0000950172-05-000166.txt : 20120703 0000950172-05-000166.hdr.sgml : 20120703 20050118123038 ACCESSION NUMBER: 0000950172-05-000166 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20050118 DATE AS OF CHANGE: 20050118 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/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-19685 FILM NUMBER: 05532944 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/A 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/A 1 lon388479.txt SC 13D/A SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 _____________ SCHEDULE 13D (Amendment No. 1)* 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) Ivan Isakov C/o Columbus Nova Investments VIII Ltd. 590 Madison Avenue 38th Floor New York, NY 10022 (212) 838-3330 -------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 13, 2005 ----------------------------- (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 16 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 AF ------------------------------------------------------------------------------- 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 ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY None OWNED BY --------------------------------------------------------- EACH 8 SHARED VOTING POWER REPORTING PERSON 17,003,879 WITH --------------------------------------------------------- 9 SOLE DISPOSITIVE POWER None --------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 12,783,000 ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,003,879(1) ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [x] ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 78.77% (2) ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO ------------------------------------------------------------------------------- ---------------------- 1 Includes: (i) Shares issuable upon conversion of 4,500,000 shares of Series B Convertible Preferred Stock ("Preferred Stock"), (ii) Shares issuable upon conversion of 8,283,000 shares of Preferred Stock that Columbus Nova Investments VIII Ltd. is entitled to acquire upon exercise of Warrants and (iii) 4,220,879 Shares that the Reporting Person may be deemed to beneficially own by reason of a Shareholders Agreement between Columbus Nova Investments VIII Ltd. and Moskovskaya Telecommunikatsionnaya Corporatsiya dated August 26, 2004, as amended, with respect to which the Reporting Person disclaims beneficial ownership. Excludes 1,000,403 Shares that the Reporting Person may be deemed to beneficially own by reason of irrevocable proxy and power of attorney arrangements between Columbus Nova Investments VIII Ltd. and certain stockholders of the Company, with respect to which the Reporting Person disclaims beneficial ownership. 2 Based upon a total of 21,585,541 Shares of Common Stock outstanding, which figure is based on the number of Shares outstanding as of January 14, 2005, as disclosed by the issuer to the Reporting ------------------------------------------------------------------------------- CUSIP No. 033 501 107 13D Page 4 of 16 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 ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY None OWNED BY ------------------------------------------------------ EACH 8 SHARED VOTING POWER REPORTING PERSON 17,003,879 WITH ------------------------------------------------------ 9 SOLE DISPOSITIVE POWER None ------------------------------------------------------ 10 SHARED DISPOSITIVE POWER 12,783,000 ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,003,879(3) ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [x] ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 78.77%(4) ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN ------------------------------------------------------------------------------- ------------------------ Person (8,802,541 Shares) and assuming (i) the conversion of all of the 4,500,000 shares of Preferred Stock outstanding and (ii) the exercise in full of all of the warrants to purchase 8,283,000 shares of Preferred Stock and conversion of all of the shares of Preferred Stock acquired pursuant to the exercise of these warrants. 3 Includes: (i) Shares issuable upon conversion of 4,500,000 shares of Preferred Stock, (ii) Shares issuable upon conversion of 8,283,000 shares of Preferred Stock that Columbus Nova Investments VIII Ltd. is entitled to acquire upon exercise of Warrants and (iii) 4,220,879 Shares that the Reporting Person may be deemed to beneficially own by reason of a Shareholders Agreement between Columbus Nova Investments VIII Ltd. and Moskovskaya Telecommunikatsionnaya Corporatsiya dated August 26, 2004, as amended, with respect to which the Reporting Person disclaims beneficial ownership. Excludes 1,000,403 Shares that the Reporting Person may be deemed to beneficially own by reason of irrevocable proxy and power of attorney arrangements between Columbus Nova Investments VIII Ltd. and certain stockholders of the Company, with respect to which the Reporting Person disclaims beneficial ownership. 4 Based upon a total of 21,585,541 Shares of Common Stock outstanding, which figure is based on the number of Shares outstanding as of January 14, 2005, as disclosed by the issuer to the Reporting Person (8,802,541 Shares) and assuming (i) the conversion of all of the 4,500,000 shares of Preferred Stock outstanding and (ii) the exercise in full of all of the warrants to purchase 8,283,000 shares of Preferred Stock and conversion of all of the shares of Preferred Stock acquired pursuant to the exercise of these warrants. 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 a majority of the share capital of CNI. This statement amends the initial statement on Schedule 13D filed by the Reporting Persons with the Securities and Exchange Commission on September 23, 2004 (the "Initial Schedule"). All capitalized terms used in this statement and otherwise undefined shall have the meanings ascribed in the Initial Schedule. 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 the Russian communications and media sector. 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. CNI purchased the 4,500,000 shares of Preferred Stock (as defined in Item 4 below) for an aggregate purchase price of $22,500,000 in cash. CNI has borrowed the entire purchase price (the "Loan") from its affiliate Renova Industries Ltd., a company incorporated in The Commonwealth of the Bahamas. No cash consideration was paid in connection with the issuance of the Warrants (as defined in Item 4 below). Copies of the agreements relating to the Loan are attached as Exhibits 9 and 10 to this statement. Item 4. Purpose of Transaction. On August 26, 2004, CNI entered into a Series B Convertible Preferred Stock Subscription Agreement (the "Subscription Agreement") with the Company, relating to the purchase by CNI of 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. Effective December 1, 2004, CNI and the Company entered into Amendment No. 1 to the Subscription Agreement, primarily, in order to amend the terms of the Preferred Stock to comply with the National Association of Securities Dealers' Marketplace Rule 4351. The closing under the Subscription Agreement occurred on January 13, 2005 (the "Closing Date"). Pursuant to the Subscription Agreement, as amended, on the Closing Date: (a) the Company issued to CNI 4,500,000 shares of Preferred Stock, which are entitled to 0.81833 votes per share, have dividend 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 are convertible into Shares at the option of the holder thereof; (b) the Company issued to CNI warrants (the "Warrants") to purchase an additional 8,283,000 shares of Preferred Stock pursuant to a Warrant Agreement entered into by the Company and CNI on the Closing Date; and (c) the Company granted options to purchase an aggregate of 1,161,050 Shares under its 2003 Stock Option Plan to new executive officers and consultants. In accordance with the Subscription Agreement, (i) the board of directors of the Company (the "Board") has been expanded from nine members to eleven members, (ii) certain members of the Board have resigned and five new members designated by CNI, including Mr. Intrater, Ivan Isakov, Jay Haft, Warren Mobley and David R. Van Valkenburg, have been appointed to the Board (with Mr. Van Valkenburg 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), with one board position remaining vacant. In accordance with the Subscription Agreement and the Shareholders Agreement (as defined below), CNI intends to designate an additional director to the Board to fill that vacancy. In connection with the Subscription Agreement, CNI also entered into a Shareholders Agreement (the "Shareholders Agreement") with COMCOR, a principal stockholder of the Company. The Shareholders Agreement is described in the Initial Schedule. The above summary of certain provisions of the Subscription Agreement and the Warrant Agreement is not intended to be complete and is qualified by its entirety by reference to the full text of such agreements. Copies of the Subscription Agreement and the Warrant Agreement are attached as Exhibit 2 to the Initial Schedule and Exhibit 3 to this filing, respectively, and are incorporated by reference herein. Item 5. Interest in Securities of the Issuer. (a) and (b). As of the date hereof, each of the Reporting Persons beneficially owns 17,003,879 Shares, including (i) the Shares issuable upon conversion of 4,500,000 shares of Preferred Stock currently held by CNI; (ii) the Shares issuable upon conversion of the 8,283,000 shares of Preferred Stock CNI is entitled to acquire pursuant to the Warrant Agreement; and (iii) the 4,220,879 Shares held by COMCOR, which the Reporting Persons may be deemed to beneficially own by reason of the Shareholders Agreement and with respect to which the Reporting Persons disclaim beneficial ownership. This amount does not include the 1,000,403 Shares subject to the Irrevocable Proxy Arrangements (as defined and described in Item 6 below), which the Reporting Persons may be deemed to beneficially own and with respect to which the Reporting Persons disclaim beneficial ownership, as these Irrevocable Proxy Arrangements will expire upon conversion of CNI's shares of Preferred Stock into Shares. This amount constitutes approximately 78.77% of the outstanding Shares, based upon a total of 21,585,541 Shares outstanding (assuming the conversion of all of the 4,500,000 shares of Preferred Stock currently issued to CNI, exercise in full of all of the Warrants and conversion of all of the shares of Preferred Stock acquired pursuant to the exercise of the Warrants). The number of Shares outstanding is based on the number of Shares outstanding as of January 14, 2005, (8,802,541 Shares) as disclosed by the Company to the Reporting Persons. As of the date hereof, as to the election of directors and other corporate matters covered by the Shareholders Agreement, each of the Reporting Persons shares the power to vote or to direct the vote of 17,003,879 Shares (including: (i) the Shares issuable upon conversion of 4,500,000 shares of Preferred Stock currently held by CNI; (ii) the Shares issuable upon conversion of the 8,283,000 shares of Preferred Stock CNI is entitled to acquire pursuant to the Warrant Agreement; and (iii) the 4,220,879 Shares held by COMCOR that are subject to the Shareholders Agreement). This amount does not include the 1,000,403 Shares subject to the Irrevocable Proxy Arrangements, which the Reporting Persons may be deemed to beneficially own and with respect to which the Reporting Persons disclaim beneficial ownership. With respect to all matters other than those described in the preceding sentence, each of the Reporting Persons shares the power to vote or to direct the vote of 12,783,000 Shares (including (i) the Shares issuable upon conversion of 4,500,000 shares of Preferred Stock currently held by CNI; (ii) the Shares issuable upon conversion of the 8,283,000 shares of Preferred Stock CNI is entitled to acquire pursuant to the Warrant Agreement. As of the date hereof, each of the Reporting Persons shares the power to dispose of or direct the disposition of 12,783,000 Shares (including (i) the Shares issuable upon conversion of 4,500,000 shares of Preferred Stock currently held by CNI and (ii) the Shares issuable upon conversion of the 8,283,000 shares of Preferred Stock CNI is entitled to acquire pursuant to the Warrant Agreement). To the best knowledge of CNI, none of the executive officers or directors of CNI beneficially owns any Shares. (c) Other than as described herein, 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) Other than as described herein, 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. