described in Item 4 above. This amount constitutes approximately 53.92% of the outstanding Shares, based upon a total of 8,797,100 Shares outstanding. The number of Shares outstanding is based on the number of Shares outstanding as of September 20, 2004, as disclosed by the Company to the Reporting Persons. To the best knowledge of CNI, none of the executive officers or directors of CNI beneficially owns any Shares. (c) Neither of the Reporting Persons nor, to the best of CNI's knowledge, any of the executive officers or directors of CNI have engaged in any transaction in Shares during the past 60 days. (d) No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, Shares. Page 6 of 15 Pages (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect --------------------------------------------------------------------- to Securities of the Issuer. --------------------------- Voting Agreements Reference is made to the description of the Voting Agreements contained in Item 4 above. Shareholders Agreement In connection with the Subscription Agreement, on August 26, 2004, CNI and COMCOR entered into a Shareholders Agreement (the "Shareholders Agreement"). The Shareholders Agreement contemplates the following: CNI and COMCOR agreed to vote, at any time after the consummation of the transactions contemplated in the Subscription Agreement, all of the Shares and Preferred Stock of the Company (collectively, the "Voting Stock") they beneficially own at such time: (a) to initially elect to the Board the new members designated by CNI as contemplated in the Subscription Agreement; (b) to cause and maintain the number of directors of the Board to be fixed at eleven; (c) to cause and maintain the election to the Board of a total of three individuals designated by COMCOR, which number shall be reduced to two individuals and further to one individual in the event that COMCOR beneficially owns less than 20% and less than 15% (but at least 10%) of the outstanding Voting Stock, respectively; and (d) to cause and the election to the Board of a total of six individuals designated by CNI, which number shall be: (i) increased to seven individuals in the event that COMCOR shall beneficially own less than 20% of the outstanding Voting Stock and (ii) decreased to five, four, two and one individuals, in the event that CNI beneficially owns less than 30%, 20%, 15% and 10% of the outstanding Voting Stock, respectively. In connection with the foregoing, CNI agreed that, for so long as COMCOR owns at least 15% of the Voting Stock, it will use its best efforts to ensure that the combination of the directors designated by COMCOR and those designated by CNI comprise a majority of the directors on the Board. CNI and COMCOR also agreed that, for so long as each of them is entitled to designate at least one director (in accordance with the provisions described above), each committee of the Board shall consist of at least one director designated by CNI and one director designated by COMCOR (to the extent permitted by applicable law). Page 7 of 15 Pages CNI and COMCOR agreed that, after the consummation of the transactions contemplated in the Subscription Agreement, they will take all actions reasonably necessary to cause the Company (i) to acquire from COMCOR, in exchange for Shares, all of the shares of Institute for Automated Systems that are beneficially owned by COMCOR, based on a valuation prepared by an independent expert agreed upon by COMCOR and the Company; (ii) to grant each of CNI and COMCOR a right of first refusal with respect to issuances of securities on a pro rata basis to their then percentage of shareholding in the Company; and (iii) to enter into new employment contracts with certain individuals and grant options to purchase up to 5% of the Shares to certain executives and employees selected by CNI and COMCOR. CNI and COMCOR also agreed that, for so long as they each own at least 15% of the Voting Stock, they shall seek to agree on the following matters: (a) amendment of the organizational documents of the Company or its principal operating subsidiary ("CCTV"); (b) reorganization or liquidation of the Company or CCTV; (c) increasing or decreasing the authorized capital of the Company or CCTV; (d) entry into material transactions by the Company or CCTV in which either COMCOR or CNI is a party; (e) appointment of a new chief executive officer of the Company or a new general director of CCTV; (f) establishing the strategy for the Company and CCTV; (g) any material deviation from the Company or CCTV's business plan; (h) appointment of auditor for the Company and CCTV; and (i) approval of the annual financial statements for the Company and CCTV. In connection with the foregoing, the Shareholders Agreement provides that, in the event that CNI and COMCOR are unable to agree on how to vote with respect to any of the matters set forth above, such matter may be referred by either party to a special committee of the Board, the decision of which shall be binding on the parties. Pursuant to the Shareholders Agreement, each of CNI and COMCOR agreed, subject to limited exceptions, to refrain from transferring any Voting Stock they beneficially own without the prior consent of the other party. Further, each of CNI and COMCOR has the right (for so long as such party holds at least 10% of the Voting Stock) to participate in (on a pro rata basis) in sales of Voting Stock initiated by the other party. In addition, each party has a right of first offer with respect to any shares of Voting Stock the other party proposes to sell. Page 8 of 15 Pages The Shareholders Agreement will terminate upon the earlier to occur of (a) CNI and COMCOR mutually agreeing to terminate the Shareholders Agreement, (b) such time as either party's percentage beneficial ownership of the outstanding Voting Stock falls below 5% and (c) the voluntary or involuntary bankruptcy, dissolution, liquidation or winding-up of any of CNI, COMCOR or the Company. Co-Sale Agreement In connection with the Subscription Agreement, CNI entered into an agreement dated August 26, 2004 (the "Co-Sale Agreement"), with certain prospective executive officers and consultants of the Company (each, the "Holder") who, pursuant to the Subscription Agreement (as described in Item 4 above), will be awarded by the Company options to purchase an aggregate of 1,161,050 Shares under the its 2003 Stock Option Plan. Pursuant to the Co-Sale Agreement, which is subject to the closing of the transactions contemplated in the Subscription Agreement, for so long as CNI holds at least 20% of the outstanding Voting Stock, if CNI proposes a sale of all of the shares of Voting Stock held by it, CNI may require any Holder to sell all the Shares held by such Holder for the same consideration and otherwise on the same terms and conditions as the sale by CNI. Termination of Pre-Existing Shareholders Agreement In connection with the Subscription Agreement, CNI procured the termination of the voting agreement dated February 23, 2004, by and among the Company, COMCOR, Oliver R. Grace and Francis E. Baker, subject to the closing of the transactions contemplated in the Subscription Agreement. Registration Rights The Subscription Agreement contemplates that the Company and CNI will enter into a Registration Rights Agreement pursuant to which CNI may require that the Company register under the Securities Act of 1933 future resales of Shares held by CNI. Letter Agreements with Mr. Oliver R. Grace, Jr. and Mr. James J. Pinto In connection with the Subscription Agreement, CNI entered into letter agreements (the "Letter Agreements") with each of Oliver R. Grace, Jr., (who currently serves as the Company's Chairman, President and Chief Executive Officer) and James J. Pinto (who currently serves as a member of the Board), pursuant to which CNI: (i) confirmed the acceptability of the compensation (equal to $100,000) to be paid by the Company to Mr. Grace for 2004 and agreed that Mr. Grace will act as one of the trustees for the Company's pension plan and engage in related activities, for which activities he will be paid an annual compensation of $50,000, and (ii) agreed to support the nomination of Messrs. Grace and Pinto (or, if either or both cannot serve on the Board, the nomination of Francis E. Baker, Thomas McPartland, Louis A. Lubrano, or Peter E. Bennett) as candidates for election to the Board with the intention that Messrs. Grace and Pinto will serve as members of the Board for a period commencing on the Page 9 of 15 Pages closing of the transactions contemplated in the Subscription Agreement and ending 36 months thereafter. The preceding summary of certain provisions of the Shareholders Agreement, the Co-Sale Agreement, form of Registration Rights Agreement and Letter Agreements is not intended to be complete and is qualified by its entirety by reference to the full text of such agreements, copies of which are attached as Exhibits 5 through 8 to this Schedule, and which are incorporated by reference herein. Item 7. Material to be Filed as Exhibits. -------------------------------- Exhibit 1 Joint Filing Agreement dated as of the date hereof between Columbus Nova Investments VIII Ltd. and Victor Vekselberg. Exhibit 2 Subscription Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 3 Form of Warrant Agreement between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 4.1 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moskovskaya Telecommunikatsionnaya Corporatsiya. Exhibit 4.2 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Oliver R. Grace, Jr. Exhibit 4.3 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Francis E. Baker. Exhibit 4.4 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Andrew O'Shea. Exhibit 4.5 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and James J. Pinto. Exhibit 4.6 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Thomas McPartland. Page 10 of 15 Pages Exhibit 5 Shareholders Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moskovskaya Telecommunikatsionnaya Corporatsiya. Exhibit 6 Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and each of Warren Mobley, Donald Miller-Jones, Charles Roberts and Dr. Ali Mohamed Ahmed. Exhibit 7 Form of Registration Rights Agreement between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 8.1 Letter Agreement between Columbus Nova Investments VIII Ltd. and Oliver R. Grace, Jr. Exhibit 8.2 Letter Agreement between Columbus Nova Investments VIII Ltd. and James J. Pinto. Exhibit 9 Power of Attorney dated as of the date hereof. Page 11 of 15 Pages SIGNATURES ---------- After reasonable inquiry and to the best of our knowledge and belief, we certify that the information in this statement is true, complete and correct. Dated: September 23, 2004 COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater -------------------------- Name: Andrew Intrater Title: Managing Partner VICTOR VEKSELBERG By: /s/ Victor Vekselberg -------------------------- Name: Victor Vekselberg Page 12 of 15 Pages Annex A Information Concerning the Directors and Executive Officers ----------------------------------------------------------- of Columbus Nova Investments VIII Ltd. -------------------------------------- Set forth below are the name, the present principal occupation or employment and citizenship of each director and executive officer of Columbus Nova Investments VIII Ltd. The current business address for each of the persons named below is P.O. Box N-7755, Nassau, Bahamas. - ----------------------- ----------------------- --------------------------- Name and Current Present Principal Citizenship Business Address Occupation or Employment - ----------------------- ----------------------- --------------------------- Marco Montanari Businessman Swiss - ----------------------- ----------------------- --------------------------- Shakira Burrows Secretary Bahamian - ----------------------- ----------------------- --------------------------- Olivier Chaponnier Businessman Swiss - ----------------------- ----------------------- --------------------------- Page 13 of 15 Pages EXHIBIT INDEX Exhibit 1 Joint Filing Agreement dated as of the date hereof between Columbus Nova Investments VIII Ltd. and Victor Vekselberg. Exhibit 2 Subscription Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 3 Form of Warrant Agreement between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 4.1 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moskovskaya Telecommunikatsionnaya Corporatsiya. Exhibit 4.2 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Oliver R. Grace, Jr. Exhibit 4.3 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Francis E. Baker. Exhibit 4.4 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Andrew O'Shea. Exhibit 4.5 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and James J. Pinto. Exhibit 4.6 Voting Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Thomas McPartland. Exhibit 5 Shareholders Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moskovskaya Telecommunikatsionnaya Corporatsiya. Exhibit 6 Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and each of Warren Mobley, Donald Miller-Jones, Charles Roberts and Dr. Ali Mohamed Ahmed. Page 14 of 15 Pages Exhibit 7 Form of Registration Rights Agreement between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 8.1 Letter Agreement between Columbus Nova Investments VIII Ltd. and Oliver R. Grace, Jr. Exhibit 8.2 Letter Agreement between Columbus Nova Investments VIII Ltd. and James J. Pinto. Exhibit 9 Power of Attorney dated as of the date hereof. Page 15 of 15 Pages EX-99 2 was5181ex99-1.txt EX. 1 JOINT FILING AGREEMENT JOINT FILING AGREEMENT ---------------------- In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of them of a statement on Schedule 13D (including amendment thereto) with respect to securities of Moscow CableCom Corp.; and further agree that this Joint Filing Agreement be included as an Exhibit to such joint filing. In witness whereof, the undersigned hereby execute this Agreement this 23rd day of September, 2004. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater -------------------------- Name: Andrew Intrater Title: Managing Partner VICTOR VEKSELBERG By: /s/ Victor Vekselberg -------------------------- Name: Victor Vekselberg EX-99 3 was5181ex99-2.txt EX. 2 SUBSCRIPTION AGREEMENT EXECUTION COPY SERIES B CONVERTIBLE PREFERRED STOCK SUBSCRIPTION AGREEMENT by and between MOSCOW CABLECOM CORP. and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated August 26, 2004 TABLE OF CONTENTS Section Page - ------- ---- ARTICLE I DEFINITIONS SECTION 1.01. Certain Defined Terms...........................................6 --------------------- SECTION 1.02. Other Definitions..............................................13 ----------------- ARTICLE II SALE AND PURCHASE SECTION 2.01. Sale of the New Securities.....................................15 -------------------------- SECTION 2.02. Purchase Price.................................................15 -------------- SECTION 2.03. Closing........................................................15 ------- SECTION 2.04. Closing Deliveries by the Company..............................15 --------------------------------- SECTION 2.05. Closing Deliveries by the Purchaser............................16 ----------------------------------- ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY SECTION 3.01. Organization, Authority and Qualification of the Company and ------------------------------------------------------------ the Company Subsidiaries.......................................17 ------------------------- SECTION 3.02. Capital Stock of the Company and Company Subsidiaries; Ownership ---------------------------------------------------------------- of the New Securities..........................................18 ---------------------- SECTION 3.03. No Conflict....................................................19 ----------- SECTION 3.04. Governmental Consents and Approvals............................19 ----------------------------------- SECTION 3.05. SEC Filings; Financial Statements; Nasdaq Listing..............19 ------------------------------------------------- SECTION 3.06. No Undisclosed Liabilities........................ ............21 -------------------------- SECTION 3.07. Absence of Certain Changes or Events...........................22 ------------------------------------ SECTION 3.08. Litigation.....................................................24 ---------- SECTION 3.09. Compliance with Laws...........................................24 -------------------- SECTION 3.10. Environmental Matters..........................................24 --------------------- SECTION 3.11. Material Contracts.............................................25 ------------------ SECTION 3.12. Intellectual Property; Company Systems.........................26 -------------------------------------- SECTION 3.13. Title to Properties; Absence of Encumbrances...................26 -------------------------------------------- SECTION 3.14. Employee Benefit Matters; Labor Matters........................27 --------------------------------------- SECTION 3.15. Insurance......................................................28 --------- SECTION 3.16. Taxes..........................................................29 ----- SECTION 3.17. MFON; HFC......................................................30 --------- SECTION 3.18. Products Liability.............................................31 ------------------ SECTION 3.19. Brokers........................................................31 ------- ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER SECTION 4.01. Organization and Authority of the Purchaser....................32 ------------------------------------------- SECTION 4.02. No Conflict....................................................32 ----------- SECTION 4.03. Governmental Consents and Approvals............................32 ----------------------------------- SECTION 4.04. Investment Purpose.............................................32 ------------------ SECTION 4.05. Financing......................................................33 --------- SECTION 4.06. Status of New Securities; Limitations on Transfer and Other ----------------------------------------------------------- Restrictions...................................................33 ------------ ARTICLE V ADDITIONAL AGREEMENTS SECTION 5.01. Conduct of Business by the Company Pending the Closing.........33 ------------------------------------------------------ SECTION 5.02. Access to Information..........................................34 --------------------- SECTION 5.03. Public Announcements...........................................35 -------------------- SECTION 5.04. Company's Action...............................................35 ---------------- SECTION 5.05. Use of Proceeds................................................36 --------------- SECTION 5.06. Certain Costs and Expenses.....................................36 -------------------------- SECTION 5.07. No Shop........................................................36 ------- SECTION 5.08. Other Registration Rights......................................38 ------------------------- SECTION 5.09. Takeover Statutes..............................................38 ----------------- SECTION 5.10. Termination of Voting Agreement................................38 ------------------------------- SECTION 5.11. Further Action; Consents; Filings..............................38 --------------------------------- SECTION 5.12. Agreements with Warren Mobley, Donald Miller-Jones, Charles ----------------------------------------------------------- Roberts and Dr. Ali Mohamed Ahmed..............................38 --------------------------------- SECTION 5.13. Reporting Status; Nasdaq Listing...............................39 -------------------------------- SECTION 5.14. Corporate Governance...........................................40 -------------------- SECTION 5.15. COMCOR-TV Corporate Governance.................................40 ------------------------------ SECTION 5.16. New Strategic Services Agreement...............................41 -------------------------------- SECTION 5.17. Relocation.....................................................41 ---------- ARTICLE VI CONDITIONS SECTION 6.01. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Transactions...................................................41 ------------ SECTION 6.02. Conditions to the Obligations of the Company to Effect the ---------------------------------------------------------- Transactions...................................................42 ------------ SECTION 6.03. Conditions to the Purchaser's Obligations to Effect the ------------------------------------------------------- Transactions...................................................42 ------------ ARTICLE VII INDEMNIFICATION SECTION 7.01. Survival of Representations and Warranties.....................43 ------------------------------------------ 3 SECTION 7.02. Indemnification................................................44 --------------- SECTION 7.03. Limits on Indemnification......................................45 ------------------------- ARTICLE VIII TERMINATION SECTION 8.01. Termination....................................................46 ----------- SECTION 8.02. Effect of Termination..........................................46 --------------------- ARTICLE IX GENERAL PROVISIONS SECTION 9.01. Amendment and Waiver...........................................47 -------------------- SECTION 9.02. Expenses.......................................................47 -------- SECTION 9.03. Notices........................................................47 ------- SECTION 9.04. Headings.......................................................48 -------- SECTION 9.05. Severability...................................................48 ------------ SECTION 9.06. Entire Agreement...............................................49 ---------------- SECTION 9.07. Assignment.....................................................49 ---------- SECTION 9.08. No Third Party Beneficiaries...................................49 ---------------------------- SECTION 9.09. Governing Law..................................................49 ------------- SECTION 9.10. Counterparts...................................................50 ------------ SECTION 9.11. Specific Performance...........................................50 -------------------- SECTION 9.12. Interpretation.................................................50 -------------- SECTION 9.13. Construction...................................................50 ------------ ATTACHMENTS AND EXHIBITS Attachment I Form of Certificate of Amendment to the Certificate of Incorporation of Moscow CableCom Corp. Attachment II Form of Amended and Restated By-laws of Moscow CableCom Corp. Exhibit A Form of Warrant Agreement Exhibit B Form of Registration Rights Agreement Exhibit C Pro Forma Capitalization Table Exhibit D-1 Form of Warren Mobley Employment Agreement Exhibit D-2 Form of Donald Miller-Jones Employment Agreement Exhibit E-1 Form of Charles Roberts Consulting Agreement 4 Exhibit E-2 Form of Dr. Ali Mohamed Ahmed Consulting Agreement Exhibit F Copy of the Strategic Services Agreement Exhibit G Matters to be Opined on in Legal Opinion from the Company's US Counsel Exhibit H Matters to be Opined on in Legal Opinion from the Company's Russian Counsel 5 SERIES B CONVERTIBLE PREFERRED STOCK SUBSCRIPTION AGREEMENT, dated August 26, 2004, by and between Moscow CableCom Corp., a Delaware corporation (the "Company"), and Columbus Nova Investments VIII Ltd., a Bahamas company (the "Purchaser"). W I T N E S S E T H: WHEREAS, for purposes of raising financing for the build-out of the COMCOR-TV franchise, the Company wishes to issue and sell to the Purchaser, and the Purchaser wishes to purchase from the Company, 4,500,000 shares of Series B Convertible Preferred Stock, par value $.01 per share of the Company (the "Series B Preferred Stock"), having the designations, rights and preferences set forth in the Certificate of Amendment (as defined herein), upon the terms and subject to the conditions set forth herein. All the shares of the Series B Preferred Stock purchased pursuant to this Agreement are referred to as the "New Securities"; and WHEREAS, at the Closing (as defined herein) the Company and the Purchaser will enter into a Warrant Agreement, substantially in the form attached to this Agreement as Exhibit A (the "Warrant Agreement"), pursuant to which the Purchaser will acquire warrants that will be initially exercisable for 8,283,000 shares of Series B Preferred Stock (the "Warrants"); NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants hereinafter set forth, the parties hereto agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Certain Defined Terms. As used in this Agreement, the --------------------- following terms shall have the following meanings: "Action" means any claim, action, suit, arbitration, inquiry, ------ proceeding or investigation by or before any Governmental Authority. "Affiliate" means, with respect to any Person, any officer or director --------- of such Person, or any other Person directly or indirectly controlling, controlled by or under common control with such Person. For purposes of this definition, "control" means the power to direct the management and policies of such person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agreement" or "this Agreement" means this Series B Convertible --------- -------------- Preferred Stock Subscription Agreement, dated August 26, 2004, between the Company and the Purchaser (including the Attachments and the Exhibits hereto and the Disclosure Schedule) and all amendments hereto made in accordance with the provisions of Section 9.01. 6 "Amended and Restated By-laws" means the Amended and Restated By-laws ---------------------------- of the Company in the form of Attachment II attached hereto. "Beneficial Owner" (including the terms "beneficially own" or ---------------- ---------------- "beneficial ownership") has the meaning given to such terms in Rule 13d-3 of the -------------------- Exchange Act. "Benefit Plan" means each of the Company's and Company Subsidiaries' ------------ plan, program, policy, payroll practice, contract, agreement or other arrangement providing for compensation, retirement benefits, severance, termination pay, performance awards, stock or stock-related awards, fringe benefits or other employee benefits of any kind, whether formal or informal, funded or unfunded, written or oral and whether or not legally binding, including, without limitation, each "employee benefit plan", within the meaning of Section 3(3) of ERISA and each "multi-employer plan" within the meaning of Section 3(37) of 4001(a)(3) of ERISA. "Board" means the Board of Directors of the Company. ----- "Bridge Facility" means the $4,000,000 Working Capital Bridge Facility --------------- Agreement dated as of the date hereof by and among the Company, COMCOR-TV, the Lender and the other parties referred to therein. "Business Combination Statute" means Section 203 of the Delaware ---------------------------- General Corporation Law or any other Law prohibiting, restricting, or imposing conditions with respect to, business combinations or limiting voting powers or other rights, or imposing any obligations, on any party to a business combination. "Business Day" means any day that is not a Saturday, a Sunday or other ------------ day on which banks are required or authorized by law to be closed in New York City, New York, Hartford, Connecticut, or Moscow, the Russian Federation. "By-laws" means the by-laws of the Company as may be amended from time ------- to time, provided that such amendment does not adversely affect the rights of the Purchaser under this Agreement, the Warrant Agreement, the Registration Rights Agreement or the Certificate of Amendment. "CERCLA" means the U.S. Comprehensive Environmental Response, ------ Compensation and Liability Act of 1980, as amended as of the date hereof. "Certificate of Amendment" means the Certificate of Amendment of the ------------------------ Certificate of Incorporation of the Company providing for the authorization of additional Common Stock and setting forth the designations, rights and preferences of the Series B Preferred Stock, to be filed with the Secretary of State of the State of Delaware, in the form of Attachment I attached hereto. "Certificate of Incorporation" means the amended and restated ---------------------------- certificate of incorporation of the Company, as shall be amended by the Certificate of Amendment on the Closing Date and as may be amended from time to time, provided that such amendment does not adversely affect the rights of the Purchaser under this Agreement, the Warrant Agreement, the Registration Rights Agreement or the Certificate of Amendment. 7 "Code" means the United States Internal Revenue Code of 1986, as ---- amended through the date of this Agreement. "COMCOR" means Moskovskaya Telecommunikatsionnaya Corporatsiya, an ------ open joint stock company organized under the laws of the Russian Federation. "COMCOR Director" means a Person nominated by COMCOR to be a director --------------- on the Board. "COMCOR-TV" means ZAO COMCOR TV, a closed joint stock company --------- organized under the laws of the Russian Federation. "Common Stock" means the Common Stock, par value $.01 per share, of ------------ the Company, as constituted on the date hereof, any shares of the Company's capital stock into which such Common Stock shall be changed, and any shares of the Company's capital stock resulting from any reclassification of such Common Stock or any recapitalization of the Company. "Company Subsidiary" or "Company Subsidiaries" means any Subsidiary or ------------------ -------------------- all of the Subsidiaries of the Company, respectively. "Company Systems" means all computers, hardware, software, systems --------------- (including, without limitation, the Company's subscriber management system), facilities and equipment (including, without limitation, cable, wireline, wireless, microwave, satellite and any other telecommunications equipment and facilities, and embedded microcontrollers in noncomputer equipment) owned, leased or licensed by the Company or any Company Subsidiary and material to, or necessary for, the Company or any Company Subsidiary to carry on its business as currently conducted or intended to be conducted. "Control" (including the terms "controlled by" and "under common ------- ------------- ------------ control with"), with respect to the relationship between or among two or more - ------------ Persons, means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise, including, without limitation, the ownership, directly or indirectly, of securities having the power to elect a majority of the board of directors or similar body governing the affairs of such Person. "Conversion Offering" means the offering of stock after the date ------------------- hereof in mutual savings banks or equivalent financial institutions upon de-mutualization of the same in which the Company or a Company Subsidiary has an account as at the date hereof. "Conversion Offering Stock" means the stock subscribed by the Company ------------------------- or a Company Subsidiary in a mutual savings bank or equivalent financial institution upon the de-mutualization of the same to the extent such stock was subscribed prior to the date hereof. "Conversion Shares" means new shares of Common Stock issuable upon ----------------- conversion of the shares of Senior B Preferred Stock and exercise of the Warrants. 8 "Convertible Debentures" means the 10 1/2% Convertible Subordinated ---------------------- Debentures due 2007 of the Company. "Core Business Assets" means assets that are used in a business that -------------------- operates directly or indirectly, or holds a License to operate (i) a cable system or service, (ii) a fixed-line telephone or telecommunications system or service, (iii) a broadcasting transmission system or service, (iv) fiber optic network, (v) broadband services, (vi) cable television, (vii) high speed internet or (viii) IP-based telephony. "Diluted Shares" means, as of any applicable time, shares of Common -------------- Stock issued and outstanding as of such time plus shares of Common Stock issuable upon conversion, redemption, exchange, exercise of or as a dividend declared as of the time of measurement with respect to, any shares of preferred stock, options, warrants, debentures and other securities or any subscription rights. "Director" means a member of the Board. -------- "Disclosure Schedule" means the Disclosure Schedule delivered by the ------------------- Company in connection with this Agreement dated as of the date hereof and incorporated herein by reference. "Employee Agreement" means each management, employment, severance, ------------------ consulting, non-compete, confidentiality or similar agreement or contract between the Company or any ERISA Affiliate and any Employee pursuant to which the Company has or may have any material liability contingent or otherwise. "Encumbrance" means any security interest, pledge, mortgage, lien ----------- (including, without limitation, environmental and tax liens), charge, encumbrance, adverse claim, preferential arrangement or restriction of any kind, including, without limitation, any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership, but excluding Permitted Encumbrances. "Environmental Law" means any Law and any judicial or administrative ----------------- interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, Release or discharge of Hazardous Materials. "Environmental Permits" means any permit, approval, identification --------------------- number, License and other authorization required under any applicable Environmental Law. "ERISA" means Employee Retirement Income Security Act of 1974, as ----- amended. "ERISA Affiliate" means each business or entity which is or was a --------------- member of a "controlled group of corporations", under "common control" or an "affiliated service group" with the Company within the meaning of Section 414(b), (c) or (m) of the Code, or required to be aggregated with the Company under Section 414(o) of the Code or is under "common control" with the Company, within the meaning of Section 4001(a)(14) of ERISA. 9 "Exchange Act" means the Securities Exchange Act of 1934, as amended, ------------ or any successor statute thereto, and the rules and regulations of the SEC promulgated from time to time thereunder, all as the same shall be in effect at the time. "Existing Agreements" means the following registration rights ------------------- agreements: the Amended and Restated Registration Rights Agreement, dated as of July 1, 2002, as amended July 14, 2003, among the Company and the former stockholders of ABC Moscow Broadband Communication Limited, a limited liability company organized under the laws of Cyprus, whose names are set forth in the signature page to such agreement, and the Registration Rights Agreement, dated as of February 23, 2004, between the Company and COMCOR. "Governmental Authority" means any United States, Russian or other ---------------------- foreign federal, state, provincial, local, supranational government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body. "Governmental Order" means any order, writ, judgment, injunction, ------------------ decree, stipulation, determination or award entered by or with any Governmental Authority. "Hazardous Materials" means (i) any petroleum, petroleum products, ------------------- by-products or breakdown products, radioactive materials, asbestos-containing materials or polychlorinated biphenyls or (ii) any chemical, material or substance defined or regulated as toxic or hazardous or as a pollutant or contaminant or waste under any applicable Environmental Law. "Indebtedness" means any indebtedness, obligation and other liability ------------ of a Person (whether absolute, accrued, contingent, fixed or otherwise, or whether due or to become due), including without limitation all obligations of such Person (a) for borrowed money, (b) evidenced by bonds, notes, debentures or other similar instruments or by letters of credit, including purchase money obligations or other obligations relating to the deferred purchase price of property, goods or services (other than trade payables incurred in the ordinary course of business), (c) as lessee under leases which have been or should have been, in accordance with US GAAP, recorded as capital leases, (d) under direct or indirect guarantees in respect of Liabilities of others, including indebtedness of others secured by an Encumbrance on any asset of such Person, whether or not such indebtedness is assumed by such Person, (e) in respect of outstanding or unpaid checks or drafts or overdraft obligations, (f) for Taxes or (g) accrued interest, if any, on and all other amounts owed in respect of any of the foregoing. "Knowledge of the Company" means, with respect to any matter in ------------------------ question, the knowledge of the following officers and directors of the Company and the Company Subsidiaries: Francis E. Baker, Oliver Grace, Jr., Louise A. Lubrano, Thomas McPartland, James J. Pinto, Vladimir Serdyuk, Valentin Lazutkin, Sergey Mitrikov, Alexander Valdislavlev, Andrew O'Shea, Michael V. Silin, Vitaly Spassky and Valentina P. Gurina. "Law" means any supranational, United States, Russian or foreign --- federal, national, state, regional or local statute, law, ordinance, regulation, rule, code, order, other requirement or rule of law. "Lender" means Amatola Enterprises Limited, a Cypriot company. ------ 10 "Liabilities" means any and all debts, liabilities and obligations, ----------- whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable, including, without limitation, those arising under any Law, Action or Governmental Order and those arising under any contract, agreement, arrangement, commitment or undertaking. "License" means any license(s), permit(s) or other authorization(s) ------- necessary for a Person to lawfully own and operate its business, assets and properties or enter into and perform the Person's obligations under this Agreement; provided, that, Licenses of the Company and each Company Subsidiary shall include, without limitation, (i) Licenses for delivery of cable TV broadcasting services, telematic services and data transmission services, (ii) Licenses for construction engineering and construction services, (iii) Licenses for access to MFON and (iv) all other Licenses with the City of Moscow or any other Governmental Authority. "Material Adverse Effect" means (i) any circumstance, development, ----------------------- change in, or effect on the Company, any Company Subsidiary or their businesses that, individually or in the aggregate with any other circumstances, developments, changes in, or effects on, the Company, any Company Subsidiary or their businesses is, or is reasonably expected to be, materially adverse to the business of the Company and the Company Subsidiaries, taken as a whole, or the financial condition, results of operations, assets or properties of the Company and the Company Subsidiaries, taken as a whole, and (ii) any material adverse change or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Company and the Company Subsidiaries, taken as a whole. "MFON" means the Moscow Fiber Optic Network of COMCOR. ---- "Nasdaq" means the Nasdaq Stock Market, Inc., the electronic ------ securities market regulated by the National Association of Securities Dealers, Inc. "Nasdaq National Market" has the meaning set forth in Rule 4200(a)(23) ---------------------- of the rules of the National Association of Securities Dealers, Inc. "Occurrence" means any accident, happening or event which occurs or ---------- has occurred at any time prior to the Closing Date that is caused or allegedly caused by any hazard or defect in manufacture, assembly, design, materials or workmanship including, without limitation, any failure or alleged failure to warn or any breach or alleged breach of express or implied warranties or representations with respect to a product designed, manufactured, assembled, shipped, sold or delivered by or on behalf of the Company or any Company Subsidiary that results or is alleged to have resulted in injury or death to any Person or damage to or destruction of property (including damage to or destruction of the product itself) or other consequential damages, at any time. "Permitted Encumbrances" means such of the following as to which no ---------------------- enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced or is reasonably expected to commence: (a) liens for taxes, assessments and governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, provided that any reserve or other 11 appropriate provision as shall be required in conformity with US GAAP shall have been made therefor; (b) Encumbrances imposed by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's liens and other similar liens arising in the ordinary course of business; (c) pledges or deposits to secure obligations under workers' compensation laws or similar legislation or to secure public or statutory obligations or other obligations of a like nature incurred in the ordinary course of business; (d) minor survey exceptions, reciprocal easement agreements and other customary encumbrances on title to real property that (i) were not incurred in connection with any indebtedness, (ii) do not render title to the property encumbered thereby unmarketable and (iii) do not, individually or in the aggregate, materially adversely affect the value or use of such property for its current and anticipated purposes; (e) Encumbrances permitted under any financing of the Company in place as of the date hereof; (f) purchase money security interests in supplier equipment, (g) Encumbrances under the (i) the Term Loan Facility and (ii) the Bridge Facility and (h) Encumbrances in connection with Conversion Offering Stock, subject to the limitations set forth in Section 5.1 hereof. "Person" means any individual, partnership, association, joint ------ venture, corporation, business, trust, joint stock company, limited liability company, any unincorporated organization, any other entity, a "group" of such persons, as that term is defined in Rule 13d-5(b) under the Exchange Act, or a government or political subdivision thereof. "Purchaser Directors" means Warren Mobley, David Van Volkenburg, Ivan ------------------- Isakov, Andrew Intrater, and two additional Persons nominated by the Purchaser to be directors on the Board with one such additional Person being an Independent director. "RAS" means accounting principles generally accepted in the Russian --- Federation and applied consistently throughout the periods involved. "Registration Rights Agreement" means the Registration Rights ----------------------------- Agreement between the Company and the Purchaser, substantially in the form attached to this Agreement as Exhibit B. "Release" means disposing, discharging, injecting, spilling, leaking, ------- leaching, dumping, emitting, escaping, emptying, seeping, placing and the like into or upon any land or water or air or otherwise entering into the environment. "SEC" means the United States Securities and Exchange Commission. --- "Securities Act" means the Securities Act of 1933, as amended, or any -------------- successor statute thereto, and the rules and regulations of the SEC promulgated from time to time thereunder, all as the same shall be in effect at the time. "Senior Preferred Stock" means the Series A Preferred Stock and the ---------------------- Series B Preferred Stock. "Series A Preferred Stock" means the Series A Cumulative Convertible ------------------------ Preferred Stock, par value $.01 per share, of the Company. 12 "Strategic Services Agreement" means the Strategic Services Agreement ---------------------------- on the provision of telecommunication services between COMOCOR and COMCOR-TV, dated April 24, 2000, as amended. "Subsidiaries" of any Person means any corporation, partnership, joint ------------ venture, limited liability company, trust, estate or other Person of which (or in which), directly or indirectly, more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture or limited liability company or other Person or (c) the beneficial interest in such trust or estate is at the time owned by such first Person, or by such first Person and one or more of its other Subsidiaries or by one or more of such Person's other Subsidiaries. "Tax" or "Taxes" means any federal, state, county, local, foreign and --- ----- other taxes (including, without limitation, income, profits, premium, estimated, excise, sales, use, occupancy, gross receipts, franchise, ad valorem, severance, capital levy, production, transfer, withholding, employment, unemployment compensation, payroll and property taxes, import duties and other governmental charges and assessments), whether or not measured in whole or in part by net income, and including deficiencies, interest, additions to tax or interest, and penalties with respect thereto, whether disputed or not, imposed by any Governmental Authority or other Tax authority or arising under any Tax law or agreement, including, without limitation, any joint venture or partnership agreement. "Tax Claim" means any claim arising out of or otherwise in respect of --------- any inaccuracy in or any breach of any representation, warranty, covenant or agreement of the Company contained in this Agreement relating to Taxes. "Tax Return" means any return, declaration, report, claim for refund, ---------- form, or information or return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendments thereof. "Term Loan Facility" means the $28,500,000 Term Loan Facility dated as ------------------ of the date hereof among the Company, COMCOR-TV, the Lender and the other parties referred to therein. "Transactions" means the transactions contemplated by this Agreement. ------------ "US GAAP" means United States generally accepted accounting principles ------- and practices as in effect from time to time and applied consistently throughout the periods involved. SECTION 1.02. Other Definitions. The meanings of the following terms ----------------- can be found in the Sections of this Agreement indicated below: Term Section ---- ------- Audited Financial Statements........................ 3.05(d) 13 Bankruptcy Proceeding............................... 3.07(b) Blackout Period..................................... 5.01(d) CCTV Licenses....................................... 6.03(c) COMCOR-TV Board..................................... 5.15(a) COMCOR-TV Shareholder Meeting....................... 5.15(a) Closing............................................. 2.03 Closing Date........................................ 2.03 COMCOR-TV Board..................................... 5.15(a) Company............................................. Preamble Company Balance Sheet............................... 3.05(d) Company Loss........................................ 7.02(b) Company Permits..................................... 3.09(b) Consulting Agreements............................... 5.12(b) Employee............................................ 3.14(d) Employment Agreements............................... 5.12(a)(i) Exchange Act Reports................................ 3.05(a) General Director.................................... 5.15 Improvements........................................ 3.13(d) Indemnified Party................................... 7.02(c) Indemnifying Party.................................. 7.02(c) Intellectual Property............................... 3.12(a) Interim Financial Statements........................ 3.05(d) IRS................................................. 3.14(b) Lease............................................... 3.13(c) Leased Real Property................................ 3.13(a) Loss................................................ 7.02(b) Material Contracts.................................. 3.11(a) New COMCOR-TV Board................................. 5.15(a) New MFON Agreement.................................. 5.16 New Securities...................................... Recitals Notice of Superior Proposal......................... 5.07(c) Options Grant....................................... 5.12(c) Owned Real Property................................. 3.13(a) Proxy Statement..................................... 5.04(a) Purchase Price...................................... 2.02 Purchaser........................................... Preamble Purchaser Loss...................................... 7.02(a) Real Property....................................... 3.13(a) Representatives..................................... 5.02(a) Russian Antimonopoly Authority...................... 3.04 Sarbanes-Oxley Act.................................. 3.05(a) Series B Preferred Stock............................ Recitals Services............................................ 3.17(a) Stockholders Meeting................................ 5.04(a) Superior Proposal................................... 5.07(d) Termination Fee..................................... 8.02(c) 14 Third Party Acquisition............................. 5.07(a) Third Party Claims.................................. 7.02(c) Voting Agreement.................................... 5.10 Warrant Agreement................................... Recitals Warrants............................................ Recitals ARTICLE II SALE AND PURCHASE SECTION 2.01. Sale of the New Securities. Upon the terms and subject -------------------------- to the conditions set forth in this Agreement, the Company shall duly issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, the New Securities. SECTION 2.02. Purchase Price. The purchase price to be paid by the -------------- Purchaser to the Company for the New Securities shall be $22,500,000 in cash (the "Purchase Price"). -------------- SECTION 2.03. Closing. The New Securities to be purchased by the ------- Purchaser will be represented by one or more stock certificates evidencing shares of Series B Preferred Stock. The Company will deliver the certificates evidencing the New Securities to the Purchaser against payment of the Purchase Price as hereinafter provided. The delivery of and payment for the New Securities contemplated by this Agreement shall take place at a closing (the "Closing") to be held at the offices of Skadden, Arps, Slate, Meagher & Flom (UK) LLP at 40 Bank Street, Canary Wharf, E14 5DS, at a time and on a date (the "Closing Date") to be specified by the parties, which shall be not less than one nor more than five (5) Business Days after satisfaction (or waiver) of the latest to occur of the conditions set forth in Article VI hereof, unless another time, date or place is agreed to in writing by the parties hereto. SECTION 2.04. Closing Deliveries by the Company. At the Closing, the --------------------------------- Company shall deliver or cause to be delivered to the Purchaser: (a) newly issued certificate(s) for 4,500,000 shares of the Series B Preferred Stock, issued to and registered in the name of the Purchaser and evidencing the Series B Preferred Stock being purchased hereunder; (b) a receipt for the Purchase Price; (c) a true and complete copy, certified by the Secretary of the Company, of the resolutions duly and validly adopted by the Board evidencing (i) its authorization of the execution and delivery of this Agreement and the consummation of the Transactions (including the entering into the Warrant Agreement and the Registration Rights Agreement) and the filing of the Certificate of Amendment with the Secretary of State of the State of Delaware and the issuance of the New Securities, and (ii) the Amended and Restated By-laws; (d) a copy of (i) the Certificate of Incorporation, certified by the Secretary of State of the State of Delaware, as of a date not earlier than five Business Days prior to the Closing Date and accompanied by a certificate of the 15 Secretary or Assistant Secretary or other authorized officer of the Company, dated as of the Closing Date, stating that no amendments, other than the filing of the Certificate of Amendment, have been made to such Certificate of Incorporation since such date, and (ii) the By-laws, certified by the Secretary or Assistant Secretary of the Company; (e) a good standing certificate for the Company from the Secretary of State of the State of Delaware dated as of a date not earlier than five Business Days prior to the Closing Date; (f) a duly executed Warrant Agreement and a duly executed Warrant Certificate (as such term is defined in the Warrant Agreement), representing the Warrants and issued to the Purchaser; (g) a duly executed Registration Rights Agreement; (h) evidence of the termination of the Voting Agreement satisfactory to the Purchaser; (i) executed Employment Agreements and Consulting Agreements; (j) a duly executed amendment to the 2003 Stock Option Plan of the Company with respect to the Options Grant and evidence, satisfactory to the Purchaser, that the Options Grant has been made; (k) duly executed Stock Option Agreements between the Company and Warren Mobley, Donald Miller-Jones, Charles Roberts and Dr. Ali Ahmed Mohamed; (l) a legal opinion from the Company's U.S. counsel with respect to such matters as set forth in Exhibit G attached to this Agreement; (m) a legal opinion from the Company's Russian counsel with respect to such matters as set forth in Exhibit H attached to this Agreement; (n) duly executed resignations of Louis Lubrano, Thomas McPartland, Sergey Mitrikov, Alexander Vladislavlev and Francis E. Baker from the Board; and (o) an officer's certificate of the Chief Executive Officer and Chief Financial Officer of the Company certifying the satisfaction of the conditions set forth in Sections 6.03(a) and (e) hereof. SECTION 2.05. Closing Deliveries by the Purchaser. At the Closing, the ----------------------------------- Purchaser shall deliver to the Company the items specified below: (a) a receipt acknowledging delivery by the Company of the stock certificates specified in Section 2.04(a); (b) a duly executed Warrant Agreement; 16 (c) a duly executed Registration Rights Agreement; and (d) an officer's certificate of the Chief Executive Officer and Chief Financial Officer of the Purchaser certifying the satisfaction of the condition set forth in Section 6.02(a) hereof. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY As an inducement to the Purchaser to enter into this Agreement, the Company hereby represents, warrants and covenants to the Purchaser that the representations and warranties contained in this Article III are true, complete and correct as of the date of this Agreement and will be true, complete and correct as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article III). SECTION 3.01. Organization, Authority and Qualification of the Company -------------------------------------------------------- and the Company Subsidiaries. The Company and each Company Subsidiary is a - ---------------------------- corporation duly incorporated or organized, validly existing as a legal entity properly incorporated, organized, registered and existing, and in good standing (in jurisdictions recognizing the concept) under the laws of the jurisdiction of its incorporation, and the Company has all necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the Transactions (including entering into the Warrant Agreement and Registration Rights Agreement). The Company and each Company Subsidiary is duly qualified to do business (and is in good standing in each jurisdiction that recognizes the concept) in which (x) it owns or leases properties or conducts any business or (y) such qualification is necessary, except where the failure to be so qualified or in good standing (with respect to jurisdictions recognizing the concept) in any such jurisdiction does not or would not subject the Company or the Company Subsidiary, as the case may be, to any material liability or disability. The execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder and the consummation by the Company of the Transactions (including entering into the Warrant Agreement and Registration Rights Agreement) have been duly authorized by all requisite action on the part of the Company (other than, with respect to the approval of this Agreement and the Transactions, by the requisite action of the holders of voting securities of the Company in accordance with Delaware General Corporation Law, the Certificate of Incorporation, the By-laws and Nasdaq listing requirements). This Agreement has been duly executed and delivered by the Company, and (assuming due authorization, execution and delivery by the Purchaser) this Agreement constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that (A) such enforcement may be subject to (i) any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar law now or hereafter in effect relating to creditors' rights generally, (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (B) rights to indemnification and contribution may be limited by public policy. Neither the Company nor any Company Subsidiary is in violation of any of the provisions of their respective certificate of incorporation, by-laws or equivalent organizational documents. 