CUSIP NO. 61945R 100
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act
of 1934
(Amendment No. 2)*
|
Moscow CableCom Corp.
|
|
(Name of Issuer) |
|
Common Stock, par value $.01 |
|
(Title of Class of Securities) |
| 61945R 100 |
|
(CUSIP Number) |
|
Thomas A. Klee, Esq. |
|
55 Bath Crescent Lane |
|
Bloomfield, CT 06002-2156 |
| (860) 242-0004 |
|
(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 §§240.13d-1(e), 230.13d-1(f) or 240.13d-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 §240.13d-7(b) 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 purposes of Section 18 of the Securities Exchange Act of 1934 ("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. 61945R 100
(1) Name of Reporting Persons.
I.R.S.
Identification Nos. of above persons (entities only).
Francis E.
Baker
______________________________________________________________________________
(2) Check the Appropriate Box if a Member of
a Group (See Instructions)
(a) [ ]
(b) [ ]
______________________________________________________________________________
(3) SEC
Use Only
______________________________________________________________________________
(4) Source
of Funds (See Instructions): Not Applicable
______________________________________________________________________________
(5) Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e)
______________________________________________________________________________
(6) Citizenship or
Place of Organization:
Citizen of
United States of America
______________________________________________________________________________
Number of Shares (7) Sole Voting Power:_____________________________107,036
Beneficially Owned (8) Shared
Voting Power:________________________________0
By Each Reporting (9) Sole
Dispositive Power:_________________________135,662
Person With (10) Shared Dispositive Power:____________________________0
______________________________________________________________________________
(11)
Aggregate Amount
Beneficially Owned by Each Reporting Person:
135,662 Shares
______________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11)
Excludes
Certain Shares (See
Instructions):
______________________________________________________________________________
(13)
Percent of Class
Represented by Amount in Row (11): 1.5% (1)
______________________________________________________________________________
(14) Type
of Reporting Person (See Instructions):
IN
Note (1). This figure does not reflect the 4,500,000 shares of Series B Convertible Preferred Stock that are outstanding, are convertible into Common Stock on a one-for-one basis and vote together with the Common Stock on all matters at the rate of 0.81833 votes per share.
CUSIP NO. 61945R 100
This Amendment No.2 to Schedule 13D (this "Amendment No. 2") amends the Schedule 13D filed by Francis E. Baker on March 4, 2004 (the "Schedule 13D"), as amended October 14, 2004 ("Amendment No. 1").
Item 1. Security and Issuer.
This Statement relates to the common stock, par value $.01 per share (the "Common Stock") of Moscow CableCom Corp. (formerly Andersen Group, Inc.), a Delaware corporation (the "Issuer"), whose principal executive offices are located at 405 Park Avenue, Suite 1203, New York, NY 10022.
Item 2. Identity and Background.
This Statement is being filed by Francis E. Baker.
(a)
Name: Francis E. Baker ("Baker").
(b)
Business
Address: 5 Waterside Crossing, Windsor
CT, 06095.
(c)
Present Principal
Occupation: Retired, former Secretary and director of the Issuer.
(d)
During the past
five years, Mr. Baker not been convicted in any criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) During the past five years, Mr. Baker has not been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction, as a result of which Mr. Baker was or is subject to any 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.
(f) Citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
This Amendment No. 2 to Schedule 13D does not report the acquisition of any securities of the Issuer.
Item 4. Purpose of Transaction.
Not applicable.
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Item 5. Interest in Securities of the Issuer.
(a) Aggregate number and percentage of Common Stock beneficially owned as of the date hereof:
Mr. Baker beneficially owns in the aggregate 147,912 shares of Common Stock, or approximately 1.5% of the outstanding shares of Common Stock.
Note. This percentage figure does not reflect the 4,500,000 shares of Series B Convertible Preferred Stock that are outstanding, are convertible into Common Stock on a one-for-one basis and vote together with the Common Stock on all matters at the rate of 0.81833 votes per share.
(b) Sole voting power and sole dispositive power held by Mr. Baker is as follows:.
|
Sole Power to Vote or Direct the Vote(1)(2) |
Sole Power to Dispose or Direct the Disposition(1)(3) |
|
107,036 |
135,662 |
(1) Includes 1,361 shares of Common Stock that are deemed beneficially owned within the meaning of Rule 13d-3(d)(1) of the Act because such shares may be acquired by Mr. Baker within sixty days of the date of this filing through the exercise of an option, warrant, or right or through the conversion of another security of the Issuer.
(2) Excludes 40,876 shares of Common Stock that are subject to the Initial Irrevocable Proxy and the Additional Irrevocable Proxy described in Item 6 below.
(3) Includes 40,876 shares of Common Stock as to which Mr. Baker's right to dispose of such shares is limited by reason of the Initial Irrevocable Proxy and the Additional Irrevocable Proxy described in Item 6 below.
(c) Transactions effected during the past sixty days.
See Item 6 below.
(d) No person other than Mr. Baker is known to have the right to receive or direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock of the Issuer included in Item 5(a) above.
(e) Mr. Baker ceased to be the beneficial owner of more than 5% of the Common Stock of the Issuer on January 13, 2005.