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Termination of Voting Agreements In order to facilitate the consummation of the transactions contemplated in the Subscription Agreement, CNI has entered into voting agreements on August 26, 2004 (the "Voting Agreements") with COMCOR, Oliver R. Grace, Jr., Francis E. Baker, Andrew O'Shea, James J. Pinto and Thomas McPartland. The Voting Agreements have each terminated in accordance with their respective terms upon the consummation of the transactions contemplated in the Subscription Agreement on the Closing Date. Termination of Pre-Existing Shareholders Agreement In connection with the Subscription Agreement, CNI has procured the termination of the voting agreement dated February 23, 2004, by and among the Company, COMCOR, Oliver R. Grace and Francis E. Baker. Registration Rights On the Closing Date, the Company and CNI have entered 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. Other Agreements In connection with the Subscription Agreement, CNI also entered into the Shareholders Agreement, a Co-Sale Agreement and Letter Agreements, which are defined and described in, and filed as exhibits to, the Initial Schedule. Irrevocable Proxy Arrangements In connection with Amendment No. 1 to the Subscription Agreement, prior to the Closing Date CNI entered into several irrevocable proxy and power of attorney arrangements (collectively, the "Irrevocable Proxy Arrangements") with certain stockholders of the Company, pursuant to which CNI received irrevocable proxies and powers of attorney with respect to an aggregate of 1,000,403 Shares (the "Proxy Shares"). Pursuant to the Irrevocable Proxy Arrangements, during the term thereof, CNI shall have the ability to vote the Proxy Shares at any meeting of stockholders or consent action in lieu of a meeting at its sole discretion. In addition, stockholders that are parties to the an Irrevocable Proxy Arrangement covering 200,000 Shares agreed that: (i) during the initial period of one year after the Closing Date, they will not to sell, transfer or otherwise dispose of any of the 200,000 Proxy Shares, unless the transferee also agrees to be bound by the conditions of that Irrevocable Proxy Arrangement, and (ii) after this initial period and until the termination of that Irrevocable Proxy Arrangement, the 200,000 Proxy Shares may only be transferred subject to the right of CNI to exercise a right to acquire all such Proxy Shares proposed to be transferred on substantially the same terms as they are proposed to be transferred. Similarly, stockholders that are parties to Irrevocable Proxy Arrangements covering an aggregate of 800,403 Shares agreed that during the term of the respective arrangements these 800,403 Proxy Shares may only be transferred subject to the right of CNI to exercise a right to acquire all such Proxy Shares proposed to be transferred on substantially the same terms as they are proposed to be transferred. The Irrevocable Proxy Arrangements will terminate upon the earlier of (i) January 13, 2009, (ii) the conversion by CNI of all its shares of Preferred Stock into Shares, (iii) CNI's ownership of the capital stock of the Company on an as converted basis falling below 10% or (iv) the weighted average closing price of the Shares for 20 consecutive trading days on NASDAQ exceeding $15.00. The Irrevocable Proxy Arrangements provide for a proportional reduction in the number of Proxy Shares subject thereto in case that CNI converts any of its shares of Preferred Stock into Shares. The preceding summary of certain provisions of the Irrevocable Proxy Arrangements 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 to this statement as Exhibits 11.1 through 11.3 and which are incorporated by reference herein. CNI Shareholders Agreement On December 27, 2004, CNI, Renova Industries (an entity related to Mr. Vekselberg) and the other shareholder of CNI entered into a shareholders agreement (the "CNI Shareholders Agreement"). Pursuant to the CNI Shareholders Agreement, in the event of a sale of all or substantially all of the assets or the dissolution and liquidation of CNI, proceeds attributable to the investment in the Company shall be distributed first to Renova Industries until payment in full of the Loan (as defined in Item 3 above) and then to the shareholders of CNI. Material to be Filed as Exhibits. Item 7. Exhibit 1 Joint Filing Agreement dated September 23, 2004, between Columbus Nova Investments VIII Ltd. and Victor Vekselberg.* Exhibit 2.1 Subscription Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp.* Exhibit 2.2 Amendment No. 1 to the Subscription Agreement, dated as of December 1, 2004. Exhibit 3 Warrant Agreement dated January 13, 2005, between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 4.1 Shareholders Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moskovskaya Telecommunikatsionnaya Corporatsiya.* Exhibit 4.2 Amendment No. 1 to the Shareholders Agreement dated as of December 1, 2004. Exhibit 4.3 Amendment No. 2 to Shareholders Agreement dated December 30, 2004. Exhibit 5 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 6 Registration Rights Agreement dated December 13, 2004, between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 7.1 Letter Agreement between Columbus Nova Investments VIII Ltd. and Oliver R. Grace. Jr.* Exhibit 7.2 Letter Agreement between Columbus Nova Investments VIII Ltd. and James J. Pinto.* Exhibit 8 Power of Attorney dated September 23, 2004.* Exhibit 9 Equity Loan Agreement dated January 4, 2005, by and between Columbus Nova Investments VIII Ltd. and Renova Industries Ltd. Exhibit 10 Promissory Note dated January 4, 2005, made by Columbus Nova Investments VIII Ltd. to the order of Renova Industries Ltd. Exhibit 11.1 Irrevocable Proxy and Power of Attorney dated as of December 1, 2004, by and among Columbus Nova Investments VIII Ltd., Oliver R. Grace, The Anglo American Security Fund, L.P. and Francis E. Baker. Exhibit 11.2 Irrevocable Proxy and Power of Attorney between Columbus Nova Investments VIII Ltd. and Field Nominees Limited Exhibit 11.3 Form of Irrevocable Proxy and Power of Attorney between Columbus Nova Investments VIII Ltd. and each of the stockholders of Moscow CableCom Corp. set forth in Annex A to Exhibit 11.2. * Previously filed as an exhibit to the Initial Schedule, filed with the Commission on September 23, 2004. 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: January 18, 2005 COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ------------------------------- Name: Andrew Intrater Title: Attorney-in-Fact VICTOR VEKSELBERG By: /s/ Andrew Intrater ------------------------------- Name: Andrew Intrater Title: Attorney-in-Fact 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 Business Address Occupation or Employment Citizenship -------------------------- ----------------------------------- -------------- Marco Montanari Businessman Swiss -------------------------- ----------------------------------- -------------- Shakira Burrows Secretary Bahamian -------------------------- ----------------------------------- -------------- Olivier Chaponnier Businessman Swiss -------------------------- ----------------------------------- -------------- EXHIBIT INDEX Exhibit 1 Joint Filing Agreement dated September 23, 2004, between Columbus Nova Investments VIII Ltd. and Victor Vekselberg.* Exhibit 2.1 Subscription Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp.* Exhibit 2.2 Amendment No. 1 to the Subscription Agreement, dated as of December 1, 2004. Exhibit 3 Warrant Agreement dated January 13, 2005, between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 4.1 Shareholders Agreement dated August 26, 2004, between Columbus Nova Investments VIII Ltd. and Moskovskaya Telecommunikatsionnaya Corporatsiya.* Exhibit 4.2 Amendment No. 1 to the Shareholders Agreement dated as of December 1, 2004. Exhibit 4.3 Amendment No. 2 to Shareholders Agreement dated December 30, 2004. Exhibit 5 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 6 Registration Rights Agreement dated December 13, 2004, between Columbus Nova Investments VIII Ltd. and Moscow CableCom Corp. Exhibit 7.1 Letter Agreement between Columbus Nova Investments VIII Ltd. and Oliver R. Grace. Jr.* Exhibit 7.2 Letter Agreement between Columbus Nova Investments VIII Ltd. and James J. Pinto.* Exhibit 8 Power of Attorney dated September 23, 2004.* Exhibit 9 Equity Loan Agreement dated January 4, 2005, by and between Columbus Nova Investments VIII Ltd. and Renova Industries Ltd. Exhibit 10 Promissory Note dated January 4, 2005, made by Columbus Nova Investments VIII Ltd. to the order of Renova Industries Ltd. Exhibit 11.1 Irrevocable Proxy and Power of Attorney dated as of December 1, 2004, by and among Columbus Nova Investments VIII Ltd., Oliver R. Grace, The Anglo American Security Fund, L.P. and Francis E. Baker. Exhibit 11.2 Irrevocable Proxy and Power of Attorney between Columbus Nova Investments VIII Ltd. and Field Nominees Limited Exhibit 11.3 Form of Irrevocable Proxy and Power of Attorney between Columbus Nova Investments VIII Ltd. and each of the stockholders of Moscow CableCom Corp. set forth in Annex A to Exhibit 11.2. * Previously filed as an exhibit to the Initial Schedule, filed with the Commission on September 23, 2004. EX-2 2 lon392239.txt EXHIBIT 2.2 - AMDT. NO. 1 TO SUBSCRIPTION AGMT. EXHIBIT 2.2 EXECUTION COPY AMENDMENT NO. 1 TO SERIES B CONVERTIBLE PREFERRED STOCK SUBSCRIPTION AGREEMENT This AMENDMENT NO. 1 (this "Amendment") with respect to the Series B Convertible Preferred Stock Subscription Agreement (the "Agreement") dated August 26, 2004, between Moscow CableCom Corp. (formerly known as Andersen Group Inc.), a Delaware corporation (the "Company"), and Columbus Nova Investments VIII Ltd., a Bahamas company ("CN" and together with the Company, the "Parties" and each individually a "Party"), is made and entered into by the Parties as of December 1, 2004. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. WHEREAS, as a result of the application of the National Association of Securities Dealers, Inc. Rule 4351, the voting rights of the Series B Preferred Stock may be less than one (1) vote per share, and WHEREAS, the Parties would like to amend the Agreement to reflect this change in the voting rights of the Series B Preferred Stock, in accordance with the terms and conditions of this Amendment; NOW, THEREFORE, in consideration of the mutual agreements herein contained and intending to be legally bound hereby, the Parties agree as follows: 1. Amendment to the Certificate of Amendment The Parties hereby agree to amend the Agreement to provide that each share of Series B Stock shall have such number of votes equal to the quotient (rounded to the nearest five decimal places) of $5.00 divided by the closing bid price of one share of Common Stock reported in The Nasdaq Stock Market for the last complete trading session prior to the Closing Date; provided, however, that a share of Series B Stock shall not be entitled to a greater number of votes than the number of votes to which a share of Common Stock shall be entitled, and, provided further, that, if the holders of shares of Series B Stock are entitled to vote as a separate class with respect to any matter, each share of Series B Stock shall, for purpose of such vote, be entitled to one vote on such matter. The form of the Certificate of Amendment is hereby amended and restated in its entirety to reflect the foregoing and is attached hereto as Attachment I. 2. Amendment to the Purchaser's Conditions to Closing Section 6.03 of the Agreement shall be amended by adding condition 6.03(h), which shall state as follows: "(h) The Purchaser shall have received irrevocable proxies, substantially in the form of Attachment III to this Agreement, from stockholders of the Company with respect to 800,000 shares of Common Stock (or such lesser number of shares that, together with (i) the 200,000 shares of Common Stock that are subject to the Irrevocable Proxy and Power of Attorney dated December 1, 2004, among the Purchaser, Oliver Grace, Jr., Francis E. Baker and The Anglo American Security Fund, L.P., and (ii) the votes to which the New Securities are entitled when voting as one class with the Common Stock, shall have such number of votes equal to the number of votes to which 4,500,000 shares of Common Stock are entitled as of the Closing Date)." Attachment III to the Agreement shall be in the form of Attachment II to this Amendment. 3. Release Subject to satisfaction or waiver of condition 6.03(h) of the Subscription Agreement (or the deemed satisfaction or waiver of such condition in the event of the Closing of the Transactions), each of the Parties confirms that it shall have no claim outstanding against the other Party or any of its Affiliates for breach of the provisions of the Agreement that are amended pursuant to this Amendment and each Party waives all and any rights it has to bring a claim for breach by the other Party of the provisions of the Agreement that are amended pursuant to this Amendment. 4. Governing law This Amendment 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. 