17 SECTION 3.02. Capital Stock of the Company and Company Subsidiaries; ------------------------------------------------------ Ownership of the New Securities. - -------------------------------- (a) As of the date hereof, the authorized capital stock of the Company consists of (x) 15,000,000 shares of Common Stock, of which (i) 8,575,962 shares are outstanding, (ii) 456,949 shares of Common Stock are reserved for issuance on conversion of the Series A Preferred Stock, (iii) 102,040 shares of Common Stock are reserved for issuance on conversion of the Convertible Debentures, (iv) 151,000 shares are reserved for issuance upon the exercise of stock options in the amounts and at the exercise prices set forth in Section 3.02(a)(iv) of the Disclosure Schedule and (v) 220,879 shares of Common Stock are reserved for issuance to COMCOR pursuant to the Stock Subscription Agreement dated May 28, 2003, effective April 1, 2003, as amended, between COMCOR and the Company; and (y) 800,000 shares of Series A Preferred Stock, of which 150,229 shares are issued and outstanding and designated as Series A Preferred Stock. All of the outstanding shares of the Company's capital stock are duly and validly issued, fully paid and nonassessable. None of the issued and outstanding shares of capital stock of the Company was issued in violation of any preemptive rights. As of the date hereof, except as described above or as set forth in Section 3.02(a) of the Disclosure Schedule, there are no options, warrants, subscriptions, calls, convertible securities or debentures or other rights, agreements, arrangements or commitments relating to the capital stock of the Company or obligating the Company to issue or sell any shares of capital stock of, or any other equity interest in, the Company. There are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or make any investment (in the form of a loan, capital contribution or otherwise) in any other Person. (b) The New Securities and the Warrants have been duly and validly authorized by the Board and, upon consummation of the Closing, as contemplated hereby the New Securities and the Warrants purchased by the Purchaser (i) will be duly and validly issued, fully paid, nonassessable, and free from all Taxes and Encumbrances, (ii) will be issued in compliance with United States federal securities Laws and the securities Laws of other applicable jurisdictions and (iii) the issuance of the New Securities and the Warrants will not be subject to preemptive or other similar rights. The Conversion Shares, if and when issued, (i) will be duly and validly issued, fully paid, nonassessable, and free from all Taxes and Encumbrances, (ii) will be issued in compliance with United States federal securities Laws and the securities Laws of other applicable jurisdictions and (iii) the issuance of the Conversion Shares will not be subject to preemptive or other similar rights. (c) Exhibit C hereto contains a true and complete copy of the pro forma capitalization table as of the date hereof (the "Pro Forma Capitalization ------------------------ Table") of the Company, giving effect to consummation of the Transactions, - ----- including the entering into the Warrant Agreement. Section 3.02(c) of the Disclosure Schedule sets forth all of the securities or instruments issued by the Company that contain anti-dilution or similar provisions that will be triggered by, and all of the resulting adjustments that will be made, to such securities and instruments as a result of the issuance of the New Securities and Warrants to the Purchaser. (d) Section 3.02(d) of the Disclosure Schedule sets forth (i) the name and jurisdiction of incorporation of each Company Subsidiary, (ii) each Company Subsidiary's authorized capital stock and the number of issued and 18 outstanding shares of its capital stock and (iii) the record owner(s) of such shares. All of the outstanding shares of capital stock of each Company Subsidiary that is a corporation are duly and validly issued, fully paid and nonassessable. All of the outstanding shares of capital stock of, or other ownership interest in, each Company Subsidiary are owned, directly or indirectly, by the Company free and clear of any Encumbrances. Except as set forth in Section 3.02(d) of the Disclosure Schedule, no Company Subsidiary has outstanding options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments obligating the Company Subsidiary to issue, transfer or sell any securities of any Company Subsidiary. (e) Except for the Existing Agreements and the registration rights granted in the Stock Option Agreements, the Company has not granted and has not agreed to grant any demand or incidental registration rights to any Person other than rights to be granted to the Purchaser pursuant to the Registration Rights Agreement. SECTION 3.03. No Conflict. Assuming the making and obtaining of all ----------- filings, notifications, consents, approvals, authorizations and other actions referred to in Section 3.04, the execution, delivery and performance of this Agreement by the Company do not and will not (a) violate, conflict with or result in the breach of any provision of the certificate of incorporation or by-laws (or similar organizational documents) of the Company or any Company Subsidiary, (b) to the knowledge of the Company, conflict with or violate any Law or Governmental Order applicable to the Company, any Company Subsidiary or any of their respective assets, properties or businesses, (c) to the knowledge of the Company, violate, conflict with or result in the breach of any provision of any Company Permit, or (d) except as set forth in Section 3.03 of the Disclosure Schedule, conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any Encumbrance on any of the assets or properties of the Company or any Company Subsidiary pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, License, franchise or other instrument, obligation or arrangement to which the Company or any Company Subsidiary is a party or by which any of its assets or properties is bound or affected. SECTION 3.04. Governmental Consents and Approvals. The execution, ----------------------------------- delivery and performance of this Agreement, or the consummation of the Transactions, by the Company do not and will not require any consent, approval, authorization or other order of, action by, filing with or notification to any Governmental Authority, except (i) for the applicable requirements of the Exchange Act (for filing with the SEC of (a) the Proxy Statement and (b) such reports under the Exchange Act as may be required in connection with this Agreement and the Transactions), the Securities Act (in connection with the filing of a Form D with the SEC and the Registration Rights Agreement), state securities or "blue sky" laws, (ii) for filing of a supplemental listing application with Nasdaq, (iii) the filing of the Certificate of Amendment with the Secretary of State of the State of Delaware, and (iv) the approval of the Federal Antimonopoly Service of the Russian Federation ("Russian Antimonopoly Authority"). SECTION 3.05. SEC Filings; Financial Statements; Nasdaq Listing. ------------------------------------------------- (a) The Annual Report on Form 10-K of the Company for the fiscal year ended February 29, 2004 has been made available to the Purchaser in connection with the offering of the New Securities. All documents of the Company filed with the 19 SEC pursuant to the Exchange Act are referred to herein as the "Exchange Act Reports". The Exchange Act Reports, when they were filed with the SEC, complied in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the SEC thereunder. The Exchange Act Reports did not, as of their respective dates, contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has timely filed all reports and registration statements and made all filings required to be made with the SEC under the Exchange Act, the Securities Act or the applicable rules and regulations of the SEC thereunder, all of which complied when filed in all material respects with all applicable requirements of the Securities Act and/or the Sarbanes-Oxley Act of 2002 (with respect to the provisions of such act required to be complied with at the time such forms, reports and/or documents were required to be filed) and the rules and regulations promulgated thereunder (the "Sarbanes-Oxley Act") and the statements contained in or accompanying the Company Annual Report on Form 10-K and Quarterly Reports on Forms 10-Qs in accordance with Sections 302 and 906 of the Sarbanes-Oxley Act are true and correct. (b) Without limiting the generality of Section 3.05(a), (i) ZAO PricewaterhouseCoopers Audit has not resigned, or, to the knowledge of the Company, threatened to resign or been dismissed as independent public accountant of the Company as a result of or in connection with any disagreement with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, (ii) no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley Act with respect to any form, report or schedule filed by the Company with the SEC since the enactment of the Sarbanes-Oxley Act and (iii) no enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Company SEC Report. (c) The Company has in place the "disclosure controls and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) required in order for the Chief Executive Officer and Chief Financial Officer of the Company to engage in the review and evaluation process mandated by the Exchange Act. The Company's "disclosure controls and procedures" are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company's management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports. (d) The audited consolidated balance sheets of the Company and its subsidiaries for the fiscal years ended as of February 29, 2004, February 28, 2003 and February 28, 2002 and the related audited consolidated statements of income, retained earnings, stockholders' equity and cash flow of the Company and the Company Subsidiaries together with all related notes and schedules thereto (the "Audited Financial Statements"), the unaudited consolidated balance sheet ---------------------------- of the Company and its subsidiaries as of May 31, 2004, and the related unaudited consolidated statements of income, retained earnings, stockholders' 20 equity and cash flow of the Company and its subsidiaries together with all related notes and schedules thereto (the "Interim Financial Statements"), all of ---------------------------- which Audited Financial Statements and Interim Financial Statements are contained in the respective Exchange Act Reports, (i) were prepared in accordance with the books of account and other financial records of the Company and its subsidiaries, (ii) present fairly the consolidated financial condition and results of operations of the Company and its subsidiaries as of the dates thereof or for the periods covered thereby, (iii) have been prepared in accordance with US GAAP applied on a basis consistent with the past practices of the Company and (iv) in case of the Interim Financial Statements, include all adjustments (consisting only of normal recurring accruals) that are necessary for a fair presentation of the consolidated financial condition and the results of the operations of the Company as of the dates thereof or for the periods covered thereby. The balance sheet of the Company contained in its Annual Report on Form 10-K for the fiscal year ended February 29, 2004 is hereinafter referred to as the "Company Balance Sheet". --------------------- (e) The Company is currently eligible to use Form S-3 under the Securities Act for registration of the sale by the Purchaser of the Registrable Securities (as such term is defined in the Registration Rights Agreement), and the Company has filed in the preceding twelve (12) months all reports required to be filed by the Company with the SEC in a timely manner so as to obtain and maintain eligibility to use Form S-3 under the Securities Act for the resale of the Registrable Securities. (f) Set forth in Section 3.05(f) of the Disclosure Schedule is a complete list of all material amendments or modifications, that have not yet been filed with the SEC, to agreements, documents or other instruments that previously had been filed by the Company with the SEC (except as may be required with respect to the Transactions), pursuant to the Securities Act or the Exchange Act. The Company has furnished to the Purchaser a complete and correct copy of all such documents. (g) The Common Stock is listed on the Nasdaq National Market. The Company has no knowledge of any proceedings to revoke such listing. The sales of New Securities and Warrants to the Purchaser in accordance with the terms of this Agreement and the Warrant Agreement will not violate any rules of the Nasdaq National Market or the National Association of Securities Dealers as in effect on the date hereof. SECTION 3.06. No Undisclosed Liabilities. Except as specifically set -------------------------- forth in the financial statements of the Company included in the Exchange Act Reports filed and publicly available prior to the date of this Agreement, and except for liabilities and obligations incurred (x) in the ordinary course of business since the date of the most recent consolidated balance sheet included in the Exchange Act Reports filed and publicly available prior to the date of this Agreement and (y) as a result of the performance by the Company of its obligations pursuant to the Transactions, neither the Company nor any of the Company Subsidiaries has any Liabilities required by US GAAP to be set forth on a consolidated balance sheet of the Company or in the notes thereto. All agreements related to Indebtedness (including, but not limited, to any loans, credit agreements, notes and indentures) to which the Company or any Company Subsidiary is a party have been filed with the Company's Exchange Act Reports or registration statements filed with the SEC under the Securities Act. 21 SECTION 3.07. Absence of Certain Changes or Events (a) Since the date ------------------------------------ of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned 22 Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding 23 (a "Bankruptcy Proceeding") has been instituted by or against the Company or any --------------------- Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization. SECTION 3.08. Litigation. Except as set forth in Section 3.08 of the ---------- Disclosure Schedule, there are no material Actions by or against the Company or any Company Subsidiary or affecting any of the assets of the Company or any of the Company Subsidiaries, pending before any Governmental Authority or, to the knowledge of the Company, threatened or contemplated to be brought by or before any Governmental Authority. None of the Company, the Company Subsidiaries or any of the assets of the Company or the Company Subsidiaries is subject to any Governmental Order (or, to the knowledge of the Company, are there any such Governmental Orders threatened or contemplated to be imposed by any Governmental Authority) which has, has had or is reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. SECTION 3.09. Compliance with Laws.(a) Neither the Company nor any -------------------- Company Subsidiary is in default or violation of any Law or Governmental Order. (a) (i) Except as set forth in Section 3.09(b) of the Disclosure Schedule, the Company and each Company Subsidiary are in possession of all material franchises, grants, authorizations, Licenses, memoranda of understanding, agreements, easements, variances, exceptions, consents, certificates, approvals and orders of or with any Governmental Authority (the "Company Permits") necessary or required for the Company or any Company --------------- Subsidiary to own, lease and operate its properties or to carry on its business as it is now being conducted, which are set forth in Section 3.09(b) of the Disclosure Schedule, and the Company Permits are in full force and effect, are not subject to any unusual or onerous conditions and have been complied with in all material respects, (ii) no suspension or cancellation or revocation of any of the Company Permits is pending or, to the knowledge of the Company, threatened nor has any of the Company Permits expired and, with respect to any such Company Permit which will expire prior to the Closing Date, the Company is not aware of any circumstance which would reasonably be expected to cause such Company Permit not to be renewed or extended upon expiration and (iii) neither the Company nor any Company Subsidiary is in default under any Company Permit. The Company has provided the Purchaser with complete and accurate copies of all Company Permits, including any amendments, supplements and extensions thereto, and with all written correspondence between the Company or any Company Subsidiary and a Governmental Authority with respect to any Company Permit. SECTION 3.10. Environmental Matters. Except as set forth in Section --------------------- 3.10 of the Disclosure Schedule: (a) the Company and the Company Subsidiaries (i) are and have been in compliance with all applicable Environmental Laws, (ii) hold all necessary Environmental Permits and (iii) are and have been in compliance with their respective Environmental Permits; (b) neither the Company nor any Company Subsidiary has received any notice of alleged violation of Environmental Law or written request for 24 information, or been notified in writing that it is a potentially responsible party, under CERCLA, or any similar Law of any country, state, province, municipality, locality or any other jurisdiction; (c) neither the Company nor any Company Subsidiary has entered into or agreed to any consent decree or order or is subject to any judgment, decree or judicial order relating to compliance with Environmental Laws, Environmental Permits or the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of Hazardous Materials and, to the knowledge of Company, no investigation, litigation or other proceeding is pending or threatened with respect thereto, and, to the knowledge of Company, no condition, including, without limitation, the Release of Hazardous Materials, exists on any property currently or formerly owned or operated by the Company that is reasonably likely to lead to such investigation, litigation or proceeding or to require investigation or remediation pursuant to applicable Environmental Law; (d) none of the real property currently or formerly owned or leased by the Company or any Company Subsidiary is listed or, to the knowledge of the Company, proposed for listing on the "National Priorities List" under CERCLA, as updated through the date of this Agreement, or any similar list of sites in the Russian or any other jurisdiction requiring investigation or cleanup; and (e) the Purchaser has been provided access to all reports in the Company's possession or control assessing the environmental condition of the Company's and the Company Subsidiaries current and former properties. SECTION 3.11. Material Contracts. ------------------ (a) Section 3.11(a) of the Disclosure Schedule sets forth a complete list of all contracts, agreements, notes, bonds, mortgages, franchise agreements, subcontractor agreements, purchase commitments for network equipment, software technical development and support agreements, television content agreements, guarantees, leases, security agreements and commitments, including all amendments and modifications thereto, to which the Company or any Company Subsidiary is a party that are material to the Company and the Company Subsidiaries, taken as a whole (together, "Material Contracts"). The Company has ------------------ provided the Purchaser with complete and accurate copies of all Material Contracts, including any amendments, supplements and extensions thereto, and with all written correspondence between the Company or any Company Subsidiary and any party to a Material Contract. (b) Each Material Contract (i) is valid and binding on the Company or the Company Subsidiary that is a party thereto, as the case may be, and is in full force and effect and (ii) upon consummation of the Transactions shall continue in full force and effect without penalty or other adverse consequence. (c) (i) neither the Company nor any Company Subsidiary is in breach of, or default under, any Material Contract and (ii) to the knowledge of the Company, no other party to any Material Contract is in breach thereof or default thereunder. 25 (d) Except as set forth in Section 3.11(d) of the Disclosure Schedule, neither the Company nor any Company Subsidiary is a party to any voting trust, proxy, agreement with respect to the voting of any capital stock of Company or any Company Subsidiary. SECTION 3.12. Intellectual Property; Company Systems. -------------------------------------- (a) Neither the Company nor any Company Subsidiary owns any trademark, trade name, patent, service mark, brand mark, brand name, industrial design and copyright (collectively, the "Intellectual Property"). All of the Intellectual Property used by the Company is used pursuant to a valid License by the Company or the Company Subsidiaries free and clear of any and all Encumbrances, and the Company or one of the Company Subsidiaries has good, marketable and exclusive title to or license for, and the valid right to use all of the Intellectual Property. Neither the Company nor any of the Company Subsidiaries has received any complaint, assertion, threat or allegation or otherwise has notice of any claim, lawsuit, demand, proceeding or investigation involving any such matters or the Intellectual Property or otherwise knows that any of the Intellectual Property is invalid or conflicts with the rights of any third party. (b) Each of the Company and each Company Subsidiary has a right to use all Intellectual Property used in the operation of its business as presently conducted. (c) Each of the Company and each Company Subsidiary has a valid License to use all Company Systems. (d) The Company Systems have been maintained in accordance with good business practice, are in good operating condition and repair and are suitable for the purposes for which they are used and intended. Except as set forth in Section 3.12(d) of the Disclosure Schedule, the Company has no commitments to purchase any Company Systems. SECTION 3.13. Title to Properties; Absence of Encumbrances. (a) -------------------------------------------- Section 3.13(a) of the Disclosure Schedule lists the material real property interestsowned by the Company and the Company Subsidiaries (the "Owned Real ---------- Property") and lists all leases relating to material real property to which the - -------- Company or any Company Subsidiary is a party as a lessee (the "Leased Real ----------- Property," and together with the Owned Real Property, the "Real Property"). All - -------- ------------- leases forLeased Real Property are in full force and effect, are valid and effective in accordance with their respective terms, and there is not, under any of such leases, any existing default or event of default (or event which with notice or lapse of time, or both, would constitute a default). (b) Each of the Company and the Company Subsidiaries has good and marketable fee title to, or, in the case of leased properties and assets, has good and valid leasehold interests in, all of its tangible properties and assets, real, personal and mixed, used or held for use in, or which are necessary to conduct, the respective business of the Company and each Company Subsidiary as currently conducted, free and clear of any Encumbrances. (c) Section 3.13(c) of the Disclosure Schedule sets forth all material leases, subleases and other agreements (each, a "Lease" and ----- collectively, the "Leases") granting to any Person or entity other than the ------ 26 Company or any Company Subsidiary any right to the possession, use, occupancy or enjoyment of the Real Property or any portion thereof. Each such Lease is valid, binding and in full force and effect, all rent and other sums and charges payable by the tenant thereunder are current, no notice of default or termination under any Lease is outstanding, no termination event or condition or uncured default on the part of the Company or any Company Subsidiary or, to the knowledge of the Company, the tenant, exists under any Lease, and no event has occurred and no condition exists that, with the giving of notice or the lapse of time, or both, would constitute such a default or termination event or condition. Except as set forth in Section 3.13(c) of the Disclosure Schedule, the Company or any Company Subsidiary may terminate any Lease without incurring any penalty, charge, cost or expense in connection with such termination and without being in default of any such Lease. (d) To the knowledge of the Company, all components of all buildings, structures, fixtures, facilities and other improvements in, on or within the Real Property (the "Improvements") are in good operating condition and repair, subject to continued repair and replacement in accordance with past practice. (e) The Company and each Company Subsidiary has not received notice of and, to the knowledge of the Company, there is no pending, threatened or contemplated condemnation proceeding, action or Governmental Order affecting the Real Property or any part thereof, nor any sale or other disposition of the Real Property or any part thereof in lieu of condemnation. No portion of the Real Property has suffered any material damage by fire, flood or other casualty that has not heretofore been completely repaired and restored. SECTION 3.14. Employee Benefit Matters; Labor Matters (a) Each Benefit --------------------------------------- Plan has been operated in material compliance with its terms and the requirements of all applicable Laws, including, without limitation, ERISA and the Code. Each of the Company and the Company Subsidiaries has performed all obligations required to be performed by it under, and is not in any respect in default under or in violation of, any Benefit Plan. No action, claim or proceeding is pending or, to the knowledge of the Company, threatened with respect to any Benefit Plan (other than claims for benefits in the ordinary course). (b) Except as set forth in Section 3.14(b) of the Disclosure Schedule, each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (or a similar provision under the applicable Law in a foreign jurisdiction) has received a favorable determination letter from the Internal Revenue Service (the "IRS") or other applicable Governmental Authority and each trust established in connection with any Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination letter from the IRS or other applicable Governmental Authority that it is so exempt and, to the knowledge of the Company, nothing has occurred since the date of such letter that has or is reasonably likely to adversely affect such qualification or exemption. (c) Neither the Company, any Company Subsidiary nor any ERISA Affiliate has, within the last six years, sponsored or made contributions to or had any obligations, whether absolute or contingent, direct or indirect, under any Benefit Plan subject to Title IV of ERISA, and the Company has not incurred, nor could it reasonably be expected to incur, any Liability under, arising out of or by operation of Title IV of ERISA, including, without limitation, any Liability in connection with (i) the termination or reorganization of any 27 employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any (A) "Multiemployer Plan" (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) or (B) single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which the Company or any Company Subsidiary could incur liability under Section 4063 or 4064 of ERISA. (d) The execution of, and consummation of the Transactions will not (either alone or upon the occurrence of any additional or subsequent events, other than the Strategic Acquisition) (i) constitute an event under any Benefit Plan, Employee Agreement, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current, former or retired employee, officer, consultant, independent contractor, agent or director of the Company or a Company Subsidiary (an "Employee"); or (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company or the Purchaser to amend or terminate any Benefit Plan. No payment or benefit which will or may be made by the Company, the Purchaser or any of their respective Affiliates with respect to any Employee will be characterized as an "excess parachute payment", within the meaning of Section 280G(b)(1) of the Code. (e) Except as set forth in Section 3.14(e) of the Disclosure Schedule, neither the Company nor any Company Subsidiary has any obligation to provide, or has any direct or indirect liability, whether contingent or otherwise, with respect to the post-termination provision of health or death benefits to any employee or former employee, except as may be required pursuant to Section 4980B of the Code (or a similar provision under the applicable Law in a foreign jurisdiction) and the costs of which are fully paid by such former employees. (f) Neither the Company nor any Company Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by the Company or any Company Subsidiary and no collective bargaining agreement is being negotiated by the Company or any Company Subsidiary. To the knowledge of the Company, there is no labor dispute, strike or work stoppage against the Company or any Company Subsidiary pending or threatened in writing which may interfere with the respective business activities of the Company or any Company Subsidiary. To the knowledge of the Company, none of the Company, any Company Subsidiary, or any of their respective representatives or employees has violated any Law regarding the terms and conditions of employment of employees, former employees or prospective employees or other labor-related matters or committed any unfair labor practices in connection with the operation of the respective businesses of the Company or any Company Subsidiary, and there is no charge or complaint against the Company or any Company Subsidiary by the United States National Labor Relations Board or a similar Governmental Authority in a foreign jurisdiction or any comparable state agency pending or threatened in writing. (g) The Company is not aware that any officer or key employee, or that any group of key employees, intends to terminate his or her employment with the Company, nor does the Company have a present intention to terminate the employment of any of the foregoing. SECTION 3.15. Insurance. --------- Set forth in Section 3.15 of the Disclosure Schedule is a complete list of all 28 policies or binders of fire, liability, workmen's compensation, vehicular, life or directors' and officers' insurance held by the Company or the Company Subsidiaries or other types of policies customary for the industry in which the businesses of the Company and the Company Subsidiaries are operated are in full force and effect, except as set forth in Section 3.15 of the Disclosure Schedule. Neither the Company nor any Company Subsidiary is in default with respect to any provision contained in any such policy or binder and neither has failed to give any notice or present any claim under such policy or binder in due and timely fashion. There are no outstanding unpaid claims under any such policy or binder. Neither the Company nor any Company Subsidiary has received a notice of cancellation or non-renewal of any such policy or binder. The Company has not received notice of any inaccuracy in any application for such policies or binders, any failure to pay premiums when due or any similar state of facts which might form the basis for termination of any such insurance. SECTION 3.16. Taxes. (a) (i) The Company and each Company Subsidiary has timely ----- filed or caused to be filed, or has properly filed extensions for, all income and other Tax Returns that are required to be filed and has paid or caused to be paid within the time and manner prescribed by Law all Taxes as shown on such returns and on all assessments received by it to the extent that such Taxes have become due, except any Tax the validity or amount of which is being contested in good faith by appropriate proceedings and with respect to which adequate reserves, in accordance with US GAAP (or RAS as applicable to the Russian Company Subsidiaries), have been set aside; (ii) such Tax Returns are true, correct, adequate and complete in all material respects; (iii) the Company has paid or caused to be paid, or has established reserves in accordance with US GAAP, for all Tax liabilities applicable to the Company for all fiscal years that have not been examined and reported on by the taxing authorities (or closed by applicable statutes); and (iv) no additional Tax assessment against the Company or any Company Subsidiary has been heretofore proposed by any Governmental Authority or Tax authority for which provision deemed adequate by the Company in accordance with US GAAP has not been made on such Company's or Company Subsidiary's balance sheet. (b) With respect to all income and other Tax Returns of the Company and the Company Subsidiaries, (i) except as set forth in Section 3.16(b) of the Disclosure Schedule, no audit is pending, threatened or in progress and no extension of time is in force with respect to any date on which any Tax Return was or is to be filed and no waiver or agreement is in force for the extension of time for the assessment or payment of any Tax and (ii) there is no unassessed deficiency proposed or threatened against the Company or any of the Company Subsidiaries. (c) The provision for Taxes of the Company as shown on the Company Balance Sheet is adequate for Taxes due and accrued as of the Company Balance Sheet date. (d) The Company knows of no change in the rates or basis of assessment of any Tax of the Company and the Company Subsidiaries. (e) The Company is not a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code. 29 (f) Except as set forth in Section 3.16(f) of the Disclosure Schedule, the Company does not conduct a trade or business, or otherwise maintain a permanent establishment, in any jurisdiction outside the United States. No Company Subsidiary that is a "controlled foreign corporation" as such term is defined in Section 957 of the Code has an investment in "United States property" as such term is defined in Section 956 of the Code. (g) None of the Company or any Company Subsidiary has received notice from any taxing authority in a jurisdiction in which it does not file Tax Returns or pay Taxes, that such entity may be subject to Tax in such jurisdiction. (h) Each of the Company and the Company Subsidiaries has properly withheld and paid over to the appropriate taxing authority all Taxes which they are required to withhold from amounts paid or owing to any employee, independent contractor, creditor or other third party. (i) None of the Company or any Company Subsidiary is a party to any Tax sharing, indemnification or allocation agreement. None of the Company or any Company Subsidiary is liable for the Taxes of another party, as transferee or successor, by contract or otherwise, including pursuant to Treasury Regulation Section 1.1502-6 and any similar provision under state, local or foreign Tax laws. SECTION 3.17. MFON; HFC. --------- (a) The MFON is suitable for the transmission of all signals, including voice, video and data to CCTV, allowing CCTV to provide cable television, high speed data and Internet access services, as well as IP telephony (the "Services"), to all households and businesses connected to the -------- COMCOR-TV network in the "Strategic Operating Area" and "Adjacent Area", as such terms are defined in Strategic Services Agreement. A true, correct and complete copy of the Strategic Services Agreement and all the amendments thereto as in effect as of the date hereof is attached to this Agreement as Exhibit F. (b) COMCOR-TV is licensed to provide the Services to at least 1,500,000 customers in Moscow, the Russian Federation. The MFON has sufficient capacity to provide normal Services, as currently supplied, to COMCOR-TV's existing network of 198,000 homes passed. (c) COMCOR-TV is in compliance with all terms and conditions of the Strategic Services Agreement and its records and billing statements related to the management of the COMCOR-TV network in connection with the Strategic Services Agreement are complete, correct and up to date. (d) As of June 30, 2004 COMCOR-TV has contracts to provide the Services to at least 60,953 terrestrial subscribers, at least 14,093 Internet subscribers and at least 7,803 pay TV subscribers in at least 196,944 homes passed network. (e) As of June 30, 2004 de-activated subscribers as a percent of total reported subscribers were 0.8% for terrestrial subscribers, 28.1% for cable television subscribers and 25.3% for Internet subscribers. To the 30 knowledge of the Company, there is no material number of subscribers intending to de-activate their Services as of a point in time in excess of the usual annual termination rate of 10% for terrestrial subscribers, 40% for cable television subscribers and 60% for Internet subscribers. (f) COMCOR-TV's hybrid fiber coaxial (HFC) network has bandwidth capacity of between 5-65 megahertz for return channel and of between 85-862 megahertz for forward channel and can accommodate (i) both digital and analog transmission, (ii) interactive TV through the return path and (iii) high speed data traffic up to 1,024 Mb/sec. SECTION 3.18. Products Liability. (a) Except as set forth in Section ------------------ 3.18(a) of the Disclosure Schedule, during the 5-year period preceding the date of this Agreement there has been no Action against or involving the Company or any Company Subsidiary or relating to any product designed, manufactured, assembled, shipped, sold or delivered by or on behalf of the Company or any Company Subsidiary relating to or resulting from an alleged defect in design, manufacture, assembly, materials or workmanship of any product designed, manufactured, assembled, shipped, sold or delivered by or on behalf of the Company or any Company Subsidiary or any alleged failure to warn, or any alleged breach of implied warranties or representations, and, to the knowledge of the Company, none has been threatened nor is there any valid basis for such Action. (b) Except as set forth in Section 3.18(b) of the Disclosure Schedule, the Company has no knowledge of any Occurrences with respect to any product designed, manufactured, assembled, shipped, sold or delivered by or on behalf of the Company or any Company Subsidiary. SECTION 3.19. Brokers. Except for Francis E. Baker, Vitaly Spassky and ------- Aton LLC, no broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of the Company. The Company is solely responsible for the fees and expenses of Francis E. Baker, Vitaly Spassky and Aton LLC. The total fees and expenses paid or to be paid by the Company to Francis E. Baker for any finder's or other fee or commission in connection with the Transactions will not exceed $200,000 and receipt of stock appreciation rights related to 25,000 shares of Common Stock at a base price of $6.67 per share, in accordance with the terms and conditions set forth in the Consulting Agreement dated May 11, 2004, between the Company and Francis E. Baker, as amended. The total fees and expenses to be paid by the Company to Vitaly Spassky for any finders' or other fee or commission in connection with the Transactions will not exceed $25,000. The total fees and expenses paid or to be paid by the Company to Aton LLC for delivery of its opinion and for any other fee or commission in connection with the Transactions will not exceed $115,000. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER As an inducement to the Company to enter into this Agreement, the Purchaser hereby represents, warrants and covenants to the Company that the 31 representations and warranties contained in this Article IV are true, complete and correct as of the date of this Agreement and will be true, complete and correct as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article IV). SECTION 4.01. Organization and Authority of the Purchaser. The ------------------------------------------- Purchaser is a company duly organized, validly existing and in good standing under the laws of the Bahamas. The Purchaser has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the Transactions (including entering into the Warrant Agreement and the Registration Rights Agreement). The execution and delivery of this Agreement by the Purchaser, the performance by the Purchaser of its obligations hereunder and the consummation by the Purchaser of the Transactions (including entering into the Warrant Agreement and the Registration Rights Agreement) have been duly authorized by all requisite action on the part of the Purchaser. This Agreement has been duly executed and delivered by the Purchaser, and (assuming due authorization, execution and delivery by the Company) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms. SECTION 4.02. No Conflict. Assuming the making and obtaining of all ----------- filings, notifications, consents, approvals, authorizations and other actions referred to in Section 4.03 and except as may result from any facts or circumstances relating solely to the Company, the execution, delivery and performance of this Agreement by the Purchaser does not (a) conflict with or violate any Law or Governmental Order applicable to the Purchaser or (b) conflict with, or result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent or waiver under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any Encumbrance on any of the assets or properties of the Purchaser pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, License, permit, franchise or other instrument or arrangement to which the Purchaser is a party or by which any of such assets or properties are bound or affected. SECTION 4.03. Governmental Consents and Approvals. The execution, ----------------------------------- delivery and performance of this Agreement by the Purchaser does not require any consent, approval, authorization or other order of, action by, filing with or notification to, any Governmental Authority, except for (i) the applicable requirements of the Exchange Act (for filing with the SEC of (a) the Proxy Statement and (b) such reports under the Exchange Act as may be required in connection with this Agreement and the Transactions), and the Securities Act (in connection with the filing of a Form D with the SEC and the Registration Rights Agreement), (ii) the approval of the Russian Antimonopoly Authority and (iii) for such other consents, waivers, approvals, authorizations, orders, actions, filings or notifications, which if not obtained or made would not be reasonably likely to affect performance by the Purchaser of its obligations hereunder or the consummation of the Transactions. SECTION 4.04. Investment Purpose. The Purchaser is an "accredited ------------------ investor" as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act, and is acquiring the New Securities for investment, for its own account, and not with a view to, or for sale in connection with, any distribution. 32 SECTION 4.05. Financing. The Purchaser has available (through cash on --------- hand, credit arrangements or otherwise) all the funds necessary for the performance of all of its obligations under this Agreement, the Bridge Facility and the Term Loan Facility. SECTION 4.06. Status of New Securities; Limitations on Transfer and ----------------------------------------------------- Other Restrictions. The Purchaser hereby acknowledges and agrees with the - ------------------ Company that the New Securities have not been registered under the Securities Act and may not be offered or sold except pursuant to registration under, or to an exemption from, the registration requirements of the Securities Act and that the certificates evidencing the New Securities will bear a legend to that effect. The Purchaser further agrees that it has not entered and will not enter into any contractual arrangement with respect to the distribution or delivery of the New Securities or the Conversion Shares, other than (i) pursuant to a Registration Rights Agreement, (ii) pursuant to Rule 144 under the Securities Act, (iii) pursuant to any transaction that does not require registration under the Securities Act, (iv) any such arrangements with an Affiliate of the Purchaser or (v) with the prior written consent of the Company. ARTICLE V ADDITIONAL AGREEMENTS SECTION 5.01. Conduct of Business by the Company Pending the Closing. ------------------------------------------------------ During the period from the date hereof to the Closing Date the Company will and will cause each of its Subsidiaries (i) to conduct its operations in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout -------- Period"), issue or sell any equity securities or securities exercisable or - ------ convertible into equity securities of the Company or any Company Subsidiary, 33 other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date - -------- ------- the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000. SECTION 5.02. Access to Information. (a) From the date of this --------------------- Agreement to the Closing Date, the Company shall, and shall cause the Company Subsidiaries to: (i) provide to the Purchaser (and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, "Representatives")) access at reasonable times --------------- upon prior notice to the officers, employees, agents of the Company and Company Subsidiaries, to the properties, offices and other facilities of the Company and Company Subsidiaries and to the books and records thereof, including, without limitation, access to perform environmental assessments and sampling and (ii) furnish promptly such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of the Company and the Company Subsidiaries as the Purchaser or its Representatives may reasonably request. (b) At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and prior to two years from the Closing Date, the Company shall, for the benefit of the holders from time to time of the New Securities, furnish at its expense, upon request, to the Purchaser information satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. (c) The Company agrees to make available to the Purchaser as soon as practicable after the end of each fiscal year, and in any event within the time period within which the Company is or would be required to file its annual report on Form 10-K with the SEC, an annual report (including a balance sheet and statements of income, shareholders' equity and cash flows of the Company and the Company Subsidiaries on a consolidated basis certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the Closing Date), and in any event within the time period within which the Company is or would be required to file its quarterly reports on Form 10-Q with the SEC, consolidated summary financial information of the Company and its 34 subsidiaries for such quarter in reasonable detail in accordance with past practice. (d) So long as after the Closing the Purchaser or any Affiliate of the Purchaser is a holder of at least 5% of Diluted Shares, the Company shall make available to the Purchaser copies of all reports or other communications (financial or other) furnished to shareholders and members of the Board, and to make available to the Purchaser (i) as soon as they are generally available, copies of any reports and financial statements furnished to or filed or required to be filed with the SEC or any securities exchange on which any class of securities of the Company is listed and (ii) such additional information concerning the business and financial condition of the Company as the Purchaser may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and the Company Subsidiaries are consolidated in reports furnished to its shareholders generally or to the SEC). SECTION 5.03. Public Announcements. The initial press release relating -------------------- to this Agreement shall be a joint press release the text of which has been agreed to by the Purchaser and the Company. Thereafter, unless otherwise required by applicable Law or the requirements of the Nasdaq or any stock exchange, neither the Purchaser nor the Company shall make, or cause to be made, any press release or public announcement in respect of this Agreement, the Warrant Agreement, the Registration Rights Agreements or the transactions contemplated hereby and thereby, without the prior consent of the other party hereto, and the parties shall cooperate as to the timing and contents of any such press release or public announcement. SECTION 5.04. Company's Action. (a) To the extent required by any ---------------- applicable Law or requirements of Nasdaq or any stock exchange, as soon as practicable after the date hereof, the Company shall prepare and file with the SEC a proxy statement in connection with the Transactions (such proxy statement, together with any amendments or supplements thereto, in the form mailed to the Company stockholders, being a "Proxy Statement"). The Proxy Statement shall not, --------------- at the date such Proxy Statement is first mailed to the Company's stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. All documents that the Company will file with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the rules and regulations thereunder. The Company shall promptly after the date hereof take all action necessary in accordance with the Delaware General Corporation Law and the Certificate of Incorporation and By-laws to convene a stockholders meetings (the "Stockholders Meeting") to vote on the issuance of the New Securities to -------------------- the Purchaser, the granting of the Warrants to the Purchaser, the Certificate of Amendment, the amendment to the 2003 Stock Option Plan of the Company and other matters related to the Transactions, which shall be held as promptly as practicable after the date hereof. The Company shall use its best efforts to solicit from stockholders of the Company proxies in favor of the matters specified in the previous sentence to be voted on at the stockholders meeting. The Company shall use its best efforts to ensure that the Proxy Statement includes the unconditional recommendation of the Board in favor of the transactions to be voted on at the stockholders meeting. The Company shall provide to the Purchaser and its Representatives drafts of any materials to be 35 filed with the SEC or mailed to the Company's stockholders and, prior to submitting or filing such materials with the SEC, shall accept reasonable comments from the Purchaser and its Representatives. (b) The Company shall file the Certificate of Amendment with the Secretary of State of the State of Delaware prior to the Closing Date. SECTION 5.05. Use of Proceeds. The Company shall use the Purchase --------------- Price solely for purposes of general working capital, acquisitions and the build-out of the COMCOR-TV franchise. SECTION 5.06. Certain Costs and Expenses. -------------------------- (a) The Company covenants and agrees with the Purchaser that the Company will pay or cause to be paid the following: (i) the cost of producing and filing with the SEC of this Agreement, the Warrant Agreement, the Registration Rights Agreement, the Proxy Statement, closing documents (including any compilations thereof) and any other documents in connection with the purchase, sale and delivery of the New Securities; (ii) the cost of preparing the stock certificates for the New Securities and the Warrant Certificate for the Warrants, (iii) the cost of filing the Certificate of Amendment with the Secretary of State of the State of Delaware, (iv) the costs and expenses related to the Stockholders Meeting and (v) all other costs and expenses incident to the performance of the Company's obligations hereunder which are not otherwise specifically provided for in this Section 5.06. (b) On the Closing Date, the Company will reimburse the Purchaser for all of the reasonable costs and expenses (including legal fees) incurred by the Purchaser in connection with the preparation and negotiation of this Agreement and related agreements and the consummation of the Transactions, including, without limitation, for the fees and expenses of employing Warren Mobley, Donald Miller-Jones, Charles Roberts and Dr. Ali Mohamed Ahmed as consultants in connection with the Transactions prior to the Closing Date. SECTION 5.07. No Shop. ------- (a) Except as otherwise contemplated herein, in consideration for the Purchaser committing resources and incurring legal and other expenses in connection with this Agreement, the Company shall not and shall procure that no Company Subsidiary, nor shall any of the Company's or any Company Subsidiary's directors, officers, advisers, employees or agents, directly or indirectly, solicit, initiate, discuss or facilitate the consideration of any proposal, offer or approach from any Person other than the Purchaser or provide any information relating to the sale and purchase of or enter into any transaction or a series of transactions in connection with (a) the issuance, sale or transfer to any Person or grant to any Person of a right to acquire any shares of capital stock or options, warrants or similar instrument or any other security convertible or exchangeable for shares of capital stock of the Company or any Company Subsidiary (other than (i) through exercise of any options outstanding on the date hereof and other than issuance of options to the employees or directors of the Company and the Company Subsidiaries pursuant to Benefit Plans existing on the date hereof, or (ii) on conversion of Series A Preferred Stock or the Convertible Debentures), (b) an acquisition (either in an asset or stock purchase transaction) of Core Business Assets, (c) a sale or transfer (either in an asset or stock purchase transaction) of any of the Company's Core Business Assets or (d) sale of (or an agreement to sell) the 36 Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity ("Third Party Acquisition"). (b) The Company shall promptly (and in any event within one Business Day after becoming aware thereof) (i) notify the Purchaser in the event the Company or any Company Subsidiary or any of their respective Affiliates, officers, directors, employees and agents receives any proposal or inquiry concerning a Third Party Acquisition, including the terms and conditions thereof and the identity of the party submitting such proposal, and any request for confidential information in connection with a potential Third Party Acquisition, (ii) provide a copy of any written agreements, proposals or other materials the Company receives from any such Person or group (or its representatives) and (iii) advise the Purchaser from time to time of the status, at any time upon the Purchaser's request, and promptly following any developments concerning the same. (c) Except as set forth in this Section 5.07(c), the Company Board shall not withdraw or modify its recommendation of the Transactions or approve or recommend, or cause or permit the Company to enter into any agreement or obligation with respect to, any Third Party Acquisition. Notwithstanding the foregoing, if the Company Board by a majority vote determines in its good faith judgment, after consultation with and based upon the advice of legal counsel, that it is required to do so in order to comply with its fiduciary duties, the Company Board may withdraw its recommendation of the Transactions or approve or recommend a Superior Proposal, but in each case only (i) after receiving a Superior Proposal and providing written notice thereof to the Purchaser ("Notice ------ of Superior Proposal"), specifying the material terms and conditions of such - -------------------- Superior Proposal and identifying the Person or group making such Superior Proposal and (ii) if the Purchaser does not, within five (5) Business Days after the Purchaser's receipt of the Notice of Superior Proposal, make an offer that the Company Board by a majority vote determines in its good faith judgment (following and based, as to the financial terms, on the written advice of the financial advisor of nationally recognized reputation) to be at least as favorable to the Company's stockholders as such Superior Proposal; provided, -------- however, that the Company shall not be entitled to enter into any agreement with - ------- respect to a Superior Proposal unless and until this Agreement is terminated pursuant to Section 8.01(d) and the Company has paid all amounts due to the Purchaser pursuant to Section 8.02(b). Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal for a Third Party Acquisition or otherwise in order to comply with its fiduciary duties will not constitute a violation of this Agreement; provided, however, that such -------- ------- disclosure does not state that any action will be taken by the Company Board in violation of this Agreement. (d) For purposes of this Agreement, a "Superior Proposal" means a bona fide proposal for a Third Party Acquisition that is (i) fully-financed, (ii) contains terms that the Company Board by a majority vote determines in its good faith judgment (following and based, as to the financial terms, on the written advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders than the Transactions, (iii) that the Company Board by a majority vote determines in its good faith judgment (following and based, as to the financial terms, on the written advice of a financial advisor of nationally recognized reputation) to be capable of being completed (taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal), (iv) that does not 37 contain a "right of first refusal" or "right of first offer" with respect to any counter proposal that the Purchaser might make and (v) that does not contain any financing or "due diligence" condition. SECTION 5.08. Other Registration Rights. Except for the Existing ------------------------- Agreements and the registration rights granted in the Stock Option Agreements, the Company will not grant or agree to grant any demand or incidental registration rights to any Person other than rights to be granted to the Purchaser pursuant to the Registration Rights Agreement. SECTION 5.09. Takeover Statutes. The Board has taken appropriate ----------------- action so that the provisions of the Business Combination Statute will not, prior to the termination of this Agreement, apply to the Purchaser or any Person who as of the date hereof is an Affiliate of the Purchaser. SECTION 5.10. Termination of Voting Agreement. The Company shall ------------------------------- terminate and shall use its best efforts to cause COMCOR, Oliver Grace, Jr. and Francis E. Baker to terminate the Voting Agreement date February 23, 2004 among the Company, COMCOR, Oliver Grace, Jr. and Francis E. Baker (the "Voting ------ Agreement"), effective as of the Closing Date. - --------- SECTION 5.11. Further Action; Consents; Filings. --------------------------------- (a) Upon the terms and subject to the conditions hereof, each of the parties hereto shall use its reasonable best efforts to (i) take, or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, (ii) obtain from Governmental Authorities and any third parties, as may be necessary, any consents, Licenses, permits, waivers, approvals, authorizations, orders or estoppel certificates required to be obtained or made by the Purchaser or the Company or any of their Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions and (iii) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Transactions that are required under any applicable Law. The parties hereto shall cooperate with each other in connection with the making of all such filings, including by providing copies of all such documents to the nonfiling party and its advisors prior to filing and, if requested, by accepting all reasonable additions, deletions or changes suggested in connection therewith. (b) The Company shall promptly deliver to the Purchaser or an Affiliate thereof (as applicable), and in any event no later than three (3) Business Days following receipt thereof, copies of all correspondence, filings and any other submissions with any Governmental Authority, in connection with the process of renewing the CCTV Licenses. (c) Upon request by the Purchaser, the Company shall deliver to the Purchaser or an Affiliate thereof (as applicable) within 30 days after such request a valid statement described in Treasury Regulation section 1.897-2(g)(1)(ii) and comply with the notice requirements in Treasury Regulation section 1.897-2(h). SECTION 5.12. Agreements with Warren Mobley, Donald Miller-Jones, -------------------------------------------------- Charles Roberts and Dr. Ali Mohamed Ahmed. - ----------------------------------------- 38 (a) Effective as of the Closing: (i) The Company shall enter into employment agreements (the "Employment Agreements") with the following individuals effective as of --------------------- the Closing: (x) Warren Mobley, as Chief Executive Officer of the Company; and (y) Donald Miller-Jones, as Chief Financial Officer of the Company. The form of each such Employment Agreement shall be attached as Exhibit D-1 and Exhibit D-2, respectively, to this Agreement. (ii) The Company shall provide coverage for Messrs. Mobley and Miller-Jones under the Company's directors' and officers' insurance (or if the Company does not have any directors' and officers' insurance it shall obtain and maintain such insurance) and shall indemnify, defend and hold harmless to the fullest extent permitted under Law, to the extent not covered by insurance, Messrs. Mobley and Miller-Jones against all losses, claims, damages, costs, expenses (including counsel fees and expenses), settlement, payments or liabilities arising out of or in connection with any claim, demand, action, suit, proceeding or investigation based in whole or in part on or arising out of the fact that any such Person is or was an officer of director of the Company or any Company Subsidiary. (b) Effective as of the Closing, the Company shall enter into consulting agreements (the "Consulting Agreements") with the following --------------------- individuals: (i) Charles Roberts, with respect to network operations consulting services, and (ii) Dr. Ali Mohamed Ahmed, with respect to network technology consulting services. The form of each such Consulting Agreement shall be attached as Exhibit E-1 and Exhibit E-2, respectively, to this Agreement. (c) Effective as of the Closing, the Company shall award 1,161,050 options under the 2003 Stock Option Plan of the Company, representing approximately 5% of the Company's Diluted Shares (the "Options Grant") as ------------- follows: 406,368 options to Warren Mobley, 406,367 options to Donald Miller-Jones, 232,210 options to Charles Roberts and 116,105 options to Dr. Ali Mohamed Ahmed. SECTION 5.13. Reporting Status; Nasdaq Listing. -------------------------------- (a) So long as the Purchaser owns any shares of Common Stock, Series B Preferred Stock or Warrants, which collectively account for at least 5% of the Diluted Shares, the Company shall timely file, or seek permissible extensions for filing, all reports required to be filed with the SEC pursuant to the Exchange Act and the Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would permit such termination. (b) So long as the Purchaser owns any shares of Common Stock, Series B Preferred Stock or Warrants, which collectively account for at least 5% of the Diluted Shares, the Company shall use reasonable efforts such that the Common Stock will be continue to be quoted on Nasdaq, or on any other principal securities exchanges and markets, if any, on which shares of Common Stock are then listed, and shall comply in all respects with the reporting, filing and 39 other obligations of the bylaws or rules of the National Association of Securities Dealers or such other principal securities exchange or market on which shares of Common Stock are then listed. Upon conversion in whole or in part of the Series B Preferred Stock by the Purchaser, the Company shall use its best efforts to cause the shares of Common Stock into which such shares of Series B Preferred Stock shall be converted to be approved for listing on Nasdaq. SECTION 5.14. Corporate Governance. -------------------- (a) The Company shall use its best efforts to cause the Board to appoint the Purchaser Directors and the COMCOR Director to the Board, effective as of the Closing Date. Following such appointment, the Company shall use its best efforts to support the election of the Purchaser Directors and the COMCOR Director to the Board at the next annual general meeting of stockholders of the Company. The Company shall obtain the resignations of Francis E. Baker, Louis A. Lubrano, Thomas McPartland, Sergey Mitrikov and Alexander Vladislavlev from the Board, effective as of the Closing Date; provided, however, that the Company shall or shall use its best efforts to cause the Board to appoint Francis E. Baker as an observer to the Board for a two-year period or as otherwise mutually agreed by the Parties and shall reimburse Francis E. Baker for the reasonable, documented travel-related costs and expenses that he incurs in connection with his attendance at Board meetings, subject to the discretion of the Board exercising its fiduciary and other duties and rights under applicable Law. (b) The Company shall use its best efforts to cause the Board to appoint Andrew Intrater as the Chairman of the Board, effective as of the Closing Date. (c) For so long as the Purchaser holds at least 10% of the outstanding shares of Common Stock, the Board shall use its best efforts (i) to appoint as Chairman of the Board a Person nominated by the Purchaser for such position and (ii) to appoint to each committee of the Board at least one Director who has been nominated to the Board by the Purchaser. SECTION 5.15. COMCOR-TV Corporate Governance. ------------------------------ (a) The Company shall take all necessary action to call an extraordinary meeting of the shareholders of COMCOR-TV on the Closing Date (the "COMCOR-TV Shareholder Meeting"). At the COMCOR-TV Shareholder Meeting, the ----------------------------- Company shall take the following actions, as the direct and indirect shareholder of COMCOR-TV, all of which shall be effective as of the Closing Date, (i) to dissolve the entire Board of Directors of COMCOR-TV (the "COMCOR-TV Board"), --------------- (ii) to elect the following individuals as members of the COMCOR-TV Board: Warren Mobley, Donald Miller-Jones, Ivan Isakov, Vladimir Serdyuk and Michael Silin (the "New COMCOR-TV Board"), (iii) to appoint or to use its best efforts ------------------- to cause the COMCOR-TV Board to appoint Warren Mobley as Chairman of the COMCOR- TV Board and (iv) to adopt an amended and restated charter of COMCOR-TV that shall provide, among other things, that (A) the General Director of COMCOR-TV (the "General Director") shall report to the New COMCOR-TV Board on a regular ---------------- basis, (B) all line managers who report to the General Director of COMCOR-TV provide dotted line reports to the Chairman of the New COMCOR-TV Board on a regular basis, (C) all COMCOR-TV Board actions shall be taken by a simple majority vote, and (D) the New COMCOR-TV Board shall have a veto right over all significant operational decisions of COMCOR-TV. 40 (b) During the six month period commencing on the Closing Date, the Company shall not take any action to dissolve or otherwise remove any of the members of the New COMCOR-TV Board. (c) The Company shall use its best efforts to integrate Warren Mobley, Donald Miller-Jones, Charles Roberts and Dr. Ali Ahmed Mohamed with the existing management team of COMCOR-TV and to maintain the functional portfolios of COMCOR-TV's existing managers. SECTION 5.16. New Strategic Services Agreement. The Purchaser shall -------------------------------- assist the Company in negotiating and the Company shall use its best efforts to negotiate on behalf of COMCOR-TV a new Strategic Services Agreement, replacing the Strategic Services Agreement that is in effect on the date hereof, with COMCOR that is in form and substance reasonably satisfactory to the Purchaser (the "New MFON Agreement"). ------------------ SECTION 5.17. Relocation. ---------- Promptly following the Closing, the Company shall relocate its entire operations to the premises of COMCOR-TV's headquarters in Moscow and shall minimize its presence in the United States. ARTICLE VI CONDITIONS SECTION 6.01. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Transactions. The respective obligations of each party hereto to effect the - ------------ Transactions are subject to the following conditions having been satisfied (or waived by the parties) on or prior to the Closing Date: (a) Proxy Statement. The Proxy Statement shall have been cleared by --------------- the SEC and shall not be the subject of any stop order. (b) Company Stockholder Approval. The issuance of the New Securities ---------------------------- to the Purchaser, the granting of the Warrants to the Purchaser, the amendment of the Certificate of Incorporation in accordance with the Certificate of Amendment and any other matters related to the Transactions required to be approved by stockholders of the Company shall have been approved and adopted by the requisite vote of the stockholders of the Company; (c) No Order. No Governmental Authority shall have enacted, -------- threatened, issued, promulgated, enforced or entered any Governmental Order that is then in effect, pending or threatened and has, or would have, the effect of prohibiting, restraining, enjoining or restricting the consummation of the Transactions; (d) Governmental Approvals. All clearances required from the Russian ---------------------- Antimonopoly Authority or any other merger control, competition or antitrust authority, which has jurisdiction over the Transactions shall have been obtained; neither the Russian Antimonopoly Authority nor any other relevant authority shall have intervened, or indicated that it is contemplating 41 intervening, in a way that would or might reasonably be expected to make the Transactions or their implementation void, unenforceable and/or illegal or directly or indirectly restrain, restrict, prohibit, delay or otherwise interfere with the implementation thereof, or impose additional conditions or obligations with respect thereto, or otherwise challenge or hinder the transactions or their implementation; (e) Other Regulatory Approvals. All other necessary notifications -------------------------- and filings in respect of the Transactions shall have been made and any governmental or regulatory notices, approvals, filings or other requirements necessary to consummate the Transactions shall have been given, made, obtained or complied with, as applicable, and all consents, approvals or other authorizations required with respect to the Transactions shall have been obtained whether in the Russian Federation or elsewhere; and (f) Term Loan Facility. The Company shall have delivered a ------------------ Utilization Request (as defined in the Term Loan Facility), duly completed other than with respect to the satisfaction of paragraph 4(d) of Part I of Schedule 2 to the Term Loan Facility. SECTION 6.02. Conditions to the Obligations of the Company to Effect ------------------------------------------------------ the Transactions. The obligations of the Company to effect the Transactions are - ---------------- subject to the following conditions having been satisfied (or waived by the Company) on or prior to the Closing Date: (a) Representations, Warranties and Covenants. The representations ----------------------------------------- and warranties of the Purchaser contained in this Agreement shall have been true and correct when made and true and correct in all material respects as of the Closing Date, with the same force and effect as if made as of the Closing Date, other than such representations and warranties as are made as of another date, which shall be true and correct as of such date, if earlier than the Closing Date (provided, however, that if any portion of any representation or -------- ------- warranty is already qualified by materiality, for purposes of determining whether this Section 6.02(a) has been satisfied with respect to such portion of such representation or warranty, such portion of such representation or warranty as so qualified must be true and correct in all respects), and the covenants and agreements contained in this Agreement to be complied with by the Purchaser on or before the Closing Date shall have been complied with in all material respects; and (b) Deliveries. The Purchaser shall have delivered to the Company ---------- all the items listed in Section 2.05 (b) through (d). SECTION 6.03. Conditions to the Purchaser's Obligations to Effect the ------------------------------------------------------- Transactions. The obligations of the Purchaser to effect the Transactions are - ------------ subject to the following conditions having been satisfied (or waived by the Purchaser) on or prior to the Closing Date: (a) Representations, Warranties and Covenants. The representations ----------------------------------------- and warranties of the Company contained in this Agreement shall have been true and correct when made and true and correct in all material respects as of the Closing Date, with the same force and effect as if made as of the Closing Date, other than such representations and warranties as are made as of another date, which shall be true and correct as of such date, if earlier than the Closing 42 Date (provided, however, that if any portion of any representation or warranty is already qualified by materiality, for purposes of determining whether this Section 6.03(a) has been satisfied with respect to such portion of such representation or warranty, such portion of such representation or warranty as so qualified must be true and correct in all respects), and the covenants and agreements contained in this Agreement to be complied with by the Company on or before the Closing Date shall have been complied with in all material respects; (b) Material Adverse Effect. Since the date hereof, there shall have ----------------------- been no events, changes or effects, individually or in the aggregate, with respect to the Company that constitutes a Material Adverse Effect on the Company; (c) COMCOR-TV Licenses. COMCOR-TV shall have obtained from the ------------------ appropriate Governmental Authority (i) renewal for its License for the provision of TV and sound programs transmission services through cable TV network (license number 12939), (ii) renewal for its License for the provision of telematic services (license number 12675), (iii) renewal its License for the provision of data transmission services (license number 12651) and (iv) a license for broadcasting over the MFON (collectively, the "CCTV Licenses"). ------------- (d) Cancellation of COMCOR-TV Preferred Shares. COMCOR-TV shall have ------------------------------------------ exchanged all of the 2,121 shares of convertible preferred stock, par value RUR 10 per share, of COMCOR-TV issued to COMCOR in exchange for 220,879 shares of Common Stock of the Company. (e) New MFON Agreement. COMCOR-TV and COMCOR shall have entered into ------------------ the New MFON Agreement. (f) Deliveries. The Company shall have delivered to the Purchaser ---------- all the items listed in Section 2.04 (c) through (o). (g) Directors' & Officers' Insurance. The Company shall obtain and -------------------------------- maintain in full force and effect policies of directors' and officers' insurance in form, substance and amount reasonably satisfactory to the Purchaser. ARTICLE VII INDEMNIFICATION SECTION 7.01. Survival of Representations and Warranties. The ------------------------------------------ representations and warranties of the Company and the Purchaser contained in this Agreement shall survive until the second anniversary of the Closing Date, except that (i) all representations and warranties contained in Section 3.02 shall survive indefinitely, (ii) all representations and warranties contained in Sections 3.10 and 3.18 shall survive until the fifth anniversary of the Closing Date and (iii) all representations and warranties of the Company as to any Tax Claim shall survive until one year after assessment of the liability to which any such Tax Claim may relate is barred by all applicable statutes of limitation (taking into account any applicable waivers or extensions). If written notice of a claim has been given prior to the expiration of the applicable representations and warranties by the Company or the Purchaser, 43 then the relevant representations and warranties of the other party shall survive as to such claim, until such claim has been finally resolved. SECTION 7.02. Indemnification. --------------- (a) The Purchaser, its Affiliates and its successors and assigns and the officers, directors, employees and agents of the Purchaser, its Affiliates and its successors and assigns shall be indemnified and held harmless by the Company for any and all Liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable attorneys' fees and expenses) suffered or incurred by them (including, without limitation, any Action brought or otherwise initiated by any of them) (hereinafter, a "Purchaser Loss") arising out of or resulting -------------- from: (i) the breach of any representation or warranty made by the Company contained in this Agreement; or (ii) the breach of any covenant or agreement by the Company contained in this Agreement. The amounts of any indemnification pursuant to this Section 7.02(a) shall be increased by an additional amount to reflect an appropriate gross-up to compensate the Purchaser for its indirect participation as a holder of capital stock of the Company in any indemnification payment made pursuant to this Section 7.02(a). (b) The Company, its Affiliates and its successors and assigns and the officers, directors, employees and agents of the Company, its Affiliates and its successors and assigns shall be indemnified and held harmless by the Purchaser for any and all Liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable attorneys' fees and expenses) suffered or incurred by them (including, without limitation, any Action brought or otherwise initiated by any of them) (hereinafter, a "Company Loss", and each of a Company Loss and ------------ a Purchaser Loss is hereinafter referred to as a "Loss" with respect to such ---- party) arising out of or resulting from: (i) the breach of any representation or warranty made by the Purchaser contained in this Agreement; or (ii) the breach of any covenant or agreement by the Purchaser contained in this Agreement. (c) Whenever a claim shall arise for indemnification under this Article VII, the party entitled to indemnification (the "Indemnified Party") ----------------- shall promptly give notice to the other party (the "Indemnifying Party") of ------------------ any matter that the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, but in no event later than 30 days after the Indemnified Party first learns of such claim, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and Liabilities of the Indemnifying Party under this Article VII with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VII ("Third Party Claims") shall ------------------ 44 be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim following receipt by the Indemnified Party of such notice in the time frame provided above; provided, however, that in the absence of actual -------- ------- and material prejudice to the Indemnifying Party, the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VII and shall not relieve the Indemnifying Party from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Article VII. The Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within ten days of the receipt of such notice from the Indemnified Party; provided, however, that, if there exists or is -------- ------- reasonably likely to exist a conflict of interest that would prevent the same counsel from representing both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel at the expense of the Indemnifying Party. In the event the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party's expense, all such witnesses, records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party. No party shall be entitled to indemnification under this Section 7.02 if such party receives reasonable express written notice of a breach of any representation, warranty, covenant or agreement and such party would be entitled to terminate this Agreement pursuant to the terms hereof in respect of such breach and fails to do so. SECTION 7.03. Limits on Indemnification. Notwithstanding anything to ------------------------- the contrary contained in this Agreement, (i) the maximum amount of indemnifiable Purchaser Losses that may be recovered by the Purchaser from the Company arising out of or resulting from the causes enumerated in Section 7.02 shall be an amount equal to (x) the Purchase Price plus (y) an amount equal to the aggregate Exercise Price (as such term is defined in the Warrant Agreement) paid by the Purchaser to the Company in connection with the exercise of Warrants, (ii) no claim may be made against the Company for indemnification pursuant to Section 7.02 with respect to any individual item of a Purchaser Loss, unless such item of Purchaser Loss exceeds $25,000 and (iii) no claim may be made against the Company pursuant to Section 7.02 unless the aggregate of all such Purchaser Losses shall exceed $200,000, in which case the Company shall then be required to pay or be liable for the full amount of Purchaser Losses. ARTICLE VIII TERMINATION 45 SECTION 8.01. Termination. This Agreement may be terminated and the ----------- other transactions contemplated by this Agreement may be abandoned at any time, notwithstanding any requisite approval and adoption of this Agreement and the Transactions, as follows: (a) by mutual written consent of the Purchaser and the Company; (b) by the Purchaser if a Material Adverse Effect shall have occurred prior to the Closing; (c) by either the Purchaser or the Company if Closing shall not have occurred on or prior to March 31, 2005; (d) by the Purchaser if the Company Board shall have recommended to the Company's stockholders a Superior Proposal or the Company Board shall have withdrawn or adversely modified its approval or recommendation of the Transactions; (e) by the Purchaser or the Company, if all the conditions set forth in Article VI have been satisfied or waived by the appropriate Party, and the Purchaser does not fund the Purchase Price within ten (10) Business Days of such satisfaction or waiver; (f) by the Purchaser in the event that the condition set forth in Section 6.03(e) has not been satisfied or waived by the Purchaser; (g) by the Company on March 31, 2005, if a New MFON Agreement has not been approved by at least a majority of three-fourths (3/4) of the members of the Board (rounded to the nearest whole number if three-fourths (3/4) of the members of the Board results in a whole number plus a fraction); and (h) by either the Purchaser or the Company in the event that any Governmental Authority shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the consummation of the Transactions and such order, decree, ruling or other action shall have become final and nonappealable. SECTION 8.02. Effect of Termination. --------------------- (a) In the event of termination of this Agreement pursuant to Section 8.01, this Agreement shall forthwith become void, there shall be no liability under this Agreement on the part of the Purchaser or the Company or any of their respective officers or directors, and all rights and obligations of each party hereto shall cease; provided, however, that nothing herein shall -------- ------- relieve any party from liability for the breach of any of its representations, warranties, covenants or agreements set forth in this Agreement; provided, -------- further, that Sections 5.03, 5.06, 8.02, 9.02, 9.09 and 9.10 shall survive the - ------- termination of this Agreement. (b) The Purchaser and the Company agree that if this Agreement is terminated by the Purchaser pursuant to Section 8.01(d), the Purchaser would suffer direct and substantial damages, which damages cannot be determined with reasonable certainty. To compensate the Purchaser for such damages, the Company shall pay to the Purchaser the amount of $1.5 million immediately upon the 46 termination of this Agreement by the Purchaser pursuant to Section 8.01(d). The Company hereby waives any right to set-off or counterclaim against such amount. (c) If the Purchaser terminates this Agreement pursuant to Section 8.01(e), the Purchaser shall pay to the Company (i) up to $200,000 for documented out-of-pocket costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred by the Company in connection with this Agreement and the Transactions, upon delivery by the Company to the Purchaser of receipts and/or invoices for such actual costs and expenses and (ii) $550,000, immediately upon the termination of this Agreement by the Purchaser pursuant to Section 8.01(e) (collectively (i) and (ii), the "Termination Fee"). If the Purchaser does not pay the --------------- relevant portion of the Termination Fee within ten (10) Business Days from the date that such portion of the fee becomes due and payable, the Company may set-off the Termination Fee against any amount due and payable by the Company to the Lender under the Bridge Facility. ARTICLE IX GENERAL PROVISIONS SECTION 9.01. Amendment and Waiver. No amendment of any provision of -------------------- this Agreement shall be valid unless the same shall be in writing and signed by the parties. Either party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (iii) waive compliance with any of the agreements or conditions of the other party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. SECTION 9.02. Expenses. Except as otherwise specified in this -------- Agreement, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred. SECTION 9.03. Notices. All notices and other communications hereunder ------- shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: 47 (a) If to the Company: Moscow CableCom Corp. 405 Park Avenue Suite 1203 New York, NY 10022 Facsimile: +1-212-888-5620 Attention: Oliver Grace, Jr. with a courtesy copy (which shall not constitute notice to the Company) to: Oliver R. Grace, Jr. 55 Brookville Road Glen Head, NY 11545 Facsimile: +1-516-626-1204 (b) If to the Purchaser: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to the Purchaser) to: Skadden, Arps, Slate, Meagher & Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Facsimile: +49-69-74220300 Attention: Hilary Foulkes SECTION 9.04. Headings. The descriptive headings contained in this -------- Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. SECTION 9.05. Severability. If any provision of this Agreement is ------------ invalid, illegal or incapable of being enforced by any Law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any party. Upon such 48 determination that any 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 in order that the Transactions are consummated as originally contemplated to the greatest extent possible. SECTION 9.06. Entire Agreement. This Agreement, the Warrant Agreement ---------------- and the Registration Rights Agreement constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Company and the Purchaser with respect to the subject matter hereof and thereof. SECTION 9.07. Assignment. This Agreement may not be assigned by the ---------- Purchaser without the express written consent of the Company, except that the Purchaser may assign this Agreement to an Affiliate of the Purchaser without the consent of the Company. This Agreement may not be assigned by the Company. SECTION 9.08. No Third Party Beneficiaries. Except for the provisions ---------------------------- of Article VII relating to Indemnified Parties and Section 5.12 with respect to the Employment Agreements, Consulting Agreements and the Option Grant, this Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors and assigns, and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. No purchaser of any of the New Securities from the Purchaser shall be deemed a successor or assign with respect to this Agreement by reason merely of such purchase. SECTION 9.09. Governing Law. ------------- (a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice or conflict of Law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York. (b) Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Agreement or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the parties hereto agrees that a final judgment in any such action, suit or proceeding 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 irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any court referred 49 to in Section 9.09(b). Each of the parties hereby irrevocably waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court. SECTION 9.10. Counterparts. This Agreement may be executed and ------------ delivered (including by facsimile transmission) 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 9.11. Specific Performance. The parties agree that -------------------- irreparable harm would occur in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other party and to enforce specifically such terms and conditions of this Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other party is entitled to at law or in equity. SECTION 9.12. Interpretation. References in this Agreement to -------------- articles, sections, paragraphs, clauses, schedules, annexes and exhibits are to articles, sections, paragraphs, clauses, schedules, annexes and exhibits in or to this Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the context otherwise requires, references herein to any Person include its successors and assigns. SECTION 9.13. Construction. The parties have participated jointly in ------------ the negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 50 IN WITNESS WHEREOF, the Company and the Purchaser have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized. MOSCOW CABLECOM CORP. By: /s/ Oliver R. Grace, Jr. ----------------------------- Name: Oliver R. Grace, Jr. Title: Chief Executive Officer COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ----------------------------- Name: Andrew Intrater Title: Managing Partner 51 EX-99 4 was5181ex99-3.txt EX. 3 FORM OF WARRANT AGREEMENT WARRANT AGREEMENT by and between MOSCOW CABLECOM CORP. and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated [ ] TABLE OF CONTENTS Page SECTION 1. Warrant Certificates.............................................1 SECTION 2. Execution of Warrant Certificates................................1 SECTION 3. Registration.....................................................2 SECTION 4. Registration of Transfers and Exchanges..........................2 SECTION 5. Exercisability and Cancellation of Warrants; Exercise of Warrants; HSR Compliance.........................................3 SECTION 6. Payment of Taxes.................................................4 SECTION 7. Delivery of Warrant Shares.......................................4 SECTION 8. Mutilated or Missing Warrant Certificates........................5 SECTION 9. Reservation of Warrant Shares....................................5 SECTION 10. Adjustment of Exercise Price and Number of Warrant Shares Issuable.........................................................5 (a) Adjustment for Change in Capital Stock....................6 (b) Adjustment for Rights Issue...............................6 (c) Adjustment for Other Distributions........................7 (d) Adjustment for Common Stock Issue.........................8 (e) Adjustment for Convertible Securities Issue...............9 (f) Market Price.............................................10 (g) Consideration Received...................................11 (h) When De Minimis Adjustment May Be Deferred...............11 (i) Notice of Adjustment.....................................11 (j) Voluntary Reduction......................................11 (k) Reorganization of Company................................12 (l) Adjustment in Number of Shares...........................12 (m) Form of Warrants.........................................13 i SECTION 11. No Dilution or Impairment.......................................13 SECTION 12. Fractional Interests............................................14 SECTION 13. Notices to Warrantholder........................................14 SECTION 14. Notices to Company and Warrantholder............................15 SECTION 15. Amendments and Waivers..........................................16 SECTION 16. Representations and Warranties of the Warrantholder.............17 SECTION 17. Successors......................................................17 SECTION 18. Termination.....................................................17 SECTION 19. Governing Law; Jurisdiction; Venue..............................17 SECTION 20. Equitable Remedies..............................................18 SECTION 21. Benefits of this Warrant Agreement..............................18 SECTION 22. Headings........................................................18 SECTION 23. Interpretation..................................................18 SECTION 24. Entire Agreement................................................19 SECTION 25. Joint Drafting..................................................19 SECTION 26. Severability....................................................19 SECTION 27. Counterparts....................................................19 EXHIBIT A: FORM OF WARRANT CERTIFICATE ii This WARRANT AGREEMENT (this "Warrant Agreement") dated as of [ ], by and between Moscow CableCom Corp., a Delaware corporation (including any successor, the "Company"), and Columbus Nova Investments VIII Ltd., a Bahamas company or its registered assigns (the "Warrantholder"). WHEREAS, the parties hereto have entered into a Series B Convertible Preferred Stock Subscription Agreement dated August 26, 2004 (the "Subscription Agreement") pursuant to which the Warrantholder has acquired 4,500,000 shares of Series B Convertible Preferred Stock, par value $.01 per share of the Company ("Series B Preferred Stock"), which are currently convertible into 4,500,000 shares of Common Stock (as defined herein) of the Company; WHEREAS, the Warrantholder and ZAO COMCOR TV, a closed joint stock company organized under the laws of the Russian Federation and a wholly owned subsidiary of the Company ("COMCOR-TV"), entered into a Term Loan Facility dated August 26, 2004, pursuant to which COMCOR-TV has drawn down $18,500,000; and WHEREAS, the Company has authorized a series of warrants to purchase shares of the Series B Preferred Stock known as the Series B Convertible Preferred Stock Warrants (the "Warrants"), and approved the issuance and grant to the Warrantholder of 8,283,000 Warrants, with each Warrant entitling the Warrantholder to purchase one share of Series B Preferred Stock (the "Warrant Shares") at the Exercise Price (as defined herein); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: SECTION 1. Warrant Certificates. The Company shall promptly cause to be -------------------- executed and delivered to the Warrantholder certificate(s) evidencing the Warrants ("Warrant Certificate(s)") to be issued to the Warrantholder. The Warrant Certificate(s) shall be issued in registered form only, shall be substantially in the form set forth in Exhibit A attached hereto, and may have such letters, numbers or other identification marks and legends, summaries or endorsements printed thereon as the Company may deem appropriate and that are not inconsistent with the terms of this Warrant Agreement or as may be required by applicable law, rule or regulation. The Warrant Certificate(s) shall be dated the date hereof. SECTION 2. Execution of Warrant Certificates. The Warrant Certificate(s) --------------------------------- shall be signed on behalf of the Company by its Chief Executive Officer, President or a Director of the Company. Each such signature upon the Warrant Certificate(s) may be in the form of a facsimile signature and may be imprinted or otherwise reproduced on the Warrant Certificate(s) and for the purpose the Company may adopt and use the facsimile signature of any person who shall have been Chief Executive Officer, President or director of the Company, notwithstanding the fact that at the time the Warrant Certificate(s) shall be delivered or disposed of he or she shall have ceased to hold such office. 1 In case any officer or director of the Company who shall have signed the Warrant Certificate(s) shall cease to be such officer before the Warrant Certificate(s) so signed shall have been disposed of by the Company, such Warrant Certificate(s) nevertheless may be delivered or disposed of as though such person had not ceased to be such officer of the Company; and any Warrant Certificate(s) may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate(s), shall be a proper officer of the Company to sign such Warrant Certificate(s), although at the date of the execution of this Warrant Agreement any such person was not such officer. SECTION 3. Registration. The Company will keep or cause to be kept books ------------ for registration of ownership and transfer of the Warrant Certificate(s) issued pursuant to this Warrant Agreement. The Warrant Certificate(s) issued pursuant to this Warrant Agreement shall be numbered by the Company and initially shall be registered by the Company in the name of the Warrantholder. The Company may deem and treat the registered holder of the Warrant Certificate(s) as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone), for the purpose of any exercise thereof and for all other purposes, and the Company shall not be affected by any notice to the contrary. SECTION 4. Registration of Transfers and Exchanges. (a) Transfers. Subject --------------------------------------- --------- to the following provisions of this Section 4, the Warrants are transferable, in whole or in part, upon surrender of the Warrant Certificate(s) evidencing such Warrants at the office of the Company referred to in Section 14, together with a written assignment in the form of the Assignment appearing at the end of the form of Warrant Certificate attached hereto, duly executed by the Warrantholder or its agent or attorney. Upon such surrender, the Company shall, subject to this Section 4, register or cause the registration of the transfer upon the books maintained by or on behalf of the Company for such purpose. If the Warrants evidenced by the Warrant Certificate(s) are to be transferred in whole, the Company shall execute and deliver new Warrant Certificate(s) in the name of the assignee or assignees in the denominations specified in the instrument of assignment. If the Warrants evidenced by the Warrant Certificate(s) are to be transferred in part, the Company shall execute and deliver new Warrant Certificate(s) to and in the name of the assignee or assignees in the denominations specified in the instrument of assignment and new Warrant Certificate(s) to and in the name of the Warrantholder in an amount equal to the number of Warrants evidenced by the surrendered Warrant Certificate(s) that were not transferred. (b) Restrictions on Transfer. The Warrants may not be sold, pledged, ------------------------ hypothecated, assigned, conveyed, transferred or otherwise disposed of (each a "transfer") unless the transfer complies with all applicable securities laws and the provisions of this Warrant Agreement. 2 (c) Exchanges. The Warrant Certificate(s) may be exchanged, at the option --------- of the Warrantholder, upon surrender of such Warrant Certificate(s) at the office of the Company referred to in Section 14, for one or more other Warrant Certificate(s) representing in the aggregate the same number of Warrants as was represented by the surrendered Warrant Certificate(s). (d) Legend on Warrant Shares. If required under applicable law, rule or ------------------------ regulation, the Warrant Shares to be issued upon exercise of any Warrant shall be stamped or imprinted with a legend substantially in the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH, OR PURSUANT TO AN EXEMPTION FROM, THE REQUIREMENTS OF SUCH ACT AND LAWS. If the Warrant Shares are issued with the aforementioned legend, upon the occurrence of any event permitting the removal of such legend, the Company, upon the surrender of certificates containing such legend, shall, at its own expense, deliver to the holder one or more new certificates evidencing Warrant Shares not bearing such legend. SECTION 5. Exercisability and Cancellation of Warrants; Exercise of -------------------------------------------------------- Warrants; HSR Compliance. - ------------------------ (a) Exercise. Subject to the terms and conditions set forth in this Section -------- 5, the Warrants may be exercised, in whole or in part (but not as to any fractional part of a Warrant), at any time or from time to time on and from the date hereof until 5:00 p.m., New York City time, on the fifth anniversary of the date hereof (the "Expiration Date"). To exercise any Warrant, the Warrantholder shall deliver to the Company at its office referred to in Section 14 the following: (i) a written notice in the form of the Election to Purchase appearing at the end of the form of Warrant Certificate attached hereto of the Warrantholder's election to exercise Warrants, which notice shall specify the number of Warrants being exercised; (ii) the Warrant Certificate(s) evidencing the Warrants being exercised; and (iii) payment of the aggregate Exercise Price. All rights of the Warrantholder with respect to any Warrant that has not been exercised on or prior to 5:00 p.m., New York City time, on the Expiration Date shall immediately cease and such Warrants shall be automatically cancelled without any further action on the part of the Company or the Warrantholder. All Warrant Certificates surrendered upon exercise of Warrants shall be cancelled and disposed of by the Company. The Company shall keep copies of this Warrant Agreement and any notices given or received hereunder available for inspection by the holders during normal business hours at its office. 3 (b) Payment of Exercise Price. The exercise price shall be $5.00 per ------------------------- Warrant, subject to adjustment pursuant to Section 10 (the "Exercise Price"). Payment of the aggregate Exercise Price with respect to Warrants being exercised hereunder shall be made by the payment to the Company, in cash, by check or wire transfer, of an amount equal to the Exercise Price multiplied by the number of Warrants then being exercised. (c) HSR Compliance. -------------- If the Warrantholder determines that a notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the "HSR Act"), is required in connection with the exercise of any Warrants, the Company together with the Warrantholder shall (i) file as soon as practicable after the date of such determination notifications under the HSR Act, (ii) respond as promptly as practicable to all inquiries or requests received from the United States Federal Trade Commission or the Antitrust Division of the Department of Justice for additional information or documentation and (iii) respond as promptly as practicable to all inquiries and requests received from any State Attorney General or other governmental authority in connection with antitrust matters. The Company shall take such action as may be necessary to ensure that any necessary notifications or filings are made and that all inquiries and requests received from the relevant governmental authorities are responded to as promptly as practicable. SECTION 6. Payment of Taxes. The Company shall be responsible for paying ---------------- any and all issue, documentary, stamp or other taxes that may be payable in respect of any issuance or delivery of Warrant Shares on the exercise of a Warrant. SECTION 7. Delivery of Warrant Shares. The Company shall, as promptly as -------------------------- practicable, and in any event within three (3) business days, execute and deliver or cause to be executed and delivered, to or upon the written order of the Warrantholder, and in the name of the Warrantholder or such Warrantholder's designee, a stock certificate or stock certificates representing the number of Warrant Shares to be issued on exercise of the Warrant(s). Such certificates may bear any restrictive legend required under applicable law, rule or regulation. The stock certificate or certificates so delivered shall be registered in the name of the Warrantholder or such other name as shall be designated in said notice. A Warrant shall be deemed to have been exercised and such stock certificate or stock certificates shall be deemed to have been issued, and such holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date that such notice, together with payment of the aggregate Exercise Price and the Warrant Certificate or Warrant Certificates evidencing the Warrants to be exercised, is received by the Company as aforesaid. If the Warrants evidenced by any Warrant Certificate are exercised in part, the Company shall, at the time of delivery of the certificates representing the Warrant Shares, deliver to the Warrantholder a new Warrant Certificate evidencing the Warrants that were not 4 exercised or surrendered, which shall in all respects (other than as to the number of Warrants evidenced thereby) be identical to the Warrant Certificate being exercised. Any Warrant Certificates surrendered upon exercise of Warrants shall be canceled by the Company. SECTION 8. Mutilated or Missing Warrant Certificates. In case any Warrant ----------------------------------------- Certificate shall be mutilated, lost, stolen or destroyed, the Company shall issue, in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate representing an equivalent number of Warrants, but only upon surrender of the mutilated certificate or upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction of such Warrant Certificate as applicable. In the case of a lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate shall be issued by the Company only upon the Company's receipt of reasonably satisfactory evidence of such loss, theft or destruction. SECTION 9. Reservation of Warrant Shares. The Company will at all times ----------------------------- reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued Series B Preferred Stock and Common Stock into which such Series B Preferred Stock is convertible or its authorized and issued Series B Preferred Stock and Common Stock held in its treasury, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the maximum number of shares of Series B Preferred Stock that may then be deliverable upon the exercise of all outstanding Warrants and the maximum number of shares of Common Stock in which such Series B Preferred Stock is convertible. The Company will be irrevocably authorized and directed at all time to reserve such number of authorized shares as shall be required for the purpose described above. The Company will keep a copy of this Warrant Agreement on file for any shares of the Company's capital stock issuable upon the exercise of the rights of purchase represented by the Warrants. Before taking any action that would cause an adjustment pursuant to Section 10 hereof to reduce the Exercise Price below the then par value (if any) of the Warrant Shares, the Company will take any corporate action that may, in the opinion of its counsel (that may be counsel employed by the Company), be necessary in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares at the Exercise Price as so adjusted. The Company covenants that all Warrant Shares that may be issued upon exercise of Warrants will, upon issue, be fully paid, nonassessable, free of preemptive rights and free from all taxes, liens, charges and security interests with respect to the issue thereof. SECTION 10. Adjustment of Exercise Price and Number of Warrant Shares --------------------------------------------------------- Issuable.The Exercise Price and the number of the Warrant Shares issuable upon - -------- the exercise of each Warrant are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section. "Common Stock" means 5 shares now or hereafter authorized of any class of common stock of the Company and any other stock of the Company, however designated, that has the right (subject to any prior rights of any class or series of preferred stock) to participate in any distribution of the assets or earnings of the Company without limit as to percentage or per share amount. (a) Adjustment for Change in Capital Stock. -------------------------------------- If the Company: (i) pays a dividend or makes a distribution on its Common Stock in shares of its Common Stock; (ii) subdivides its outstanding shares of Common Stock into a greater number of shares; (iii) combines its outstanding shares of Common Stock into a smaller number of shares; (iv) makes a distribution on its Common Stock in shares of its capital stock other than Common Stock or preferred stock; or (v) issues by reclassification of its Common Stock any shares of its capital stock; then the Exercise Price and the number and kind of shares of capital stock of the Company issuable upon the exercise of each Warrant as in effect immediately prior to such action shall be proportionately adjusted so that the holder of any Warrant thereafter exercised may receive the aggregate number and kind of shares of capital stock of the Company that he or she would have owned immediately following such action if such Warrant had been exercised immediately prior to such action. The adjustment shall become effective immediately after the record date in the case of a dividend or distribution and immediately after the effective date in the case of a subdivision, combination or reclassification. If after an adjustment the Warrantholder, upon exercise of the Warrants, shall be entitled to receive shares of more than one class of capital stock of the Company, the board of Directors of the Company (the "Board of Directors") shall determine the allocation of the adjusted Exercise Price between the classes of capital stock in good faith. After such allocation, the exercise rights and the Exercise Price with respect to each such class of capital stock shall thereafter be subject to adjustment on terms comparable to those applicable to Common Stock in this Section 10. Such adjustment shall be made successively whenever any event set forth above shall occur. (b) Adjustment for Rights Issue. --------------------------- 6 If the Company distributes any rights, options or warrants to all holders of its Common Stock entitling them for a period expiring within 60 days after the record date for such distribution to purchase shares of Common Stock at a price per share less then the market price per share on that record date, the Exercise Price shall be adjusted in accordance with the formula: O + (N x P) ----- E' = E x M ---------- O + N where: E' = the adjusted Exercise Price. E = the Exercise Price immediately prior to the adjustment. O = the number of shares of Common Stock outstanding on the record date for such rights issuance. N = the number of additional shares of Common Stock offered pursuant to such rights issuance. P = the offering price per share of the additional shares. M = the market price per share of Common Stock on the record date for such rights issuance. The adjustment shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the record date for the determination of stockholders entitled to receive the rights, options or warrants. If at the end of the period during which such rights, options or warrants are exercisable, not all rights, options or warrants shall have been exercised, the Exercise Price shall be immediately readjusted to what it would have been if "N" in the above formula had been the number of shares actually issued. (c) Adjustment for Other Distributions. ---------------------------------- If the Company distributes to all holders of its Common Stock any of its assets (including but not limited to cash), debt securities, preferred stock, or any rights or warrants to purchase debt securities, preferred stock, assets or other securities of the Company, the Exercise Price shall be adjusted in accordance with the formula: E' = E x (M - F) ----- M where: 7 E' = the adjusted Exercise Price. E = the Exercise Price immediately prior to the adjustment. M = the market price per share of Common Stock on the record date mentioned below. F = the fair market value on the record date for such distribution of the assets, securities, rights or warrants applicable to one share of Common Stock. The Board of Directors shall determine the fair market value in good faith. The adjustment shall be made successively whenever any such distribution is made and shall become effectively immediately after the record date for such distribution. This subsection (c) does not apply to rights, options or warrants referred to in subsection (b) of this Section 10. (d) Adjustment for Common Stock Issue. --------------------------------- If the Company issues shares of Common Stock for a consideration per share less than the market price per share on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the formula: E' = E x O + (P) - M ------- A where: E' = the adjusted Exercise Price. E = the Exercise Price immediately prior to the adjustment. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. M = the market price per share on the date of issuance of such additional shares. 8 A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. This subsection (d) does not apply to: (i) any of the transactions described in subsections (b) and (c) of this Section 10, (ii) the exercise of Warrants, or the conversion or exchange of other securities convertible or exchangeable for Common Stock and that are outstanding on the date hereof, (iii) shares of Common Stock issued to the Company's directors, employees and consultants under bona fide employee benefit plans adopted by the Board of Directors and approved by the stockholders of the Company when required by law, if such Common Stock would otherwise be covered by this subsection (d) (but only to the extent that the aggregate number of shares excluded hereby and issued after the date hereof shall not exceed 5% of the Common Stock outstanding on a fully diluted basis at the time of the adoption of any such plan, exclusive of anti-dilution adjustments thereunder), (iv) Common Stock issued to the Company's management pursuant to the Option Grant (as defined in the Subscription Agreement), or (v) Common Stock issued in a bona fide public offering pursuant to a firm commitment underwriting. (e) Adjustment for Convertible Securities Issue. ------------------------------------------- If the Company issues any securities convertible into or exchangeable for Common Stock (other than securities issued in transactions described in subsections (b) and (c) and the exceptions set forth in paragraphs (i) to (v) of subsection (d) of this Section 10) for a consideration per share of Common Stock initially deliverable upon conversion or exchange of such securities less than the market price per share on the date of issuance of such securities, the Exercise Price shall be adjusted in accordance with this formula: O + P - E' = E x M ------ (O + D) where: E' = the adjusted Exercise Price. 9 E = the Exercise Price immediately prior to the adjustment. O = the number of shares outstanding immediately prior to the issuance of such securities. P = the aggregate consideration received for the issuance of such securities. M = the market price per share on the date of issuance of such convertible securities. D = the maximum number of shares deliverable upon conversion or in exchange for such securities at the initial conversion or exchange rate. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. If all of the shares of Common Stock deliverable upon conversion or exchange of such securities have not been issued when such securities are no longer outstanding or the ability to convert or exchange terminates, then the Exercise Price shall promptly be readjusted to the Exercise Price that would then be in effect had the adjustment upon the issuance of such securities been made on the basis of the actual number of shares of Common Stock issued upon conversion or exchange of such securities. This subsection (e) does not apply to convertible securities issued in a bona fide public offering pursuant to a firm commitment underwriting. (f) Market Price. ------------ In this Agreement, the market price per share of Common Stock on any date shall equal the average of the Quoted Prices of the Common Stock for 30 consecutive trading days commencing 45 trading days before the date in question. The "Quoted Price" of the Common Stock is the last reported sales price of the Common Stock as reported by Nasdaq, National Market System, or if the Common Stock is listed on a securities exchange, the last reported sales price of the Common Stock on such exchange, which shall be for consolidated trading if applicable to such exchange, or if neither so reported or listed, the last reported bid price of the Common Stock. In the absence of one or more such quotations, the Board of Directors of the Company shall determine the market price on the basis of such quotations and evaluations as it in reasonable good faith considers appropriate; provided, however, that if the Warrantholder objects in writing to such determination within 20 business days after receiving notice of any adjustment based in part on such determination, the market price shall be determined by a nationally recognized investment banking firm jointly selected within 20 business days of such objection by the Company and Warrantholder or, if no such joint selection can be agreed upon, by an 10 investment banking firm, selected by the American Arbitration Association (at the Company's expense if the investment banker's determination is less than the Company's determination, and at the expense of the objecting Warrantholder if the investment banker's determination is equal to or greater than the Company's determination). (g) Consideration Received. ---------------------- For purposes of any computation respecting consideration received pursuant to subsections (d) and (e) of this Section 10, the following shall apply: (i) in the case of the issuance of shares of Common Stock for cash, the consideration shall be the amount of such cash; (ii) in the case of the issuance of shares of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair market value thereof as determined in good faith by the Board of Directors (irrespective of the accounting treatment thereof), whose determination shall be conclusive, and described in a Board resolution, subject to the rights of a majority in interest of the outstanding Warrants to object as provided in clause (f) above, in which case fair market value shall be determined pursuant to the procedure specified therein; and (iii) in the case of the issuance of securities convertible into or exchangeable for shares, the aggregate consideration received therefor shall be deemed to be the consideration received by the Company for the issuance of such securities plus the additional minimum consideration, if any, to be received by the Company upon the conversion or exchange thereof (the consideration in each case to be determined in the same manner as provided in clauses (i) and (ii) of this subsection). (h) When De Minimis Adjustment May Be Deferred. ------------------------------------------ No adjustment in the Exercise Price need be made unless the adjustment would require an increase or decrease of at least 1% in the Exercise Price. Any adjustments that are not made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 10 shall be made to the nearest one cent (or, for purposes of subsection (l) of this Section 10, 1/1000th of a cent) or to the nearest 1/100th of a share, as the case may be. (i) Notice of Adjustment. -------------------- Whenever the Exercise Price is adjusted, the Company shall provide the notices required by Section 13 hereof. (j) Voluntary Reduction. ------------------- 11 The Company from time to time may reduce the Exercise Price by any amount for any period of time of at least 20 days and the reduction shall be irrevocable during such period; provided, however, that in no event may the Exercise Price be less than the par value of a share of Common Stock. Whenever the Exercise Price is reduced, the Company shall mail to the Warrantholder a notice of the reduction. The Company shall mail the notice at least 15 days before the date the reduced Exercise Price takes effect. The notice shall state the reduced Exercise Price and the period it will be in effect. A reduction of the Exercise Price shall not change or adjust the Exercise Price otherwise in effect for purposes of subsections (a), (b), (c), (d) and (e) of this Section 10. (k) Reorganization of Company. ------------------------- If the Company consolidates or merges with or into, or transfers or leases all or substantially all its assets to, any person, upon consummation of such transaction the Warrants shall automatically become exercisable for the kind and amount of securities, cash or other assets that the holder of a Warrant would have owned immediately after the consolidation, merger, transfer or lease if the holder had exercised the Warrant immediately before the effective date of the transaction. Concurrently with the consummation of such transaction, the corporation formed by or surviving any such consolidation or merger if other than the Company, or the person to which such sale or conveyance shall have been made, shall execute a written supplemental undertaking so providing and further providing for adjustments that shall be as nearly equivalent as may be practical to the adjustments provided for in this Section. The successor Company shall mail to the Warrantholder a notice describing the undertaking in accordance with Section 13 hereof. If the issuer of securities deliverable upon exercise of Warrants under the supplemental referred to in the preceding paragraph is an affiliate of the formed, surviving, transferee or lessee corporation, that issuer shall join in the supplemental undertaking. (l) Adjustment in Number of Shares. ------------------------------ Upon each adjustment of the Exercise Price pursuant to this Section 10, each Warrant outstanding prior to the making of the adjustment in the Exercise Price shall thereafter evidence the right to receive upon payment of the adjusted Exercise Price that number of Warrant Shares (calculated to the nearest hundredth) obtained from the following formula: N' = N x E ----- E' where: 12 N' = the adjusted number of Warrant Shares issuable upon exercise of a Warrant by payment of the adjusted Exercise Price. N = the number of Warrant Shares previously issuable upon exercise of a Warrant by payment of the Exercise Price prior to adjustment. E' = the adjusted Exercise Price. E = the Exercise Price immediately prior to the adjustment. (m) Form of Warrants. ---------------- Irrespective of any adjustments in the Exercise Price or the number or kind of shares purchasable upon the exercise of the Warrants, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the Warrants initially issuable pursuant to this Warrant Agreement. SECTION 11. No Dilution or Impairment. ------------------------- (a) If any event shall occur as to which the provisions of Section 10 are not strictly applicable but the failure to adjust the Exercise Price would adversely affect the purchase rights represented by the Warrants in accordance with the essential intent and principles of such Section, then, in each such case, the Company shall appoint an investment banking firm of recognized national standing, or any other financial expert that does not (or whose directors, officers, employees, affiliates or stockholders do not) have a direct or material indirect financial interest in the Company or any of its Subsidiaries, who has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of its directors, officers, employees, affiliates or stockholders are) a promoter, director or officer of the Company or any of its Subsidiaries, which shall give their opinion upon the adjustment, if any, on a basis consistent with the essential intent and principles established in Section 10, necessary to preserve, without dilution, the purchase rights, represented by the Warrants. Upon receipt of such opinion, the Company will promptly mail a copy thereof to the holders of the Warrants and shall make the adjustments described therein. (b) The Company will not, by amendment of its certificate of incorporation or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of the Warrants, but will at all times in reasonable good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders of the Warrants against dilution or other impairment. Without limiting the generality of the 13 foregoing, the Company (1) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Series B Preferred Stock upon the exercise of the Warrants from time to time outstanding and (2) will not take any action that results in any adjustment of the Exercise Price if the total number of Warrant Shares issuable after the action upon the exercise of all of the Warrants would exceed the total number of shares of Series B Preferred Stock or shares of Common Stock into which the Series B Preferred Stock shall be convertible then authorized by the Company's certificate of incorporation and available for the purposes of issue upon such exercise. A consolidation, merger, reorganization or transfer of assets involving the Company covered by Section 10 shall not be prohibited by or require any adjustment under this Section 11. SECTION 12. Fractional Interests. The Company shall not be required to -------------------- issue fractional Warrant Shares on the exercise of Warrants. If more than one Warrant shall be presented for exercise in full at the same time by the same holder, the number of full Warrant Shares that shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of Warrant Shares purchasable on exercise of the Warrants so presented. If, notwithstanding the aggregation pursuant to the preceding sentence, any fraction of a Warrant Share would be issuable on the exercise of any Warrants (or specified portion thereof), the Company shall pay an amount in cash equal to the Exercise Price on the day immediately preceding the date the Warrant is presented for exercise, multiplied by such fraction. SECTION 13. Notices to Warrantholder. Upon any adjustment of the Exercise ------------------------ Price pursuant to Section 10 or Section 11, the Company shall promptly thereafter (i) cause to be filed with the Company a certificate that includes the report of a firm of independent public accountants of recognized standing selected by the Board of Directors (who may be the regular auditors of the Company) setting forth the Exercise Price after such adjustment and setting forth in reasonable detail the method of calculation and the facts upon which such calculations are based and setting forth the number of Warrant Shares (or portion thereof) issuable after such adjustment in the Exercise Price, upon exercise of a Warrant and payment of the adjusted Exercise Price, and (ii) cause to be given to the Warrantholder written notice of such adjustments (including a copy of such certificate). Where appropriate, such notice may be given in advance and included as a part of the notice required to be mailed under the other provisions of this Section 13. In case: (a) the Company shall authorize the issuance to all holders of shares of Common Stock, rights, options or warrants to subscribe for or purchase shares of Common Stock or of any other subscription rights or warrants; (b) the Company shall authorize the distribution to all holders of shares of Common Stock of its indebtedness or assets; 14 (c) of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the conveyance or transfer of the properties and assets of the Company substantially as an entirety, or of any reclassification or change of Series B Preferred Stock issuable upon exercise of the Warrants or Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or a tender offer or exchange offer for shares of Common Stock; (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or (e) the Company proposes to take any action (other than actions of the character described in Section 10(a)) that would require an adjustment of the Exercise Price or that would require a supplemental undertaking pursuant to Section 10; then the Company shall cause to be given to the Warrantholder at his address appearing on the Warrant register, at least 20 days (or 10 days in any case specified in clauses (a) or (b) above) prior to the applicable record date hereinafter specified, or promptly in the case of events for which there is no record date, a written notice stating (i) the date as of which the holders of record of shares of Common Stock to be entitled to receive any such rights, options, warrants or distribution are to be determined, (ii) the initial expiration date set forth in any tender offer or exchange offer for shares of Common Stock, or (iii) the date on which any such reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation or winding up is expected to become effective or consummated, and the date as of which it is expected that holders of record of shares of Common Stock shall be entitled to exchange such shares for securities or other property, if any, deliverable upon such reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation or winding up. The failure to give the notice required by this Section 13 or any defect therein shall not affect the legality or validity of any distribution, right, option, warrant, consolidation, merger, conveyance, transfer, dissolution, liquidation or winding up, or the vote upon any action. Nothing contained in this Warrant Agreement or in any of the Warrant Certificates shall be construed as conferring upon the holders thereof the right to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of Directors of the Company or any other matter, or any rights whatsoever as stockholders of the Company. SECTION 14. Notices to Company and Warrantholder. All notices and other ------------------------------------ communications hereunder shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: 15 To the Company: Moscow CableCom Corp. 405 Park Avenue Suite 1203 New York, NY 10022 Attention: Oliver Grace Facsimile: +1-212-888-5620 With a courtesy copy (which shall not constitute notice to the Company): Oliver R. Grace, Jr. 55 Brookville Road Glen Head, NY 11545 Facsimile: +1-516-626-1204 To the Warrantholder: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to the Warrantholder) to: Skadden, Arps, Slate, Meagher & Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile: +49-69-74220300 SECTION 15. Amendments and Waivers. No amendment of any provision of this ---------------------- Warrant Agreement shall be valid unless the same (x) shall be in writing and signed by the parties and (y) shall be approved by the Audit Committee of the Board of Directors of the Company. Either party to this Warrant Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (iii) waive compliance with any of the agreements or conditions of the other party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed b the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the 16 same term or condition, or a waiver of any other term or condition, of this Warrant Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. SECTION 16. Representations and Warranties of the Warrantholder. --------------------------------------------------- The Warrantholder, by its acceptance of the Warrants to be issued herewith represents and warrants to the Company that (a) it is an "accredited investor" as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act, and (b) it is acquiring the Warrants and the Warrant Shares to be issued upon exercise of such Warrants for investment, for its own account, and not with a view to, or for sale in connection with, any distribution. SECTION 17. Successors. All the covenants and provisions of this Warrant ---------- Agreement by or for the benefit of the Company shall bind and inure to the benefit of its respective successors and assigns hereunder. SECTION 18. Termination. This Warrant Agreement shall terminate on the ----------- earlier of (i) the Expiration Date and (ii) the date on which all Warrants have been exercised or canceled in accordance with Section 5. SECTION 19. Governing Law; Jurisdiction; Venue. ---------------------------------- (a) Governing Law. This Warrant Agreement shall be governed by, and ------------- construed in accordance with, the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York. (b) Jurisdiction. The Company and the Warrantholder by its acceptance ------------ of the Warrants each hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in respect of actions brought against it as a defendant, in any action, suit or proceeding arising out of or relating to this Warrant Agreement or the Warrant Certificates and Warrants to be issued pursuant hereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action, suit or proceeding may be heard and determined in such courts. Each of the parties hereto agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (c) Venue. Each of the Company and the Warrantholder irrevocably and ----- unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of 17 any action, suit or proceeding arising out of or relating to this Warrant Agreement, or the Warrant Certificate(s) and Warrants to be issued pursuant hereto, in any court referred to in clause (b). Each of the Company and the Warrantholder hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action, suit proceeding in any such court. SECTION 20. Equitable Remedies. ------------------ The parties agree that irreparable harm would occur in the event that any of the agreements and provisions of this Warrant Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Warrant Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Warrant Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Warrant Agreement by the other party and to enforce specifically such terms and conditions of this Warrant Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other party is entitled to at law or in equity. SECTION 21. Benefits of this Warrant Agreement. Nothing in this Warrant ---------------------------------- Agreement shall be construed to give to any person or corporation other than the Company and the registered holders of the Warrant Certificates any legal or equitable right, remedy or claim under this Warrant Agreement; but this Warrant Agreement shall be for the sole and exclusive benefit of the Company and the registered holders of the Warrant Certificates. SECTION 22. Headings. The descriptive headings contained in this Warrant -------- Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Warrant Agreement. SECTION 23. Interpretation. -------------- References in this Warrant Agreement to articles, sections, paragraphs, clauses and exhibits are to articles, sections, paragraphs, clauses and exhibits in or to this Warrant Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the 18 context otherwise requires, references herein to any Person include its successors and assigns SECTION 24. Entire Agreement. This Warrant Agreement, together with the ---------------- Warrant Certificates and Exhibits, constitute the entire agreement between the Company and the Warrantholder with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, between the Company and the Warrantholder with respect to the subject matter hereof and thereof. SECTION 25. Joint Drafting. The parties have participated jointly in the -------------- negotiation and drafting of this Warrant Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Warrant Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Warrant Agreement. SECTION 26. Severability. ------------ If any provision of this Warrant Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other provisions of this Warrant Agreement shall nevertheless remain in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto 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 provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Warrant Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. SECTION 27. Counterparts. This Warrant Agreement may be executed in any ------------ number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. [Signature on Following Page] 19 IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be duly executed as of the day and year first above written. MOSCOW CABLECOM CORP. By: ------------------------------------ Name: COLUMBUS NOVA INVESTMENTS VIII LTD. By: ------------------------------------ Name: Title: 20 EXHIBIT A FORM OF WARRANT CERTIFICATE THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH, OR PURSUANT TO AN EXEMPTION FROM, THE REQUIREMENTS OF SUCH ACT AND LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A SERIES B CONVERTIBLE PREFERRED STOCK WARRANT AGREEMENT BY AND BETWEEN MOSCOW CABLECOM CORP. AND COLUMBUS NOVA INVESTMENTS VIII LTD. THE HOLDER OF THIS CERTIFICATE BY THE ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE TERMS OF THE WARRANT AGREEMENT. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO MOSCOW CABLECOM CORP. NO. WARRANTS - -- 21 FORM OF Warrant Certificate MOSCOW CABLECOM CORP. This Warrant Certificate certifies that Columbus Nova Investments VIII Ltd., a Bahamas corporation, or its registered assigns (the "Warrantholder"), is the registered holder of Warrants to purchase up to 8,283,000 shares (the "Warrant Shares") of Series B Convertible Preferred Stock, par value $.01 per share (the "Series B Preferred Stock"), of Moscow CableCom Corp. (the "Company"). Each Warrant entitles the holder, subject to the conditions relating to exercisability, cancellation and exercise set forth in Section 5 of the Warrant Agreement referred to below, to purchase from the Company at any time on or after the Exercise Date prior to 5:00 p.m., New York City time, on the Expiration Date one fully paid and nonassessable Warrant Share at the Exercise Price. The number of Warrant Shares for which each Warrant is exercisable and the Exercise Price are subject to adjustment as provided in the Warrant Agreement. The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants to purchase Warrant Shares and are issued pursuant to the Warrant Agreement, dated as of [ ] (the "Warrant Agreement"), by and between the Company and the Warrantholder for the benefit of the holders from time to time of the Warrants, and the Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Company and the Warrantholder. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Warrant Agreement. The Warrantholder may exercise the Warrants represented by this Warrant Certificate by surrendering this Warrant Certificate, with the Election to Purchase attached hereto properly completed and executed, together with payment of the aggregate Exercise Price, at the offices of the Company specified in Section 14 of the Warrant Agreement. If upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the Warrantholder or its assignee a new Warrant Certificate evidencing the number of Warrants not exercised. This Warrant Certificate, when surrendered at the offices of the Company specified in Section 14 of the Warrant Agreement, by the registered holder thereof in person, by legal representative or by attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, for one or more other Warrant Certificates evidencing in the aggregate a like number of Warrants. The Warrantholder may transfer the Warrants evidenced by this Warrant Certificate, in whole or in part, only in accordance with Section 4 of the Warrant Agreement. 22 The Company may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary. The Warrant Agreement and each Warrant Certificate, including this Warrant Certificate, shall be governed by and construed in accordance with the laws of the State of New York. WITNESS the signature of the duly authorized officer of the Company. Dated: [ ] MOSCOW CABLECOM CORP. By: ------------------------------------ Name: Title: 23 FORM OF ELECTION TO PURCHASE (To be executed and delivered to the Company upon exercise of a Warrant after the Exercise Date and prior to the Expiration Date) The undersigned hereby irrevocably elects to exercise ----- of the - -------- Warrants evidenced by the attached Warrant Certificate to purchase Warrant Shares, and herewith tenders payment for such Warrant Shares in an amount determined in accordance with the terms of the Warrant Agreement. The undersigned requests that a certificate representing such Warrant Shares be registered in the name of ----------------, whose address is - ----------------, and that such certificate be delivered to ----------------, whose address is ------------. If said number of Warrants is less than the number of Warrants evidenced by the Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the number of Warrants evidenced by this Warrant Certificate that are not being exercised be registered in the name of ----------------, whose address is ---------------- and that such Warrant Certificate be delivered to ----------------, whose address is - ----------------. Dated , Name of holder of Warrant Certificate: ---------------- ---------------- (Please Print) Address: ---------------- ---------------- Federal Tax ID No.: ---------------- 24 Signature: ---------------- Note: The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed. Signature Guaranteed: Dated: ---------------- 25 FORM OF ASSIGNMENT For value received, ---------------- hereby sells, assigns and transfers unto ----------------, ---------------- of the Warrants evidenced by the attached Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ---------------- as its due and lawful attorney, to register the transfer of said Warrants on the books of Moscow CableCom Corp., and to execute a new Warrant Certificate in the name of ---------------- whose address is ---------------- evidencing the number of Warrants so sold, assigned and transferred hereby. If the number of Warrants sold, assigned or transferred hereunder is less than the number of Warrants evidenced by the attached Warrant Certificate, then the undersigned requests that a new Warrant Certificate for an amount of Warrants equal to the number of Warrants evidenced by the attached Warrant Certificate that were not sold, transferred or assigned be registered in the name of the undersigned. ------------- hereby consents to be bound by the covenants and provisions of the Warrant Agreement, dated as of [ ], by and between Moscow CableCom Corp. and Columbus Nova Investments VIII Ltd. Dated ----------------, Name of holder of Warrant Certificate: ---------------- ---------------- (Please Print) Address: ---------------- ---------------- Federal Tax ID No.: ---------------- 26 Signature: ---------------- Note: The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and such signature must be guaranteed. Signature Guaranteed: Dated: ---------------- 27 EX-99 5 was5181ex994-1.txt EX. 4.1 VOTING AGREEMENT MOSKOVSKAYA EXECUTION COPY VOTING AGREEMENT between MOSKOVSKAYA TELECOMMUNIKATIONNAYA CORPORATSIYA and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated August 26, 2004 EXECUTION COPY TABLE OF CONTENTS Page ---- 1. Certain Definitions.....................................................1 2. Transfer of Shares......................................................3 3. Agreement to Vote the Voting Shares.....................................4 4. Irrevocable Proxy.......................................................4 5. Representations and Warranties of the Stockholder.......................4 6. Representations and Warranties of CNI...................................5 7. Legending of Shares.....................................................5 8. Consent and Waiver......................................................6 9. Disclosure..............................................................6 10. Miscellaneous...........................................................6 EXECUTION COPY VOTING AGREEMENT This VOTING AGREEMENT (this "Agreement") is made and entered into as of August 26, 2004, by and between Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the undersigned stockholder and/or option holder (the "Stockholder") of Moscow CableCom Corp., a Delaware corporation (the "Company"). Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Subscription Agreement (as defined below). WHEREAS, as of the date hereof, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such number of shares of the outstanding capital stock of the Company, and such number of shares of capital stock of the Company issuable upon the exercise of outstanding options, as is indicated in columns 2, 3 and 7 of Schedule A hereto; WHEREAS, concurrently with the execution of this Agreement, the Company, and CNI are entering into a Series B Convertible Preferred Stock Subscription Agreement, dated as of the date hereof (the "Subscription Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, CNI will acquire 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), that are currently convertible into 4,500,000 shares of Common Stock, par value $.01 per share of the Company (the "Common Stock"); WHEREAS, at the Closing of the transactions contemplated in the Subscription Agreement, the Company and CNI will enter into a Series B Convertible Preferred Stock Warrant Agreement (the "Warrant Agreement") pursuant to which CNI will acquire warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock; and WHEREAS, as an inducement and a condition to entering into the Subscription Agreement and the Warrant Agreement by CNI, the Stockholder has agreed to vote the Voting Shares (as defined below), so as to facilitate consummation of the transactions contemplated in the Subscription Agreement (the "Transactions"); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. Certain Definitions. For all purposes of and under this Agreement, the ------------------- following terms shall have the following respective meanings: (a) "Beneficially Own" or "Beneficial Ownership" means, with respect to securities, having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Exchange Act. (b) "Convertible Debentures" menas the 10 1/2 Convertible Subordinated Debentures due 2007 of the Company. EXECUTION COPY (c) "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (d) "Expiration Time" means the earliest to occur of (i) valid termination of the Subscription Agreement pursuant to its terms, (ii) consummation of the Transactions, (iii) February 28, 2005 or (iv) the written agreement of the parties hereto to terminate this Agreement. (e) "Series A Preferred Stock" means the Series A Cumulative Convertible Preferred Stock, par value $.01 per share, of the Company. (f) "Shares" means: (i) the Voting Shares, (ii) all other securities of the Company (including all options and other rights to acquire shares of Company Common Stock) owned by the Stockholder as of the date of this Agreement and such other shares of capital stock of the Company over which the Stockholder has voting power as indicated on Schedule A, and (iii) all additional securities of the Company (including all additional shares of Common Stock and all additional options and other rights to acquire shares of Common Stock) of which the Stockholder acquires beneficial ownership during the period commencing with the execution and delivery of this Agreement until the Expiration Time. (g) "Securities Act" means the Securities Act of 1933, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities Exchange and Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (h) "Transfer" means, with respect to a security, whether directly or indirectly (i) to sell, pledge, encumber, grant an option with respect to, transfer or otherwise dispose of such security or any interest therein (including any voting interest), or (ii) to enter into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein. (i) "Voting Shares" means issued and outstanding shares of Common Stock and Series A Preferred Stock owned of record and Beneficially Owned by the Stockholder as of the date hereof (that are set out in columns 2, 3, 4 and 5 of Schedule A hereto) and acquired at any time prior to the Expiration Time. 2. Transfer of Shares. ------------------ (a) No Transfer of Shares. The Stockholder hereby agrees that, at all times --------------------- during the period commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not cause or permit any Transfer of any of the Shares to be effected, or discuss, negotiate or make any offer regarding any Transfer of any of the Shares without the prior written consent of CNI other than the issuance of Common Stock to the Stockholder by the Company in connection with the exercise by the Stockholder of options to purchase Common Stock. Notwithstanding the foregoing, the Stockholder may Transfer Shares to a member of the Stockholder's immediate family or to a trust or other entity created by the Stockholder for tax or estate planning purposes, provided, that any such transferee agrees to assume the obligations of the Stockholder hereunder with respect to any Shares so transferred. EXECUTION COPY (b) No Transfer of Voting Rights. The Stockholder hereby agrees that, at all ---------------------------- times commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not deposit, or permit the deposit of, any Voting Shares in a voting trust, grant any proxy in respect of the Voting Shares, or enter into any voting agreement or similar arrangement or commitment with respect to any of the Voting Shares (other than, in each case, this Agreement and the Proxy (as defined in Section 4)). 3. Agreement to Vote the Voting Shares. Until the Expiration Time, at every ----------------------------------- meeting of stockholders of the Company called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company with respect to any of the following, the Stockholder shall vote, to the extent not voted by the person(s) appointed under the Proxy, the Voting Shares: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and the Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and the Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including, but not limited to (i) waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI and (ii) nominating or electing the Purchaser Directors to the Board of Directors of the Company; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. Prior to the Expiration Time, the Stockholder shall not enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with the terms of this Section 3. 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, the ----------------- Stockholder agrees to deliver and delivers to CNI a proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be coupled with an interest and, until the Expiration Time, be irrevocable to the fullest extent permitted by applicable law, with respect to any Voting Shares. EXECUTION COPY 5. Representations and Warranties of the Stockholder. The Stockholder hereby ------------------------------------------------- represents and warrants to CNI that, as of the date hereof and at all times until the Expiration Time: (a) the Stockholder is (and will be, except with respect to any Shares that are Transferred in compliance with Section 2(a)) the Beneficial Owner of the Shares; (b) the Voting Shares are, and the Shares will be, unless Transferred in compliance with Section 2(a), free and clear of any Encumbrances of any kind or nature; (c) the Stockholder does not and will not beneficially own any securities of the Company or rights to acquire any securities of the Company other than the Shares; (d) the Stockholder has and will have, with respect to all of the Shares, the legal capacity and all requisite power and authority to make, enter into and (except with respect to any Shares that are Transferred in compliance with Section 2(a)) perform the terms of this Agreement and the Proxy; (e) this Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; (f) the execution and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will not, conflict with or violate any Governmental Order or permit applicable to the Stockholder or result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or materially impair the Stockholder's rights or alter the rights or obligations of any third party under, any contract, agreement or other arrangement applicable to the Shares; and (g) except as expressly contemplated hereby, or set out on Schedule A hereto the Stockholder is not a party to, and the Shares are not subject to or bound in any manner by, any contract or agreement relating to the Shares, including without limitation, any voting agreement, option agreement, purchase agreement, stockholders' agreement, partnership agreement or voting trust. 6. Representations and Warranties of CNI. CNI hereby represents and warrants to ------------------------------------- the Stockholder that, as of the date hereof and at all times until the Expiration Time: (a) CNI has the legal capacity and all requisite power and authority to make, enter into and perform the terms of this Agreement and the Proxy; (b) this Agreement has been duly and validly executed and delivered by CNI and constitutes the valid and binding obligation of CNI, enforceable against CNI in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; and (c) the execution and delivery of this Agreement by CNI do not, and the consummation of the transactions contemplated hereby will not, conflict EXECUTION COPY with or violate any material Governmental Order or permit applicable to CNI, except where such conflicts, violations, breaches or defaults would not, individually or in the aggregate, materially impair the ability of CNI to perform its obligations hereunder. 7. Legending of Shares. If so requested by CNI, the Stockholder hereby agrees ------------------- that the Shares shall bear a legend stating that they are subject to this Agreement and to an irrevocable proxy. The Stockholder hereby agrees that the Stockholder shall not Transfer the Shares without first having the aforementioned legend affixed to the certificates representing the Shares. 8. Consent and Waiver. The Stockholder (not in his or her capacity as a director ------------------ or officer of the Company) agrees to give any consent or waiver that is reasonably required under the terms of any agreement to which the Stockholder is a party which consent or waiver is required solely because of the consummation of the Transactions. 9. Disclosure. The Stockholder hereby agrees to permit the Company to publish ---------- and disclose in the Proxy Statement (including all documents and schedules filed with the Securities and Exchange Commission) and for the Company and CNI to publish and disclose in any press release or other disclosure document that either the Company or CNI determines to be necessary or desirable in connection with the Transactions the existence and terms of this Agreement. 10. Miscellaneous. ------------- (a) Amendments and Waivers. No amendment of any provision of this Agreement ---------------------- shall be valid unless the same shall be in writing and signed by the parties. Either party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (iii) waive compliance with any of the agreements or conditions of the other party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. (b) Notices. All notices and other communications hereunder shall be in ------- writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to CNI, to: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor EXECUTION COPY New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to CNI) to: Skadden, Arps, Slate, Meagher and Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile No.: +49-69-74220300 (ii) if to the Stockholder, to the address set forth on the signature page of this Agreement, with a copy (which shall not constitute notice to the Stockholder) to: Moskovskaya Telecommunikationnaya Corporatsiya Neglinnaya Street, 17/2 Moscow 127051 Russia Attention: Facsimile: +7-095-250-7455 (c) Headings. The descriptive headings contained in this Agreement are for -------- convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (d) Interpretation. References in this Agreement to sections, paragraphs, -------------- clauses, schedules and exhibits are to sections, paragraphs, clauses, schedules and exhibits in or to this Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the context otherwise requires, references herein to any Person include its successors and assigns. (e) Counterparts. This Agreement may be executed in any number of counterparts ------------ and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. (f) Entire Agreement. This Agreement and the Proxy constitute the entire ---------------- agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter hereof and thereof. EXECUTION COPY (g) Severability. If any provision of this Agreement is invalid, illegal or ------------ incapable of being enforced by any law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto 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 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 in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. (h) Specific Performance. The parties agree that irreparable harm would occur -------------------- in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other party and to enforce specifically such terms and conditions of this Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other Party is entitled to at law or in equity. (i) Governing Law. This Agreement shall be governed by and construed in ------------- accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. (j) Rules of Construction. --------------------- (i) Construction. The parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. (ii) Adequate Counsel. Each of the parties hereby represents and ---------------- warrants that it and its legal counsel have adequate information regarding the terms of this Agreement, the scope and effect of the transactions contemplated hereby and all other matters encompassed by this Agreement to make an informed and knowledgeable decision with regard to entering into this Agreement. (k) Binding Effect; Assignment. The Stockholder may not assign either this -------------------------- Agreement or any of the rights, interests, or obligations hereunder without the prior written approval of CNI. Any purported assignment in violation of this Section 10(k) shall be void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. EXECUTION COPY (l) Waiver of Jury Trial. EACH OF CNI AND THE STOCKHOLDER HEREBY IRREVOCABLY -------------------- WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CNI OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. [SIGNATURE ON THE FOLLOWING PAGE] EXECUTION COPY IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed individually or by its respective duly authorized officer as of the date first written above. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ------------------------ Name: Andrew Intrater Title: Managing Partner MOSKOVSKAYA TELECOMMUNIKATIONNAYA CORPORATSIYA By: /s/ Aram Grigoryan ------------------------ Name: Aram Grigoryan Title: General Director EXECUTION COPY Schedule A Stockholder Beneficial Ownership of Shares ------------------------------------------ - ------------- ------------- ------------ ------------ ------------ ------------- ------------- ------------ ----------- 1 2 3 4 5 6 7 8 9 - ------------- ------------- ------------ ------------ ------------ ------------- ------------- ------------ ----------- Name of Number of Number Number of Number of Number of Number of Amount of Number Stockholder Shares of of Other Shares of Other Shares of Shares of Convertible of Common Stock Shares Series A Shares of Common Stock Common Stock Debentures Shares Owned of Preferred Series A Owned Upon Owned Upon Owned of Common Stock Owned Preferred Conversion Exercise of Common Stock Stock of Series A Options Stock Over Over Preferred Owned which which Stock Upon Stockholder Stockholder Conversion Has Has of Voting Voting Convertible Power Power Debentures - ------------- ------------- ------------ ------------ ------------ ------------- ------------- ------------ ------------ Moskovskaya 4,220,879 0 0 0 0 0 0 0 Telecommuni kationnaya Corporatsiya - ------------- ------------- ------------ ------------ ------------ ------------- ------------- ------------ ------------