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CUSIP NO. 61945R 100
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
COMCOR Voting Agreement. Mr. Baker, Moskovskaya Telecommunikatsionnaya Corporatsiya ("COMCOR"), Oliver R. Grace, Jr. and the Issuer were parties to a Voting Agreement made and entered into as of February 23, 2004 (the "COMCOR Voting Agreement"), which is attached as Exhibit 2 to the Schedule 13D and incorporated herein by reference. The COMCOR Voting Agreement was entered in connection with the acquisition by the Issuer on February 24, 2004 of the shares of ZAO ComCor-TV ("CCTV") owned by COMCOR in exchange for 4,000,000 shares of Common Stock of the Issuer.
The COMCOR Voting Agreement terminated on January 13, 2005 pursuant to the Termination Agreement dated August 26, 2004 (the "Termination Agreement"), a copy of which is attached as Exhibit 1 to Amendment No. 1 and which is incorporated herein by reference. The Termination Agreement provides that if the Financing Transaction, as defined and described under "CNI Voting Agreements" below, is consummated as planned, the COMCOR Voting Agreement will terminate. The Financing Transactions was consummated on January 13, 2005.
CNI Voting Agreements. On August 26, 2004, the Issuer and Columbus Nova Investments VIII Ltd., a Bahamian company ("CNI"), entered into a Series B Convertible Preferred Stock Subscription Agreement (the "Series B Subscription Agreement"), a copy of which is attached as Exhibit 2 to Amendment No. 1 and which is incorporated herein by reference. In order to facilitate the consummation of the transactions contemplated by the Series B Subscription Agreement (the "Financing Transaction"), CNI and Mr. Baker entered into a voting agreement dated August 26, 2004 (the "CNI Voting Agreement") a copy of which are attached as Exhibit 3 to Amendment No. 1 and which is incorporated herein by reference. The CNI Voting Agreement provided that it will terminate upon the consummation of the Financing Transaction. The Financing Transaction was consummated on January 13, 2005.
Irrevocable Proxies. On December 1, 2004, the Issuer and CNI entered Amendment No.1 to the Series B Subscription Agreement, a copy of which is attached as Exhibit 1 to this Amendment No. 2 and which is incorporated herein by reference, to amend the terms of the Series B Convertible Preferred Stock to comply with the rules of the National Association of Securities Dealers, Inc. Pursuant thereto, Mr. Baker, Oliver R. Grace, Jr. and The Anglo American Security Funds, L.P. (together with Messrs. Grace and Baker, the "Stockholders") granted CNI an irrevocable proxy and power of attorney to vote their shares of the Common Stock (the "Initial Irrevocable Proxy"), a copy of which is attached as Exhibit 2 to this Amendment No. 2 and which is incorporated herein by reference. The Initial Irrevocable Proxy provides as follows:
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CUSIP NO. 61945R 100
Although Mr. Baker granted the Initial Irrevocable Proxy with respect to 25,000 shares of Common Stock, in accordance with the terms of the Initial Irrevocable Proxy described above, at the closing of the Financing Transaction the number of shares of Common Stock subject to the Initial Irrevocable Proxy was reduced to 20,438 shares.
In addition, CNI has received an additional irrevocable proxy and power of attorney (the Additional Irrevocable Proxy") from stockholders with respect to 1,000,403 shares of Common Stock, a copy of which is attached as Exhibit 3 to this Amendment No. 2 and which is incorporated herein by reference. The terms of the Additional Irrevocable Proxy provide as follows:
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CUSIP NO. 61945R 100
Among the stockholders who have granted the Additional Irrevocable Proxy is Mr. Baker. Although he granted the Additional Irrevocable Proxy with respect to 25,000 shares of Common Stock, in accordance with the terms of the Additional Irrevocable Proxy described above, at the closing of the Financing Transaction the number of shares of Common Stock subject to the Additional Irrevocable Proxy was reduced to 20,438.
Item 7. Material to be Filed as Exhibits.
Exhibit 1. Amendment No. 1 to Series B Convertible Preferred Stock Subscription Agreement dated as of December 1, 2004.
Exhibit 2. Irrevocable Proxy and Power of Attorney among Columbus Nova Investments VIII Ltd. and each of the persons whose names are set forth on the signature page thereof dated as of December 1, 2004.
Exhibit 3. Form of Irrevocable Proxy and Power of Attorney between Columbus Nova Investments VIII Ltd. and person whose name is set forth on the signature page thereof dated as of December _, 2004.
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CUSIP NO. 61945R 100
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this statement is true, complete and correct.
Dated: January 31, 2005
/s/
Francis E. Baker
Francis
E. Baker
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EXHIBIT 1
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 2, 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
1
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 2, 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.
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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
3
EXHIBIT 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 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
1
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.
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(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
3
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.
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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
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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
/s/ Andrew Intrater
Name: Andrew Intrater
Title: Attorney-in-Fact
OLIVER R. GRACE, JR.
By: /s/ Oliver R. Grace, Jr.
Name: Oliver R. Grace, Jr.
Title: N/A
Address: 55 Brookville Road
Glen Head, NY 11545
THE ANGLO AMERICAN SECURITY FUND, L.P.
By: /s/ Oliver R. Grace Jr.
Name: Oliver R. Grace, Jr.
Title: General Partner
Address: 55 Brookville Road
Glen Head, NY 11545
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FRANCIS E. BAKER
By: /s/ Francis E. Baker
Name:
Title:
Address: 15 Northeast Rd.
Farmington, CT 06032
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 |
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EXHIBIT 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;
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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.
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(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
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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.
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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:
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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:
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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 Fund, L.P. | 31,500 |
| 12. The Anglo American Security Fund | 20,000 |
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