5. Counterparts This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above. COLUMBUS NOVA INVESTMENTS VIII LTD. By /s/ Andrew Intrater ---------------------------- Name: Andrew Intrater Title: Attorney-in-Fact MOSCOW CABLECOM CORP. By /s/ Oliver R. Grace, Jr. ----------------------------- Name: Oliver R. Grace, Jr. Title: Chief Executive Officer EX-3 3 lon368551.txt EX. 3 - WARRANT AGREEMENT EXHIBIT 3 WARRANT AGREEMENT by and between MOSCOW CABLECOM CORP. and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated January 13, 2005 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 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 This WARRANT AGREEMENT (this "Warrant Agreement") dated as of January 13, 2005, 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, as amended on December 1, 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. 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. (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. (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 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 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. 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: 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. 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: E' = Ex O + P - M --------- (O + D) 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 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 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. 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: 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 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; (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: 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 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 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 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 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] 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: /s/ Andrew O'Shea ----------------------------- Name: Andrew O'Shea Title: Chief Financial Officer COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater ----------------------------- Name: Andrew Intrater Title: Attorney-in-Fact 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 -- 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. 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: 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.: ________________ 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: ________________ 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.: ________________ 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: ________________ EX-4 4 lon392290.txt EXHIBIT 4.2 - AMDT. NO. 1 TO SHAREHOLDERS AGMT. EXHIBIT 4.2 EXECUTION COPY AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT This AMENDMENT NO. 1 (this "Amendment") with respect to the Shareholders Agreement (the "Agreement") dated 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"), is made and entered into by the Parties as of December 1, 2004. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. WHEREAS, as a result of the application of the National Association of Securities Dealers, Inc. Rule 4351 and the related amendment to the Subscription Agreement, the voting rights of the Series B Preferred Stock may be less than one (1) vote per share; and WHEREAS, the Parties would like to amend the Agreement to express their mutual understanding as to effect of this change in the voting rights of the Series B Preferred Stock on the interpretation and implementation of the Agreement, in accordance with the terms and conditions of this Amendment; NOW, THEREFORE, in consideration of the mutual agreements herein contained and intending to be legally bound hereby, the Parties agree as follows: 1. Amendment For the avoidance of doubt, any reduction in the voting rights of the Series B Preferred Stock pursuant to the application of Rule 4351 shall not be deemed a reduction in the number of corresponding Voting Shares for purposes of Sections 2 and 6 of the Agreement, it being understood that this sentence will no longer be relevant once CNI has converted all of its shares of Series B Preferred Stock. Furthermore, any shares that CNI may be deemed to beneficially own as a result of the proxies it is being given by other shareholders in the Company to make up the shortfall in votes caused by the application of Rule 4351 shall not be considered as owned by CNI for purposes of the percentage ownership calculations set forth in Sections 2 and 6 of the Agreement, it being understood that this sentence will no longer be relevant once all of such proxies have terminated. Finally, the definition of "beneficial ownership" for purposes of the Agreement shall not be deemed to include shares that are beneficially owned by a Party pursuant to Rule 13d-3 under the Exchange Act solely by reason of being party to the Agreement.. 2. Governing Law and Language This Amendment 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. This Amendment 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. 3. Counterparts This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above. MOSKOVSKAYA TELECOMMUNIKATSIONNAYA CORPORATSIYA By ________________________ Name: Title: COLUMBUS NOVA INVESTMENTS VIII LTD. By ________________________ Name: Title: EX-4 5 lon399431.txt EXHIBIT 4.3 - AMDT. NO. 2 TO SHAREHOLDERS AGMT. EXHIBIT 4.3 EXECUTION COPY AMENDMENT NO. 2 TO SHAREHOLDERS AGREEMENT This AMENDMENT NO. 2 (this "Amendment") with respect to the Shareholders Agreement (the "Agreement") dated 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"), is made and entered into by the Parties as of December 30, 2004. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. WHEREAS, the Parties would like to amend the Agreement to memorialize their additional agreements with respect to the management structure of MOCC and CCTV. NOW, THEREFORE, in consideration of the mutual agreements herein contained and intending to be legally bound hereby, the Parties agree as follows: 1. Amendment Following the closing of the Columbus Nova financing transactions, the Parties will instruct the management team of MOCC/CCTV to prepare for the first meeting of the new Board of Directors of MOCC a detailed 180-day operating plan for MOCC/CCTV, which will contain specific operating and financial targets that will be used to monitor operations and evaluate the performance of individual top managers. After 6 months, the MOCC Board of Directors will compare actual results to the 180-day plan targets and conduct an extensive performance review of individual top managers. The consulting contracts of Charles Roberts and Ali Mohamed will be amended prior to the closing of the Columbus Nova financing transactions to provide for the 6-month initial term. The Parties agree that the performance of Charles Roberts and Ali Mohamed under their consulting engagements will be monitored and reviewed. Any extension of the initial 6-month period must be approved unanimously by the MOCC Board of Directors. 2. Governing Law and Language This Amendment 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. This Amendment 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. 3. Counterparts This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above. MOSKOVSKAYA TELECOMMUNIKATSIONNAYA CORPORATSIYA By ________________________ Name: Title: COLUMBUS NOVA INVESTMENTS VIII LTD. By ________________________ Name: Title: EX-99 6 lon368552.txt EXHIBIT 6 - REGISTRATION RIGHTS AGREEMENT EXHIBIT 6 REGISTRATION RIGHTS AGREEMENT by and between MOSCOW CABLECOM CORP. and COLUMBUS NOVA INVESTMENTS VIII LTD. Dated January 13, 2005 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 Law................................................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 REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into as of January 13, 2005, 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, as amended December 1, 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. "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. (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. 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 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; (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; (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 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. (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. (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 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 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 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. 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 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. 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. 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. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. MOSCOW CABLECOM CORP. By: /s/ Andrew O'Shea -------------------------- Name: /s/ Andrew O'Shea Title: Chief Financial Officer COLUMBUS NOVA INVESTMENTS VIII LTD. By: /s/ Andrew Intrater -------------------------- Name: Andrew Intrater Title: Attorney-in-Fact EX-99 7 eqloan_ex9.txt EXHIBIT 9 - EQUITY LOAN AGREEMENT EXHIBIT 9 THIS OBLIGATION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THIS NOTE IS SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. Amount of US $22,500,000.00 EQUITY LOAN AGREEMENT This Loan Agreement (hereinafter referred to as the "Agreement") is effective this 4th day of January, 2005, by and between COLUMBUS NOVA INVESTMENTS VIII LTD., a company organized and existing under the laws of the Commonwealth of the Bahamas, with its principal address at Shirley House, 50 Shirley Street, P.O. Box N-7755, Nassau, Bahamas (hereinafter referred to as the "Borrower"), and RENOVA INDUSTRIES, a Bahamas company, with its principal address at 50 Shirley Street, Shirley House, Nassau, Bahamas (hereinafter referred to as the "Lender"). WHEREAS, the Borrower wishes to borrow the amounts described below on the terms set forth below; and WHEREAS, the Lender wishes to lend the amount set forth below on the terms set forth below and acknowledges that the Borrower is relying to its detriment on the Lender's agreement to do so; and WHEREAS, the Lender and the Borrower will, on the date hereof, enter into a loan agreement in a maximum amount of $28,500,000 (the "Debt Loan Agreement") for the purposes of making available to the Borrower, from time to time, sufficient funds to allow the Borrower to make advances to ZAO Comcor-TV pursuant to a term loan agreement dated 26 August 2004 between the Borrower, as lender, ZAO Comcor-TV, as borrower, and Moscow Cablecom Corp. and certain of its subsidiaries, as guarantors. NOW, THEREFORE, in consideration of the aforementioned reliance and other good and valuable consideration, the parties hereto, intending to be legally bound, agree as follows: 1. Upon and subject to the terms and conditions hereof, the Lender agrees to make available, from time to time, in the form of a credit advance (the "Credit Advance"), until ten (10) years from the date hereof, the principal amount of up to TWENTY-TWO MILLION AND FIVE HUNDRED THOUSAND DOLLARS ($22,500,000.00) (the "Principal" or "Loan Amount" or "Maximum Amount"). Notwithstanding the foregoing, from time to time, the Lender may agree, at its sole discretion and upon request from the Borrower in accordance with Section 2 below, to make available to the Borrower a Credit Advance in excess of the Maximum Amount on the same terms and conditions as the Credit Advance(s) made up to the Maximum Amount. Such Credit Advance shall only be used for the sole purpose of financing the subscription of warrants in Moscow CableCom Corp and to pay expenses including, but limited to, management fees and related expenses owed to the Lender by the Borrower. 2. The Borrower may request a Credit Advance by providing the Lender with a written request in accordance with Section 23 herein for such an advance at least three (3) business days prior to the date on which the funds are to be disbursed to the Borrower. Each Advance made by the Lender to the Borrower, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any permitted transfer hereof, endorsed on Schedule A, attached hereto, which is part of this Agreement; provided, however, that the failure to make any such recordation or endorsement shall not affect or in any way discharge or release the obligations of the Borrower under the Promissory Note, dated of even date herewith. Thereafter, the Lender shall deliver the amount of such Credit Advance by wire transfer of immediately available funds to an account designated by the Borrower. The total amount of the outstanding, unpaid Credit Advances may not exceed the Maximum Amount, unless the Lender agrees otherwise in writing pursuant to Section 1 or otherwise. 3. As a condition to the Lender executing this Agreement, the Borrower shall execute and deliver to the Lender a promissory note, substantially similar in form and content to that annexed hereto as Exhibit A (the "Promissory Note") and made a part hereof. Further, as a condition to the Lender making each Credit Advance, the Borrower shall execute and deliver to the Lender an allonge to the Promissory Note, substantially similar in form and content to Exhibit B, attached hereto (the "Allonge"). 