EXECUTION COPY Exhibit A IRREVOCABLE PROXY The undersigned Stockholder of Moscow CableCom Corp., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints the executive officers and members of the Board of Directors of Columbus Nova Investments VIII Ltd., a Bahamas corporation ("CNI"), and each of them initially, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the fullest extent that the undersigned is entitled to do so) with respect to all of the Voting Shares, as defined in the Voting Agreement of even date herewith by and between CNI and the undersigned Stockholder (the "Voting Agreement") in accordance with the terms of this Proxy. Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Voting Agreement. The Voting Shares beneficially owned by the undersigned Stockholder of the Company as of the date of this Proxy are listed on the final page of this Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Voting Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Voting Shares until after the Expiration Time. Until the Expiration Time, this Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest, is granted pursuant to the Voting Agreement, and is granted in consideration of CNI entering into the Subscription Agreement and the Warrant Agreement. The Subscription Agreement provides for CNI acquiring 4,500,000 shares of Series B Preferred Stock of the Company that are currently convertible into 4,500,000 shares of Common Stock of the Company. The Warrant Agreement will provide for CNI acquiring warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock. The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the Expiration Time, to act as the undersigned's attorney and proxy to vote the Voting Shares, and to exercise all voting, consent and similar rights of the undersigned with respect to the Voting Shares (including, without limitation, the power to execute and deliver written consents) at every annual, special, adjourned or postponed meeting of stockholders of the Company and in every written consent in lieu of such meeting: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and this Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and this Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the EXECUTION COPY Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including, but not limited to (i) waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI and (ii) nominating or electing the Purchaser Directors to the Board of Directors of the Company; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. The attorneys and proxies named above may not exercise this Proxy on any other matter except as provided above. Any obligation of the undersigned hereunder shall be binding upon the successors and assigns of the undersigned. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] EXECUTION COPY This Proxy is irrevocable (to the fullest extent permitted by law) until the Expiration Time and shall terminate, and be of no further force and effect, automatically upon the Expiration Time. Dated: August 26, 2004 Signature of Stockholder: /s/ Aram Grigoryan, General Director ------------------------------------ Print Name of Stockholder: Moskovskaya Telecommunikatsionnaya Corporatsiya ----------------------------------------------- Shares Beneficially Owned: 4,220,879 shares of Company Common Stock --------- 0 shares of Series A Cumulative Convertible --------- Preferred Stock Owned [SIGNATURE PAGE TO IRREVOCABLE PROXY] EX-99 6 was5181ex99-5.txt EX. 4.2 VOTING AGREEMENT OLIVER R. GRACE, JR. EXECUTION COPY VOTING AGREEMENT between OLIVER GRACE, JR. and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated August 26, 2004 EXECUTION COPY TABLE OF CONTENTS Page ---- 1. Certain Definitions.....................................................1 2. Transfer of Shares......................................................3 3. Agreement to Vote the Voting Shares.....................................4 4. Irrevocable Proxy.......................................................5 5. Representations and Warranties of the Stockholder.......................5 6. Representations and Warranties of CNI...................................6 7. Legending of Shares.....................................................6 8. Consent and Waiver......................................................6 9. Disclosure..............................................................6 10. Miscellaneous...........................................................6 EXECUTION COPY VOTING AGREEMENT This VOTING AGREEMENT (this "Agreement") is made and entered into as of August 26, 2004, by and between Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the undersigned stockholder and/or option holder (the "Stockholder") of Moscow CableCom Corp., a Delaware corporation (the "Company"). Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Subscription Agreement (as defined below). WHEREAS, as of the date hereof, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such number of shares of the outstanding capital stock of the Company, and such number of shares of capital stock of the Company issuable upon the exercise of outstanding options, as is indicated in columns 2, 3 and 7 of Schedule A hereto; WHEREAS, concurrently with the execution of this Agreement, the Company, and CNI are entering into a Series B Convertible Preferred Stock Subscription Agreement, dated as of the date hereof (the "Subscription Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, CNI will acquire 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), that are currently convertible into 4,500,000 shares of Common Stock, par value $.01 per share of the Company (the "Common Stock"); WHEREAS, at the Closing of the transactions contemplated in the Subscription Agreement, the Company and CNI will enter into a Series B Convertible Preferred Stock Warrant Agreement (the "Warrant Agreement") pursuant to which CNI will acquire warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock; and WHEREAS, as an inducement and a condition to entering into the Subscription Agreement and the Warrant Agreement by CNI, the Stockholder has agreed to vote the Voting Shares (as defined below), so as to facilitate consummation of the transactions contemplated in the Subscription Agreement (the "Transactions"); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. Certain Definitions. For all purposes of and under this Agreement, the ------------------- following terms shall have the following respective meanings: (a) "Beneficially Own" or "Beneficial Ownership" means, with respect to securities, having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Exchange Act. (b) "Convertible Debentures" means the 10 1/2% Convertible Subordinated Debentures due 2007 of the Company. EXECUTION COPY (c) "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (d) "Expiration Time" means the earliest to occur of (i) valid termination of the Subscription Agreement pursuant to its terms, (ii) consummation of the Transactions, (iii) February 28, 2005 or (iv) the written agreement of the parties hereto to terminate this Agreement. (e) "Series A Preferred Stock" means the Series A Cumulative Convertible Preferred Stock, par value $.01 per share, of the Company. (f) "Shares" means: (i) the Voting Shares, (ii) all other securities of the Company (including all options and other rights to acquire shares of Company Common Stock) owned by the Stockholder as of the date of this Agreement and such other shares of capital stock of the Company over which the Stockholder has voting power as indicated on Schedule A, and (iii) all additional securities of the Company (including all additional shares of Common Stock and all additional options and other rights to acquire shares of Common Stock) of which the Stockholder acquires beneficial ownership during the period commencing with the execution and delivery of this Agreement until the Expiration Time. (g) "Securities Act" means the Securities Act of 1933, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities Exchange and Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (h) "Transfer" means, with respect to a security, whether directly or indirectly (i) to sell, pledge, encumber, grant an option with respect to, transfer or otherwise dispose of such security or any interest therein (including any voting interest), or (ii) to enter into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein. (i) "Voting Shares" means issued and outstanding shares of Common Stock and Series A Preferred Stock owned of record and Beneficially Owned by the Stockholder as of the date hereof (that are set out in columns 2, 3, 4 and 5 of Schedule A hereto) and acquired at any time prior to the Expiration Time. 2. Transfer of Shares. ------------------ (a) No Transfer of Shares. The Stockholder hereby agrees that, at all times --------------------- during the period commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not cause or permit any Transfer of any of the Shares to be effected, or discuss, negotiate or make any offer regarding any Transfer of any of the Shares without the prior written consent of CNI other than the issuance of Common Stock to the Stockholder by the Company in connection with the exercise by EXECUTION COPY the Stockholder of options to purchase Common Stock. Notwithstanding the foregoing, the Stockholder may Transfer Shares to a member of the Stockholder's immediate family or to a trust or other entity created by the Stockholder for tax or estate planning purposes, provided, that any such transferee agrees to assume the obligations of the Stockholder hereunder with respect to any Shares so transferred. (b) No Transfer of Voting Rights. The Stockholder hereby agrees that, at all ---------------------------- times commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not deposit, or permit the deposit of, any Voting Shares in a voting trust, grant any proxy in respect of the Voting Shares, or enter into any voting agreement or similar arrangement or commitment with respect to any of the Voting Shares (other than, in each case, this Agreement and the Proxy (as defined in Section 4)). 3. Agreement to Vote the Voting Shares. Until the Expiration Time, at every ----------------------------------- meeting of stockholders of the Company called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company with respect to any of the following, the Stockholder shall vote, to the extent not voted by the person(s) appointed under the Proxy, the Voting Shares: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and the Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and the Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. EXECUTION COPY Prior to the Expiration Time, the Stockholder shall not enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with the terms of this Section 3. It is hereby acknowledged that as of the date hereof the Stockholder serves as a member of the Board of Directors of the Company. For the avoidance of doubt, nothing herein shall preclude or limit the Stockholder, solely in his capacity as a Director of the Company (and without reference to exercising any of his rights as a stockholderof the Company), from performing his duties, obligations and responsibilities as a member of the Board of Directors pursuant to the Delaware General Corporation Law, the Securities Act, the Exchange Act or the Sarbanes-Oxley Act of 2002. 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, the ----------------- Stockholder agrees to deliver and delivers to CNI a proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be coupled with an interest and, until the Expiration Time, be irrevocable to the fullest extent permitted by applicable law, with respect to any Voting Shares. 5. Representations and Warranties of the Stockholder. The Stockholder hereby ------------------------------------------------- represents and warrants to CNI that, as of the date hereof and at all times until the Expiration Time: (a) the Stockholder is (and will be, except with respect to any Shares that are Transferred in compliance with Section 2(a)) the Beneficial Owner of the Shares; (b) the Voting Shares are, and the Shares will be, unless Transferred in compliance with Section 2(a), free and clear of any Encumbrances of any kind or nature; (c) the Stockholder does not and will not beneficially own any securities of the Company or rights to acquire any securities of the Company other than the Shares; (d) the Stockholder has and will have, with respect to all of the Shares, the legal capacity and all requisite power and authority to make, enter into and (except with respect to any Shares that are Transferred in compliance with Section 2(a)) perform the terms of this Agreement and the Proxy; (e) this Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; (f) the execution and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will not, conflict with or violate any Governmental Order or permit applicable to the Stockholder or result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or materially impair the Stockholder's rights or alter the rights or obligations of any third party under, any contract, agreement or other arrangement applicable to the Shares; and EXECUTION COPY (g) except as expressly contemplated hereby, or set out on Schedule A hereto the Stockholder is not a party to, and the Shares are not subject to or bound in any manner by, any contract or agreement relating to the Shares, including without limitation, any voting agreement, option agreement, purchase agreement, stockholders' agreement, partnership agreement or voting trust. 6. Representations and Warranties of CNI. CNI hereby represents and warrants to ------------------------------------- the Stockholder that, as of the date hereof and at all times until the Expiration Time: (a) CNI has the legal capacity and all requisite power and authority to make, enter into and perform the terms of this Agreement and the Proxy; (b) this Agreement has been duly and validly executed and delivered by CNI and constitutes the valid and binding obligation of CNI, enforceable against CNI in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; and (c) the execution and delivery of this Agreement by CNI do not, and the consummation of the transactions contemplated hereby will not, conflict with or violate any material Governmental Order or permit applicable to CNI, except where such conflicts, violations, breaches or defaults would not, individually or in the aggregate, materially impair the ability of CNI to perform its obligations hereunder. 7. Legending of Shares. If so requested by CNI, the Stockholder hereby agrees ------------------- that the Shares shall bear a legend stating that they are subject to this Agreement and to an irrevocable proxy. The Stockholder hereby agrees that the Stockholder shall not Transfer the Shares without first having the aforementioned legend affixed to the certificates representing the Shares. 8. Consent and Waiver. The Stockholder (not in his or her capacity as a director ------------------ or officer of the Company) agrees to give any consent or waiver that is reasonably required under the terms of any agreement to which the Stockholder is a party which consent or waiver is required solely because of the consummation of the Transactions. 9. Disclosure. The Stockholder hereby agrees to permit the Company to publish ---------- and disclose in the Proxy Statement (including all documents and schedules filed with the Securities and Exchange Commission) and for the Company and CNI to publish and disclose in any press release or other disclosure document that either the Company or CNI determines to be necessary or desirable in connection with the Transactions the existence and terms of this Agreement. 10. Miscellaneous. ------------- EXECUTION COPY (a) Amendments and Waivers. No amendment of any provision of this Agreement ---------------------- shall be valid unless the same shall be in writing and signed by the parties. Either party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (iii) waive compliance with any of the agreements or conditions of the other party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. (b) Notices. All notices and other communications hereunder shall be in ------- writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to CNI, to: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to CNI) to: Skadden, Arps, Slate, Meagher and Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile No.: +49-69-74220300 (ii) if to the Stockholder, to the address set forth on the signature page of this Agreement, with a copy (which shall not constitute notice to the Stockholder) to: EXECUTION COPY Oliver Grace, Jr. 405 Park Avenue Suite 1203 New York, NY 10022 Facsimile: +1-212-888-5620 (c) Headings. The descriptive headings contained in this Agreement are for -------- convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (d) Interpretation. References in this Agreement to sections, paragraphs, -------------- clauses, schedules and exhibits are to sections, paragraphs, clauses, schedules and exhibits in or to this Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the context otherwise requires, references herein to any Person include its successors and assigns. (e) Counterparts. This Agreement may be executed in any number of counterparts ------------ and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. (f) Entire Agreement. This Agreement and the Proxy constitute the entire ---------------- agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter hereof and thereof. (g) Severability. If any provision of this Agreement is invalid, illegal or ------------ incapable of being enforced by any law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto 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 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 in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. EXECUTION COPY (h) Specific Performance. The parties agree that irreparable harm would occur -------------------- in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other party and to enforce specifically such terms and conditions of this Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other Party is entitled to at law or in equity. (i) Governing Law. This Agreement shall be governed by and construed in ------------- accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. (j) Rules of Construction. --------------------- (i) Construction. The parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. (ii) Adequate Counsel. Each of the parties hereby represents and ---------------- warrants that it and its legal counsel have adequate information regarding the terms of this Agreement, the scope and effect of the transactions contemplated hereby and all other matters encompassed by this Agreement to make an informed and knowledgeable decision with regard to entering into this Agreement. (k) Binding Effect; Assignment. The Stockholder may not assign either this -------------------------- Agreement or any of the rights, interests, or obligations hereunder without the prior written approval of CNI. Any purported assignment in violation of this Section 10(k) shall be void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. (l) Waiver of Jury Trial. EACH OF CNI AND THE STOCKHOLDER HEREBY IRREVOCABLY -------------------- WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CNI OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. [SIGNATURE ON THE FOLLOWING PAGE] EXECUTION COPY IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed individually or by its respective duly authorized officer as of the date first written above. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ------------------------------ Name: Andrew Intrater Title: Managing Partner OLIVER GRACE, JR. By: /s/ Oliver R. Grace, Jr. ------------------------------ Name: Oliver R. Grace, Jr. Title: EXECUTION COPY Schedule A Stockholder Beneficial Ownership of Shares ------------------------------------------ - ------------- ----------- -------------- ------------- ----------- -------------- --------------- ------------------- ---------- 1 2 3 4 5 6 7 8 9 - ------------- ----------- -------------- ------------- ----------- -------------- --------------- ------------------- ---------- Name of Number of Number of Number of Number of Number of Number of Amount of Number Stockholder Shares of Other Shares Shares of Other Shares of Shares of Convertible of Common of Common Series A Shares of Common Stock Common Stock Debentures Owned Shares Stock Stock Over Preferred Series A Owned Upon Owned Upon of Owned which Stock Owned Preferred Conversion Exercise of Common Stockholder Stock of Series A Options Stock Has Voting Over Preferred Owned Power which Stock Upon Stockholder Conversion Has of Voting Convertible Power Debentures - ------------- ----------- -------------- ------------- ----------- -------------- --------------- ------------------- ---------- Oliver Grace 28,700 154,786 0 17,973 45,574 7,500 $270,000 16,698 - ------------- ----------- -------------- ------------- ----------- -------------- --------------- ------------------- ----------
EXECUTION COPY Exhibit A IRREVOCABLE PROXY The undersigned Stockholder of Moscow CableCom Corp., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints the executive officers and members of the Board of Directors of Columbus Nova Investments VIII Ltd., a Bahamas corporation ("CNI"), and each of them initially, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the fullest extent that the undersigned is entitled to do so) with respect to all of the Voting Shares, as defined in the Voting Agreement of even date herewith by and between CNI and the undersigned Stockholder (the "Voting Agreement") in accordance with the terms of this Proxy. Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Voting Agreement. The Voting Shares beneficially owned by the undersigned Stockholder of the Company as of the date of this Proxy are listed on the final page of this Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Voting Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Voting Shares until after the Expiration Time. Until the Expiration Time, this Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest, is granted pursuant to the Voting Agreement, and is granted in consideration of CNI entering into the Subscription Agreement and the Warrant Agreement. The Subscription Agreement provides for CNI acquiring 4,500,000 shares of Series B Preferred Stock of the Company that are currently convertible into 4,500,000 shares of Common Stock of the Company. The Warrant Agreement will provide for CNI acquiring warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock. The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the Expiration Time, to act as the undersigned's attorney and proxy to vote the Voting Shares, and to exercise all voting, consent and similar rights of the undersigned with respect to the Voting Shares (including, without limitation, the power to execute and deliver written consents) at every annual, special, adjourned or postponed meeting of stockholders of the Company and in every written consent in lieu of such meeting: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and this Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with EXECUTION COPY the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and this Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. The attorneys and proxies named above may not exercise this Proxy on any other matter except as provided above. Any obligation of the undersigned hereunder shall be binding upon the successors and assigns of the undersigned. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] EXECUTION COPY This Proxy is irrevocable (to the fullest extent permitted by law) until the Expiration Time and shall terminate, and be of no further force and effect, automatically upon the Expiration Time. Dated: August 26, 2004 Signature of Stockholder: /s/ Oliver R. Grace, Jr. ------------------------------- Print Name of Stockholder: Oliver R. Grace, Jr. ------------------------------- Shares Beneficially Owned: 183,486 shares of Company Common Stock ------- 17,973 shares of Series A Cumulative Convertible ------- Preferred Stock Owned [SIGNATURE PAGE TO IRREVOCABLE PROXY] EX-99 7 was5181ex99-6.txt EX. 4.3 VOTING AGREEMENT FRANCIS E. BAKER EXECUTION COPY VOTING AGREEMENT between FRANCIS E. BAKER and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated August 26, 2004 EXECUTION COPY TABLE OF CONTENTS Page ---- 1. Certain Definitions......................................................1 2. Transfer of Shares.......................................................2 3. Agreement to Vote the Voting Shares......................................3 4. Irrevocable Proxy........................................................4 5. Representations and Warranties of the Stockholder........................4 6. Representations and Warranties of CNI....................................5 7. Legending of Shares......................................................5 8. Consent and Waiver.......................................................5 9. Disclosure...............................................................5 10. Miscellaneous............................................................6 EXECUTION COPY VOTING AGREEMENT This VOTING AGREEMENT (this "Agreement") is made and entered into as of August 26, 2004, by and between Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the undersigned stockholder and/or option holder (the "Stockholder") of Moscow CableCom Corp., a Delaware corporation (the "Company"). Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Subscription Agreement (as defined below). WHEREAS, as of the date hereof, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such number of shares of the outstanding capital stock of the Company, and such number of shares of capital stock of the Company issuable upon the exercise of outstanding options, as is indicated in columns 2, 3 and 7 of Schedule A hereto; WHEREAS, concurrently with the execution of this Agreement, the Company, and CNI are entering into a Series B Convertible Preferred Stock Subscription Agreement, dated as of the date hereof (the "Subscription Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, CNI will acquire 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), that are currently convertible into 4,500,000 shares of Common Stock, par value $.01 per share of the Company (the "Common Stock"); WHEREAS, at the Closing of the transactions contemplated in the Subscription Agreement, the Company and CNI will enter into a Series B Convertible Preferred Stock Warrant Agreement (the "Warrant Agreement") pursuant to which CNI will acquire warrants that are currently exercisable for 8,283,0001 shares of Series B Preferred Stock; and WHEREAS, as an inducement and a condition to entering into the Subscription Agreement and the Warrant Agreement by CNI, the Stockholder has agreed to vote the Voting Shares (as defined below), so as to facilitate consummation of the transactions contemplated in the Subscription Agreement (the "Transactions"); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. Certain Definitions. For all purposes of and under this Agreement, the ------------------- following terms shall have the following respective meanings: (a) "Beneficially Own" or "Beneficial Ownership" means, with respect to securities, having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Exchange Act. - -------------------- 1 Subject to confirmation upon receipt of revised capitalization table. EXECUTION COPY (b) "Convertible Debentures" means the 10 1/2% Convertible Subordinated Debentures due 2007 of the Company. (c) "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (d) "Expiration Time" means the earliest to occur of (i) valid termination of the Subscription Agreement pursuant to its terms, (ii) consummation of the Transactions, (iii) February 28, 2005 or (iv) the written agreement of the parties hereto to terminate this Agreement. (e) "Series A Preferred Stock" means the Series A Cumulative Convertible Preferred Stock, par value $.01 per share, of the Company. (f) "Shares" means: (i) the Voting Shares, (ii) all other securities of the Company (including all options and other rights to acquire shares of Company Common Stock) owned by the Stockholder as of the date of this Agreement and such other shares of capital stock of the Company over which the Stockholder has voting power as indicated on Schedule A, and (iii) all additional securities of the Company (including all additional shares of Common Stock and all additional options and other rights to acquire shares of Common Stock) of which the Stockholder acquires beneficial ownership during the period commencing with the execution and delivery of this Agreement until the Expiration Time. (g) "Securities Act" means the Securities Act of 1933, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities Exchange and Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (h) "Transfer" means, with respect to a security, whether directly or indirectly (i) to sell, pledge, encumber, grant an option with respect to, transfer or otherwise dispose of such security or any interest therein (including any voting interest), or (ii) to enter into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein. (i) "Voting Shares" means issued and outstanding shares of Common Stock and Series A Preferred Stock owned of record and Beneficially Owned by the Stockholder as of the date hereof (that are set out in columns 2, 3, 4 and 5 of Schedule A hereto) and acquired at any time prior to the Expiration Time. 2. Transfer of Shares. ------------------ (a) No Transfer of Shares. The Stockholder hereby agrees that, at all times --------------------- during the period commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not cause or permit any Transfer of any of the Shares to be effected, or discuss, EXECUTION COPY negotiate or make any offer regarding any Transfer of any of the Shares without the prior written consent of CNI other than the issuance of Common Stock to the Stockholder by the Company in connection with the exercise by the Stockholder of options to purchase Common Stock. Notwithstanding the foregoing, the Stockholder may Transfer Shares to a member of the Stockholder's immediate family or to a trust or other entity created by the Stockholder for tax or estate planning purposes, provided, that any such transferee agrees to assume the obligations of the Stockholder hereunder with respect to any Shares so transferred. (b) No Transfer of Voting Rights. The Stockholder hereby agrees that, at all ---------------------------- times commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not deposit, or permit the deposit of, any Voting Shares in a voting trust, grant any proxy in respect of the Voting Shares, or enter into any voting agreement or similar arrangement or commitment with respect to any of the Voting Shares (other than, in each case, this Agreement and the Proxy (as defined in Section 4)). 3. Agreement to Vote the Voting Shares. Until the Expiration Time, at every ----------------------------------- meeting of stockholders of the Company called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company with respect to any of the following, the Stockholder shall vote, to the extent not voted by the person(s) appointed under the Proxy, the Voting Shares: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and the Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and the Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. Prior to the Expiration Time, the Stockholder shall not enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with the terms of this Section 3. It is hereby acknowledged that as of the date hereof the Stockholder serves as a member of the Board of Directors of the Company. For the avoidance of doubt, nothing herein shall preclude or limit the Stockholder, solely in his capacity as a Director of the Company (and without reference to exercising any of his rights as a stockholderof the Company), from performing his duties, obligations and responsibilities as a member of the Board of Directors pursuant to the Delaware General Corporation Law, the Securities Act, the Exchange Act or the Sarbanes-Oxley Act of 2002. 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, the ----------------- Stockholder agrees to deliver and delivers to CNI a proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be coupled with an interest and, until the Expiration Time, be irrevocable to the fullest extent permitted by applicable law, with respect to any Voting Shares. 5. Representations and Warranties of the Stockholder. The Stockholder hereby ------------------------------------------------- represents and warrants to CNI that, as of the date hereof and at all times until the Expiration Time: (a) the Stockholder is (and will be, except with respect to any Shares that are Transferred in compliance with Section 2(a)) the Beneficial Owner of the Shares; (b) the Voting Shares are, and the Shares will be, unless Transferred in compliance with Section 2(a), free and clear of any Encumbrances of any kind or nature; (c) the Stockholder does not and will not beneficially own any securities of the Company or rights to acquire any securities of the Company other than the Shares; (d) the Stockholder has and will have, with respect to all of the Shares, the legal capacity and all requisite power and authority to make, enter into and (except with respect to any Shares that are Transferred in compliance with Section 2(a)) perform the terms of this Agreement and the Proxy; (e) this Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; (f) the execution and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will not, EXECUTION COPY conflict with or violate any Governmental Order or permit applicable to the Stockholder or result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or materially impair the Stockholder's rights or alter the rights or obligations of any third party under, any contract, agreement or other arrangement applicable to the Shares; and (g) except as expressly contemplated hereby, or set out on Schedule A hereto the Stockholder is not a party to, and the Shares are not subject to or bound in any manner by, any contract or agreement relating to the Shares, including without limitation, any voting agreement, option agreement, purchase agreement, stockholders' agreement, partnership agreement or voting trust. 6. Representations and Warranties of CNI. CNI hereby represents and warrants to ------------------------------------- the Stockholder that, as of the date hereof and at all times until the Expiration Time: (a) CNI has the legal capacity and all requisite power and authority to make, enter into and perform the terms of this Agreement and the Proxy; (b) this Agreement has been duly and validly executed and delivered by CNI and constitutes the valid and binding obligation of CNI, enforceable against CNI in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; and (c) the execution and delivery of this Agreement by CNI do not, and the consummation of the transactions contemplated hereby will not, conflict with or violate any material Governmental Order or permit applicable to CNI, except where such conflicts, violations, breaches or defaults would not, individually or in the aggregate, materially impair the ability of CNI to perform its obligations hereunder. 7. Legending of Shares. If so requested by CNI, the Stockholder hereby agrees ------------------- that the Shares shall bear a legend stating that they are subject to this Agreement and to an irrevocable proxy. The Stockholder hereby agrees that the Stockholder shall not Transfer the Shares without first having the aforementioned legend affixed to the certificates representing the Shares. 8. Consent and Waiver. The Stockholder (not in his or her capacity as a director ------------------ or officer of the Company) agrees to give any consent or waiver that is reasonably required under the terms of any agreement to which the Stockholder is a party which consent or waiver is required solely because of the consummation of the Transactions. 9. Disclosure. The Stockholder hereby agrees to permit the Company to publish ---------- and disclose in the Proxy Statement (including all documents and schedules filed with the Securities and Exchange Commission) and for the Company and CNI to publish and disclose in any press release or other disclosure document that either the Company or CNI determines to be necessary or desirable in connection with the Transactions the existence and terms of this Agreement. EXECUTION COPY 10. Miscellaneous. ------------- (a) Amendments and Waivers. No amendment of any provision of this Agreement ---------------------- shall be valid unless the same shall be in writing and signed by the parties. Either party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (iii) waive compliance with any of the agreements or conditions of the other party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. (b) Notices. All notices and other communications hereunder shall be in ------- writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to CNI, to: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to CNI) to: Skadden, Arps, Slate, Meagher and Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile No.: +49-69-74220300 (ii) if to the Stockholder, to the address set forth on the signature page of this Agreement, with a copy EXECUTION COPY (which shall not constitute notice to the Stockholder) to: Francis E. Baker 405 Park Avenue Suite 1203 New York, NY 10022 Facsimile: +1-212-888-5620 (c) Headings. The descriptive headings contained in this Agreement are for -------- convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (d) Interpretation. References in this Agreement to sections, paragraphs, -------------- clauses, schedules and exhibits are to sections, paragraphs, clauses, schedules and exhibits in or to this Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the context otherwise requires, references herein to any Person include its successors and assigns. (e) Counterparts. This Agreement may be executed in any number of counterparts ------------ and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. (f) Entire Agreement. This Agreement and the Proxy constitute the entire ---------------- agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter hereof and thereof. (g) Severability. If any provision of this Agreement is invalid, illegal or ------------ incapable of being enforced by any law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially EXECUTION COPY adverse to any party. Upon such determination that any 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 in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. (h) Specific Performance. The parties agree that irreparable harm would occur -------------------- in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other party and to enforce specifically such terms and conditions of this Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other Party is entitled to at law or in equity. (i) Governing Law. This Agreement shall be governed by and construed in ------------- accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. (j) Rules of Construction. --------------------- (i) Construction. The parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. (ii) Adequate Counsel. Each of the parties hereby represents and ---------------- warrants that it and its legal counsel have adequate information regarding the terms of this Agreement, the scope and effect of the transactions contemplated hereby and all other matters encompassed by this Agreement to make an informed and knowledgeable decision with regard to entering into this Agreement. (k) Binding Effect; Assignment. The Stockholder may not assign either this -------------------------- Agreement or any of the rights, interests, or obligations hereunder without the prior written approval of CNI. Any purported assignment in violation of this Section 10(k) shall be void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. (l) Waiver of Jury Trial. EACH OF CNI AND THE STOCKHOLDER HEREBY IRREVOCABLY -------------------- WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR EXECUTION COPY COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CNI OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. [SIGNATURE ON THE FOLLOWING PAGE] EXECUTION COPY IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed individually or by its respective duly authorized officer as of the date first written above. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ------------------------ Name: Andrew Intrater Title: Managing Partner FRANCIS E. BAKER By: /s/ Francis E. Baker ------------------------ Name: Francis E. Baker Title: EXECUTION COPY Schedule A Stockholder Beneficial Ownership of Shares ------------------------------------------
- ------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ---------- 1 2 3 4 5 6 7 8 9 - ------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ---------- Name of Number Number of Number of Number of Number of Number of Amount of Number Stockholder of Other Shares Shares of Other Shares of Shares of Convertible of Shares of Common Series A Shares of Common Stock Common Stock Debentures Owned Shares of Stock Over Preferred Series A Owned Upon Owned Upon of Common which Stock Owned Preferred Conversion Exercise of Common Stock Stockholder Stock of Series A Options Stock Owned Has Voting Over Preferred Owned Power which Stock Upon Stockholder Conversion Has of Voting Convertible Power Debentures - ------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ---------- Francis E. 75,401 58,900 0 0 0 20,000 0 0 Baker - ------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ----------
EXECUTION COPY Exhibit A IRREVOCABLE PROXY The undersigned Stockholder of Moscow CableCom Corp., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints the executive officers and members of the Board of Directors of Columbus Nova Investments VIII Ltd., a Bahamas corporation ("CNI"), and each of them initially, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the fullest extent that the undersigned is entitled to do so) with respect to all of the Voting Shares, as defined in the Voting Agreement of even date herewith by and between CNI and the undersigned Stockholder (the "Voting Agreement") in accordance with the terms of this Proxy. Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Voting Agreement. The Voting Shares beneficially owned by the undersigned Stockholder of the Company as of the date of this Proxy are listed on the final page of this Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Voting Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Voting Shares until after the Expiration Time. Until the Expiration Time, this Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest, is granted pursuant to the Voting Agreement, and is granted in consideration of CNI entering into the Subscription Agreement and the Warrant Agreement. The Subscription Agreement provides for CNI acquiring 4,500,000 shares of Series B Preferred Stock of the Company that are currently convertible into 4,500,000 shares of Common Stock of the Company. The Warrant Agreement will provide for CNI acquiring warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock. The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the Expiration Time, to act as the undersigned's attorney and proxy to vote the Voting Shares, and to exercise all voting, consent and similar rights of the undersigned with respect to the Voting Shares (including, without limitation, the power to execute and deliver written consents) at every annual, special, adjourned or postponed meeting of stockholders of the Company and in every written consent in lieu of such meeting: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and this Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with EXECUTION COPY the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and this Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. The attorneys and proxies named above may not exercise this Proxy on any other matter except as provided above. Any obligation of the undersigned hereunder shall be binding upon the successors and assigns of the undersigned. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] EXECUTION COPY This Proxy is irrevocable (to the fullest extent permitted by law) until the Expiration Time and shall terminate, and be of no further force and effect, automatically upon the Expiration Time. Dated: August 26, 2004 Signature of Stockholder: /s/ Francis E. Baker ------------------------------- Print Name of Stockholder: Francis E. Baker ------------------------------- Shares Beneficially Owned: 154,301 shares of Company Common Stock ------ ______ shares of Series A Cumulative Convertible Preferred Stock Owned [SIGNATURE PAGE TO IRREVOCABLE PROXY] EX-99 8 was5181ex99-7.txt EX 4.4 VOTING AGREEMENT ANDREW O'SHEA EXECUTION COPY VOTING AGREEMENT between ANDREW O'SHEA and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated August 26, 2004 EXECUTION COPY TABLE OF CONTENTS Page ---- 1. Certain Definitions......................................................1 2. Transfer of Shares.......................................................2 3. Agreement to Vote the Voting Shares......................................3 4. Irrevocable Proxy........................................................4 5. Representations and Warranties of the Stockholder........................4 6. Representations and Warranties of CNI....................................5 7. Legending of Shares......................................................5 8. Consent and Waiver.......................................................5 9. Disclosure...............................................................5 10. Miscellaneous............................................................6 EXECUTION COPY VOTING AGREEMENT This VOTING AGREEMENT (this "Agreement") is made and entered into as of August 26, 2004, by and between Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the undersigned stockholder and/or option holder (the "Stockholder") of Moscow CableCom Corp., a Delaware corporation (the "Company"). Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Subscription Agreement (as defined below). WHEREAS, as of the date hereof, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such number of shares of the outstanding capital stock of the Company, and such number of shares of capital stock of the Company issuable upon the exercise of outstanding options, as is indicated in columns 2, 3 and 7 of Schedule A hereto; WHEREAS, concurrently with the execution of this Agreement, the Company, and CNI are entering into a Series B Convertible Preferred Stock Subscription Agreement, dated as of the date hereof (the "Subscription Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, CNI will acquire 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), that are currently convertible into 4,500,000 shares of Common Stock, par value $.01 per share of the Company (the "Common Stock"); WHEREAS, at the Closing of the transactions contemplated in the Subscription Agreement, the Company and CNI will enter into a Series B Convertible Preferred Stock Warrant Agreement (the "Warrant Agreement") pursuant to which CNI will acquire warrants that are currently exercisable for 8,283,0001 shares of Series B Preferred Stock; and WHEREAS, as an inducement and a condition to entering into the Subscription Agreement and the Warrant Agreement by CNI, the Stockholder has agreed to vote the Voting Shares (as defined below), so as to facilitate consummation of the transactions contemplated in the Subscription Agreement (the "Transactions"); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. Certain Definitions. For all purposes of and under this Agreement, the ------------------- following terms shall have the following respective meanings: (a) "Beneficially Own" or "Beneficial Ownership" means, with respect to securities, having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Exchange Act. - ------------------------- 1 Subject to confirmation upon receipt of revised capitalization table. EXECUTION COPY (b) "Convertible Debentures" means the 10 1/2% Convertible Subordinated Debentures due 2007 of the Company. (c) "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (d) "Expiration Time" means the earliest to occur of (i) valid termination of the Subscription Agreement pursuant to its terms, (ii) consummation of the Transactions, (iii) February 28, 2005 or (iv) the written agreement of the parties hereto to terminate this Agreement. (e) "Series A Preferred Stock" means the Series A Cumulative Convertible Preferred Stock, par value $.01 per share, of the Company. (f) "Shares" means: (i) the Voting Shares, (ii) all other securities of the Company (including all options and other rights to acquire shares of Company Common Stock) owned by the Stockholder as of the date of this Agreement and such other shares of capital stock of the Company over which the Stockholder has voting power as indicated on Schedule A, and (iii) all additional securities of the Company (including all additional shares of Common Stock and all additional options and other rights to acquire shares of Common Stock) of which the Stockholder acquires beneficial ownership during the period commencing with the execution and delivery of this Agreement until the Expiration Time. (g) "Securities Act" means the Securities Act of 1933, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities Exchange and Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (h) "Transfer" means, with respect to a security, whether directly or indirectly (i) to sell, pledge, encumber, grant an option with respect to, transfer or otherwise dispose of such security or any interest therein (including any voting interest), or (ii) to enter into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein. (i) "Voting Shares" means issued and outstanding shares of Common Stock and Series A Preferred Stock owned of record and Beneficially Owned by the Stockholder as of the date hereof (that are set out in columns 2, 3, 4 and 5 of Schedule A hereto) and acquired at any time prior to the Expiration Time. 2. Transfer of Shares. ------------------ (a) No Transfer of Shares. The Stockholder hereby agrees that, at all times --------------------- during the period commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not cause or permit any Transfer of any of the Shares to be effected, or discuss, EXECUTION COPY negotiate or make any offer regarding any Transfer of any of the Shares without the prior written consent of CNI other than the issuance of Common Stock to the Stockholder by the Company in connection with the exercise by the Stockholder of options to purchase Common Stock. Notwithstanding the foregoing, the Stockholder may Transfer Shares to a member of the Stockholder's immediate family or to a trust or other entity created by the Stockholder for tax or estate planning purposes, provided, that any such transferee agrees to assume the obligations of the Stockholder hereunder with respect to any Shares so transferred. (b) No Transfer of Voting Rights. The Stockholder hereby agrees that, at all ---------------------------- times commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not deposit, or permit the deposit of, any Voting Shares in a voting trust, grant any proxy in respect of the Voting Shares, or enter into any voting agreement or similar arrangement or commitment with respect to any of the Voting Shares (other than, in each case, this Agreement and the Proxy (as defined in Section 4)). (c) Transfer Permitted in Certain Circumstances. Notwithstanding anything to ------------------------------------------- the contrary in this Section 2, the Stockholder shall be entitled to Transfer such number of Shares as may be required to cover the Stockholder's personal United States federal and/or state tax liabilities; provided that such Transfer is (i) made in compliance with the Company's insider trading policy, (ii) executed on Nasdaq or is to or through a broker dealer or an investment bank for distribution and (iii) is not arranged with any person or group of persons (other than CNI) seeking to acquire control of the Company. 3. Agreement to Vote the Voting Shares. Until the Expiration Time, at every ----------------------------------- meeting of stockholders of the Company called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company with respect to any of the following, the Stockholder shall vote, to the extent not voted by the person(s) appointed under the Proxy, the Voting Shares: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and the Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and the Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without EXECUTION COPY limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. Prior to the Expiration Time, the Stockholder shall not enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with the terms of this Section 3. 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, the ----------------- Stockholder agrees to deliver and delivers to CNI a proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be coupled with an interest and, until the Expiration Time, be irrevocable to the fullest extent permitted by applicable law, with respect to any Voting Shares. 5. Representations and Warranties of the Stockholder. The Stockholder hereby ------------------------------------------------- represents and warrants to CNI that, as of the date hereof and at all times until the Expiration Time: (a) the Stockholder is (and will be, except with respect to any Shares that are Transferred in compliance with Section 2(a)) the Beneficial Owner of the Shares; (b) the Voting Shares are, and the Shares will be, unless Transferred in compliance with Section 2(a), free and clear of any Encumbrances of any kind or nature; (c) the Stockholder does not and will not beneficially own any securities of the Company or rights to acquire any securities of the Company other than the Shares; (d) the Stockholder has and will have, with respect to all of the Shares, the legal capacity and all requisite power and authority to make, enter into and (except with respect to any Shares that are Transferred in compliance with Section 2(a)) perform the terms of this Agreement and the Proxy; (e) this Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; EXECUTION COPY (f) the execution and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will not, conflict with or violate any Governmental Order or permit applicable to the Stockholder or result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or materially impair the Stockholder's rights or alter the rights or obligations of any third party under, any contract, agreement or other arrangement applicable to the Shares; and (g) except as expressly contemplated hereby, or set out on Schedule A hereto the Stockholder is not a party to, and the Shares are not subject to or bound in any manner by, any contract or agreement relating to the Shares, including without limitation, any voting agreement, option agreement, purchase agreement, stockholders' agreement, partnership agreement or voting trust. 6. Representations and Warranties of CNI. CNI hereby represents and warrants to ------------------------------------- the Stockholder that, as of the date hereof and at all times until the Expiration Time: (a) CNI has the legal capacity and all requisite power and authority to make, enter into and perform the terms of this Agreement and the Proxy; (b) this Agreement has been duly and validly executed and delivered by CNI and constitutes the valid and binding obligation of CNI, enforceable against CNI in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; and (c) the execution and delivery of this Agreement by CNI do not, and the consummation of the transactions contemplated hereby will not, conflict with or violate any material Governmental Order or permit applicable to CNI, except where such conflicts, violations, breaches or defaults would not, individually or in the aggregate, materially impair the ability of CNI to perform its obligations hereunder. 7. Legending of Shares. If so requested by CNI, the Stockholder hereby agrees ------------------- that the Shares shall bear a legend stating that they are subject to this Agreement and to an irrevocable proxy. The Stockholder hereby agrees that the Stockholder shall not Transfer the Shares without first having the aforementioned legend affixed to the certificates representing the Shares. 8. Consent and Waiver. The Stockholder (not in his or her capacity as a director ------------------ or officer of the Company) agrees to give any consent or waiver that is reasonably required under the terms of any agreement to which the Stockholder is a party which consent or waiver is required solely because of the consummation of the Transactions. 9. Disclosure. The Stockholder hereby agrees to permit the Company to publish ---------- and disclose in the Proxy Statement (including all documents and schedules filed with the Securities and Exchange Commission) and for the Company and CNI to publish and disclose in any press release or other disclosure document that either the Company or CNI determines to be necessary or desirable in connection with the Transactions the existence and terms of this Agreement. EXECUTION COPY 10. Miscellaneous. ------------- (a) Amendments and Waivers. No amendment of any provision of this Agreement ---------------------- shall be valid unless the same shall be in writing and signed by the parties. Either party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (iii) waive compliance with any of the agreements or conditions of the other party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. (b) Notices. All notices and other communications hereunder shall be in ------- writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to CNI, to: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to CNI) to: Skadden, Arps, Slate, Meagher and Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile No.: +49-69-74220300 EXECUTION COPY (ii) if to the Stockholder, to the address set forth on the signature page of this Agreement, with a copy (which shall not constitute notice to the Stockholder) to: Andrew O'Shea 405 Park Avenue Suite 1203 New York, NY 10022 Facsimile: +1-212-888-5620 (c) Headings. The descriptive headings contained in this Agreement are for -------- convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (d) Interpretation. References in this Agreement to sections, paragraphs, -------------- clauses, schedules and exhibits are to sections, paragraphs, clauses, schedules and exhibits in or to this Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the context otherwise requires, references herein to any Person include its successors and assigns. (e) Counterparts. This Agreement may be executed in any number of counterparts ------------ and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. (f) Entire Agreement. This Agreement and the Proxy constitute the entire ---------------- agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter hereof and thereof. (g) Severability. If any provision of this Agreement is invalid, illegal or ------------ incapable of being enforced by any law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and EXECUTION COPY effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto 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 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 in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. (h) Specific Performance. The parties agree that irreparable harm would occur -------------------- in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other party and to enforce specifically such terms and conditions of this Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other Party is entitled to at law or in equity. (i) Governing Law. This Agreement shall be governed by and construed in ------------- accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. (j) Rules of Construction. --------------------- (i) Construction. The parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. (ii) Adequate Counsel. Each of the parties hereby represents and ---------------- warrants that it and its legal counsel have adequate information regarding the terms of this Agreement, the scope and effect of the transactions contemplated hereby and all other matters encompassed by this Agreement to make an informed and knowledgeable decision with regard to entering into this Agreement. (k) Binding Effect; Assignment. The Stockholder may not assign either this -------------------------- Agreement or any of the rights, interests, or obligations hereunder without the prior written approval of CNI. Any purported assignment in violation of this Section 10(k) shall be void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. EXECUTION COPY (l) Waiver of Jury Trial. EACH OF CNI AND THE STOCKHOLDER HEREBY IRREVOCABLY -------------------- WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CNI OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. [SIGNATURE ON THE FOLLOWING PAGE] EXECUTION COPY IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed individually or by its respective duly authorized officer as of the date first written above. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater -------------------------- Name: Andrew Intrater Title: Managing Partner ANDREW O'SHEA By: /s/ Andrew O'Shea -------------------------- Name: Andrew O'Shea Title: EXECUTION COPY Schedule A Stockholder Beneficial Ownership of Shares ------------------------------------------
- ------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ---------- 1 2 3 4 5 6 7 8 9 - ------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ---------- Name of Number Number of Number of Number of Number of Number of Amount of Number Stockholder of Other Shares Shares of Other Shares of Shares of Convertible of Shares of Common Series A Shares of Common Stock Common Stock Debentures Owned Shares of Stock Over Preferred Series A Owned Upon Owned Upon of Common which Stock Owned Preferred Conversion Exercise of Common Stock Stockholder Stock of Series A Options Stock Owned Has Voting Over Preferred Owned Power which Stock Upon Stockholder Conversion Has of Voting Convertible Power Debentures - ------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ---------- Andrew M. 26,626 0 0 0 0 0 0 0 O'Shea - ------------- --------- ---------------- ------------- ----------- -------------- --------------- ------------------- ----------