4. The Promissory Note and the Allonge(s) shall be governed by the terms of this Agreement, to the extent there are any inconsistent terms. 5. The Credit Advances do not bear interest. 6. Any portion of the total outstanding principal shall be due and payable to the Lender in full on January 4, 2015. All payments of the Principal shall be paid to the Lender by wire transfer to a dollar account specified by the Lender. 7. The Borrower may, at any time and with the Lender's consent, prepay any part of the Principal then outstanding. 8. The Borrower shall cause to be kept full and proper books of records and accounts, in which full, true, and proper entries will be made of all dealings, business and affairs of the Borrower which in any way affect or pertain to the operation of the Borrower. The Borrower shall keep its books and records in the manner conforming to federal income tax principles. 9. Upon five (5) business days notice, the Borrower shall provide the Lender or any of its duly authorized representatives access, during normal working hours, to any books, documents, papers and records for the purposes of audit, examination or evaluation, except to the extent that such materials contain confidential information. The Borrower further agrees to furnish copies of such papers and documents to the Lender as it may reasonably require from time to time. 10. Immediately upon becoming aware of the existence of any Event of Default as defined in Section 12 herein, or event which with notice, lapse of time, or both, would become an Event of Default, the Borrower shall provide to the Lender a notice describing its nature and any action the Borrower is taking (or proposes to take) in connection therewith. 11. Within forty five (45) days after the last day of the months of March, June, September and December, the Borrower shall submit to the Lender a statement of profits and losses and such other information as the Lender shall reasonably request, for such period. The Borrower shall also submit with such report a certificate of the President of the Borrower certifying, to the knowledge of such person, to the absence of any Event of Default or event which, with notice, the passage of time, or both, would constitute an Event of Default. 12. An "Event of Default" shall exist if any of the following conditions or events shall occur and be continuing: 12.1 The Borrower defaults in the payment of the Principal or any portion thereof within three (3) Business Days of the same becoming due and payable; or 12.2 The Borrower defaults in the performance of or compliance with any term contained herein, and such default is not remedied within ten (10) Business Days of notice thereof to the Borrower; or 12.3 Any representation or warranty of the Borrower set forth in Section 17 herein is breached in any material respect on the date as of which made and such breach is not remedied within ten (10) Business Days of notice thereof to the Borrower; or 12.4 The Borrower (a) admits in writing its inability to pay its debts as they become due; (b) files, or consents by answer or otherwise to the filing against it, of a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction; (c) makes an assignment for the benefit of its creditors; (d) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property; or (e) is adjudicated as insolvent or to be liquidated. 13. Upon the happening of an Event of Default, then, unless later waived in writing by the Lender, the Lender may accelerate the maturity of this Loan, making the Principal and accrued interest immediately due and payable upon written notice or demand to or upon the Borrower and may exercise any and all enforcement remedies authorized at law or equity. 14. If payment hereunder becomes due and payable on a Saturday, Sunday or legal holiday under the laws of the State of New York, the Commonwealth of the Bahamas or Switzerland the due date hereof shall be the following business day. Checks, drafts or similar items of payment received by the Lender shall not constitute payment to the Lender unless and until such item of payment has actually been collected by the Lender's depository bank and credited to the Lender's account, but credit therefor shall be given on the date the same is actually received by the Lender. 15. Subject to Section 16 herein, the Borrower undertakes that, prior to the date on which all amounts outstanding hereunder and under the Debt Loan Agreement have been repaid and all commitments hereunder and under the Debt Loan Agreement have been cancelled, it will not: 15.1 declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital); 15.2 repay or distribute any dividend or share premium reserve; or 15.3 redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so, where the proceeds of such payment, repayment, distribution, redemption, repurchase, defeasance or retirement consists, or is proposed to consist, of proceeds of a payment, repayment, distribution, redemption, repurchase, defeasance or retirement on or in respect of the share capital of ZAO Comcor-TV (or any class of its share capital) (in each case, other than in favour of the Lender, in its capacity as holder of shares in the Borrower). 16. Nothing in Section 15 herein shall prohibit the Borrower from making any payment, including (but without limitation) by way of distribution, dividend, fee charge or otherwise, to any of its shareholders for the purpose of discharging any liability to tax incurred by such shareholders in connection with the taxable interest income (net of any deductible expenses) if any deemed received by or accruing to the Borrower under applicable U.S. Federal income tax law and the terms of the term loan agreement dated 26 August 2004 between Columbus Nova DF Limited, ZAO Comcor-TV and certain of its subsidiaries. 17. The Borrower represents and warrants to the Lender as follows: 17.1 The Borrower is a Bahamian company duly organized, validly existing, in good standing and possessing all powers and authority to own its property and to conduct the business in which it is engaged as well as all other rights and privileges generally granted by its organizational documents and applicable law. 17.2 Upon execution and delivery of this Agreement, the Borrower is not in violation of, or in default (nor has any event occurred which with notice, lapse of time, or both, would constitute a violation or default) in the performance of any obligation, agreement or condition contained in the organizational documents of the Borrower or in violation or default of any agreement or instrument to which the Borrower is a party or by which it may be bound or to which any of its property or assets are subject, or any law, order, rule, regulation, writ, authorization, injunction or decree of any government, governmental instrumentality or court, domestic or foreign. 17.3 There is not now pending or, to its knowledge, threatened, any action, suit or proceeding against the Borrower before or by any court or governmental agency or body, which might result in any material adverse change in the condition (financial or otherwise), business, or properties of the Borrower or in its ability to fulfill its obligations under this Agreement; nor does the Borrower know of any circumstances which would give rise to any such action, suit or proceeding. 17.4 There are no consents or approvals required under the laws of the Bahamas to effect the transactions contemplated by this Agreement. No other authorization, approval, order, exemption or other action of any court or governmental body of the Bahamas, or of any state, country or other jurisdiction thereof is required to effect the transactions contemplated by this Agreement. 17.5 This Agreement has been duly authorized, executed and delivered by the Borrower and, upon due acceptance by the Lender, will constitute the valid and legally binding obligation of the Borrower enforceable in accordance with its terms against the Borrower, subject as to enforcement remedies applicable to bankruptcy, insolvency, moratorium and other laws affecting the rights of creditors generally and to equitable principles. 17.6 The execution and delivery of this Agreement by the Borrower and the fulfillment of the terms set forth herein do not violate any statute, regulation or other law of the Bahamas, the United States, the State of New York or any other state or jurisdiction of the United States or any other country, or any valid and enforceable order, judgment or decree of any court or governmental body of the United States, or of any country, state or other jurisdiction thereof. 17.7 The information heretofore furnished by the Borrower to the Lender in writing does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading in any material respect. Any projections, forecasts or similar information, furnished by the Borrower to the Lender were based on reasonable assumptions and were prepared in good faith. 18. If payment for any portion of the Principal shall not be made when due, and any action is brought to enforce collection, the defaulting Borrower agrees to pay the Lender's reasonable attorneys' fees, in an amount not to exceed two percent (2%) of the Principal. 19. Whenever in this Agreement reference is made to the Borrower, such reference shall be deemed to include, as applicable, a reference to the respective successors and assigns of the Borrower. The provisions of this Agreement shall be binding upon and shall inure to the benefit of said successors and assigns. The Borrower's successors and assigns shall include, without limitation, the Borrower as debtor in possession or a receiver or trustee of or for the Borrower. 20. This Agreement shall be governed by and construed in accordance with the laws of England. 21. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. 22. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 23. All notices, requests, demands and other communications provided for by this Agreement shall be in writing and sent to address herein above stated or to such other address as furnished by any party to all other parties hereto in accordance with this notice provision. All such notices and communications hereunder shall be effective and deemed given, (a) if sent via facsimile, when transmitted, as evidenced by a transmission report containing a remote statement identification and confirmation of the time of such transmission report containing a remote statement identification and confirmation of the time of such transmission and the pages sent; (b) if mailed, when received, as evidenced by the acknowledgment of receipt issued with respect thereto by the applicable postal authorities; (c) if sent via electronic mail in a manner consistent with Chapter 96 of Title 15 of the United States Code (the Electronic Signatures in Global and National Commerce Act); and, (d) if delivered by hand, when received, as evidenced by the signed acknowledgment of receipt of the person to whom such notice or communication shall have been addressed. 24. No provision of this Agreement may be changed or waived orally, but only by an instrument in writing signed by the party to be charged by such change or waiver. 25. This Agreement may be executed in more than one separate counterpart, each of which shall, collectively and separately, constitute one agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. Borrower: Lender: COLUMBUS NOVA INVESTMENTS RENOVA INDUSTRIES LTD. VIII LTD. By: /s/ Olivier Chaponnier By: /s/ Shakira Burrows ------------------------ ------------------------ Name: Olivier Chaponnier Name: Shakira Burrows Title: Director Title: Director SCHEDULE A Unpaid Principal Name of Amount of Balance of Person Making Date Loan Principal Payments Note Notation Reason ---- --------- --------- -------- ----------- -------------- ------ EX-99 8 pronote_ex10.txt EXHIBIT 10 - PROMISSORY NOTE EXHIBIT 10 PROMISSORY NOTE Amount of U.S. $22,500,000.00 Dated: January 4, 2005 FOR VALUE RECEIVED, the undersigned, COLUMBUS NOVA INVESTMENTS VIII LTD., a company organized and existing under the laws of the Commonwealth of the Bahamas, with its principal address at Shirley House, 50 Shirley Street, P.O. Box N-7755, Nassau, Bahamas (hereinafter referred to as the "Borrower"), hereby promises to pay to the order of RENOVA INDUSTRIES, a Bahamian company, with its principal address at 50 Shirley Street, Shirley House, Nassau, Bahamas (hereinafter referred to as the "Lender"), the unpaid principal amount at any time outstanding (hereinafte referred to as the "Credit Advance") on the Maturity Date, as defined below, or otherwise at the times and in the manner set forth in the Loan Agreement between the Borrower and the Lender, dated as of January 4, 2005 (hereinafte referred to as the "Loan Agreement"). Each Credit Advance shall be evidenced by an allonge (the "Allonge") to this Promissory Note (hereinafte referred to as the "Note"). Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Loan Agreement. 1. Principal Payment. All principal outstanding under this Note, and all other amounts owing hereunder, shall be due and payable in full on January 4, 2015 (the "Maturity Date"). 2. Maturity. This Note shall mature, and the outstanding principal balance hereunder, together with all other outstanding amounts due hereunder and under the Loan Agreement, shall become due and payable in full, if not earlier due and payable in accordance with the Loan Agreement, on the earlier of (a) the occurrence of an Event of Default if so required pursuant to the Loan Agreement or Lender's demand upon an Event of Default, or (b) the Maturity Date. 3. Loan Agreement and Security Documents. (a) This Note is referred to in, made pursuant to and entitled to the benefits of the Loan Agreement and certain other agreements and instruments executed and delivered in connection therewith (collectively, with the Loan Agreement and this Promissory Note the "Loan Documents"). The Loan Agreement, among other things, (i) provides for the making of Credit Advances by the Lender to the Borrower in the dollar amount specified on the Allonges to this Note, (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events upon the terms and conditions therein specified, and (iii) contains provisions defining an Event of Default and the rights and remedies of the Lender upon the occurrence of an Event of Default. 4. Prepayments. This Note may be prepaid in whole or in part without notice to the Lender and shall be prepaid in whole, in each case as provided or required in the Loan Agreement and upon payment of all fees and other obligations set forth therein. No payment or prepayment of any amount shall entitle any Person to be subrogated to the rights of the Lender hereunder or under the Loan Agreement unless and until the obligations have been performed in full and paid irrevocably in full in cash and the Loan Agreement has been terminated. Any amounts prepaid may be re-borrowed upon the Borrower's request, up to the Maximum Amount, and such new amounts shall be due upon the Maturity Date or such earlier date as provided herein. 5. Method of Payment; Payments Due on a Day Other Than a Business Day. (a) Principal and any fees or other amounts owed hereunder shall be paid to the Lender, by wire transfer, in lawful money of the United States of America on the date when due without offset or counterclaim in immediately available funds. (b) If any payment to be made on or under this Note is stated to be due or becomes due and payable on a day other than a business day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding business day. 6. Waivers. The Borrower hereby waives presentment, protest, demand, notice of dishonor or non-payments, as well as all defenses with respect to this Note, the Loan Agreement and/or any obligation, notice of acceptance hereof, notice of loans or Credit Advances made, credit extended, collateral received or delivered, or any other action taken in reliance hereon, and all other demands and notices of any description. No renewal or extension of this Note, the Loan Agreement or any rights hereunder or thereunder, no release of the Borrower, or delay or omission on the Lender's part in enforcing this Note or any other Loan Document or in exercising or enforcing any right, remedy, option or power hereunder or under any other Loan Document, shall affect the liability of the Borrower or operate as a waiver of such or any other right, remedy, power or option or of any default. The claim of any statute of limitations as a defense to any demand against the Borrower is expressly waived by the Borrower. 7. Exercise of Rights. (a) The Lender shall have the right, in its sole discretion, to determine which rights, powers, liens, security interests or remedies Lender may at any time pursue, relinquish, subordinate or modify, or to take any other action with respect thereto, and such determination will not in any way modify or affect any of Lender's rights, powers, liens, security interests or remedies hereunder or under any of the Loan Documents or under applicable law or otherwise. (b) The enumeration of the foregoing rights and remedies is not intended to be exhaustive. The rights and remedies of the Lender described herein are cumulative and are not alternative to or exclusive of any other rights or remedies which the Lender otherwise may have by contract or at law or in equity, and the partial or complete exercise of any right or remedy shall not preclude any other further exercise of such or any other right or remedy. 8. Lawful Limits. This Note is hereby expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration or otherwise, shall the interest, if any, and other charges paid or agreed to be paid to the Lender for the use, forbearance or detention of money hereunder, exceed the maximum rate permissible under applicable law, which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. If due to any circumstance whatsoever, fulfillment of any provision hereof, at the time that performance of such provision shall be due, shall exceed any such limit, then the obligation to be so fulfilled shall be reduced to such lawful limit, and if the Lender shall have received interest, or any other payment of any kind which might be deemed to be interest under applicable law in excess of the highest maximum lawful rate, then such excess amount shall be applied first to any unpaid fees and charges hereunder, then to unpaid principal balance owed by the Borrower hereunder, and if the then remaining excess interest is greater than the previously unpaid principal balance hereunder, the Lender shall promptly refund such excess amount to the Borrower and the provisions hereof shall be deemed amended to provide for such permissible rate. The terms and provisions of this Section 8 shall control to the extent that any other provision of this Note or any Loan Document is inconsistent herewith. 9. Governing Law. This Note shall be governed by and construed in accordance with the laws of England. 10. Arbitration. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. COLUMBUS NOVA INVESTMENTS VIII LTD., a Bahamas company By: /s/ Olivier Chaponnier --------------------------------- Name: Olivier Chaponnier Title: Director EX-99 9 lon400941.txt EXHIBIT 11.1 - IRREVOCABLE PROXY EXHIBIT 11.1 IRREVOCABLE PROXY AND POWER OF ATTORNEY IRREVOCABLE PROXY AND POWER OF ATTORNEY (the "Proxy and Power of Attorney"), dated as of December 1, 2004, among, Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and each of the persons whose names are set forth on the signature page hereof (each, a "Stockholder," and together with CNI, the "Parties"). Capitalized terms used herein shall have the meaning assigned to them in the Subscription Agreement (as defined below), save as otherwise provided herein or unless the context otherwise requires. WHEREAS, each Stockholder is the owner beneficially and of record of such number of shares of Common Stock, par value $.01 (the "Common Stock") of Moscow CableCom Corp. (the "Company") as indicated in Schedule A hereto (the "Covered Shares"); WHEREAS, on August 26, 2004, CNI and the Company entered into a Series B Convertible Preferred Stock Subscription Agreement (the "Subscription Agreement"), providing, among other things, for the acquisition by CNI, upon the terms and subject to the conditions thereof, of 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), having voting and other rights identical to those of the shares of Common Stock, with the exception of having a liquidation preference over the shares of Common Stock for a period of four years and being convertible into shares of Common Stock at the option of the holder thereof; WHEREAS, in order to comply with the National Association of Securities Dealers, Inc. Marketplace Rule 4351, the Company and CNI intend to enter into an amendment to the Subscription Agreement (the "Amendment"), as a result of which the voting rights of the Series B Preferred Stock may be less than the voting rights of the shares of Common Stock; and WHEREAS, as an inducement for CNI to enter into the Amendment, the Parties have agreed to enter into this Proxy and Power of Attorney; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the Parties agree as follows: 1. Each Stockholder hereby irrevocably constitutes, appoints, authorizes and empowers CNI, during the term of this Proxy and Power of Attorney, as its sole and exclusive true and lawful proxy and attorney-in-fact, with full power of substitution, to vote and exercise all voting and related rights with respect to all of the Covered Shares (and any and all securities issued or issuable in respect thereof), for and in the name, place and stead of such Stockholder, at CNI's sole discretion, at any annual, special or other meeting of the stockholders of the Company, and at any adjournment or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise, with respect to any matter that may be submitted for a vote of stockholders of the Company. All power and authority hereby conferred is coupled with an interest and is irrevocable. In the event that CNI is unable to exercise such power and authority for any reason, each Stockholder agrees that it will vote all the Covered Shares owned by it in accordance with CNI's written instructions, at any such meeting or adjournment thereof. 2. Restrictions on Transfer of Covered Shares. (a) During the period beginning on the Closing Date under the Subscription Agreement and ending on the first anniversary of the Closing Date, each Stockholder hereby covenants and agrees that it will not, and will not agree to, directly or indirectly, sell, transfer, assign, pledge, hypothecate, cause to be redeemed or otherwise dispose of any of the Covered Shares or grant any proxy or interest in or with respect to the Covered Shares ("Transfer") or deposit any Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to such Covered Shares to any Person, unless (i) such Person agrees to assume the obligations hereunder of the transferring Stockholder with respect to such Covered Shares so Transferred, (ii) such Person executes a written instrument acknowledging that such Person agrees to be bound by the terms of this Proxy and Power of Attorney and (iii) the transferring Stockholder provides prompt notice to CNI of such Transfer. (b) During the Period beginning on the first anniversary of the Closing Date under the Subscription Agreement and ending upon the termination of this Proxy and Power of Attorney pursuant to Section 10 hereof, each Stockholder hereby covenants and agrees that it will not, and will not agree to, directly or indirectly, Transfer or deposit any Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to such Covered Shares so Transferred, unless such Stockholder complies with the procedures set forth in clauses (i) through (iv) of this Subsection 2(b): (i) If a Stockholder (the "Proposing Stockholder") proposes to Transfer (a "Proposed Transfer") any of its Covered Shares (the "Offered Shares"), the Proposing Stockholder shall submit a written notice (an "Offer Notice") to CNI 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 an Offer Notice, CNI shall have the right, but not the obligation, for a period of three (3) Business Days following receipt of such Offer Notice (the "Option Period"), to elect to purchase the Offered Shares on the same terms and conditions as are set forth in the Offer Notice. (iii) In the event that CNI exercises its right to purchase all but not less than all of the Offered Shares in accordance with clause (ii) above, then the Proposing Stockholder must sell the Offered Shares to CNI and CNI must purchase such Offered Securities from the Stockholder on the same terms and conditions as are set forth in the Offer Notice, but not prior to three (3) Business Days after CNI gives the Proposing Stockholder notice of its election to purchase the Offered Shares. (iv) Upon the earlier to occur of (i) rejection of the Offered Shares by CNI and (ii) the expiration of the Option Period without CNI electing to purchase all of the Offered Shares following the proper delivery of the Offer Notice, the Proposing Stockholder shall have a sixty (60) day period during which to effect a Transfer of any or all of the Offered Shares, on substantially the same or more favorable (as to the Proposing Stockholder) terms and conditions as were set forth in the Offer Notice at a price not less than ninety percent (90%) of the Offer Price. If the Proposing Stockholder does not consummate the Transfer of the Offered Shares in accordance with the foregoing time limitations, then the right of the Proposing Stockholder to effect such Transfer pursuant to this clause (iv) shall terminate and the Proposing Holder shall be required to comply with the procedures set forth in clauses (i) through (iv) of this Subsection 2(b) with respect to any proposed Transfer of Covered Shares. 