EXECUTION COPY Exhibit A IRREVOCABLE PROXY The undersigned Stockholder of Moscow CableCom Corp., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints the executive officers and members of the Board of Directors of Columbus Nova Investments VIII Ltd., a Bahamas corporation ("CNI"), and each of them initially, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the fullest extent that the undersigned is entitled to do so) with respect to all of the Voting Shares, as defined in the Voting Agreement of even date herewith by and between CNI and the undersigned Stockholder (the "Voting Agreement") in accordance with the terms of this Proxy. Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Voting Agreement. The Voting Shares beneficially owned by the undersigned Stockholder of the Company as of the date of this Proxy are listed on the final page of this Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Voting Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Voting Shares until after the Expiration Time. Until the Expiration Time, this Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest, is granted pursuant to the Voting Agreement, and is granted in consideration of CNI entering into the Subscription Agreement and the Warrant Agreement. The Subscription Agreement provides for CNI acquiring 4,500,000 shares of Series B Preferred Stock of the Company that are currently convertible into 4,500,000 shares of Common Stock of the Company. The Warrant Agreement will provide for CNI acquiring warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock. The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the Expiration Time, to act as the undersigned's attorney and proxy to vote the Voting Shares, and to exercise all voting, consent and similar rights of the undersigned with respect to the Voting Shares (including, without limitation, the power to execute and deliver written consents) at every annual, special, adjourned or postponed meeting of stockholders of the Company and in every written consent in lieu of such meeting: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and this Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with EXECUTION COPY the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and this Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. The attorneys and proxies named above may not exercise this Proxy on any other matter except as provided above. Any obligation of the undersigned hereunder shall be binding upon the successors and assigns of the undersigned. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] EXECUTION COPY This Proxy is irrevocable (to the fullest extent permitted by law) until the Expiration Time and shall terminate, and be of no further force and effect, automatically upon the Expiration Time. Dated: August 26, 2004 Signature of Stockholder: /s/ Andrew O'Shea ------------------------------- Print Name of Stockholder: Andrew O'Shea ------------------------------- Shares Beneficially Owned: 26,626 shares of Company Common Stock ------- 0 shares of Series A Cumulative ------- Convertible Preferred Stock Owned [SIGNATURE PAGE TO IRREVOCABLE PROXY] EX-99 9 was5181ex99-8.txt EX. 4.5 VOTING AGREEMENT JAMES J. PINTO f EXECUTION COPY VOTING AGREEMENT between JAMES PINTO and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated August 26, 2004 EXECUTION COPY TABLE OF CONTENTS Page ---- 1. Certain Definitions......................................................1 2. Transfer of Shares.......................................................2 3. Agreement to Vote the Voting Shares......................................3 4. Irrevocable Proxy............................. ..........................4 5. Representations and Warranties of the Stockholder........................4 6. Representations and Warranties of CNI....................................5 7. Legending of Shares......................................................5 8. Consent and Waiver.......................................................5 9. Disclosure...............................................................5 10. Miscellaneous............................................................6 EXECUTION COPY VOTING AGREEMENT This VOTING AGREEMENT (this "Agreement") is made and entered into as of August 26, 2004, by and between Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the undersigned stockholder and/or option holder (the "Stockholder") of Moscow CableCom Corp., a Delaware corporation (the "Company"). Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Subscription Agreement (as defined below). WHEREAS, as of the date hereof, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such number of shares of the outstanding capital stock of the Company, and such number of shares of capital stock of the Company issuable upon the exercise of outstanding options, as is indicated in columns 2, 3 and 7 of Schedule A hereto; WHEREAS, concurrently with the execution of this Agreement, the Company, and CNI are entering into a Series B Convertible Preferred Stock Subscription Agreement, dated as of the date hereof (the "Subscription Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, CNI will acquire 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), that are currently convertible into 4,500,000 shares of Common Stock, par value $.01 per share of the Company (the "Common Stock"); WHEREAS, at the Closing of the transactions contemplated in the Subscription Agreement, the Company and CNI will enter into a Series B Convertible Preferred Stock Warrant Agreement (the "Warrant Agreement") pursuant to which CNI will acquire warrants that are currently exercisable for 8,283,0001 shares of Series B Preferred Stock; and WHEREAS, as an inducement and a condition to entering into the Subscription Agreement and the Warrant Agreement by CNI, the Stockholder has agreed to vote the Voting Shares (as defined below), so as to facilitate consummation of the transactions contemplated in the Subscription Agreement (the "Transactions"); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. Certain Definitions. For all purposes of and under this Agreement, the ------------------- following terms shall have the following respective meanings: (a) "Beneficially Own" or "Beneficial Ownership" means, with respect to securities, having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Exchange Act. - ------------------------ 1 Subject to confirmation upon receipt of revised capitalization table. EXECUTION COPY (b) "Convertible Debentures" means the 10 1/2% Convertible Subordinated Debentures due 2007 of the Company. (c) "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (d) "Expiration Time" means the earliest to occur of (i) valid termination of the Subscription Agreement pursuant to its terms, (ii) consummation of the Transactions, (iii) February 28, 2005 or (iv) the written agreement of the parties hereto to terminate this Agreement. (e) "Series A Preferred Stock" means the Series A Cumulative Convertible Preferred Stock, par value $.01 per share, of the Company. (f) "Shares" means: (i) the Voting Shares, (ii) all other securities of the Company (including all options and other rights to acquire shares of Company Common Stock) owned by the Stockholder as of the date of this Agreement and such other shares of capital stock of the Company over which the Stockholder has voting power as indicated on Schedule A, and (iii) all additional securities of the Company (including all additional shares of Common Stock and all additional options and other rights to acquire shares of Common Stock) of which the Stockholder acquires beneficial ownership during the period commencing with the execution and delivery of this Agreement until the Expiration Time. (g) "Securities Act" means the Securities Act of 1933, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities Exchange and Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (h) "Transfer" means, with respect to a security, whether directly or indirectly (i) to sell, pledge, encumber, grant an option with respect to, transfer or otherwise dispose of such security or any interest therein (including any voting interest), or (ii) to enter into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein. (i) "Voting Shares" means issued and outstanding shares of Common Stock and Series A Preferred Stock owned of record and Beneficially Owned by the Stockholder as of the date hereof (that are set out in columns 2, 3, 4 and 5 of Schedule A hereto) and acquired at any time prior to the Expiration Time. 2. Transfer of Shares. ------------------ (a) No Transfer of Shares. The Stockholder hereby agrees that, at all times --------------------- during the period commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not cause or permit any Transfer of any of the Shares to be effected, or discuss, EXECUTION COPY negotiate or make any offer regarding any Transfer of any of the Shares without the prior written consent of CNI other than the issuance of Common Stock to the Stockholder by the Company in connection with the exercise by the Stockholder of options to purchase Common Stock. Notwithstanding the foregoing, the Stockholder may Transfer Shares to a member of the Stockholder's immediate family or to a trust or other entity created by the Stockholder for tax or estate planning purposes, provided, that any such transferee agrees to assume the obligations of the Stockholder hereunder with respect to any Shares so transferred. (b) No Transfer of Voting Rights. The Stockholder hereby agrees that, at all ---------------------------- times commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not deposit, or permit the deposit of, any Voting Shares in a voting trust, grant any proxy in respect of the Voting Shares, or enter into any voting agreement or similar arrangement or commitment with respect to any of the Voting Shares (other than, in each case, this Agreement and the Proxy (as defined in Section 4)). 3. Agreement to Vote the Voting Shares. Until the Expiration Time, at every ----------------------------------- meeting of stockholders of the Company called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company with respect to any of the following, the Stockholder shall vote, to the extent not voted by the person(s) appointed under the Proxy, the Voting Shares: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and the Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and the Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and EXECUTION COPY (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. Prior to the Expiration Time, the Stockholder shall not enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with the terms of this Section 3. It is hereby acknowledged that as of the date hereof the Stockholder serves as a member of the Board of Directors of the Company. For the avoidance of doubt, nothing herein shall preclude or limit the Stockholder, solely in his capacity as a Director of the Company (and without reference to exercising any of his rights as a stockholderof the Company), from performing his duties, obligations and responsibilities as a member of the Board of Directors pursuant to the Delaware General Corporation Law, the Securities Act, the Exchange Act or the Sarbanes-Oxley Act of 2002. 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, the ----------------- Stockholder agrees to deliver and delivers to CNI a proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be coupled with an interest and, until the Expiration Time, be irrevocable to the fullest extent permitted by applicable law, with respect to any Voting Shares. 5. Representations and Warranties of the Stockholder. The Stockholder hereby ------------------------------------------------- represents and warrants to CNI that, as of the date hereof and at all times until the Expiration Time: (a) the Stockholder is (and will be, except with respect to any Shares that are Transferred in compliance with Section 2(a)) the Beneficial Owner of the Shares; (b) the Voting Shares are, and the Shares will be, unless Transferred in compliance with Section 2(a), free and clear of any Encumbrances of any kind or nature; (c) the Stockholder does not and will not beneficially own any securities of the Company or rights to acquire any securities of the Company other than the Shares; (d) the Stockholder has and will have, with respect to all of the Shares, the legal capacity and all requisite power and authority to make, enter into and (except with respect to any Shares that are Transferred in compliance with Section 2(a)) perform the terms of this Agreement and the Proxy; (e) this Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; (f) the execution and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will not, EXECUTION COPY conflict with or violate any Governmental Order or permit applicable to the Stockholder or result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or materially impair the Stockholder's rights or alter the rights or obligations of any third party under, any contract, agreement or other arrangement applicable to the Shares; and (g) except as expressly contemplated hereby, or set out on Schedule A hereto the Stockholder is not a party to, and the Shares are not subject to or bound in any manner by, any contract or agreement relating to the Shares, including without limitation, any voting agreement, option agreement, purchase agreement, stockholders' agreement, partnership agreement or voting trust. 6. Representations and Warranties of CNI. CNI hereby represents and warrants ------------------------------------- to the Stockholder that, as of the date hereof and at all times until the Expiration Time: (a) CNI has the legal capacity and all requisite power and authority to make, enter into and perform the terms of this Agreement and the Proxy; (b) this Agreement has been duly and validly executed and delivered by CNI and constitutes the valid and binding obligation of CNI, enforceable against CNI in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; and (c) the execution and delivery of this Agreement by CNI do not, and the consummation of the transactions contemplated hereby will not, conflict with or violate any material Governmental Order or permit applicable to CNI, except where such conflicts, violations, breaches or defaults would not, individually or in the aggregate, materially impair the ability of CNI to perform its obligations hereunder. 7. Legending of Shares. If so requested by CNI, the Stockholder hereby agrees ------------------- that the Shares shall bear a legend stating that they are subject to this Agreement and to an irrevocable proxy. The Stockholder hereby agrees that the Stockholder shall not Transfer the Shares without first having the aforementioned legend affixed to the certificates representing the Shares. 8. Consent and Waiver. The Stockholder (not in his or her capacity as a director ------------------ or officer of the Company) agrees to give any consent or waiver that is reasonably required under the terms of any agreement to which the Stockholder is a party which consent or waiver is required solely because of the consummation of the Transactions. 9. Disclosure. The Stockholder hereby agrees to permit the Company to publish ---------- and disclose in the Proxy Statement (including all documents and schedules filed with the Securities and Exchange Commission) and for the Company and CNI to publish and disclose in any press release or other disclosure document that either the Company or CNI determines to be necessary or desirable in connection with the Transactions the existence and terms of this Agreement. EXECUTION COPY 10. Miscellaneous. ------------- (a) Amendments and Waivers. No amendment of any provision of this Agreement ---------------------- shall be valid unless the same shall be in writing and signed by the parties. Either party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (iii) waive compliance with any of the agreements or conditions of the other party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. (b) Notices. All notices and other communications hereunder shall be in ------- writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to CNI, to: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to CNI) to: Skadden, Arps, Slate, Meagher and Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile No.: +49-69-74220300 (ii) if to the Stockholder, to the address set forth on the signature page of this Agreement, with a copy (which EXECUTION COPY shall not constitute notice to the Stockholder) to: James Pinto Facsimile No.: (c) Headings. The descriptive headings contained in this Agreement are for -------- convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (d) Interpretation. References in this Agreement to sections, paragraphs, -------------- clauses, schedules and exhibits are to sections, paragraphs, clauses, schedules and exhibits in or to this Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the context otherwise requires, references herein to any Person include its successors and assigns. (e) Counterparts. This Agreement may be executed in any number of counterparts ------------ and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. (f) Entire Agreement. This Agreement and the Proxy constitute the entire ---------------- agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter hereof and thereof. (g) Severability. If any provision of this Agreement is invalid, illegal or ------------ incapable of being enforced by any law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially EXECUTION COPY adverse to any party. Upon such determination that any 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 in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. (h) Specific Performance. The parties agree that irreparable harm would occur -------------------- in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other party and to enforce specifically such terms and conditions of this Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other Party is entitled to at law or in equity. (i) Governing Law. This Agreement shall be governed by and construed in ------------- accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. (j) Rules of Construction. --------------------- (i) Construction. The parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. (ii) Adequate Counsel. Each of the parties hereby represents and ---------------- warrants that it and its legal counsel have adequate information regarding the terms of this Agreement, the scope and effect of the transactions contemplated hereby and all other matters encompassed by this Agreement to make an informed and knowledgeable decision with regard to entering into this Agreement. (k) Binding Effect; Assignment. The Stockholder may not assign either this -------------------------- Agreement or any of the rights, interests, or obligations hereunder without the prior written approval of CNI. Any purported assignment in violation of this Section 10(k) shall be void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. (l) Waiver of Jury Trial. EACH OF CNI AND THE STOCKHOLDER HEREBY IRREVOCABLY -------------------- WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR EXECUTION COPY COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CNI OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. [SIGNATURE ON THE FOLLOWING PAGE] EXECUTION COPY IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed individually or by its respective duly authorized officer as of the date first written above. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ------------------------ Name: Andrew Intrater Title: Managing Partner JAMES PINTO By: /s/ James Pinto ------------------------ Name: James Pinto Title: EXECUTION COPY Schedule A Stockholder Beneficial Ownership of Shares ------------------------------------------
- ------------- ----------- -------------- ------------- ----------- -------------- --------------- ------------------- ---------- 1 2 3 4 5 6 7 8 9 - ------------- ----------- -------------- ------------- ----------- -------------- --------------- ------------------- ---------- Name of Number of Number of Number of Number of Number of Number of Amount of Number Stockholder Shares of Other Shares Shares of Other Shares of Shares of Convertible of Common of Common Series A Shares of Common Stock Common Stock Debentures Owned Shares Stock Stock Over Preferred Series A Owned Upon Owned Upon of Owned which Stock Owned Preferred Conversion Exercise of Common Stockholder Stock of Series A Options Stock Has Voting Over Preferred Owned Power which Stock Upon Stockholder Conversion Has of Voting Convertible Power Debentures - ------------- ----------- -------------- ------------- ----------- -------------- --------------- ------------------- ---------- James Pinto 95,976 0 0 0 0 3,000 $3,000 185 - ------------- ----------- -------------- ------------- ----------- -------------- --------------- ------------------- ----------
EXECUTION COPY Exhibit A IRREVOCABLE PROXY The undersigned Stockholder of Moscow CableCom Corp., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints the executive officers and members of the Board of Directors of Columbus Nova Investments VIII Ltd., a Bahamas corporation ("CNI"), and each of them initially, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the fullest extent that the undersigned is entitled to do so) with respect to all of the Voting Shares, as defined in the Voting Agreement of even date herewith by and between CNI and the undersigned Stockholder (the "Voting Agreement") in accordance with the terms of this Proxy. Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Voting Agreement. The Voting Shares beneficially owned by the undersigned Stockholder of the Company as of the date of this Proxy are listed on the final page of this Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Voting Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Voting Shares until after the Expiration Time. Until the Expiration Time, this Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest, is granted pursuant to the Voting Agreement, and is granted in consideration of CNI entering into the Subscription Agreement and the Warrant Agreement. The Subscription Agreement provides for CNI acquiring 4,500,000] shares of Series B Preferred Stock of the Company that are currently convertible into 4,500,000 shares of Common Stock of the Company. The Warrant Agreement will provide for CNI acquiring warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock. The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the Expiration Time, to act as the undersigned's attorney and proxy to vote the Voting Shares, and to exercise all voting, consent and similar rights of the undersigned with respect to the Voting Shares (including, without limitation, the power to execute and deliver written consents) at every annual, special, adjourned or postponed meeting of stockholders of the Company and in every written consent in lieu of such meeting: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and this Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with EXECUTION COPY the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and this Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. The attorneys and proxies named above may not exercise this Proxy on any other matter except as provided above. Any obligation of the undersigned hereunder shall be binding upon the successors and assigns of the undersigned. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] EXECUTION COPY This Proxy is irrevocable (to the fullest extent permitted by law) until the Expiration Time and shall terminate, and be of no further force and effect, automatically upon the Expiration Time. Dated: August 26, 2004 Signature of Stockholder: /s/ James Pinto ------------------------------- Print Name of Stockholder: James Pinto Shares Beneficially Owned: 95,967 shares of Company Common Stock ------ ______ shares of Series A Cumulative Convertible Preferred Stock Owned [SIGNATURE PAGE TO IRREVOCABLE PROXY] EX-99 10 was5181ex99-9.txt EX. 4.6 VOTING AGREEMENT THOMAS MCPARTLAND EXECUTION COPY VOTING AGREEMENT between THOMAS McPARTLAND and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated August 26, 2004 EXECUTION COPY TABLE OF CONTENTS Page ---- 1. Certain Definitions......................................................1 2. Transfer of Shares.......................................................2 3. Agreement to Vote the Voting Shares......................................3 4. Irrevocable Proxy........................................................4 5. Representations and Warranties of the Stockholder........................4 6. Representations and Warranties of CNI....................................5 7. Legending of Shares......................................................5 8. Consent and Waiver.......................................................5 9. Disclosure...............................................................5 10. Miscellaneous............................................................6 EXECUTION COPY VOTING AGREEMENT This VOTING AGREEMENT (this "Agreement") is made and entered into as of August 26, 2004, by and between Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the undersigned stockholder and/or option holder (the "Stockholder") of Moscow CableCom Corp., a Delaware corporation (the "Company"). Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Subscription Agreement (as defined below). WHEREAS, as of the date hereof, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such number of shares of the outstanding capital stock of the Company, and such number of shares of capital stock of the Company issuable upon the exercise of outstanding options, as is indicated in columns 2, 3 and 7 of Schedule A hereto; WHEREAS, concurrently with the execution of this Agreement, the Company, and CNI are entering into a Series B Convertible Preferred Stock Subscription Agreement, dated as of the date hereof (the "Subscription Agreement"), pursuant to which, upon the terms and subject to the conditions thereof, CNI will acquire 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), that are currently convertible into 4,500,000 shares of Common Stock, par value $.01 per share of the Company (the "Common Stock"); WHEREAS, at the Closing of the transactions contemplated in the Subscription Agreement, the Company and CNI will enter into a Series B Convertible Preferred Stock Warrant Agreement (the "Warrant Agreement") pursuant to which CNI will acquire warrants that are currently exercisable for 8,283,0001 shares of Series B Preferred Stock; and WHEREAS, as an inducement and a condition to entering into the Subscription Agreement and the Warrant Agreement by CNI, the Stockholder has agreed to vote the Voting Shares (as defined below), so as to facilitate consummation of the transactions contemplated in the Subscription Agreement (the "Transactions"); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. Certain Definitions. For all purposes of and under this Agreement, the ------------------- following terms shall have the following respective meanings: (a) "Beneficially Own" or "Beneficial Ownership" means, with respect to securities, having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Exchange Act. - --------------------------- 1 Subject to confirmation upon receipt of revised capitalization table. EXECUTION COPY (b) "Convertible Debentures" means the 10 1/2% Convertible Subordinated Debentures due 2007 of the Company. (c) "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (d) "Expiration Time" means the earliest to occur of (i) valid termination of the Subscription Agreement pursuant to its terms, (ii) consummation of the Transactions, (iii) February 28, 2005 or (iv) the written agreement of the parties hereto to terminate this Agreement. (e) "Series A Preferred Stock" means the Series A Cumulative Convertible Preferred Stock, par value $.01 per share, of the Company. (f) "Shares" means: (i) the Voting Shares, (ii) all other securities of the Company (including all options and other rights to acquire shares of Company Common Stock) owned by the Stockholder as of the date of this Agreement and such other shares of capital stock of the Company over which the Stockholder has voting power as indicated on Schedule A, and (iii) all additional securities of the Company (including all additional shares of Common Stock and all additional options and other rights to acquire shares of Common Stock) of which the Stockholder acquires beneficial ownership during the period commencing with the execution and delivery of this Agreement until the Expiration Time. (g) "Securities Act" means the Securities Act of 1933, as amended, or any successor statute thereto, and the rules and regulations of the U.S. Securities Exchange and Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. (h) "Transfer" means, with respect to a security, whether directly or indirectly (i) to sell, pledge, encumber, grant an option with respect to, transfer or otherwise dispose of such security or any interest therein (including any voting interest), or (ii) to enter into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein. (i) "Voting Shares" means issued and outstanding shares of Common Stock and Series A Preferred Stock owned of record and Beneficially Owned by the Stockholder as of the date hereof (that are set out in columns 2, 3, 4 and 5 of Schedule A hereto) and acquired at any time prior to the Expiration Time. 2. Transfer of Shares. ------------------ (a) No Transfer of Shares. The Stockholder hereby agrees that, at all times --------------------- during the period commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not cause or EXECUTION COPY permit any Transfer of any of the Shares to be effected, or discuss, negotiate or make any offer regarding any Transfer of any of the Shares without the prior written consent of CNI other than the issuance of Common Stock to the Stockholder by the Company in connection with the exercise by the Stockholder of options to purchase Common Stock. Notwithstanding the foregoing, the Stockholder may Transfer Shares to a member of the Stockholder's immediate family or to a trust or other entity created by the Stockholder for tax or estate planning purposes, provided, that any such transferee agrees to assume the obligations of the Stockholder hereunder with respect to any Shares so transferred. (b) No Transfer of Voting Rights. The Stockholder hereby agrees that, at all ---------------------------- times commencing with the execution and delivery of this Agreement until the Expiration Time, the Stockholder shall not deposit, or permit the deposit of, any Voting Shares in a voting trust, grant any proxy in respect of the Voting Shares, or enter into any voting agreement or similar arrangement or commitment with respect to any of the Voting Shares (other than, in each case, this Agreement and the Proxy (as defined in Section 4)). 3. Agreement to Vote the Voting Shares. Until the Expiration Time, at every ----------------------------------- meeting of stockholders of the Company called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company with respect to any of the following, the Stockholder shall vote, to the extent not voted by the person(s) appointed under the Proxy, the Voting Shares: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and the Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and the Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and EXECUTION COPY (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. Prior to the Expiration Time, the Stockholder shall not enter into any agreement or understanding with any person to vote or give instructions in any manner inconsistent with the terms of this Section 3. It is hereby acknowledged that as of the date hereof the Stockholder serves as a member of the Board of Directors of the Company. For the avoidance of doubt, nothing herein shall preclude or limit the Stockholder, solely in his capacity as a Director of the Company (and without reference to exercising any of his rights as a stockholderof the Company), from performing his duties, obligations and responsibilities as a member of the Board of Directors pursuant to the Delaware General Corporation Law, the Securities Act, the Exchange Act or the Sarbanes-Oxley Act of 2002. 4. Irrevocable Proxy. Concurrently with the execution of this Agreement, the ----------------- Stockholder agrees to deliver and delivers to CNI a proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be coupled with an interest and, until the Expiration Time, be irrevocable to the fullest extent permitted by applicable law, with respect to any Voting Shares. 5. Representations and Warranties of the Stockholder. The Stockholder hereby ------------------------------------------------- represents and warrants to CNI that, as of the date hereof and at all times until the Expiration Time: (a) the Stockholder is (and will be, except with respect to any Shares that are Transferred in compliance with Section 2(a)) the Beneficial Owner of the Shares; (b) the Voting Shares are, and the Shares will be, unless Transferred in compliance with Section 2(a), free and clear of any Encumbrances of any kind or nature; (c) the Stockholder does not and will not beneficially own any securities of the Company or rights to acquire any securities of the Company other than the Shares; (d) the Stockholder has and will have, with respect to all of the Shares, the legal capacity and all requisite power and authority to make, enter into and (except with respect to any Shares that are Transferred in compliance with Section 2(a)) perform the terms of this Agreement and the Proxy; (e) this Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; (f) the execution and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will not, EXECUTION COPY conflict with or violate any Governmental Order or permit applicable to the Stockholder or result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or materially impair the Stockholder's rights or alter the rights or obligations of any third party under, any contract, agreement or other arrangement applicable to the Shares; and (g) except as expressly contemplated hereby, or set out on Schedule A hereto the Stockholder is not a party to, and the Shares are not subject to or bound in any manner by, any contract or agreement relating to the Shares, including without limitation, any voting agreement, option agreement, purchase agreement, stockholders' agreement, partnership agreement or voting trust. 6. Representations and Warranties of CNI. CNI hereby represents and warrants to ------------------------------------- the Stockholder that, as of the date hereof and at all times until the Expiration Time: (a) CNI has the legal capacity and all requisite power and authority to make, enter into and perform the terms of this Agreement and the Proxy; (b) this Agreement has been duly and validly executed and delivered by CNI and constitutes the valid and binding obligation of CNI, enforceable against CNI in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; and (c) the execution and delivery of this Agreement by CNI do not, and the consummation of the transactions contemplated hereby will not, conflict with or violate any material Governmental Order or permit applicable to CNI, except where such conflicts, violations, breaches or defaults would not, individually or in the aggregate, materially impair the ability of CNI to perform its obligations hereunder. 7. Legending of Shares. If so requested by CNI, the Stockholder hereby agrees ------------------- that the Shares shall bear a legend stating that they are subject to this Agreement and to an irrevocable proxy. The Stockholder hereby agrees that the Stockholder shall not Transfer the Shares without first having the aforementioned legend affixed to the certificates representing the Shares. 8. Consent and Waiver. The Stockholder (not in his or her capacity as a director ------------------ or officer of the Company) agrees to give any consent or waiver that is reasonably required under the terms of any agreement to which the Stockholder is a party which consent or waiver is required solely because of the consummation of the Transactions. 9. Disclosure. The Stockholder hereby agrees to permit the Company to publish ---------- and disclose in the Proxy Statement (including all documents and schedules filed with the Securities and Exchange Commission) and for the Company and CNI to publish and disclose in any press release or other disclosure document that either the Company or CNI determines to be necessary or desirable in connection with the Transactions the existence and terms of this Agreement. EXECUTION COPY 10. Miscellaneous. ------------- (a) Amendments and Waivers. No amendment of any provision of this Agreement ---------------------- shall be valid unless the same shall be in writing and signed by the parties. Either party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (iii) waive compliance with any of the agreements or conditions of the other party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. (b) Notices. All notices and other communications hereunder shall be in ------- writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (i) if to CNI, to: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to CNI) to: Skadden, Arps, Slate, Meagher and Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile No.: +49-69-74220300 (ii) if to the Stockholder, to the address set forth on the signature page of this Agreement, with a copy EXECUTION COPY (which shall not constitute notice to the Stockholder) to: Thomas McPartland Facsimile No.: (c) Headings. The descriptive headings contained in this Agreement are for -------- convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. (d) Interpretation. References in this Agreement to sections, paragraphs, -------------- clauses, schedules and exhibits are to sections, paragraphs, clauses, schedules and exhibits in or to this Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the context otherwise requires, references herein to any Person include its successors and assigns. (e) Counterparts. This Agreement may be executed in any number of counterparts ------------ and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. (f) Entire Agreement. This Agreement and the Proxy constitute the entire ---------------- agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter hereof and thereof. (g) Severability. If any provision of this Agreement is invalid, illegal or ------------ incapable of being enforced by any law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially EXECUTION COPY adverse to any party. Upon such determination that any 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 in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. (h) Specific Performance. The parties agree that irreparable harm would occur -------------------- in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other party and to enforce specifically such terms and conditions of this Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other Party is entitled to at law or in equity. (i) Governing Law. This Agreement shall be governed by and construed in ------------- accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. (j) Rules of Construction. --------------------- (i) Construction. The parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. (ii) Adequate Counsel. Each of the parties hereby represents and ---------------- warrants that it and its legal counsel have adequate information regarding the terms of this Agreement, the scope and effect of the transactions contemplated hereby and all other matters encompassed by this Agreement to make an informed and knowledgeable decision with regard to entering into this Agreement. (k) Binding Effect; Assignment. The Stockholder may not assign either this -------------------------- Agreement or any of the rights, interests, or obligations hereunder without the prior written approval of CNI. Any purported assignment in violation of this Section 10(k) shall be void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. (l) Waiver of Jury Trial. EACH OF CNI AND THE STOCKHOLDER HEREBY IRREVOCABLY -------------------- WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR EXECUTION COPY COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CNI OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. [SIGNATURE ON THE FOLLOWING PAGE] EXECUTION COPY IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed individually or by its respective duly authorized officer as of the date first written above. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ----------------------------- Name: Andrew Intrater Title: Managing Partner THOMAS McPARTLAND By: /s/ Thomas McPartland ----------------------------- Name: Thomas McPartland Title: EXECUTION COPY
Schedule A Stockholder Beneficial Ownership of Shares ------------------------------------------ - ------------- ------------ ------------- ------------- ----------- -------------- --------------- ------------------- ---------- 1 2 3 4 5 6 7 8 9 - ------------- ------------ ------------- ------------- ----------- -------------- --------------- ------------------- ---------- Name of Number of Number of Number of Number of Number of Number of Amount of Number Stockholder Shares of Other Shares of Other Shares of Shares of Convertible of Common Shares of Series A Shares of Common Stock Common Stock Debentures Owned Shares Stock Owned Common Preferred Series A Owned Upon Owned Upon of Stock Over Stock Owned Preferred Conversion Exercise of Common which Stock of Series A Options Stock Stockholder Over Preferred Owned Has Voting which Stock Upon Power Stockholder Conversion Has of Voting Convertible Power Debentures - ------------- ------------ ------------- ------------- ----------- -------------- --------------- ------------------- ---------- Thomas McPartland 83,000 0 0 0 0 20,000 0 0 - ------------- ------------ ------------- ------------- ----------- -------------- --------------- ------------------- ----------
EXECUTION COPY Exhibit A IRREVOCABLE PROXY The undersigned Stockholder of Moscow CableCom Corp., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints the executive officers and members of the Board of Directors of Columbus Nova Investments VIII Ltd., a Bahamas corporation ("CNI"), and each of them initially, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights (to the fullest extent that the undersigned is entitled to do so) with respect to all of the Voting Shares, as defined in the Voting Agreement of even date herewith by and between CNI and the undersigned Stockholder (the "Voting Agreement") in accordance with the terms of this Proxy. Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Voting Agreement. The Voting Shares beneficially owned by the undersigned Stockholder of the Company as of the date of this Proxy are listed on the final page of this Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Voting Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Voting Shares until after the Expiration Time. Until the Expiration Time, this Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest, is granted pursuant to the Voting Agreement, and is granted in consideration of CNI entering into the Subscription Agreement and the Warrant Agreement. The Subscription Agreement provides for CNI acquiring 4,500,000 shares of Series B Preferred Stock of the Company that are currently convertible into 4,500,000 shares of Common Stock of the Company. The Warrant Agreement will provide for CNI acquiring warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock. The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the Expiration Time, to act as the undersigned's attorney and proxy to vote the Voting Shares, and to exercise all voting, consent and similar rights of the undersigned with respect to the Voting Shares (including, without limitation, the power to execute and deliver written consents) at every annual, special, adjourned or postponed meeting of stockholders of the Company and in every written consent in lieu of such meeting: (a) in favor of the issuance of the shares of Series B Preferred Stock to CNI in accordance with the terms and conditions of the Subscription Agreement, and in favor of each of the other actions contemplated by the Subscription Agreement and this Proxy and any action required in furtherance thereof; (b) in favor of the issuance of the shares of Series B Preferred Stock to CNI upon the exercise of the Warrants to be granted to CNI in accordance with EXECUTION COPY the terms and conditions of the Warrant Agreement, and in favor of each of the other actions contemplated by the Warrant Agreement and this Proxy and any action required in furtherance thereof; (c) in favor of the approval of the Certificate of Amendment of the Certificate of Incorporation of the Company, including, without limitation, for purposes of increasing the number of authorized Common Stock and providing for the designation of the Series B Preferred Stock; (d) in favor of any matter that could reasonably be expected to facilitate the Transactions, including waiving any notice that may be required relating to the issuance of the Series B Preferred Stock to CNI; (e) in favor of an amendment to the 2003 Stock Option Plan of the Company; (f) against approval of any proposal made in opposition to, or in competition with, consummation of the Transactions; and (g) against any other action that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. The attorneys and proxies named above may not exercise this Proxy on any other matter except as provided above. Any obligation of the undersigned hereunder shall be binding upon the successors and assigns of the undersigned. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] EXECUTION COPY This Proxy is irrevocable (to the fullest extent permitted by law) until the Expiration Time and shall terminate, and be of no further force and effect, automatically upon the Expiration Time. Dated: August 26, 2004 Signature of Stockholder: /s/ Thomas McPartland ------------------------------ Print Name of Stockholder: Thomas McPartland Shares Beneficially Owned: 83,000 shares of Company Common Stock ------ ______ shares of Series A Cumulative Convertible Preferred Stock Owned [SIGNATURE PAGE TO IRREVOCABLE PROXY] EX-99 11 was5181ex99-10.txt EX. 5 SHAREHOLDERS AGREEMENT EXECUTION COPY SHAREHOLDERS AGREEMENT between MOSKOVSKAYA TELECOMMUNIKATSIONNAYA CORPORATSIYA and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated August 26, 2004 TABLE OF CONTENTS 1. Certain Definitions..................................................2 2. Election of Directors................................................6 3. Committee Membership.................................................8 4. Resignations and Replacements........................................8 5. Transfer of Shares...................................................8 6. Additional Agreements...............................................13 7. Regulatory Filings..................................................16 8. Manner of Voting....................................................16 9. Specific Performance................................................16 10. Notices.............................................................16 11. Amendments and Waivers..............................................17 12. Severability........................................................17 13. Counterparts........................................................17 14. Headings............................................................17 15. Governing Law and Language..........................................17 16. Arbitration.........................................................18 17. Termination of this Agreement.......................................18 18. Rules of Construction...............................................18 SHAREHOLDERS AGREEMENT This SHAREHOLDERS AGREEMENT (this "Agreement") is made and entered into as of August 26, 2004, between Moskovskaya Telecommunikatsionnaya Corporatsiya, an open joint stock company organized under the laws of the Russian Federation ("COMCOR"), and Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI" ------ --- and together with COMCOR, the "Parties" and each individually, a "Party"). ------- ----- WHEREAS, CNI and Moscow CableCom Corp., a Delaware corporation (the "Company"), have entered into a Series B Convertible Preferred Stock ------- Subscription Agreement dated as of the date hereof (the "Subscription ------------ Agreement"), whereby CNI will acquire 4,500,000 shares of Series B Convertible - --------- Preferred Stock, par value $.01 per share of the Company (the "Series B -------- Preferred Stock"), and CNI and the Company will enter into the Warrant Agreement - --------------- (the "Warrant Agreement"), whereby CNI will acquire Warrants (as defined in the ----------------- Warrant Agreement) that will be initially exercisable for 8,283,000 shares of Series B Preferred Stock; WHEREAS, immediately following the consummation of the transactions contemplated in the Subscription Agreement, CNI will possess voting control over 4,500,000 shares of Series B Preferred Stock, representing approximately thirty five percent (35%) of the then outstanding shares of (i) the Common Stock, par value $.01 per share of the Company (the "Common Stock"), and (ii) the Series B ------------ Preferred Stock, (together with the Common Stock, the "Voting Stock"); ------------ WHEREAS, immediately following the exercise of the Warrants under the Warrant Agreement, CNI will possess voting control over an aggregate of 12,783,000 shares of Series B Preferred Stock, representing approximately fifty five percent (55%) of the then outstanding shares of Voting Stock; WHEREAS, immediately following the consummation of the transactions contemplated in the Subscription Agreement, COMCOR will possess voting control over 4,220,879 shares of Common Stock, representing approximately thirty percent (30%) of the then outstanding shares of Voting Stock; WHEREAS, the Parties wish to agree upon certain matters with respect to the voting of the shares of Voting Stock beneficially owned by the Parties; and WHEREAS, as an inducement for CNI to enter into the Subscription Agreement and the Warrant Agreement, the Parties have agreed to enter into this Agreement concurrent with the execution of the Subscription Agreement; NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, the Parties agree as follows: 1. Certain Definitions. "AAA" has the meaning set forth in Section 16. ------------------- 2 "Action" means any claim, action, suit, arbitration, inquiry, proceeding ------ or investigation by or before any Governmental Authority. "Affiliate" means, with respect to any Person, any other Person directly --------- or indirectly controlling, controlled by or under common control with such Person. For purposes of this definition, "control" means the power to direct the management and policies of such person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing; provided that, with respect to any of the Parties, the term "Affiliate" shall not include the Company. "Beneficially owned" or "beneficial ownership" means, with respect to ------------------ -------------------- securities, having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Exchange Act. "Board" has the meaning set forth in Section 2. ----- "Business Day" means any day that is not a Saturday, a Sunday or other day ------------ on which banks are required or authorized by law to be closed in New York City, the United States, or Moscow, the Russian Federation. "Call Option" has the meaning set forth in Section 5(f). ----------- "Call Optionee" has the meaning set forth in Section 5(f). ------------- "Call Option Event" has the meaning set forth in Section 5(f). ----------------- "Call Option Exercise Notice" has the meaning set forth in Section 5(f). --------------------------- "Call Option Notice" has the meaning set forth in Section 5(f). ------------------ "Closing Date" means the date of the consummation of the transactions ------------ contemplated in the Subscription Agreement. "CNI" has the meaning set forth in the Preamble. --- "CNI Director Designee(s)" has the meaning set forth in Section 2(d); ------------------------ provided, however, that no Person who has been convicted of or is currently awaiting disposition of any case involving a felony, embezzlement, theft or any act of fraud or financial impropriety; who has been determined in a final decision, not subject to further appeal, by any court of any other conduct involving a breach of fiduciary duty or who is under investigation by or has been subject to formal disciplinary action by the SEC or any other Governmental Authority with jurisdiction over a business in which such Person serves as an officer or director shall be a CNI Director Designee; provided, further, that at least two (2) CNI Director Designees shall be Independent. "COMCOR" has the meaning set forth in the Preamble. ------ 3 "COMCOR Director Designee(s)" has the meaning set forth in Section 2(c); --------------------------- provided, however, that no Person who has been convicted of or is currently awaiting disposition of any case involving a felony, embezzlement, theft or any act of fraud or financial impropriety; who has been determined in a final decision, not subject to further appeal, by any court of any other conduct involving a breach of fiduciary duty or who is under investigation by or has been subject to formal disciplinary action by the SEC or any other Governmental Authority with jurisdiction over a business in which such Person serves as an officer or director shall be a COMCOR Director Designee provided, further, that at least one (1) COMCOR Director Designee shall be Independent. "COMCOR IAS Shares" has the meaning set forth in Section 6(a). ----------------- "Common Stock" has the meaning set forth in the Recitals. ----------- "Company" has the meaning set forth in the Recitals. ------- "Company Subsidiary" or "Company Subsidiaries" means any Subsidiary or all ------------------ -------------------- of the Subsidiaries of the Company, respectively. "Director Designees" means the CNI Director Designee(s) and the COMCOR ------------------ Director Designee(s). "Dissolving Party" has the meaning set forth in Section 5(f). ---------------- "Dispute" has the meaning set forth in Section 16. ------- "Exchange Act" means the Securities Exchange Act of 1934, as amended, or ------------ any successor statute thereto, and the rules and regulations of the SEC promulgated from time to time thereunder, all as the same shall be in effect at the time. "Governmental Authority" means any United States, Russian or other foreign ---------------------- federal, state, provincial, local, supranational government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body. "IAS" has the meaning set forth in Section 6(a). --- "Independent" means "independent" as such term is defined (i) under the ----------- ----------- listing standards rules of the National Association of Securities Dealers, Inc and (ii) under the Sarbanes-Oxley Act of 2002. "Independent Expert" has the meaning set forth in Section 6(a). ------------------ "New Securities" has the meaning set forth in Section 6(b). -------------- "Notice of Proposed Transfer" has the meaning set forth in Section --------------------------- 5(e)(i). "Offered Securities" has the meaning set forth in Section 5(e)(i). ------------------ 4 "Offer Price" has the meaning set forth in Section 5(e)(i). ----------- "Option Period" has the meaning set forth in Section 5(e)(ii). ------------- "Option Sale Notice" has the meaning set forth in Section 5(e)(ii). ------------------ "Other Party" has the meaning set forth in Section 5(e)(i). ----------- "Party" or "Parties" has the meaning set forth in the Preamble. ----- ------- "Permitted Transfer" has the meaning set forth in Section 5(a). ------------------ "Person" means any individual, partnership, association, joint venture, ----- corporation, business, trust, joint stock company, limited liability company, any unincorporated organization, any other entity, a "group" of such persons, as that term is defined in Rule 13d-5(b) under the Exchange Act, or a government or political subdivision thereof. "Proposed Purchaser" has the meaning set forth in Section 5(b)(ii). ------------------ "Proposing Party" has the meaning set forth in Section 5(e)(i). --------------- "Proposed Transfer" has the meaning set forth in Section 5(e)(i). ----------------- "Pro Rata Portion" shall mean, with reference to any Party at any time, a ---------------- fraction, the numerator of which is the number shares represented by the shares of Voting Stock then issued and outstanding and beneficially owned by such Party and its Affiliates, and the denominator of which is the aggregate number of shares represented by the shares of Voting Stock then issued and outstanding and held by the Parties and their respective Affiliates taken together. "Rules" has the meaning set forth in Section 16. ----- "SEC" means the United States Securities and Exchange Commission. --- "Securities Act" means the Securities Act of 1933, as amended, or any -------------- successor statute thereto, and the rules and regulations of the SEC promulgated from time to time thereunder, all as the same shall be in effect at the time. "Series B Preferred Stock" has the meaning set forth in the Recitals. ------------------------ "Shares" means any and all outstanding shares of Voting Stock beneficially ------ owned at any time by a Party and/or any of its Affiliates (as well as any other securities of the Company issued in respect of, upon conversion or exercise of, or in exchange or substitution for, the shares Voting Stock beneficially owned by such Party and/or its Affiliates). "Subscription Agreement" has the meaning set forth in the Recitals. ---------------------- "Subsidiaries" of any Person means any corporation, partnership, joint ------------ 5 venture, limited liability company, trust, estate or other Person of which (or in which), directly or indirectly, more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture or limited liability company or other Person or (c) the beneficial interest in such trust or estate is at the time owned by such first Person, or by such first Person and one or more of its other Subsidiaries or by one or more of such Person's other Subsidiaries. "Tag-Along Notice Period" has the meaning set forth in Section 5(b)(iii). ----------------------- "Tag-Along Offer" has the meaning set forth in Section 5(b)(ii). --------------- "Tag-Along Party" has the meaning set forth in Section 5(b)(ii). --------------- "Tag-Along Sale" has the meaning set forth in Section 5(b)(i). -------------- "Tag-Along Seller" has the meaning set forth in Section 5(b)(ii). ---------------- "Termination Time" has the meaning set forth in Section 18. ---------------- "Transfer" means, with respect to the Shares, whether directly or -------- indirectly (i) to sell, pledge, encumber, grant an option with respect to, transfer or otherwise dispose of any Shares or any interest therein (including any voting interest), (ii) to enter into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of any Shares or any interest therein (including any voting interest) or (iii) to deposit or permit the deposit of any Shares, or enter into any voting agreement, grant proxy or enter into any similar arrangement or commitment with respect to any Shares. "Voting Stock" has the meaning set forth in the Recitals. ------------ "Warrant Agreement" has the meaning set froth in the Recitals. ----------------- 2. Election of Directors. Except as otherwise provided herein or agreed in --------------------- writing by the Parties, at any time following the Closing Date at which the shareholders of the Company have a right to, or agree in writing to, elect any members of the board of directors of the Company (the "Board"), to the fullest extent permitted by law, each Party agrees, on behalf of itself and on behalf of its Affiliates, to vote all of the Shares beneficially owned by such Party and/or any of its Affiliates in favor of, and otherwise to take all reasonable actions to effect, the following actions: (a) to initially elect the Purchaser Directors (as defined in the Subscription Agreement) to the Board; (b) to cause and maintain the number of directors of the Board to be fixed at eleven (11), one of whom shall be the Chairman; 6 (c) to cause and maintain both the appointment and/or nomination for election and the election to the Board of a total of three (3) individuals designated by COMCOR (each a "COMCOR Director Designee"), subject to the ------------------------ following: (i) upon COMCOR and its Affiliates beneficially owning less than 20% of the outstanding shares of Voting Stock, the number of COMCOR Director Designees shall be reduced to two (2) individuals; and (ii) upon COMCOR and its Affiliates beneficially owning less than 15% but at least 10% of the outstanding shares of Voting Stock, the number of COMCOR Director Designees shall be reduced to one (1) individual; (d) to cause and maintain both the appointment and/or nomination for election and the election to the Board of a total of six (6) individuals designated by CNI (each a "CNI Director Designee"), subject to the --------------------- following: (i) upon COMCOR and its Affiliates beneficially owning less than 20% of the outstanding shares of Voting Stock, the number of CNI Director Designees shall be increased to seven (7) individuals; (ii) upon CNI and its Affiliates beneficially owning less than 30% of the outstanding shares of Voting Stock, the number of CNI Director Designees shall be reduced to five (5) individuals; (iii) upon CNI and its Affiliates beneficially owning less than 20% of the outstanding shares of Voting Stock, the number of CNI Director Designees shall be reduced to four (4) individuals; and (iv) upon CNI and its Affiliates beneficially owning less than 15% but at least 10% of the outstanding shares of Voting Stock, the number of CNI Director Designees shall be reduced to two (2) individuals; and (v) upon CNI and its Affiliates beneficially owning less than 10% of the outstanding shares of Voting Stock, the number of CNI Director Designees shall be reduced to one (1) individual; and (e) for so long as COMCOR owns at least 15% of the Voting Stock, CNI shall use its best efforts, through the voting of its shares, to ensure that the combination of the COMCOR Director Designees plus those of the 7 CNI Director Designees who are Affiliates of CNI comprise a majority of the directors on the Board; provided that the CNI Director Designees who are elected to the Board shall include at least as many Independent directors as the Independent directors included in the COMCOR Director Designees who are elected to the Board; and (f) if at any time the number of directors of the Board shall be fixed to be greater than or less than eleven (11), the then applicable number of COMCOR Director Designees and CNI Director Designees pursuant to Section 2(c) and Section 2(d) above, respectively, shall be amended proportionally to reflect the altered size of the Board. For the avoidance of doubt, COMCOR shall always be entitled to at least one COMCOR Director Designee for so long as it owns more than 10% of the outstanding shares of Voting Stock. 