3. Each Stockholder represents and warrants to CNI that, as of the date hereof such Stockholder (i) owns all of the Covered Shares beneficially and of record, (ii) owns all of the Covered Shares free and clear of all liens, charges, claims, encumbrances and security interests of any nature whatsoever; and except as provided herein, and (iii) has not granted any proxy to any Person (other than CNI) with respect to any Covered Shares or deposited such Covered Shares into a voting trust. 4. Any securities of the Company to be issued or issuable to the Stockholder in respect of Covered Shares during the term of this Proxy and Power of Attorney shall be deemed Covered Shares for purposes of this Proxy and Power of Attorney. 5. In the event that, as of the Closing Date, the aggregate number of votes to which: (i) the 4,500,000 shares of Series B Preferred Stock acquired by CNI pursuant to the Subscription Agreement are entitled, (ii) the total number of Covered Shares that are subject to this Proxy and Power of Attorney are entitled and (iii) the total number of shares of Common Stock covered by any proxies to be entered into in satisfaction of Section 6.03(h) of the Subscription Agreement (the "Additional Proxies") are entitled, shall exceed the number of votes to which 4,500,000 shares of Common Stock shall be entitled as of the Closing Date, the aggregate number of Covered Shares that are subject to this Proxy and Power of Attorney and the shares of Common Stock covered by any Additional Proxies shall be reduced by the number of shares of Common Stock equal to such excess number of votes, and such reduction in the number of Covered Shares (and such other shares of Common Stock subject to the Additional Proxies) shall be allocated pro rata among the Stockholders (and any stockholders that are parties to the Additional Proxies) on the basis of each such stockholder's number of shares of Common Stock that are subject to this Proxy and Power of Attorney or the Additional Proxies, as the case may be. 6. In the event that CNI converts any of its the shares of Series B Preferred Stock into shares of Common Stock, the aggregate number of Covered Shares that are subject to this Proxy and Power of Attorney (and the shares of Common Stock covered by any Additional Proxies) shall be reduced by such number of shares of Common Stock having voting power equal to the additional voting power acquired by CNI solely as a result of such conversion and such reduction in the number of Covered Shares (and such other shares of Common Stock subject to the Additional Proxies) shall be allocated pro rata among the Stockholders (and any stockholders that are parties to the Additional Proxies) on the basis of each such stockholder's number of shares of Common Stock that are subject to this Proxy and Power of Attorney or the Additional Proxies, as the case may be ("Total Covered Shares"); provided, however, that the number of Total Covered Shares shall be reduced pursuant to this Section 6 only if, and to the extent that, the total number of: (i) the votes to which the Total Covered Shares (without giving effect to such reduction pursuant to this Section 6) are entitled, (ii) the votes to which the 4,500,000 shares of Series B Preferred Stock acquired by CNI pursuant to the Subscription Agreement are entitled when voting as one class with the Common Stock and (iii) the additional votes acquired by CNI solely as a result of the conversion, shall exceed the number of votes to which 4,500,000 shares of Common Stock are entitled at the time of the conversion. 7. This Proxy and Power of Attorney 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. 8. This Proxy and Power of Attorney shall be binding upon, inure to the benefit of, and be enforceable by the successors and permitted assigns of the Parties hereto. 9. This Proxy and Power of Attorney is subject to the following conditions precedent: (i) the Closing under the Subscription Agreement having occurred on or prior to March 31, 2005, or such later date as the Company and CNI may determine; and (ii) as of the Closing Date, the shares of Series B Preferred Stock having less than one (1) vote per share. 10. This Proxy and Power of Attorney shall terminate and have no further force or effect upon the earlier to occur of: (a) four years from the Closing Date, (b) CNI having converted all but not less than all of its shares of Series B Preferred Stock into shares of Common Stock, (c) such time as CNI's ownership of the issued and outstanding capital stock of the Company (calculated on an as converted basis) falls below ten percent (10%) and (d) in the event that the weighted average closing price for 20 consecutive trading days on the Nasdaq National Market Systems (or such other principal national securities exchange on which the shares of Common Stock are then listed or admitted to trading) of one share of Common Stock exceeds US$15.00. 11. Each Stockholder agrees and represents that this Proxy and Power of Attorney is coupled with an interest sufficient in law to support an irrevocable power and shall not be terminated by any act of such Stockholder, by lack of appropriate power or authority or by the occurrence of any other event or events. 12. The Parties acknowledge and agree that performance of their respective obligations hereunder will confer a unique benefit on the other and that a failure of performance will not be compensable by money damages. The Parties therefore agree that this Proxy and Power of Attorney shall be specifically enforceable and that specific enforcement and injunctive relief shall be available to CNI for any breach of any agreement, covenant or representation hereunder. This Proxy and Power of Attorney shall revoke all prior proxies given by the Stockholder at any time with respect to the Covered Shares. 13. Each Stockholder will, upon request, execute and deliver any additional documents and take such actions as may reasonably be deemed by CNI to be necessary or desirable to complete the Proxy and Power of Attorney granted herein or to carry out the provisions hereof. 14. If any term, provision, covenant, or restriction of this Proxy and Power of Attorney is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Proxy and Power of Attorney shall remain in full force and effect and shall not in any way be affected, impaired or invalidated. 15. 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. New York time) 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. New York time) 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 Stockholder, to the address are set forth next to such Stockholder's name on the signature page hereof. 16. This Proxy and Power of Attorney may be executed in any number of counterparts, each of which shall be deemed to be an original but both of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have caused this Proxy and Power of Attorney to be duly executed on the date first above written. COLUMBUS NOVA INVESTMENTS VIII LTD. By:________________________ Name: Title: OLIVER R. GRACE, JR. By:________________________ Name: Title: Address: THE ANGLO AMERICAN SECURITY FUND, L.P. By:________________________ Name: Title: Address: FRANCIS E. BAKER By:________________________ Name: Title: Address: Schedule A - Covered Shares |------------------------------------------|--------------------------------| | Name of Stockholder | Number of Covered Shares | |------------------------------------------|--------------------------------| |------------------------------------------|--------------------------------| | Oliver R. Grace, Jr. | 150,000 | |------------------------------------------|--------------------------------| |------------------------------------------|--------------------------------| | The Anglo American Security Fund, L.P. | 25,000 | |------------------------------------------|--------------------------------| |------------------------------------------|--------------------------------| | Francis E. Baker | 25,000 | |------------------------------------------|--------------------------------| EX-99 10 lon400239.txt EXHIBIT 11.2 - IRREVOCABLE PROXY EXHIBIT 11.2 IRREVOCABLE PROXY AND POWER OF ATTORNEY IRREVOCABLE PROXY AND POWER OF ATTORNEY (the "Proxy and Power of Attorney"), dated as of December 1, 2004, among, Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the person whose name is set forth on the signature page hereof (the "Stockholder," and together with CNI, the "Parties"). Capitalized terms used herein shall have the meaning assigned to them in the Subscription Agreement (as defined below), save as otherwise provided herein or unless the context otherwise requires. WHEREAS, the Stockholder is the owner beneficially and of record of such number of shares of Common Stock, par value $.01 (the "Common Stock") of Moscow CableCom Corp. (the "Company") as indicated in Schedule A hereto (the "Covered Shares"); WHEREAS, on August 26, 2004, CNI and the Company entered into a Series B Convertible Preferred Stock Subscription Agreement (the "Subscription Agreement"), providing, among other things, for the acquisition by CNI, upon the terms and subject to the conditions thereof, of 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), having voting and other rights identical to those of the shares of Common Stock, with the exception of having a liquidation preference over the shares of Common Stock for a period of four years and being convertible into shares of Common Stock at the option of the holder thereof; WHEREAS, in order to comply with the National Association of Securities Dealers, Inc. Marketplace Rule 4351, the Company and CNI intend to enter into an amendment to the Subscription Agreement (the "Amendment"), as a result of which the voting rights of the Series B Preferred Stock may be less than the voting rights of the shares of Common Stock; WHEREAS, in order to address the reduction in CNI's voting power resulting from the application of Marketplace Rule 4351 and the Amendment, on or about December 1, 2004, CNI entered into an Irrevocable Proxy and Power of Attorney with Oliver Grace, Jr., The Anglo American Security Fund, L.P. and Francis E. Baker, with respect to an aggregate of 200,000 shares of Common Stock (the "Existing Proxies"); WHEREAS, pursuant to Section 6.03(h) of the Subscription Agreement, as amended, the receipt by CNI of irrevocable proxies (in addition to the Existing Proxies) is a condition precedent to CNI's obligations under the Subscription Agreement; and WHEREAS, in partial satisfaction of Section 6.03(h) of the Subscription Agreement, the Parties have agreed to enter into this Proxy and Power of Attorney; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the Parties agree as follows: 1. The Stockholder hereby irrevocably constitutes, appoints, authorizes and empowers CNI, during the term of this Proxy and Power of Attorney, as its sole and exclusive true and lawful proxy and attorney-in-fact, with full power of substitution, to vote and exercise all voting and related rights with respect to all of the Covered Shares (and any and all securities issued or issuable in respect thereof), for and in the name, place and stead of the Stockholder, at CNI's sole discretion, at any annual, special or other meeting of the stockholders of the Company, and at any adjournment or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise, with respect to any matter that may be submitted for a vote of stockholders of the Company. All power and authority hereby conferred is coupled with an interest and is irrevocable. In the event that CNI is unable to exercise such power and authority for any reason, the Stockholder agrees that it will vote all the Covered Shares owned by it in accordance with CNI's written instructions, at any such meeting or adjournment thereof. 2. During the term of this Proxy and Power of Attorney, the Stockholder hereby covenants and agrees that, subject to the following proviso, it will not, and will not agree to, directly or indirectly, sell, transfer, assign, cause to be redeemed or otherwise dispose of any of the Covered Shares or grant any proxy or interest in or with respect to the Covered Shares ("Transfer") or deposit any Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to such Covered Shares so Transferred, unless the Stockholder complies with the procedures set forth in Subsections (a) through (d) of this Section 2 provided however, the Stockholder shall have the right to pledge and/or hypothecate the Covered Shares while this Proxy is in effect or to otherwise use the Covered Shares as collateral to secure obligations and such pledge or hypothecation shall not be considered to be a "Transfer," and in the event that such shares are, in fact, pledged or hypothecated by the Stockholder, then in that event, if the person to whom such shares are pledged or hypothecated (the "Pledgee") is required, due to a default by the Stockholder, to effectuate its rights pursuant tot such pledge or such hypothecation, the Pledgee shall be able to sell or otherwise dispose of the Covered Shares free and clear of the obligations of this Proxy pursuant to the terms and subject to the conditions of the pledge agreement or hypothecation agreement that was executed by the Stockholder in favor of the Pledgee: (a) If the Stockholder proposes to Transfer (a "Proposed Transfer") any of its Covered Shares (the "Offered Shares"), the Stockholder shall submit a written notice (an "Offer Notice") to CNI describing the material terms and conditions of the Proposed Transfer in reasonable detail, including, without limitation, the proposed purchase price (the "Offer Price"). (b) Upon receipt of an Offer Notice, CNI shall have the right, but not the obligation, for a period of three (3) Business Days following receipt of such Offer Notice (the "Option Period"), to elect to purchase the Offered Shares on the same terms and conditions as are set forth in the Offer Notice. (c) In the event that CNI exercises its right to purchase all but not less than all of the Offered Shares in accordance with Subsection (b) above, then the Stockholder must sell the Offered Shares to CNI and CNI must purchase such Offered Securities from the Stockholder on the same terms and conditions as are set forth in the Offer Notice, but not prior to three (3) Business Days after CNI gives the Stockholder notice of its election to purchase the Offered Shares. (d) Upon the earlier to occur of (i) rejection of the Offered Shares by CNI and (ii) the expiration of the Option Period without CNI electing to purchase all of the Offered Shares following the proper delivery of the Offer Notice, the Stockholder shall have a sixty (60) day period during which to effect a Transfer of any or all of the Offered Shares, on substantially the same or more favorable (as to the Stockholder) terms and conditions as were set forth in the Offer Notice at a price not less than ninety five percent (95%) of the Offer Price. If the Stockholder does not consummate the Transfer of the Offered Shares in accordance with the foregoing time limitations, then the right of the Stockholder to effect such Transfer pursuant to this Subsection (d) shall terminate and the Stockholder shall be required to comply with the procedures set forth in Subsections (a) through (d) of this Section 2 with respect to any proposed Transfer of Covered Shares. 3. The Stockholder represents and warrants to CNI that, as of the date hereof, the Stockholder (i) owns all of the Covered Shares beneficially and of record, (ii) owns all of the Covered Shares free and clear of all liens, charges, claims, encumbrances and security interests of any nature whatsoever; and except as provided herein, and (iii) has not granted any proxy to any Person (other than CNI) with respect to any Covered Shares or deposited such Covered Shares into a voting trust. 4. Any securities of the Company to be issued or issuable to the Stockholder in respect of Covered Shares during the term of this Proxy and Power of Attorney shall be deemed Covered Shares for purposes of this Proxy and Power of Attorney. 5. In the event that, as of the Closing Date, the aggregate number of votes to which: (i) the 4,500,000 shares of Series B Preferred Stock acquired by CNI pursuant to the Subscription Agreement are entitled, (ii) the number of Covered Shares that are subject to this Proxy and Power of Attorney are entitled, (iii) the total number of shares of Common Stock subject to Existing Proxies are entitled and (iv) the total number of shares of Common Stock subject to any proxies (other than this Proxy and Power of Attorney) entered into in satisfaction of Section 6.03(h) of the Subscription Agreement ("Additional Proxies") are entitled, shall exceed the number of votes to which 4,500,000 shares of Common Stock shall be entitled as of the Closing Date, the aggregate number of: (i) Covered Shares that are subject to this Proxy and Power of Attorney, (ii) shares of Common Stock subject to Existing Proxies, and (iii) shares of Common Stock subject to Additional Proxies, shall be reduced by the number of shares of Common Stock equal to such excess number of votes, and such reduction in the number of Covered Shares (and such other shares of Common Stock subject to Existing Proxies and Additional Proxies) shall be allocated pro rata among the Stockholder, the stockholders that are parties to Existing Proxies and the stockholders that are parties to Additional Proxies on the basis of each such stockholder's number of shares of Common Stock that are subject to this Proxy and Power of Attorney, Existing Proxies or Additional Proxies, as the case may be. 6. In the event that CNI converts any of its the shares of Series B Preferred Stock into shares of Common Stock, the aggregate number of: (i) Covered Shares that are subject to this Proxy and Power of Attorney, (ii) shares of Common Stock subject to Existing Proxies and (iii) shares of Common Stock subject to Additional Proxies, shall be reduced by such number of shares of Common Stock having voting power equal to the additional voting power acquired by CNI solely as a result of such conversion and such reduction in the number of Covered Shares (and such other shares of Common Stock subject to Existing Proxies and Additional Proxies) shall be allocated pro rata among the Stockholder, the stockholders that are parties to Existing Proxies and the stockholders that are parties to Additional Proxies on the basis of each such stockholder's number of shares of Common Stock that are subject to this Proxy and Power of Attorney, Existing Proxies, or Additional Proxies, as the case may be ("Total Covered Shares"); provided, however, that the number of Total Covered Shares shall be reduced pursuant to this Section 6 only if, and to the extent that, the total number of: (i) the votes to which the Total Covered Shares (without giving effect to such reduction pursuant to this Section 6) are entitled, (ii) the votes to which the 4,500,000 shares of Series B Preferred Stock acquired by CNI pursuant to the Subscription Agreement are entitled when voting as one class with the Common Stock and (iii) the additional votes acquired by CNI solely as a result of the conversion, shall exceed the number of votes to which 4,500,000 shares of Common Stock are entitled at the time of the conversion. 7. This Proxy and Power of Attorney 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. 8. This Proxy and Power of Attorney shall be binding upon, inure to the benefit of, and be enforceable by the successors and permitted assigns of the Parties hereto. 9. This Proxy and Power of Attorney is subject to the following conditions precedent: (i) the Closing under the Subscription Agreement having occurred on or prior to March 31, 2005, or such later date as the Company and CNI may determine; and (ii) as of the Closing Date, the shares of Series B Preferred Stock having less than one (1) vote per share. 10. This Proxy and Power of Attorney shall terminate and have no further force or effect upon the earlier to occur of: (a) four years from the Closing Date, (b) CNI having converted all but not less than all of its shares of Series B Preferred Stock into shares of Common Stock, (c) such time as CNI's ownership of the issued and outstanding capital stock of the Company (calculated on an as converted basis) falls below ten percent (10%) and (d) in the event that the weighted average closing price for 20 consecutive trading days on the Nasdaq National Market Systems (or such other principal national securities exchange on which the shares of Common Stock are then listed or admitted to trading) of one share of Common Stock exceeds US$15.00. 11. The Stockholder agrees and represents that this Proxy and Power of Attorney is coupled with an interest sufficient in law to support an irrevocable power and shall not be terminated by any act of the Stockholder, by lack of appropriate power or authority or by the occurrence of any other event or events. 12. The Parties acknowledge and agree that performance of their respective obligations hereunder will confer a unique benefit on the other and that a failure of performance will not be compensable by money damages. The Parties therefore agree that this Proxy and Power of Attorney shall be specifically enforceable and that specific enforcement and injunctive relief shall be available to CNI for any breach of any agreement, covenant or representation hereunder. This Proxy and Power of Attorney shall revoke all prior proxies given by the Stockholder at any time with respect to the Covered Shares. 13. The Stockholder will, upon request, execute and deliver any additional documents and take such actions as may reasonably be deemed by CNI to be necessary or desirable to complete the Proxy and Power of Attorney granted herein or to carry out the provisions hereof. 14. If any term, provision, covenant, or restriction of this Proxy and Power of Attorney is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Proxy and Power of Attorney shall remain in full force and effect and shall not in any way be affected, impaired or invalidated. 15. 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. New York time) 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. New York time) 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 the Stockholder, to the address are set forth next to the Stockholder's name on the signature page hereof. 16. This Proxy and Power of Attorney may be executed in any number of counterparts, each of which shall be deemed to be an original but both of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have caused this Proxy and Power of Attorney to be duly executed on the date first above written. COLUMBUS NOVA INVESTMENTS VIII LTD. By: ---------------------------------- Name: Title: STOCKHOLDER Field Nominees Limited By: ----------------------------------- Name: Graham M. Jack, CFA Title: Vice President and Deputy Managing Director, Butterfield Trust (Bermuda) Limited Address: 65 Front Street, Hamilton, Bermuda Schedule A - Covered Shares ------------------------------------------------------------------------------- Name of Stockholder Number of Covered Shares ------------------------------------------------------------------------------- Field Nominees Limited 276,500 ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- EX-99 11 lon400236.txt EXHIBIT 11.3 - FORM OF IRREVOCABLE PROXY EXHIBIT 11.3 FORM OF IRREVOCABLE PROXY AND POWER OF ATTORNEY IRREVOCABLE PROXY AND POWER OF ATTORNEY (the "Proxy and Power of Attorney"), dated as of December , 2004, between, Columbus Nova Investments VIII Ltd., a Bahamas company ("CNI"), and the person whose name is set forth on the signature page hereof (the "Stockholder," and together with CNI, the "Parties"). Capitalized terms used herein shall have the meaning assigned to them in the Subscription Agreement (as defined below), save as otherwise provided herein or unless the context otherwise requires. WHEREAS, the Stockholder is the owner beneficially and of record of such number of shares of Common Stock, par value $.01 (the "Common Stock") of Moscow CableCom Corp. (the "Company") as indicated in Schedule A hereto (the "Covered Shares"); WHEREAS, on August 26, 2004, CNI and the Company entered into a Series B Convertible Preferred Stock Subscription Agreement (the "Subscription Agreement"), providing, among other things, for the acquisition by CNI, upon the terms and subject to the conditions thereof, of 4,500,000 shares of Series B Convertible Preferred Stock of the Company, par value $.01 per share (the "Series B Preferred Stock"), having voting and other rights identical to those of the shares of Common Stock, with the exception of having a liquidation preference over the shares of Common Stock for a period of four years and being convertible into shares of Common Stock at the option of the holder thereof; WHEREAS, in order to comply with the National Association of Securities Dealers, Inc. Marketplace Rule 4351, the Company and CNI intend to enter into an amendment to the Subscription Agreement (the "Amendment"), as a result of which the voting rights of the Series B Preferred Stock may be less than the voting rights of the shares of Common Stock; WHEREAS, in order to address the reduction in CNI's voting power resulting from the application of Marketplace Rule 4351 and the Amendment, on or about December 1, 2004, CNI entered into an Irrevocable Proxy and Power of Attorney with Oliver Grace, Jr., The Anglo American Security Fund, L.P. and Francis E. Baker, with respect to an aggregate of 200,000 shares of Common Stock (the "Existing Proxies"); WHEREAS, pursuant to Section 6.03(h) of the Subscription Agreement, as amended, the receipt by CNI of irrevocable proxies (in addition to the Existing Proxies) is a condition precedent to CNI's obligations under the Subscription Agreement; and WHEREAS, in partial satisfaction of Section 6.03(h) of the Subscription Agreement, the Parties have agreed to enter into this Proxy and Power of Attorney; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the Parties agree as follows: 1. The Stockholder hereby irrevocably constitutes, appoints, authorizes and empowers CNI, during the term of this Proxy and Power of Attorney, as its sole and exclusive true and lawful proxy and attorney-in-fact, with full power of substitution, to vote and exercise all voting and related rights with respect to all of the Covered Shares (and any and all securities issued or issuable in respect thereof), for and in the name, place and stead of the Stockholder, at CNI's sole discretion, at any annual, special or other meeting of the stockholders of the Company, and at any adjournment or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise, with respect to any matter that may be submitted for a vote of stockholders of the Company. All power and authority hereby conferred is coupled with an interest and is irrevocable. In the event that CNI is unable to exercise such power and authority for any reason, the Stockholder agrees that it will vote all the Covered Shares owned by it in accordance with CNI's written instructions, at any such meeting or adjournment thereof. 