3. Committee Membership. For so long as each Party shall be entitled to ------------------- designate at least one (1) individual for appointment and/or election to the Board, each committee of the Board, including the finance, audit, nominating and compensation committees, shall consist of at least one COMCOR Director Designee and at least one CNI Director Designee; provided, however, that the audit committee of the Board shall consist solely of Directors who are Independent. 4. Resignations and Replacements. ----------------------------- (a) If at any time a member of the Board resigns (pursuant to this Section 4 or otherwise) or is removed in accordance with applicable law or the Company's by-laws, a new member shall be designated to replace such member until the next election of directors. The Party that designated such director shall designate the replacement director. (b) If at any time the number of directors entitled to be nominated to the Board by any Party in accordance with this Agreement in an election of directors presented to shareholders would decrease, within ten (10) days thereafter CNI and COMCOR shall cause a sufficient number of CNI Director Designees or COMCOR Director Designees, as applicable, to resign from the Board so that the number of CNI Director Designees and COMCOR Director Designees on the Board after such resignation(s) equals the number of individual(s) CNI or COMCOR would have been entitled to designate, as applicable, had an election of directors taken place at such time. CNI and COMCOR shall also cause a sufficient number of directors to resign from any relevant committees of the Board so that such committees are comprised in the manner contemplated by Section 3 after giving effect to such resignations. CNI and COMCOR shall use their best efforts to cause their Director Designees (who are not Independent) to fill any vacancies created by the resignations required by this Section 4(b) with Director Designee(s) of the appropriate Party in accordance with this Agreement. 5. Transfer of Shares. ------------------ (a) Restrictions on Transfer of Shares. Except in accordance with ---------------------------------- this Section 5 or with the prior written consent of the other Party, each Party hereby agrees that, at all times during the period commencing with the execution and delivery of this Agreement until the Termination Time, 8 it shall not cause or permit any Transfer of any Shares or the right to acquire any Shares to be effected, or discuss, negotiate or make any offer regarding any Transfer of any Shares or any right to acquire any Shares. Notwithstanding the foregoing, a Party may Transfer Shares (i) to an Affiliate of such Party, (ii) to the other Party, (iii) in an underwritten public offering, or (iv) as a bona fide pledge to a bank, financial institution or other lender; provided, in case of any Transfer pursuant to (i) and (iv) above, that (A) the transferee agrees to assume the obligations hereunder of the transferring Party with respect to any Shares so transferred and executes a written instrument acknowledging that it agrees to be bound by the terms of this Agreement and (B) the transferring Party provides notice to the other Party of such Transfer (each transfer under (i), (ii), (iii) or (iv) above, shall be a "Permitted Transfer"). ------------------ (b) Tag-Along Rights. ---------------- (i) Notwithstanding anything in this Agreement to the contrary, except in the case of Permitted Transfers or otherwise in accordance with this Section 5, for so long as each Party holds at least 10% (together with its respective Affiliates) of the outstanding shares of Voting Stock, each Party shall refrain from effecting any Transfer of Shares (a "Tag-Along Sale") unless, prior -------------- to the consummation thereof, the other Party shall have been afforded the opportunity to join in such Transfer on a pro rata --- ---- basis, as provided in this Section 5(b). (ii) Prior to consummation of such proposed Transfer, the Party proposing the Transfer (the "Tag-Along Seller") shall cause ---------------- the Person or group that proposes to acquire such shares (the "Proposed Purchaser") to offer in writing (the "Tag-Along Offer") to ------------------ --------------- purchase the shares of Voting Stock owned by the other Party (the "Tag-Along Party"), such that the number of shares of Voting Stock --------------- so offered to be purchased from the Tag-Along Party shall be equal to the product obtained by multiplying the aggregate number of shares of Voting Stock proposed to be purchased by the Proposed Purchaser by such Tag-Along Party's Pro Rata Portion. In addition, the Tag-Along Offer shall set forth the consideration for which the Tag-Along Sale is proposed to be made and all other material terms and conditions of the Tag-Along Sale. If the Tag-Along Offer is accepted by the Tag-Along Party, then the number of shares of Voting Stock to be sold to the Proposed Purchaser by the Tag-Along Seller shall be reduced by the aggregate number of shares of Voting Stock to be purchased by the Proposed Purchaser from the Tag-Along Party pursuant thereto. The purchase from the Tag-Along Party shall be made on the same terms and conditions (including timing of receipt of consideration and choice of consideration, if any) as the Proposed Purchaser shall have offered to purchase the shares of Voting Stock to be sold by the Tag-Along Seller. (iii) The Tag-Along Party shall have five (5) Business Days from the date of receipt of the Tag-Along Offer (the "Tag-Along --------- Notice Period") during which to accept such Tag-Along Offer by ------------- 9 written notice to the Tag-Along Seller or a representative of such Party designated in the Tag-Along Offer, and the closing of such purchase shall occur within ninety (90) days after such acceptance by the Tag-Along Party or the expiration of the Tag-Along Notice Period, which ever is sooner, or at such other time as the Tag-Along Seller and the Tag-Along Party may agree; provided, however, that if any of the transactions contemplated by the Tag-Along Offer are subject to regulatory approval such ninety (90) day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than one hundred and eighty (180) days after delivery of the Tag-Along Offer. Delivery of an acceptance of the Tag-Along Offer shall be accompanied by the certificate(s) representing the shares of Voting Stock to be included in the Tag-Along Sale, duly endorsed, together with all other documents required to be executed in connection with such Tag-Along Sale, or if such delivery is not permitted by applicable law, an unconditional agreement to deliver such certificates pursuant to this Section 5(b) at the closing for such Tag-Along Sale against delivery to the Tag-Along Party of the consideration therefore. (iv) If the Tag-Along Party fails to accept the Tag-Along Offer within the Tag-Along Notice Period, it shall be deemed to have waived its rights under this Section 5(b) with respect to the Transfer of its shares of Voting Stock pursuant to such Tag-Along Sale. (v) Concurrently with the consummation of the Tag-Along Sale, the Tag-Along Seller shall use its reasonable best efforts to cause the Proposed Purchaser to give notice thereof to the Tag-Along Party, to remit to such Party, if such Party participated in the Tag-Along Sale, the total consideration for the shares of Voting Stock of the Tag-Along Party transferred pursuant thereto, with the cash portion of the purchase price paid by bank or certified check and any non-cash portion to be delivered as promptly as possible on or after the consummation of such Tag-Along Sale, and to furnish such other evidence of the completion and time of completion of such Transfer and the terms thereof, as may be reasonably requested by the Tag-Along Party. (vi) Notwithstanding anything contained in this Section 5(b), there shall be no liability on the part of the Tag-Along Seller to the Tag-Along Party (other than the obligation to return any certificates evidencing shares of Voting Stock and any other documents required to be executed in connection with such Tag-Along Sale) if the Tag-Along Sale is not consummated for whatever reason. Whether to effect a Tag-Along Sale is in the sole and absolute discretion of the Tag-Along Seller. (c) Additional Conditions to Tag-Along Sales. Notwithstanding ---------------------------------------- anything contained in Sections 5(b), the rights and obligations of the Tag-Along Party to participate in a Tag-Along Sale pursuant to Section 5(b), are subject to the following conditions: 10 (i) no such Party shall be obligated to pay any expenses incurred in connection with any unconsummated Tag-Along Sale, and the Tag-Along Party shall be obligated to pay only its pro rata share (based on the number of Shares transferred) of reasonable expenses incurred in connection with a consummated Tag-Along Sale to the extent such expenses are incurred for the benefit of the Parties and are not otherwise paid by the Company or another Person; and (ii) each such Party shall (A) make such representations, warranties and covenants and enter into such definitive agreements as are customary for transactions of the nature of the proposed Transfer; provided that no such Party shall be required to provide any representations or indemnities in connection with any Tag-Along Sale other than representations and indemnities concerning such Party's title to the Shares free and clear of any encumbrances, including actual or pending litigation to which such Party is a party, and such Party's existence, power and due authorization to enter into and consummate the Transfer without contravention of any law or material agreement; provided further that any such indemnity shall (as to such Party) be expressly stated to be several but not joint, (B) benefit from all of the same provisions of the definitive agreements as the Tag-Along Seller, as the case may be, and (C) be required to bear its proportionate share of any escrows, holdbacks or adjustments in purchase price. (d) Rights of First Offer. --------------------- (i) If a Party (a "Proposing Party") proposes to Transfer --------------- (each, a "Proposed Transfer") any of its Shares (the "Offered ----------------- ------- Securities"), other than in a Permitted Transfer, such Party shall ---------- submit a written notice (a "Notice of Proposed Transfer") to the --------------------------- other Party (the "Other Party") describing the material terms and ----------- conditions of the Proposed Transfer in reasonable detail, including, without limitation, the proposed purchase price (the "Offer Price"). ----------- (ii) Upon receipt of the Notice of Proposed Transfer, the Other Party shall have the primary right, but not the obligation, for a period of fifteen (15) Business Days following receipt of the Notice of Proposed Transfer (the "Option Period"), to elect to ------------- purchase at the Offer Price the Offered Securities, on the same terms and conditions as are set forth in the Notice of Proposed Transfer. (iii) In the event that the Other Party exercises its right to purchase all but not less than all of the Offered Securities in accordance with Section 5(e)(ii), then the Proposing Party must sell the Offered Securities to the Other Party. The Proposing Party shall notify the Other Party that the Offered Securities are to be sold to 11 it within two (2) Business Days of the end of the Option Period (the "Option Sale Notice"). The Proposing Party shall, and hereby ------------------ covenants to, transfer the Offered Securities to the Other Party free and clear of any and all liens, mortgages, pledges, security interests or other restrictions or encumbrances against payment of the Offer Price. The Other Party shall purchase and pay, by bank or certified check (in immediately available funds), for the Offered Securities set forth within twenty (20) Business Days after the date of receipt of the Option Sale Notice; provided, that if the Transfer of such Offered Securities is subject to any prior regulatory approval, subject to Section 5(e)(iv), the time period during which such Transfer may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals have been received. (iv) Upon the earlier to occur of (i) rejection of the Offered Stock by the Other Party, (ii) the expiration of the Option Period without the Other Party electing to purchase all of the Offered Stock following the proper delivery of the Notice of Proposed Transfer and (iii) the failure to obtain any required consent or regulatory approval for the purchase of all of the Offered Stock by the Other Party within ninety (90) days of acceptance of the Offered Stock, the Proposing Party shall have a sixty (60) day period during which to effect a Transfer of any or all of the Offered Stock, on substantially the same or more favorable (as to the Proposing Party) terms and conditions as were set forth in the Notice of Proposed Transfer at a price not less than ninety five percent (95%) of the Offer Price, provided that, if the Transfer is subject to regulatory approval, such sixty (60) day period shall be extended until the expiration of five (5) Business Days after all such approvals shall have been received, but in no event longer than one hundred and eighty (180) days following the Notice of Proposed Transfer. If the Proposing Party does not consummate the Transfer of the Offered Stock in accordance with the foregoing time limitations, then the right of the Proposing Party to effect the Transfer of such Offered Stock pursuant to this Section 5(e)(iv) shall terminate and the Proposing Party shall again comply with the procedures set forth in this Section 5 with respect to any proposed Transfer of Shares to a Third Party. (v) If the Other Party does not purchase any of the Offered Stock under Section 5(e)(ii) but wishes to sell Shares under Section 5(b) in the event that the Proposing Party has made a Tag-Along Offer, such Party must deliver an acceptance of a Tag-Along Offer pursuant to Section 5(b)(iv) simultaneously with declining such Party's right to purchase under this Section 5(e). (e) Call Option. Notwithstanding Section 17 of this Agreement, upon ----------- the commencement of any voluntary or involuntary bankruptcy, dissolution, liquidation or winding-up of a Party (the "Call Option Event"), the Party ----------------- subject to the Option Event (the "Dissolving Party") shall notify the ---------------- 12 other Party of the Option Event within two (2) Business Days of the occurrence thereof ("Call Option Notice"). Upon the occurrence of an ------------------ Option Event, the Party that is not subject to the Option Event (the "Call ---- Optionee") shall have the right to purchase all but not less than all of -------- the Shares held by the Dissolving Party (the "Call Option") on the terms ----------- and conditions set forth in this Section 5(f), subject to the Dissolving Party's right to Transfer the Shares to an affiliate thereof in accordance with Section 5(a). The Optionee, upon serving a notice (the "Call Option ----------- Exercise Notice") in accordance with Section 9 of this Agreement, shall --------------- have the right to exercise the Call Option beginning thirty (30) days following the Option Notice at a price per share equal to 95% of the average closing price of a share of Common Stock for the 15 consecutive trading days preceding the date of the Call Option Exercise Notice on the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, the average closing price of a share of Common Stock for the 15 consecutive trading days preceding the date of the Call Option Exercise Notice on the Nasdaq National Market Systems, or if the shares of Common Stock are not publicly traded, the book value of a share of Common Stock of the Company as disclosed in the last balance sheet of the Company regularly prepared by the Company. (f) Legends. ------- (i) Except as set forth in paragraph (g)(ii) below, during the term of this Agreement the Parties shall cause the Company to issue all certificates representing shares of Voting Stock beneficially owned by the Parties that shall bear an appropriate restrictive legend indicating that such shares of Voting Stock are subject to restrictions pursuant to this Agreement. (ii) Upon any Transfer or proposed Transfer of beneficial ownership by a Party of any shares of Voting Stock in accordance with this Agreement to any Person other than the other Party or any Affiliates of a Party, the Parties shall cause the Company to issue certificates representing such transferred shares of Voting Stock to be issued not later than the time needed to effect such transfer (A) without any restrictive legend if upon consummation of such Transfer such Voting Securities are no longer "restricted securities" as defined in Rule 144 under the Securities Act or (B) without any reference to this Agreement. 6. Additional Agreements. --------------------- (a) Following the Closing Date, the Parties agree to take all actions reasonably necessary to cause the Company to issue and exchange 13 Common Stock for all of the shares of common stock of Institute for Automated Systems, an open joint stock company organized under the laws of the Russian Federation ("IAS") beneficially owned, directly or indirectly, --- by COMCOR and its Affiliates (the "COMCOR IAS Shares"), based on a ----------------- valuation of IAS prepared by an independent expert agreed upon by COMCOR and the Company. (b) In the event that following the Closing Date the Company proposes to sell or issue any securities (except for (i) the issuance of shares of Series B Preferred Stock under the Warrant Agreement, (ii) the issuance of shares of Common Stock upon the conversion of Series A Preferred Stock (as defined in the Subscription Agreement), Series B Preferred Stock or the Convertible Debentures (as defined in the Subscription Agreement), and (iii) the issuance of shares of Common Stock upon the exercise of stock options of the Company) ("New Securities"), -------------- then the Parties agree to take all actions reasonably necessary to cause the Company to give the Parties a right of first refusal to purchase, on a pro rata basis to their then percentage shareholding in the Company, all or any part of the New Securities. (c) The Parties agree to take all actions reasonably necessary to cause the Company, following completion of CNI's acquisition of the Series B Preferred Stock, to enter into new employment contracts, which will contain performance-based bonuses, with the following individuals: Svetlana Belova, Sergey Berizkov, Tatiana Shelepina, Michael Silin, and Vitaliy Spasskiy. The parties shall also agree on a list of persons, in addition to the new management team, entitled to participate in an option pool of up to 5% of the outstanding shares of Voting Stock. (d) Prior to the Closing Date, the Parties agree to take all actions reasonably necessary to cause the company to prepare and approve a long-term MOCC/COMCOR-TV business plan, which will be based on the initial balance sheet of the Company after the Closing Date and will target 1 million homes passed in greater Moscow. The 2-year portion of the MOCC business plan will be used, following completion of CNI's acquisition of the Series B Preferred Stock, as a basis for monitoring CCTV operations and measuring management performance. (e) For so long as each party owns at least 15% of the outstanding shares of Voting Stock, then the parties, subject to compliance with any obligations under applicable law, shall seek to agree on the following categories of decision: (i) amendment of the organizational documents of the Company or COMCOR-TV (as defined in the Subscription Agreement); (ii) reorganization or liquidation of the Company or COMCOR-TV; (iii) increasing or decreasing the authorized share capital of the Company or COMCOR-TV; (iv) material transactions by the Company or COMCOR-TV in which either COMCOR or CNI is a party; 14 (v) appointment of a new Chief Executive Officer of MOCC and new General Director of CCTV; (vi) establishing the strategic priorities for the Company and COMCOR-TV; (vii) material deviation from the initial 2-year business plan. Following the 2nd anniversary of the Closing Date, approving the business plan; (viii) appointment of the auditor for the Company and COMCOR-TV; and (ix) approval of the annual financial statements for the Company and COMCOR-TV. In the event that the parties are unable to agree on how to vote with respect to any of the above matters, the issue shall then be referred to the managing director (or equivalent officer) of each party, who shall use their best efforts to resolve the issue within ten (10) Business Days. If the managing directors are unable to resolve the issue within ten (10) Business Days, then either party by notice to the other party may refer the issue for final resolution to a committee of three (3) directors of the Board of the Company (the "Committee"). Each party shall have the right to appoint one (1) member of the Committee. Failure of a party to appoint a member of the Committee within five (5) Business Days of the referral shall entitle the other party to appoint two (2) members of the Committee. The two party appointees shall then appoint the third member of the Committee. Members of the Committee must be Independent directors except that it is agreed that Oliver Grace may also be a member. The Committee shall review the issue in light of the best interests of the Company and its shareholders, and the Committee's decision, by a majority vote, shall be binding on the parties. The parties shall then vote to implement the decision of the Committee. (f) CNI and COMCOR shall agree on the form and content of appropriate revisions to the organizational documents of COMCOR-TV, including the documents governing the activities of the Board of Directors of COMCOR-TV on the basis set out in the Subscription Agreement, and shall seek to implement any necessary revisions following completion of CNI's acquisition of Series B Preferred Stock. (g) COMCOR shall work with CNI and the Company to agree on a new modifications to the strategic services agreement between COMCOR-TV the Company and COMCOR to replace the existing strategic services agreement upon completion of CNI's acquisition of Series B Preferred Stock, as well as the terms of restructuring of the existing indebtedness of the 15 COMCOR-TV to COMCOR. The existing strategic services agreement shall terminate and have no further force or effect upon the completion of CNI's acquisition. (h) COMCOR and CNI shall work to agree on a business plan for the Company prior to completion of CNI's acquisition of Series B Preferred Stock. (i) CNI agrees not to waive the condition to effect the acquisition of the Series B Preferred Stock set forth in Section 6.03(e) of the Subscription Agreement. 7. Regulatory Filings. Each Party shall take all actions reasonably ------------------ necessary to cause to be filed or cooperate in the preparation and filing of any governmental or other compliance or reporting requirements that may be required of any Party, including without limitation any filings required by or on behalf of the Company under (a) any United States Laws pertaining to the ownership, control or voting of securities, or the ownership or control of United States entities by foreign persons, including without limitation Sections 13 or 16 of the Securities Exchange Act or the Hart-Scott-Rodino Act and (b) the rules and regulations of any securities exchange, including without limitation the Nasdaq National Market and the National Association of Securities Dealers, Inc. In addition, each Party hereby agrees to cooperate and comply with the reasonable request of any other Party in connection with the fulfillment of such requesting Party's obligations under this Section 6. 8. Manner of Voting. The voting of the Shares pursuant to this Agreement ---------------- may be effected in person, by proxy, by written consent or in any other manner permitted by applicable law. 9. Specific Performance. Each of CNI and COMCOR acknowledges and agrees -------------------- that the other Party would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of CNI and COMCOR agrees that the other Party shall be entitled to an injunction or injunctions to prevent breaches of provisions of this Agreement in addition to any other remedy to which such Party may be entitled at law or in equity. 10. Notices. All notices and other communications hereunder shall be in ------- writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date is not a Business Day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date is not a Business Day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the Party to receive such notice: (a) If to COMCOR, to: COMCOR Neglinnaya Street, 17/2 Moscow 127051 16 Russia Attention: Yury Pripachkin Facsimile: +7-095-250-7455 (b) If to CNI, to: 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to CNI) to: Skadden, Arps, Slate, Meagher & Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile: +49-69-74220300 11. Amendments and Waivers. No amendment of any provision of this ---------------------- Agreement shall be valid unless the same shall be in writing and signed by the Parties. No waiver by any Party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. 12. Severability. Any term or provision of this Agreement that is invalid ------------ or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. 13. Counterparts. This Agreement may be executed in counterparts, each of ------------ which shall be deemed an original but all of which together shall constitute one and the same instrument. 14. Headings. The section headings contained in this Agreement are -------- inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 15. Governing Law and Language. This Agreement shall be governed by, and -------------------------- construed in accordance with, the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the 17 Laws of any jurisdiction other than the State of New York; provided, however, that any agreements referred to herein that by their terms are expressly governed by the laws of another jurisdiction shall be governed by such laws, and further provided that nothing in this Section 15 shall permit any Party to bring any Action arising out of or relating to this Agreement in any tribunal other than as set forth in Section 16 below, except to enforce an award issued by the arbitrators in accordance with Section 16 below. This Agreement is written in English, and the notarized Russian language translation is provided only for the convenience of the parties. In the case of inconsistency or issues of interpretation between the English and Russian texts, the English text shall control. 16. Arbitration. If any dispute, controversy or claim between the Parties ----------- arises out of or is related to this Agreement or the breach, termination or validity hereof ("Dispute"), such Dispute shall be referred to and finally and exclusively resolved by arbitration in New York, New York, in accordance with the International Arbitration Rules then in force of the American Arbitration Association ("AAA") except as modified herein (the "Rules"), which are deemed to --- ----- be incorporated by reference into this Section 16. In any such arbitration, there shall be three arbitrators. One arbitrator shall be appointed by each Party in accordance with the Rules, within thirty days of receipt by Respondent of a copy of the Demand for Arbitration. The Third arbitrator, who shall chair the arbitral tribunal, shall be an experienced arbitrator of large commercial disputes admitted to the practice of law in the State of New York and shall be appointed by the two party-appointed arbitrators within twenty (20) days of the appointment of the second arbitrator, or in default thereof, by the AAA in accordance with the Rules. Where the Rules do not provide for a particular situation, the arbitrators shall determine the course of action to be followed. The English language shall be used throughout any arbitral proceeding. To the maximum extent permitted by applicable law, the Parties agree not to assert any rights to have any court rule on a question of law affecting the arbitration or to hear any appeal from or entertain any judicial review of the arbitral award. The award of the arbitrators shall be final and binding on the Parties and may be entered and enforced in any court having jurisdiction over any of the Parties or any of their assets. 17. Termination of this Agreement. Except as otherwise provided herein, ----------------------------- this Agreement shall automatically terminate and be of no further force or effect upon the earlier to occur of (each, a "Termination Time") (a) CNI and ---------------- COMCOR mutually agreeing to terminate this Agreement, (b) such time as CNI's percentage beneficial ownership of the issued and outstanding shares of Voting Stock falls below five percent (5%), (c) such time as COMCOR's percentage beneficial ownership in the issued and outstanding shares of Voting Stock falls below five percent (5%), and (d) the voluntary or involuntary bankruptcy, dissolution, liquidation or winding-up of any of the Parties or the Company. 18. Rules of Construction. --------------------- (a) Construction. The Parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. 18 (b) Adequate Counsel. Each Party hereby represents and warrants that ---------------- it and its legal counsel have adequate information regarding the terms of this Agreement, the scope and effect of the transactions contemplated hereby and all other matters encompassed by this Agreement to make an informed and knowledgeable decision with regard to entering into this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE TO FOLLOW] 19 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. MOSKOVSKAYA TELECOMMUNIKATSIONNAYA CORPORATSIYA By: /s/ Aram Grigoryan ------------------------------- Title: General Director COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ------------------------------- Title: Managing Partner 20 EX-99 12 was5181ex99-11.txt EX. 6 CO-SALE AGREEMENT EXECUTION COPY AGREEMENT This AGREEMENT (this "Agreement") is made and entered into as of August 26, 2004, by and among Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the persons whose names are set forth on the signature page hereof (the "Holders" and each individually a "Holder", and together with CNI, the "Parties", and each individually a "Party"). WHEREAS, CNI and Moscow CableCom Corp., a Delaware corporation (the "Company"), have entered into a Series B Convertible Preferred Stock Subscription Agreement (the "Subscription Agreement") dated as of the date hereof, whereby, among other things, CNI will acquire 4,500,000 shares of Series B Convertible Preferred Stock, par value $.01 per share of the Company (the "Series B Preferred Stock"), and CNI and the Company will enter into a Warrant Agreement (the "Warrant Agreement"), whereby CNI will acquire Warrants (as defined in the Warrant Agreement) that will be initially exercisable for 8,283,000 shares of Series B Preferred Stock; WHEREAS, in order to facilitate the entry by CNI into the Subscription Agreement and the Warrant Agreement and as a closing condition to the consummation of the transactions contemplated thereby, the Company and each of the Holders are entering into Non-Qualified Stock Option Agreements (the "Stock Option Agreements") pursuant to which the Company will grant to the Holders options to purchase shares of the Company's Common Stock, par value $.01 per share (the "Common Stock"), pursuant to the Company's 2003 Stock Option Plan, on the terms and conditions set forth therein; and WHEREAS, the Parties desire to enter into this Agreement to set forth certain rights and obligations applicable to the Shares (as defined below); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: 1. Certain Definitions; Effective Date. ----------------------------------- (a) Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Subscription Agreement. As used in this Agreement: "AAA" has the meaning set forth in Section 5. --- "Affiliate" means, with respect to any Person, any other Person --------- directly or indirectly controlling, controlled by or under common control with such Person. For purposes of this definition, "control" means the power to direct the management and policies of such person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing; provided that, with respect to any of the Holders, the term "Affiliate" shall not include the Company. "Beneficially owned" or "beneficial ownership" means, with respect to ------------------ -------------------- securities, having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Exchange Act. "Business Day" means any day that is not a Saturday, a Sunday or other day ------------ on which banks are required or authorized by law to be closed in New York City, the United States, or Moscow, the Russian Federation. "Condition Precedent" has the meaning set forth in Section 1(b). ------------------- "Common Stock" has the meaning set forth in the Recitals. ------------ "Drag-Along Notice" has the meaning set forth in Section 2(a)(ii). ----------------- "Dispute" has the meaning set forth in Section 5. ------- "Drag-Along Notice Period" has the meaning set forth in Section 2(a)(ii). ------------------------ "Drag-Along Sale" has the meaning set forth in Section 2(a)(i). --------------- "Effective Date" has the meaning set forth in Section 1(b). -------------- "Person" means any individual, partnership, association, joint venture, ------ corporation, business, trust, joint stock company, limited liability company, any unincorporated organization, any other entity, a "group" of such persons, as that term is defined in Rule 13d-5(b) under the Exchange Act, or a government or political subdivision thereof. "Rules" has the meaning set forth in Section 5. ----- "Series B Preferred Stock" has the meaning set forth in the Recitals. ------------------------ "Shares" means all and any shares of Common Stock issued to each Holder ------ upon exercise of the Options (as defined in the respective Stock Option Agreement) and any other options to purchase Common Stock of the Company granted to such Holder by the Company during the term of this Agreement, as well as any other securities of the Company issued in respect of, upon conversion or exercise of, or in exchange or substitution for, such shares of Common Stock, in each case, as adjusted for stock splits, recapitalizations and other similar events. "Stock Option Agreements" has the meaning set forth in the Recitals. ----------------------- "Subscription Agreement" has the meaning set forth in the Recitals. ---------------------- "Transfer" means, with respect to the Shares, whether directly or -------- indirectly (i) to sell, pledge, encumber, grant an option with respect to, transfer or otherwise dispose of any Shares or any interest therein (including any voting interest), (ii) to enter into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of any Shares or any interest therein (including any voting interest) or (iii) to deposit or permit the deposit of any Shares, or enter into any voting agreement, grant proxy or enter into any similar arrangement or commitment with respect to any Shares. "Voting Stock" means the Common Stock and the Series B Stock. ------------ "Warrant Agreement" has the meaning set forth in the Recitals. ----------------- 2 (b) This Agreement is subject to the condition precedent (the "Condition Precedent") that the Subscription Agreement is entered into and the Closing occurs on or prior to March 31, 2005, or such later date as the Company and CNI may determine. The Parties acknowledge and confirm that this Agreement shall become effective immediately upon the fulfillment of the Condition Precedent (the date on which the Condition Precedent is fulfilled is referred to in this Agreement as the "Effective Date"). 2. Transfer of Shares. ------------------ (a) Drag-Along Rights. ----------------- (i) So long as CNI, together with its Affiliates, holds at least 20% of the outstanding shares of Voting Stock, if CNI proposes a sale of all of the shares of Voting Stock held by it, including in connection with a sale or exchange, whether directly or pursuant to a merger, consolidation or otherwise (a "Drag-Along Sale"), CNI may require any Holder to sell all the Shares then held by such Holder, for the same consideration and otherwise on the same terms and conditions (including timing of receipt of consideration and choice of consideration, if any) as the sale by CNI. For purposes of the foregoing, it is agreed that no Holder shall be required to accept consideration in a Drag-Along Sale other than cash or publicly traded securities registered under the Securities Act. (ii) CNI shall provide written notice of such Drag-Along Sale to the Holder (a "Drag-Along Notice") not later than twenty (20) Business Days prior to the proposed Drag-Along Sale. The Drag-Along Notice shall identify the transferee, the consideration for which a sale is proposed to be made (the "Drag-Along Sale Price") and all other material terms and conditions of the Drag-Along Sale. Subject to Section 2(a)(iv), such Holder shall be required to participate in the Drag-Along Sale on the terms and conditions set forth in the Drag-Along Notice and to tender all its Shares as set forth below. The price(s) payable in such sale shall be the Drag-Along Sale Price. Not later than the ten (10) Business Day following the date of the Drag-Along Notice (the "Drag-Along Notice Period") to the Holder, such Holder shall deliver to a representative of CNI designated in the Drag-Along Notice certificates representing all the Shares beneficially owned and held by such Holder, duly endorsed, together with all other documents required to be executed in connection with such Drag-Along Sale, or if such delivery is not permitted by applicable law, an unconditional agreement to deliver such certificates pursuant to this Section 2(a)(ii) at the closing for such Drag-Along Sale on the terms and conditions set forth in the Drag-Along Notice against delivery to such Holder of the consideration therefore. (iii) CNI shall have a period of ninety (90) days from the date of receipt of the Drag-Along Notice to consummate the Drag-Along Sale on the terms and conditions set forth in such Drag-Along Notice; provided, that if such Drag-Along Sale is subject to regulatory approval, such ninety (90) day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than one hundred and twenty (120) days following the delivery of the Drag-Along Notice. If the Drag-Along Sale shall not have been consummated during such period, CNI shall return to each Holder all certificates or other evidence of title and ownership 3 representing Shares that such Holder delivered for sale pursuant hereto, together with any documents in the possession of CNI executed by such Holder in connection with such proposed sale. (iv) Concurrently with the consummation of the Drag-Along Sale pursuant to this Section 2(a), CNI shall use its best efforts to cause the acquiror or the surviving Person in the Drag-Along Sale to give notice thereof to the Holders, to remit to each Holder who has surrendered its certificates or other evidence of title and ownership the total consideration (with the cash portion of the purchase price paid by bank transfer to an account designated by each Holder and any non-cash portion to be delivered as promptly as possible on or after the consummation of such Drag-Along Sale) for the Shares transferred pursuant hereto and, promptly after consummation of the Drag-Along Sale, to furnish such other evidence of the completion and time of completion of such sale and the terms thereof as may be reasonably requested by such Holder. (v) No Holder shall be obligated to pay any expenses incurred in connection with any consummated or unconsummated Drag-Along Sale. (vi) In connection with any Drag-Along Sale, each Holder shall (A) if requested, make such representations, warranties and covenants and enter into such definitive agreements as are customary for transactions of the nature of the proposed Drag-Along Sale; provided that no Holder shall be required to provide any representations or indemnities in connection with any Drag-Along Sale other than representations and indemnities concerning such Holder's title to the Shares free and clear of any encumbrances, including actual or pending litigation to which such Holder is a party, and the Holder's power and due authorization to enter into and consummate the sale without contravention of any law or material agreement; and (B) benefit from all of the same provisions of the definitive agreements as CNI. (vii) Each Holder hereby agrees that, during any period commencing with receipt by such Holder of a Drag-Along Notice and expiring upon the earlier of: (A) the consummation of the related Drag-Along Sale; (B) the expiry of the applicable period specified in Section 2(a)(iii) for consummation of such Drag-Along Sale; or (C) receipt by such Holder of a notice from CNI to the effect that such Drag-Along Sale is no longer being pursued, it shall not cause or permit any Transfer of any Shares or the right to acquire any Shares to be effected, except (i) pursuant to such Drag-Along Sale, (ii) with the prior written consent of CNI, (iii) to an Affiliate of such Holder, or (iv) as a bona fide pledge to a bank, financial institution or other lender; provided, in case of any Transfer pursuant to (iii) and (iv) above, that (1) the transferee agrees to assume the obligations hereunder of the transferring Holder with respect to any Shares so transferred and executes a written instrument acknowledging that it agrees to be bound by the terms of this Agreement and (2) the transferring Holder provides notice of such Transfer to CNI. (b) Effect. Any purported Transfer of Shares that is ------ inconsistent with the provisions of this Agreement shall be null and void and of no further force or effect. (c) Notices. All notices and other communications hereunder ------- shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date is not a Business Day or 4 the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date is not a Business Day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the Party to receive such notice: (a) if to CNI, to: Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 United States Attention: Ivan Isakov Facsimile: +1-212-308-6623 with a courtesy copy (which shall not constitute notice to CNI) to: Skadden, Arps, Slate, Meagher & Flom LLP An der Welle 5 60322 Frankfurt am Main Germany Attention: Hilary Foulkes Facsimile: +49-69-74220300 (b) if to a Holder, to the address are set forth next to such Holder's name on the signature page hereof. 3. Termination. This Agreement shall automatically terminate and ----------- be of no further force or effect upon the earlier to occur of (a) CNI and a Holder mutually agreeing to terminate this Agreement with respect to such Holder, (b) such time as CNI's percentage beneficial ownership of the issued and outstanding shares of Voting Stock falls below five percent (5%), (c) the voluntary or involuntary bankruptcy, dissolution, liquidation or winding-up of CNI or the Company or (d) three years from the Effective Date of this Agreement. 4. Governing Law. This Agreement shall be governed by, and ------------- construed in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware; provided, however, that any agreements referred to herein that by their terms are expressly governed by the laws of another jurisdiction shall be governed by such laws, and further provided that nothing in this Section 4 shall permit any Party to bring any action arising out of or relating to this Agreement in any tribunal other than as set forth in Section 5 below, except to enforce an award issued by the arbitrators in accordance with Section 5 below. 5. Arbitration. If any dispute, controversy or claim between the ----------- Parties arises out of or is related to this Agreement or the breach, termination 5 or validity hereof ("Dispute"), such Dispute shall be referred to and finally and exclusively resolved by arbitration in New York, New York, in accordance with the International Arbitration Rules then in force of the American Arbitration Association ("AAA") except as modified herein (the "Rules"), which are deemed to be incorporated by reference into this Section 5. In any such arbitration, there shall be three arbitrators. One arbitrator shall be appointed by each Party in accordance with the Rules, within thirty days of receipt by Respondent of a copy of the Demand for Arbitration. The third arbitrator, who shall chair the arbitral tribunal, shall be an experienced arbitrator of large commercial disputes admitted to the practice of law in the State of New York and shall be appointed by the two party-appointed arbitrators within twenty (20) days of the appointment of the second arbitrator, or in default thereof, by the AAA in accordance with the Rules. Where the Rules do not provide for a particular situation, the arbitrators shall determine the course of action to be followed. The English language shall be used throughout any arbitral proceeding. To the maximum extent permitted by applicable Law, the Parties agree not to assert any rights to have any court rule on a question of law affecting the arbitration or to hear any appeal from or entertain any judicial review of the arbitral award. The award of the arbitrators shall be final and binding on the Parties and may be entered and enforced in any court having jurisdiction over any of the Parties or any of their assets. 6. Entire Agreement; Amendment and Waiver. This Agreement -------------------------------------- constitutes the full and entire understanding and agreement between the Parties with regard to the subjects hereof. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated except by a written instrument signed by CNI and the Holders. 7. Severability. In case any provision of the Agreement shall be ------------ invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 8. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 9. Specific Enforcement. Each of the Holders acknowledges and -------------------- agrees that CNI would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of the Holders agrees that CNI shall be entitled to an injunction or injunctions to prevent breaches of provisions of this Agreement in addition to any other remedy to which CNI may be entitled at law or in equity. 10. Rights and Obligations of Holders Several. Unless otherwise ----------------------------------------- expressly provided herein, the rights and obligations of each Holder hereunder are several and not joint with any of the other Holders. 11. Construction. The Parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. 6 12. Headings. The section headings contained in this Agreement -------- are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 7 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater --------------------- Title: Managing Partner HOLDERS: WARREN MOBLEY /s/ Warren Mobley ------------------------- ------------------------- ------------------------- ------------------------- [INDICATE ADDRESS] DONALD MILLER-JONES /s/ Donald Miller-Jones ------------------------- ------------------------- ------------------------- ------------------------- [INDICATE ADDRESS] CHARLES ROBERTS /s/ Charles Roberts ------------------------- ------------------------- ------------------------- ------------------------- [INDICATE ADDRESS] DR. ALI MOHAMED AHMED /s/ Dr. Ali Mohamed Ahmed ------------------------- ------------------------- ------------------------- ------------------------- [INDICATE ADDRESS] 8 EX-99 13 was5181ex99-12.txt EX. 7 FORM OF REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT by and between MOSCOW CABLECOM CORP. and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated [ ] TABLE OF CONTENTS Page ARTICLE I DEFINITIONS..........................................................1 ARTICLE II REGISTRATION........................................................3 SECTION 2.1 Requested Registration..........................................3 SECTION 2.2 Incidental Registrations........................................5 SECTION 2.3 Expenses........................................................5 SECTION 2.4 Effective Registration Statement................................5 SECTION 2.5 Jurisdictional Limitations......................................6 SECTION 2.6 Conversion of Other Securities..................................6 SECTION 2.7 Adjustments Affecting Registrable Securities....................6 ARTICLE III REGISTRATION PROCEDURES............................................6 SECTION 3.1 Company Obligations.............................................6 SECTION 3.2 Holder Obligations..............................................8 ARTICLE IV UNDERWRITTEN OFFERINGS..............................................9 SECTION 4.1 Underwritten Offerings..........................................9 SECTION 4.2 Holdback Agreements............................................12 ARTICLE V INDEMNIFICATION AND CONTRIBUTION....................................12 SECTION 5.1 Indemnification................................................12 SECTION 5.2 Contribution...................................................14 ARTICLE VI COMPANY COVENANTS..................................................15 SECTION 6.1 Covenants Relating to Rule 144; Reports Under Exchange Act.....15 SECTION 6.2 Other Registration Rights......................................15 ARTICLE VII MISCELLANEOUS.....................................................15 SECTION 7.1 Amendments and Waivers.........................................15 SECTION 7.2 Successors and Assigns.........................................16 SECTION 7.3 Entire Agreement...............................................16 SECTION 7.4 Notices........................................................16 SECTION 7.5 Governing......................................................16 SECTION 7.6 Arbitration....................................................17 SECTION 7.7 Equitable Remedies.............................................17 SECTION 7.8 Parties in Interest............................................17 SECTION 7.9 Severability...................................................17 SECTION 7.10 No Inconsistent Agreements....................................17 SECTION 7.11 Headings......................................................17 SECTION 7.12 Construction; Adequate Counsel................................18 SECTION 7.13 Counterparts..................................................18 SECTION 7.14 Interpretation................................................18 ii REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into as of [ ], by and between Moscow CableCom Corp., a Delaware corporation (the "Company"), and Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"). WHEREAS, the parties hereto have entered into a Series B Convertible Preferred Stock Subscription Agreement dated August 26, 2004 (the "Subscription Agreement") and a Series B Convertible Preferred Stock Warrant Agreement dated as of the date hereof (the "Warrant Agreement"); WHEREAS, pursuant to the Subscription Agreement, CNI has acquired 4,500,000 shares of Series B Convertible Preferred Stock, par value $.01 per share of the Company ("Series B Preferred Stock"), which are currently convertible into 4,500,000 shares of Common Stock (as defined herein) of the Company; and WHEREAS, pursuant to the Warrant Agreement, CNI has acquired warrants that are currently exercisable for 8,283,000 shares of Series B Preferred Stock of the Company (the "Warrants"); NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS ----------- The following terms shall have the meanings set forth in this Article I: "Agreement" has the meaning specified in the preface. "Commission" means the United States Securities and Exchange Commission or any successor governmental agency that administers the Securities Act and the Exchange Act. "Commission Registration Form" means a registration statement complying with the rules and regulations of the Commission. "Common Stock" means the Common Stock, par value $.01 per share of the Company, as constituted on the date hereof, any shares of the Company's capital stock into which such Common Stock shall be changed, and any shares of the Company's capital stock resulting from any reclassification of such Common Stock or any recapitalization of the Company. "Company" has the meaning specified in the preface. "CNI" has the meaning specified in the preface. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute thereto, and the rules and regulations of the Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. "Holders" means CNI and any other Person who holds or may hold Registrable Securities in the future under this Agreement or under any other agreement with the Company granting rights to register Registrable Securities. "Incidental Registration" has the meaning specified in Section 2.2(a). "Indemnified Parties" has the meaning specified in Section 5.1(a). "Indemnifying Party" has the meaning specified in Section 5.1(c). "Person" means any individual, partnership, corporation, limited liability company, association, trust, joint venture, unincorporated organization and any government, governmental department or agency or political subdivision thereof. "Registrable Securities" means, in each case as adjusted for stock splits, recapitalizations and other similar events, (i) shares of Common Stock and (ii) securities issued in replacement or exchange of any shares of Common Stock; provided, however, that any and all shares described in clauses (i) and (ii) above shall cease to be Registrable Securities upon any sale pursuant to a registration statement declared effective under the Securities Act, or any sale exempt from registration under the Securities Act pursuant to section 4(1) of the Securities Act or Rule 144 promulgated under the Securities Act. "Registration Expenses" means all expenses incurred by the Company incident to the Company's performance of or compliance with this Agreement in connection with each Registration, regardless of whether such registration statement is declared effective, including without limitation (i) all registration, filing, listing and National Association of Securities Dealers, Inc. fees, (ii) all fees and expenses of complying with securities or blue sky laws, (iii) all word processing, duplicating and printing expenses, (iv) all messenger and delivery expenses, (v) any transfer taxes, (vi) the fees and expenses of the Company's legal counsel and independent public accountants, including the expenses of any "comfort" letters, (vii) all expenses incurred in connection with making "roadshow" presentations and holding meetings with potential investors to facilitate the distribution and sale of Registrable Shares, (viii) the reasonable fees and disbursements of counsel and accountants retained by CNI, (ix) any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions as described below, and (x) all of the internal expenses incurred by the Company, including, without limitation, salaries and expenses of officers and employees performing legal and accounting duties, expenses of conducting the annual audit of the Company's financial statements by its independent public accountants, and costs in obtaining liability insurance on behalf of the Company, its officers and directors; provided, however, that each Holder shall be responsible for the underwriting discounts and commissions with respect to the Registrable Shares being sold by such Holder. "Registration" means any of a Requested Registration or an Incidental Registration. "Registration Request" has the meaning set forth in Section 2.1(a). "Requested Registration" has the meaning specified in Section 2.1(a). "Securities Act" means the Securities Act of 1933, as amended, or any successor statute thereto, and the rules and regulations of the Commission promulgated from time to time thereunder, all as the same shall be in effect at the time. 2 "Underwriter's Maximum Number" means a specified maximum number of securities that could be successfully included in a Registration pursuant to an underwritten offering within a price range acceptable to Holders and the Company as determined in writing by the representative of the underwriters. ARTICLE II REGISTRATION ------------ SECTION 2.1 Requested Registration. (a) Request for Registration. Subject to Section 2.1(b), if at any time ------------------------ following the first anniversary of this Agreement the Company shall receive a written request from CNI (a "Registration Request") that the Company effect a registration under the Securities Act of all or any part of the Registrable Securities held by CNI (a "Requested Registration") in accordance with the terms of this Section 2.1, then the Company shall use its best efforts to effect the registration under the Securities Act (and any related qualification under blue sky laws or other compliance) of the offering and sale of such Registrable Securities within 90 days after receipt of the Registration Request. The Company may also include in any Requested Registration other securities of the Company offered for the account of the Company or any other Person, including Registrable Securities held by other Holders entitled to include such securities in such Requested Registration pursuant to Section 2.2. A Requested Registration may be accomplished on Form S-3 under the Securities Act, if available, at the option of the Company; provided, however, that if, in connection with any Requested Registration that is proposed by the Company to be on Form S-3 or any similar short form registration statement that is a successor to Form S-3, the managing underwriters, if any, shall advise the Company in writing that in their opinion the use of another permitted form is of material importance to the success of the offering, then such registration shall be on such other permitted form. CNI shall have the right to terminate or withdraw any Requested Registration requested by it under this Section 2.1 prior to the effectiveness of such registration, whether or not the Company or any Holder has elected to include Registrable Securities in such Requested Registration. The Registration Expenses of such terminated or withdrawn registration shall be borne by the Company in accordance with Section 2.3 if CNI shall have terminated or withdrawn such registration (i) following a breach by the Company of any of its covenants or obligations under this Agreement or (ii) as a result of disagreement between CNI and the Company on the offering price per share and underwriting discounts, if applicable, in connection with such registration; provided, however, that if CNI terminates or withdraws such registration other than pursuant to (i) or (ii) above, the Registration Expenses of such terminated or withdrawn registration shall be borne by CNI. (b) Limitation on Requested Registrations. (i) Share Limitation. The Company shall not be obligated to effect ---------------- a Requested Registration unless such registration involves the greater of (i) an aggregate offering price of $1,000,000 or (ii) one percent of the Common Stock issued or outstanding as of the date of such Registration Request. (ii) Limitation on the Number of Requested Registrations. The --------------------------------------------------- Company shall only be obligated to effect one Requested Registration hereunder in any six month (calendar) period. 3 (iii) Prior Registration Limitation. If a registration statement ----------------------------- related to another Registration has been declared effective under the Securities Act within the preceding six calendar months and the participating Holders have not sold all Registrable Securities included in such registration statement, then the Company shall have the right to defer a Requested Registration for a period of not more than 90 days. (iv) Delay Limitation. If the Company shall furnish to CNI a ---------------- certificate signed by the chief executive officer or chairman of the board of directors of the Company stating that, in the good faith judgment of the board of directors, the effecting of the Requested Registration at the time requested would be detrimental to the Company or its stockholders, then the Company shall have the right to defer such Requested Registration for a period of not more than 180 days; provided, however, that the Company may only assert such delay once during any 12-month period. (v) Simultaneous Company Registration Limitation. From the date of -------------------------------------------- filing of any registration statement under the Securities Act by the Company until the date 180 days following the effective date of such registration statement, the Company shall not be obligated to effect a Requested Registration without the consent of the representative of the underwriters of the offering as to which such registration statement is filed, so long as the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become or remain effective. (vi) Termination. The right to request a Requested Registration ----------- shall terminate on the tenth anniversary of this Agreement. (vii) Allocation. The inclusion of Registrable Securities in a ---------- Requested Registration, in addition to the Registrable Securities to be included by CNI, shall be made on a pro rata basis among all other Holders. In the event that any Holder withdraws his Registrable Securities from a Requested Registration, then the Company shall promptly notify other Holders of such withdrawal. In such event, other Holders shall be entitled to increase the number of Registrable Securities to be included in such Requested Registration on a pro rata basis based on the number of Registrable Securities that each such Holder desires to include in such Requested Registration. (viii) Price Determination. If CNI requests the Registration, it ------------------- shall have the sole right to determine the offering price per share and underwriting discounts, if applicable, in connection with any resales of Registrable Securities pursuant to this Section 2.1, after consultation with the Company and with due regard for the Company's views relating thereto. 4 SECTION 2.2 Incidental Registrations. (a) Incidental Registration. If the Company, for itself or any of its ----------------------- security holders other than pursuant to a Requested Registration, at any time after the date hereof and through the tenth anniversary hereof, undertakes to effect a registration under the Securities Act of the offering and sale of any shares of its capital stock or other securities (other than (i) the registration of an offer, sale or other disposition of securities solely to employees of, or other Persons providing services to, the Company or any subsidiary of the Company pursuant to an employee or similar benefit plan or (ii) in connection with a merger, acquisition or other transaction of the type described in Rule 145 under the Securities Act or a comparable or successor rule, registered on Form S-4 or similar or successor forms promulgated by the Commission), then on each such occasion the Company shall notify Holders of such undertaking at least 30 days prior to the filing of a registration statement relating thereto. In such event, upon the written request of any Holder within 20 days after the receipt of such notice, subject to Section 4.1(d), the Company shall use its best efforts as soon as practicable thereafter to cause any Registrable Securities specified by such Holder to be included in such registration statement (an "Incidental Registration"). If a Holder desires to include less than all Registrable Securities held by it in any Incidental Registration, then such Holder shall nevertheless continue to have the right to include any remaining Registrable Securities in any subsequent Incidental Registration upon the terms and conditions set forth herein. The Company shall have the right to terminate or withdraw any Incidental Registration initiated by it under this Section 2.2 prior to the effectiveness of such registration, whether or not any Holder has elected to include Registrable Securities in such Incidental Registration. The Registration Expenses of such terminated or withdrawn registration shall be borne by the Company in accordance with Section 2.3. (b) Price Determination. The Company shall have the sole right to ------------------- determine the offering price per share and underwriting discounts in connection with any resale by Holders of Registrable Shares pursuant to an underwriting offering in connection with an Incidental Registration, after consultation with the Holders and due regard for Holders' views relating thereto. If CNI disagrees with the Company's determination of the offering price per share, CNI shall have the right to withdraw its Registrable Securities from the Incidental Registration. (c) Effect of Incidental Registration. No Incidental Registration effected --------------------------------- by the Company shall relieve the Company from its obligations to effect any Requested Registration. SECTION 2.3 Expenses. The Company shall pay all Registration Expenses incurred in connection with any Registration, including if a Registration is not deemed to have been effected pursuant to Section 2.4 hereof. SECTION 2.4 Effective Registration Statement. No Registration shall be deemed to have been effected unless the registration statement filed with respect thereto in accordance with the Securities Act has been declared effective by the Commission with respect to the disposition of all Registrable Securities covered by such Registration and remains effective in accordance with Section 3.1. Notwithstanding the foregoing, no Registration shall be deemed to have been effected if (a) after the related registration statement has been declared effective by the Commission, such Registration is made subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or any court proceeding for any reason, other than solely by 5 reason of a misrepresentation or omission by CNI, or (b) the conditions to closing specified in the underwriting agreement entered into in connection with such Registration are not satisfied, other than solely by reason of an act or omission by CNI. SECTION 2.5 Jurisdictional Limitations. Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to take any action to effect registration, qualification or compliance with respect to Registrable Securities: (a) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process, unless the Company is already subject to service in such jurisdiction and except as required by the Securities Act; (b) that would require it to qualify generally to do business in any jurisdiction in which it is not already so qualified or obligated to qualify; or (c) that would subject it to taxation in a jurisdiction in which it is not already subject generally to taxation. SECTION 2.6 Conversion of Other Securities. If CNI holds any options, rights, warrants or other securities that are directly or indirectly convertible into or exercisable or exchangeable for any Registrable Shares, the Registrable Shares underlying such options, rights, warrants or other securities shall be eligible for registration pursuant to this Article II. This includes, without limitation, the Series B Preferred Stock and the Warrants. SECTION 2.7 Adjustments Affecting Registrable Securities. The Company will not effect or permit to occur any combination or subdivision of securities that would adversely affect the ability of Holders to include any Registrable Securities in any registration of the Company's securities contemplated by this Article II or the marketability of such Registrable Securities under any such Registration. ARTICLE III REGISTRATION PROCEDURES ----------------------- SECTION 3.1 Company Obligations. If and whenever the Company is required to use its efforts to effect a Registration as provided in Article II, then as expeditiously as possible and subject to the terms and conditions of Article II, the Company shall: (a) Prepare and file with the Commission the appropriate registration statement to effect such Registration and use its best efforts to cause such registration statement to become and remain effective for the period set forth in Section 3.1(c); (b) Permit any Holder that, in the reasonable judgment of the Company's counsel, might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such registration statement (including by making available for inspection by any such Person and any attorney, accountant or other agent retained by such Person, all financial and other records, pertinent corporate documents and all other information reasonably requested in connection therewith), furnish to all Holders, the underwriters, if any, and their respective counsel and accountants advance draft copies of such registration statement and each prospectus included therein or filed with the Commission at least five business days prior to the filing thereof with the Commission, and any amendments and supplements thereto promptly as they become available, and provide each such Person such access to the books and records of the Company and such opportunities to discuss the business of the Company with its officers and the independent public accountants that have certified the financial statements of the Company as is necessary, in the opinion of such Person, to conduct a reasonable investigation within the meaning of the Securities Act; 6 (c) Promptly prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or the expiration of 180 days after such registration statement becomes effective (such period of 180 days to be extended one day for each day or portion thereof during such period that such registration statement is subject to any stop order suspending the effectiveness of the registration statement, any order suspending or preventing the use of any related prospectus or any order suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction); (d) Promptly furnish to CNI, in the case of a Requested Registration or an Incidental Registration in which it participates, copies of drafts and a final conformed version of such registration statement as proposed to be filed and a copy of any amendment or supplement to such registration statement or prospectus (after initial filing of the registration statement), prior to the filing of any such registration statement, amendment, supplement or prospectus, and make the Company's representatives available for discussion of such document and in good faith consider such changes in such document prior to the filing thereof as CNI or its counsel may reasonably request; (e) If requested by the underwriter or underwriters or CNI in connection with an underwritten offering of Registrable Shares, immediately incorporate in a prospectus supplement or post-effective amendment such information as the underwriters and CNI agree should be included therein relating to the plan of distribution with respect to such Registrable Shares, including, without limitation, information with respect to the principal amount of Registrable Shares being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of such underwritten offering of Registrable Shares, and the Company shall make all required filings of the prospectus supplement or post-effective amendment promptly upon being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; (f) Immediately notify when or if any registration statement, amendment, supplement or prospectus has been filed and furnish to Holders that participate in such Registration, without charge to such Holders, such number of conformed copies of such registration statement and each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as the purchaser or any such Holder may reasonably request; (g) Use its best efforts to register or qualify all Registrable Securities covered by such registration statement under the United States state securities or blue sky laws of such jurisdictions as any Holder that participates in such Registration reasonably requests, keep such registration or qualification in effect for the time period set forth in Section 3.1(c) and take such other action as may be reasonably necessary or advisable to enable such Holders to sell the Registrable Securities covered by such Registration in such jurisdictions; 7 (h) Use its commercially reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States state governmental agencies or authorities as may be necessary to enable any Holder that participates in such Registration to sell the Registrable Securities covered by such Registration as intended by such registration statement; (i) Use its best efforts to obtain the withdrawal of any stop order suspending the effectiveness of such registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction; (j) Immediately notify Holders that participate in such Registration, at any time during which a prospectus relating to such registration statement is required to be delivered under the Securities Act, if the Company becomes aware of any event as a result of which such prospectus, as then in effect, would include an untrue statement of material fact or would omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and at the request of such Holders promptly prepare and furnish to such Holders a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; (k) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months but not more than 18 months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (l) Provide a transfer agent and registrar for all Registrable Securities covered by such registration statement not later than the effective date of such registration statement; and (m) Use its best efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which the same class of securities issued by the Company are then listed or to secure designation and quotation of all Registrable Securities covered by such Registration on the Nasdaq National Market System and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. as such with respect to such Registrable Securities and pay all fees and expenses in connection with the satisfaction of the obligations set forth in this Section 3.1(m). SECTION 3.2 Holder Obligations. (a) Each Holder that participates in a Registration shall furnish to the Company, upon its written request, such information as it may reasonably request in writing (i) regarding the proposed distribution by such Holder of the Registrable Securities held by such Holder and (ii) as required in connection 8 with any registration (including an amendment to a registration statement or prospectus), qualification or compliance referred to in this Article III. (b) Upon receipt of any notice from the Company, or upon a Holder's otherwise becoming aware, of the happening of any event of the kind described in Section 3.1(j), such Holder shall discontinue its disposition of Registrable Securities pursuant to the registration statement relating to the offering and sale of such Registrable Securities until the receipt by such Holder of the supplemented or amended prospectus contemplated by Section 3.1(j). If so directed by the Company, such Holder shall deliver to the Company all copies other than permanent file copies then in possession of such Holder of the prospectus relating to the offering and sale of such Registrable Securities current at the time of receipt of such notice. In addition, each Holder shall immediately notify the Company, at any time during which a prospectus relating to the registration of such Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which information previously furnished in writing by such Holder to the Company specifically for inclusion in such prospectus contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made. In the event that the Company or any such Holder shall give any such notice, the period referred to in Section 3.1(c) shall be extended by a number of days equal to the number of days during the period from and including the giving of notice pursuant to Section 3.1(c) to and including the date on which such Holder receives copies of the supplemented or amended prospectus contemplated by Section 3.1(c). ARTICLE IV UNDERWRITTEN OFFERINGS ---------------------- SECTION 4.1 Underwritten Offerings. (a) In connection with any (i) Requested Registration with respect to which CNI proposes to dispose of the Registrable Shares in an underwritten offering or (ii) Incidental Registration the Company undertakes to effect as an underwritten offering, the Company shall enter into an underwriting agreement (and any other customary agreements) with the underwriters for such offering, such agreement to be in form and substance reasonably satisfactory to such underwriters in their reasonable judgment and to contain such representations and warranties by the Company and such other terms as are customarily contained in agreements of that type, including without limitation indemnities to the effect and to the extent provided in Section 5.1. (b) In connection with any underwritten offering in which CNI participates, the Company shall furnish CNI with (i) an opinion (and updates thereto) of the Company's counsel to the effect that the registration statement complies as to form with the Securities Act and any other securities or blue sky laws and that such counsel has no knowledge or reason to know of any material misstatement or omission in the registration statement and (ii) a "comfort" letter (and updates thereof) signed by the independent public accountants that have certified the Company's financial statements included or incorporated by reference in such registration statement covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants' letters delivered to underwriters in underwritten public offerings of securities. 9 (c) Each Holder that participates in the Registration shall be a party to such underwriting agreement and may, at such Holder's option, require that any or all representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters be made to and for the benefit of such Holder and that any or all conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of such Holder. No such Holder participating in any such underwritten offering shall be required by the provisions hereof to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder and its intended method of distribution and any other representation required by law. (d) Participation in Underwritten Offerings. (i) If a Requested Registration is an underwritten offering, and the representative of the underwriters gives written advice to the Holder(s) requesting the Registration and the Company that, in its opinion, market conditions dictate that no more than an Underwriter's Maximum Number could successfully be included in such Requested Registration, then the Company shall be required by this Section 4.1(d)(i) to include in such Requested Registration only such number of securities as equals the Underwriter's Maximum Number. In such event, the Holder(s) requesting the Registration, the Company and any other Person participating in such Requested Registration shall participate in such Requested Registration as follows: (1) First, there shall be included in such Requested Registration that number of securities that the Holder(s) requesting the Registration requested to be included in such registration to the full extent of the Underwriter's Maximum Number; (2) Second, if the Underwriter's Maximum Number has not yet been reached, there shall be included in such Requested Registration that number of Registrable Securities that the Company proposes to offer and sell for its own account in such registration to the full extent of the Underwriter's Maximum Number; and (3) Third, if the Underwriter's Maximum Number has not yet been reached, there shall be included in the Requested Registration that number of Registrable Securities that any Holders other than the Holder(s) requesting the Registration and the Company have requested to be included in the Requested Registration to the full extent of the remaining portion of the Underwriter's Maximum Number, allocated pro rata among such other Holders based on the number of Registrable Securities that each such Holder desires to offer. 10 (ii) If an Incidental Registration is an underwritten offering, and the representative of the underwriters gives written advice to the Holders participating in the Incidental Registration and the Company that, in its opinion, market conditions dictate that no more than an Underwriter's Maximum Number could successfully be included in such Incidental Registration, then the Company shall be required by this Section 4.1(d)(ii) to include in such Incidental Registration only such number of securities as equals the Underwriter's Maximum Number. In such event, the Holders, the Company and any other Person participating in such Incidental Registration shall participate in such Incidental Registration as follows: (1) First, there shall be included in such Incidental Registration that number of securities that the Company proposes to offer and sell for its own account in such registration to the full extent of the Underwriter's Maximum Number; (2) Second, if the Underwriter's Maximum Number has not yet been reached, there shall be included in such Incidental Registration that number of Registrable Securities that Holders have requested to be included in such Incidental Registration to the full extent of the remaining portion of the Underwriter's Maximum Number, allocated pro rata among such Holders based on the number of Registrable Securities that each such Holder desires to offer; and (3) Third, if the Underwriter's Maximum Number has not yet been reached, there shall be included in the Incidental Registration that number of Registrable Securities that any Persons other than Holders and the Company have requested to be included in the Incidental Registration to the full extent of the remaining portion of the Underwriter's Maximum Number, allocated pro rata among such other Persons based on the number of Registrable Securities that each such Person desires to offer. (e) The Company shall promptly notify each Holder if any of its Registrable Securities will not be included in a Registration pursuant to Section 4.1(d). If any securities are withdrawn from a Registration and if the number of Registrable Securities to be included in such Registration was previously reduced pursuant to Section 4.1(d), then the Company shall then offer to all Holders the right to include additional Registrable Securities in such Registration equal to the number of securities so withdrawn, with such Registrable Securities to be allocated among the Holders requesting additional inclusion on a pro rata basis. (f) Selection of Underwriters. In a Requested Registration, the Holder(s) ------------------------- requesting the Registration shall notify the Company that it proposes to dispose of the Registrable Shares in an underwritten offering and the Company and such 11 Holder(s) shall agree, with each party acting in good faith, to jointly select the representative of the underwriters from underwriting firms of national reputation in the United States. In an Incidental Registration, the Company shall select the representative of the underwriters from underwriting firms of national reputation in the United States that are reasonably acceptable to Holders participating in the Incidental Registration. SECTION 4.2 Holdback Agreements. (a) In connection with any underwritten public offering of Registrable Securities by the Company under the Securities Act, no Holder shall effect directly or indirectly (except as part of such underwritten Registration in accordance with the provisions hereof or pursuant to a transaction exempt from registration other than pursuant to Rule 144 or Rule 145 of the Securities Act) any sale, distribution, short sale, loan, grant of options for the purchase of or other disposition of any Registrable Securities for such period as the representative of the underwriters requests, which period shall in no event commence earlier than seven days prior to, or end more than 180 days after, the date on which the registration statement related to such offering is declared effective. The Company shall be entitled to instruct its transfer agent to place stop transfer notations in its records to enforce this Section 4.2(a). (b) The Company agrees (i) not to effect any public sale or distribution of any Common Stock (other than pursuant to a registration statement on Form S-8 or any successor form), during the seven days prior to, and during the 180 days after, the date on which the registration statement related to a Registration is declared effective (except as part of such registration statement); and (ii) that any agreement entered into after the date of this Agreement pursuant to which the Company issues or agrees to issue any privately placed securities shall contain a provision under which the holders of such securities agree not to effect any public sale or distribution of any such securities during the periods described in (i) above, in each case including a sale pursuant to Rule 144; provided, however, that the provisions of this paragraph 4.2(b) shall not prevent the conversion or exchange of any securities pursuant to their terms into or for other securities. ARTICLE V INDEMNIFICATION AND CONTRIBUTION -------------------------------- SECTION 5.1 Indemnification. (a) Indemnification by the Company. In connection with any Registration, ------------------------------ to the extent permitted by law, the Company shall and hereby does indemnify and hold harmless each Holder that participates in such Registration, each such Holder's legal counsel and independent accountants, each other Person who participates as an underwriter in the offering or sale of securities (if so required by such underwriter as a condition to including the Registrable Securities of such Holders in such registration) and each other Person, if any, who controls any such Holder or any such underwriter within the meaning of the Securities Act (collectively, the "Indemnified Parties"), against any losses, claims, damages, liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) or expenses, joint or several, to which such Holder, underwriter or other Person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) or expenses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which the 12 offering and sale of such securities were registered under the Securities Act, any registration statement or prospectus, or any document incorporated therein by reference, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made not misleading, or arise out of any violation by the Company of any rule or regulation promulgated under the Securities Act or state securities law applicable to the Company and relating to action or inaction required of the Company in connection with any such registration. The Company shall reimburse the Indemnified Parties for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof); provided, however, that the indemnity agreement contained in this Section 5.1(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability (or action or proceeding, whether commenced or threatened, in respect thereof) or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld); and provided, further, that the Company shall not be liable to any Indemnified Party in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises solely out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, prospectus, or any document incorporated therein by reference, or any such amendment or supplement thereto, in reliance upon and in conformity with information furnished to the Company in writing by any Indemnified Party specifically for use therein. (b) Indemnification by Holders. As a condition to including any -------------------------- Registrable Securities in any Registration, to the extent permitted by law, each Holder shall and does hereby indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 5.1(a)) the Company, each director of the Company, each officer of the Company and each other Person, if any, who controls the Company within the meaning of the Securities Act, with respect to any statement or alleged statement in or omission or alleged omission from any registration statement under which the offering and sale of such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, if and only if and to the extent that such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with information furnished in writing to the Company directly by such Person for use in connection with the registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto; provided, however, that the obligation of any such Holder under this Section 5.1(b) shall be limited to an amount equal to the gross proceeds received by such Holder upon the sale of Registrable Securities sold in such Registration, unless such liability arises out of or is based upon such Holder's willful misconduct. (c) Notices of Claims, etc. Promptly after receipt by an Indemnified Party ---------------------- of notice of the commencement of any action, proceeding, claim, investigation or other similar event involving a claim referred to in this Section 5.1, if a claim in respect thereof is to be made against a party required to provide indemnification (an "Indemnifying Party"), the Indemnified Party shall give written notice to the latter of the commencement of such action; provided, however, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligation under this Section 5.1, except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice. In case any such action is brought 13 against an Indemnified Party, unless in the reasonable judgment of such Indemnified Party a conflict of interest between such Indemnified Party and the Indemnifying Party may exist in respect of such claim, then each Indemnifying Party shall be entitled to participate in and to assume the defense thereof, jointly with any other Indemnifying Party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation. No Indemnifying Party shall consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party if such judgment or settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. (d) Other Indemnification. Indemnification similar to that specified in --------------------- this Section 5.1 (with appropriate modifications) shall be given by the Company and each Holder that participates in a Registration to each other and to any underwriter, as applicable, with respect to any required registration or other qualification of securities under any United States federal or state law or regulation, other than the Securities Act, of any United States governmental authority. (e) Indemnification Payment. The indemnification required by this Section ----------------------- 5.1 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received and as a loss, claim, damage, liability or expense is incurred. (f) Survival of Obligations. The obligations of the Company and Holders ----------------------- under this Section 5.1 and Section 5.2 shall survive the completion of any offering of Registrable Securities. SECTION 5.2 Contribution. If the indemnification provided for in Section 5.1 is unavailable or insufficient to hold harmless an Indemnified Party, then each Indemnifying Party shall contribute to the amount paid or payable to such Indemnified Party as a result of the losses, claims, damages or liabilities referred to in Section 5.1 an amount or additional amount, as the case may be, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party or Indemnifying Parties, on the one hand, and the Indemnified Party, on the other, in connection with the statements or omissions that resulted in such losses, claims, demands or liabilities as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or Indemnifying Parties, on the one hand, or the Indemnified Party, on the other, and the relative intent, knowledge, access to information and opportunity of the parties to correct or prevent such untrue statement or omission. The Company and CNI agree that it would not be just and equitable if contribution pursuant to this Section 5.2 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding sentence. The amount paid to an Indemnified Party pursuant to this Section 5.2 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any action or claim subject to this Article V. No Person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any Person that was not guilty of such fraudulent misrepresentation. 14 ARTICLE VI COMPANY COVENANTS ----------------- SECTION 6.1 Covenants Relating to Rule 144; Reports Under Exchange Act. With a view to (a) making available the benefits of certain rules and regulations of the Commission that may at any time permit the sale of securities of the Company to the public without registration after such time as a public market exists for the Common Stock and (b) causing the Company to be and remain eligible to use Form S-3 under the Securities Act, the Company shall: (i) Make and keep public information available in accordance with Rule 144 under the Securities Act at all times after the effective date of the first registration under the Securities Act filed by the Company for an offering of its securities to the general public; (ii) Take such action, including the voluntary registration of the Common Stock under Section 12 of the Exchange Act, as necessary to enable the Company to utilize Form S-3 for the sale of Registrable Securities; (iii) Use its best efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and (iv) Furnish to each Holder forthwith upon request, so long as such Holder owns any Registrable Securities, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act, the Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report of the Company and such other reports and documents of the Company as such Holder may reasonably request in availing itself of any rule or regulation of the Commission that may allow such Holder to sell any Registrable Securities without registration. SECTION 6.2 Other Registration Rights. The Company may from time to time grant additional registration rights to other holders of Common Stock, provided that no such registration rights shall be senior to the rights granted under this Agreement with respect to registration and cutback (but that such rights may at all times be pari passu). ARTICLE VII MISCELLANEOUS ------------- SECTION 7.1 Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the parties. Either party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other party, or (ii) waive compliance with any of the agreements or conditions of the other party 15 contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. SECTION 7.2 Successors and Assigns. All covenants and agreements contained in this Agreement by or on behalf of either party hereto shall bind and inure to the benefit of the respective successors and assigns of such party hereto, whether so expressed or not, including subsequent Holders of Registrable Securities. SECTION 7.3 Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter hereof. SECTION 7.4 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) of transmission by facsimile, or (iii) on the date of confirmation of receipt (or, the first business day following such receipt if the date is not a business day or the receipt is after 5 p.m.) if delivered by courier. Subject to the foregoing, all notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: If to CNI: With a courtesy copy (which shall not Columbus Nova Investments VIII Ltd. constitute notice to CNI) to: 590 Madison Avenue Skadden, Arps, Slate, Meagher & Flom LLP 38th Floor An der Welle 5 New York, NY 10022 60322 Frankfurt am Main United States Germany Attention: Ivan Isakov Attention: Hilary Foulkes Facsimile: +1-212-308-6623 Facsimile: +49-69-74220300 If to Company: With a courtesy copy (which shall not Moscow CableCom Corp. constitute notice to the Company) to: 405 Park Avenue Suite 1203 Oliver R. Grace, Jr. New York, NY 10022 55 Brookville Road Attention: Oliver Grace Glen Head, NY 11545 Facsimile: +1-212-888-5620 Facsimile: +1-516-626-1204 Any party may change the address to which notices, requests, demands and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth. SECTION 7.5 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York. 16 SECTION 7.6 Arbitration. Any dispute, controversy or claim between the parties arising out of or relating to this Agreement or the breach, termination or validity hereof shall be referred to and finally resolved by arbitration in New York, New York, to the exclusion of all other procedures, in accordance with the rules then in force of the American Arbitration Association, which are deemed to be incorporated by reference into this Section 7.6. In any such arbitration, three arbitrators shall be appointed in accordance with the such rules. Where the rules of the American Arbitration Association do not provide for a particular situation, the arbitrators shall determine the course of action to be followed. To the maximum extent permitted by applicable law, the parties agree not to assert any rights to have any court rule on a question of law affecting the arbitration or to hear any appeal from or entertain any judicial review of the arbitral award. SECTION 7.7 Equitable Remedies. The parties agree that irreparable harm would occur in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that would be suffered by the parties in the event that this Agreement were not performed in accordance with its terms or conditions or were otherwise breached. It is accordingly hereby agreed that the parties shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other party and to enforce specifically such terms and conditions of this Agreement, such remedy being in addition to and not in lieu of any other rights and remedies to which the other party is entitled to at law or in equity. SECTION 7.8 Parties in Interest. This Agreement is for the benefit of any Holder irrespective of whether such Holder is a signatory to this Agreement, subject to (a) the provisions respecting the minimum numbers or percentages of shares of Registrable Securities required in order to entitle Holders to certain rights, or take certain actions, contained herein and (b) the limitations set forth in the agreement with the Company granting rights to register Registrable Securities to which any such Holder is a party. SECTION 7.9 Severability. If any provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto 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 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 in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. SECTION 7.10 No Inconsistent Agreements. The Company shall not enter into any agreement with respect to its securities that is inconsistent with the rights granted to CNI in this Agreement. SECTION 7.11 Headings. The descriptive headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. 17 SECTION 7.12 Construction; Adequate Counsel. (a) Construction. The parties have participated jointly in the ------------ negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. (b) Adequate Counsel. Each of the Company and CNI hereby represents and ---------------- warrants that it and its legal counsel have adequate information regarding the terms of this Agreement, the scope and effect of the transactions contemplated hereby and all other matters encompassed by this Agreement to make an informed and knowledgeable decision with regard to entering into this Agreement. SECTION 7.13 Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. SECTION 7.14 Interpretation. References in this Agreement to articles, sections, paragraphs, clauses and exhibits are to articles, sections, paragraphs, clauses and exhibits in or to this Agreement unless otherwise indicated. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. Any term defined by reference to any agreement, instrument or document has the meaning assigned to it whether or not such agreement, instrument or document is in effect. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The words "include", "includes" and "including" are deemed to be followed by the phrase "without limitation". Unless the context otherwise requires, any agreement, instrument or other document defined or referred to herein refers to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified from time to time. Unless the context otherwise requires, references herein to any Person include its successors and assigns. 18 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. MOSCOW CABLECOM CORP. By: _________________________________ Name: _________________________________ Title: _________________________________ COLUMBUS NOVA INVESTMENTS VIII LTD. By: _________________________________ Name: _________________________________ Title: _________________________________ 19 EX-99 14 was5181ex99-15.txt EX 8.1 LETTER AGREEMENT OLIVER R. GRACE Oliver R. Grace, Jr. 55 Brookville Road Glen Head, New York 11545 Telephone: (516) 686-2207 Fax: (516) 626-1204 August 26, 2004 Mr. Andy Intrater Mr. Ivan Isakov Columbus Nova Investments VIII LTD. 590 Madison Avenue New York, New York 10022 Re: Transactions (the "Transactions") Contemplated by (a) the Moscow CableCom Corp. ("MOCC")/Columbus Nova Investments VIII LTD. ("CN") Series B Stock Subscription Agreement of even date herewith (the "Subscription Agreement"), the Bridge Facility, and the Term Loan Facility. (Unless otherwise defined herein, the defined terms in the Subscription Agreement are incorporated herein by reference.) Dear Ivan: In connection with the Transactions, Oliver R. Grace, Jr. ("Grace") on the one hand, and CN, on the other hand, (Grace and CN being referred to herein as the "parties" or when referring to just one of the foregoing, a "party"), for and in receipt of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby agree as follows: 1. Prior to the Closing of the Transactions, CNI agrees that it is acceptable to CN that, upon approval of the Compensation Committee of MOCC, my compensation from MOCC for 2004 will be the same amount as my compensation for 2003, to wit: One Hundred Thousand Dollars ($100,000). 2. Upon the Closing of the Transactions, we agree that during the period that I am on the MOCC Board of Directors following the Closing, I will (i) act as one of the trustees of the MOCC 1 Pension Plan and (ii) be responsible for the supervision of the Conversion Offerings in which MOCC and its United States Subsidiaries elect to participate. My compensation by MOCC for engaging in these activities on behalf of the Company will be $50,000 per year to be paid in 12 equal payments each year. 3. Upon the Closing of the Transactions, we agree that for the later to occur of: (a) twenty-four (24) months after the Closing, or (b) the two Annual Meetings of the MOCC Stockholders that are held following the Closing, CN will support James J. Pinto ("Pinto") and Oliver R. Grace, Jr. ("Grace") nominations as candidates for election to the MOCC Board of Directors of MOCC. For the avoidance of doubt and for the purposes of clarity, the intent of the parties to this Agreement is that CN will support the nominations of Grace and Pinto (or their substitutes as contemplated by paragraph 4 below) to serve as directors on the Board of Directors of MOCC for the period commencing on the Closing Date and ending on thirty-six month anniversary of the Closing Date. 4. In the event that either or both of Grace and/or Pinto, for any reason, cannot serve on the MOCC Board, then you agree that you will support the nominations of one of the following individuals in place of Grace and/or Pinto: Francis E. Baker, Thomas Mc Partland, Lou Lubrano, or Peter N. Bennett. 5. That the compensation being paid to me as set forth in item # 1 and item #2 above is in addition to, and not in lieu of, (a) the fees that will be paid to me as a member of the MOCC Board of Director, and (b) reimbursement for business travel and living expenses associated with attending in-person meetings of the MOCC Board of Directors. 6. Miscellaneous: A. Entirety: This Agreement sets forth the entire -------- agreement and understanding among the parties with respect to the subject matter hereof. 2 B. Governing Law: This Agreement shall be construed in ------------- accordance with and governed by the laws of the State of New York. C. Counterparts: This Agreement may be signed in counterparts. If this Agreement is acceptable to CN, please sign in the place provided below and send a signed copy to me. Very truly yours, /s/ Oliver R. Grace, Jr. --------------------------- Oliver R. Grace, Jr. Accepted and Agreed by Columbus Nova Investments VIII Ltd. Columbus Nova Investments VIII LTD. By: /s/ Andrew Intrater -------------------------------- Name: Andrew Intrater -------------------- Title: Managing Partner -------------------- Dated: August 26, 2004 3 EX-99 15 was5181ex99-13.txt EX. 8.2 LETTER AGREEMENT JAMES J. PINTO James J. Pinto c/o 55 Brookville Road Glen Head, NY 11545 August 26, 2004 Mr. Ivan Isakov Columbus Nova Investments VIII LTD. 590 Madison Avenue New York, New York 10022 Re: Transactions (the "Transactions") Contemplated by (a) the Moscow CableCom Corp. ("MOCC")/Columbus Nova Investments VIII LTD. ("CN") Series B Stock Subscription Agreement of even date herewith (the "Subscription Agreement"), the Bridge Facility, and the Term Loan Facility. (Unless otherwise defined herein, the defined terms in the Subscription Agreement are incorporated herein by reference.) Dear Ivan: In connection with the Transactions, James J. Pinto. ("Pinto") on the one hand, and CN, on the other hand, (Pinto and CN being referred to herein as the "parties" or when referring to just one of the foregoing, a "party"), for and in receipt of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Upon the Closing of the Transactions, CN agrees that for the later to occur of: (a) twenty-four months (24) after the 1 Closing, or (b) the two Annual Meetings of the MOCC Stockholders that are held following the Closing, CN will support the nominations of James J. Pinto ("Pinto") and Oliver R. Grace, Jr. ("Grace") as candidates for election to the MOCC Board of Directors. For the avoidance of doubt and for the purposes of clarity, the intent of the parties to this Agreement is that CN will support the nominations of Grace and Pinto (or their substitutes as contemplated by paragraph 2 below) to serve as directors on the Board of Directors of MOCC for the period commencing on the Closing Date and ending on the thirty-six month anniversary of the Closing Date. 2. In the event that either or both of Grace and/or Pinto, for any reason, cannot serve on the MOCC Board, then you agree that you will support the nomination(s) of the following individuals in place of Grace and Pinto: Francis E. Baker, Thomas Mc Partland, Lou Lubrano, or Peter N. Bennett. 3. Miscellaneous: A. Entirety: This Agreement sets forth the entire agreement -------- and understanding among the parties with respect to the subject matter hereof. B. Governing Law: This Agreement shall be construed in ------------- accordance with and governed by the laws of the State of New York. C. Counterparts: This Agreement may be signed in ------------ counterparts. 2 If this Agreement is acceptable to CN, please sign in the place provided below and send a signed copy to me. Very truly yours, /s/ James J. Pinto ----------------------- James J. Pinto. Accepted and Agreed by Columbus Nova Investments VIII LTD. Columbus Nova Investments VIII LTD. By: /s/ Andrew Intrater ----------------------------------- Name: Andrew Intrater ----------------------- Title: Managing Partner ----------------------- Dated: August 26, 2004 3 EX-99 16 was5181ex99-14.txt EX. 9 POWER OF ATTORNEY POWER OF ATTORNEY ----------------- The undersigned hereby appoint Andrew Intrater the undersigned's true and lawful Attorney-in-Fact with full power of substitution (A) to execute in the name, place and stead of the undersigned (i) any Statement required to be filed under Schedule 13(d), and any amendments thereto, pursuant to Section 13(d) of the United States Securities Exchange Act of 1934, as amended (the "Exchange Act"), in connection with the beneficial ownership of securities of Moscow CableCom Corp., (ii) any Form required to be filed under Section 16 of the Exchange Act in connection with the beneficial ownership of securities of Moscow CableCom Corp., and (iii) all instruments and exhibits necessary or incidental to any Statement and any Form described in (i) and (ii) above or in connection therewith, and (B) to file the same with the Securities and Exchange Commission, said Attorney-in-Fact having full power and authority to do and perform in the name and on behalf of the undersigned what the undersigned might or could do in person, and the undersigned hereby ratify and approve the acts of said Attorney-in-Fact. COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Olivier Chaponnier --------------------------------- Name: Olivier Chaponnier, Director VICTOR VEKSELBERG /s/ Victor Vekselberg ------------------------------------ Date: September 23, 2004 -----END PRIVACY-ENHANCED MESSAGE-----