2. During the term of this Proxy and Power of Attorney, the Stockholder hereby covenants and agrees that it will not, and will not agree to, directly or indirectly, sell, transfer, assign, pledge, hypothecate, cause to be redeemed or otherwise dispose of any of the Covered Shares or grant any proxy or interest in or with respect to the Covered Shares ("Transfer") or deposit any Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to such Covered Shares so Transferred, unless the Stockholder complies with the procedures set forth in Subsections (a) through (d) of this Section 2: (a) If the Stockholder proposes to Transfer (a "Proposed Transfer") any of its Covered Shares (the "Offered Shares"), the Stockholder shall submit a written notice (an "Offer Notice") to CNI describing the material terms and conditions of the Proposed Transfer in reasonable detail, including, without limitation, the proposed purchase price (the "Offer Price"). (b) Upon receipt of an Offer Notice, CNI shall have the right, but not the obligation, for a period of three (3) Business Days following receipt of such Offer Notice (the "Option Period"), to elect to purchase the Offered Shares on the same terms and conditions as are set forth in the Offer Notice. (c) In the event that CNI exercises its right to purchase all but not less than all of the Offered Shares in accordance with Subsection (b) above, then the Stockholder must sell the Offered Shares to CNI and CNI must purchase such Offered Securities from the Stockholder on the same terms and conditions as are set forth in the Offer Notice, but not prior to three (3) Business Days after CNI gives the Stockholder notice of its election to purchase the Offered Shares. (d) Upon the earlier to occur of (i) rejection of the Offered Shares by CNI and (ii) the expiration of the Option Period without CNI electing to purchase all of the Offered Shares following the proper delivery of the Offer Notice, the Stockholder shall have a sixty (60) day period during which to effect a Transfer of any or all of the Offered Shares, on substantially the same or more favorable (as to the Stockholder) terms and conditions as were set forth in the Offer Notice at a price not less than ninety five percent (95%) of the Offer Price. If the Stockholder does not consummate the Transfer of the Offered Shares in accordance with the foregoing time limitations, then the right of the Stockholder to effect such Transfer pursuant to this Subsection (d) shall terminate and the Stockholder shall be required to comply with the procedures set forth in Subsections (a) through (d) of this Section 2 with respect to any proposed Transfer of Covered Shares. 3. The Stockholder represents and warrants to CNI that, as of the date hereof, the Stockholder (i) owns all of the Covered Shares beneficially and of record, (ii) owns all of the Covered Shares free and clear of all liens, charges, claims, encumbrances and security interests of any nature whatsoever; and except as provided herein, and (iii) has not granted any proxy to any Person (other than CNI) with respect to any Covered Shares or deposited such Covered Shares into a voting trust. 4. Any securities of the Company to be issued or issuable to the Stockholder in respect of Covered Shares during the term of this Proxy and Power of Attorney shall be deemed Covered Shares for purposes of this Proxy and Power of Attorney. 5. In the event that, as of the Closing Date, the aggregate number of votes to which: (i) the 4,500,000 shares of Series B Preferred Stock acquired by CNI pursuant to the Subscription Agreement are entitled, (ii) the number of Covered Shares that are subject to this Proxy and Power of Attorney are entitled, (iii) the total number of shares of Common Stock subject to Existing Proxies are entitled and (iv) the total number of shares of Common Stock subject to any proxies (other than this Proxy and Power of Attorney) entered into in satisfaction of Section 6.03(h) of the Subscription Agreement ("Additional Proxies") are entitled, shall exceed the number of votes to which 4,500,000 shares of Common Stock shall be entitled as of the Closing Date, the aggregate number of: (i) Covered Shares that are subject to this Proxy and Power of Attorney, (ii) shares of Common Stock subject to Existing Proxies, and (iii) shares of Common Stock subject to Additional Proxies, shall be reduced by the number of shares of Common Stock equal to such excess number of votes, and such reduction in the number of Covered Shares (and such other shares of Common Stock subject to Existing Proxies and Additional Proxies) shall be allocated pro rata among the Stockholder, the stockholders that are parties to Existing Proxies and the stockholders that are parties to Additional Proxies on the basis of each such stockholder's number of shares of Common Stock that are subject to this Proxy and Power of Attorney, Existing Proxies or Additional Proxies, as the case may be. 6. In the event that CNI converts any of its the shares of Series B Preferred Stock into shares of Common Stock, the aggregate number of: (i) Covered Shares that are subject to this Proxy and Power of Attorney, (ii) shares of Common Stock subject to Existing Proxies and (iii) shares of Common Stock subject to Additional Proxies, shall be reduced by such number of shares of Common Stock having voting power equal to the additional voting power acquired by CNI solely as a result of such conversion and such reduction in the number of Covered Shares (and such other shares of Common Stock subject to Existing Proxies and Additional Proxies) shall be allocated pro rata among the Stockholder, the stockholders that are parties to Existing Proxies and the stockholders that are parties to Additional Proxies on the basis of each such stockholder's number of shares of Common Stock that are subject to this Proxy and Power of Attorney, Existing Proxies, or Additional Proxies, as the case may be ("Total Covered Shares"); provided, however, that the number of Total Covered Shares shall be reduced pursuant to this Section 6 only if, and to the extent that, the total number of: (i) the votes to which the Total Covered Shares (without giving effect to such reduction pursuant to this Section 6) are entitled, (ii) the votes to which the 4,500,000 shares of Series B Preferred Stock acquired by CNI pursuant to the Subscription Agreement are entitled when voting as one class with the Common Stock and (iii) the additional votes acquired by CNI solely as a result of the conversion, shall exceed the number of votes to which 4,500,000 shares of Common Stock are entitled at the time of the conversion. 7. This Proxy and Power of Attorney 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. 8. This Proxy and Power of Attorney shall be binding upon, inure to the benefit of, and be enforceable by the successors and permitted assigns of the Parties hereto. 9. This Proxy and Power of Attorney is subject to the following conditions precedent: (i) the Closing under the Subscription Agreement having occurred on or prior to March 31, 2005, or such later date as the Company and CNI may determine; and (ii) as of the Closing Date, the shares of Series B Preferred Stock having less than one (1) vote per share. 10. This Proxy and Power of Attorney shall terminate and have no further force or effect upon the earlier to occur of: (a) four years from the Closing Date, (b) CNI having converted all but not less than all of its shares of Series B Preferred Stock into shares of Common Stock, (c) such time as CNI's ownership of the issued and outstanding capital stock of the Company (calculated on an as converted basis) falls below ten percent (10%) and (d) in the event that the weighted average closing price for 20 consecutive trading days on the Nasdaq National Market Systems (or such other principal national securities exchange on which the shares of Common Stock are then listed or admitted to trading) of one share of Common Stock exceeds US$15.00. 11. The Stockholder agrees and represents that this Proxy and Power of Attorney is coupled with an interest sufficient in law to support an irrevocable power and shall not be terminated by any act of the Stockholder, by lack of appropriate power or authority or by the occurrence of any other event or events. 12. The Parties acknowledge and agree that performance of their respective obligations hereunder will confer a unique benefit on the other and that a failure of performance will not be compensable by money damages. The Parties therefore agree that this Proxy and Power of Attorney shall be specifically enforceable and that specific enforcement and injunctive relief shall be available to CNI for any breach of any agreement, covenant or representation hereunder. This Proxy and Power of Attorney shall revoke all prior proxies given by the Stockholder at any time with respect to the Covered Shares. 13. The Stockholder will, upon request, execute and deliver any additional documents and take such actions as may reasonably be deemed by CNI to be necessary or desirable to complete the Proxy and Power of Attorney granted herein or to carry out the provisions hereof. 14. If any term, provision, covenant, or restriction of this Proxy and Power of Attorney is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Proxy and Power of Attorney shall remain in full force and effect and shall not in any way be affected, impaired or invalidated. 15. 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. New York time) 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. New York time) 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 the Stockholder, to the address are set forth next to the Stockholder's name on the signature page hereof. 16. This Proxy and Power of Attorney may be executed in any number of counterparts, each of which shall be deemed to be an original but both of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have caused this Proxy and Power of Attorney to be duly executed on the date first above written. COLUMBUS NOVA INVESTMENTS VIII LTD. By:________________________ Name: Title: STOCKHOLDER By:________________________ Name: Title: Address: Annex A List of Stockholders Parties to Irrevocable Proxy Arrangements executed pursuant to this Form |-------------------------------------------|---------------------------------| |Name of Stockholder |No. of Covered Shares | |-------------------------------------------|---------------------------------| |1. Lorraine QTIP Trust |101,596 | |-------------------------------------------|---------------------------------| |2. Lorraine Appointed Trust |57,807 | |-------------------------------------------|---------------------------------| |3. Andrew M. O'Shea |22,500 | |-------------------------------------------|---------------------------------| |4. Francis E. Baker |25,000 | |-------------------------------------------|---------------------------------| |5. Peter Ney Bennett |16,250 | |-------------------------------------------|---------------------------------| |6. Tom McPartland |50,000 | |-------------------------------------------|---------------------------------| |7. Arthur C. Merrill, Jr. |20,000 | |-------------------------------------------|---------------------------------| |8. Hillside capital Incorporated |75,000 | |-------------------------------------------|---------------------------------| |9. Hildegarde E. Mahoney |15,000 | |-------------------------------------------|---------------------------------| |10. Drake Associates, L.P. |89,250 | |-------------------------------------------|---------------------------------| |11. Diversified Long Term Growth |31,500 | | Fund, L.P. | | |-------------------------------------------|---------------------------------| |12. The Anglo American Security |20,000 | | Fund | | |-------------------------------------------|---------------------------------|