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 Xxxxxx Xxxxx, Jr., The Anglo American Security Fund, L.P. and
Xxxxxxx X. Xxxxx, 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.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
Attention: Xxxx Xxxxxx
Facsimile: x0-000-000-0000
with a courtesy copy (which shall not constitute notice to CNI) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xx xxx Xxxxx 0
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention: Xxxxxx Xxxxxxx
Facsimile: x00-00-00000000
(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:
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Name:
Title:
STOCKHOLDER
Field Nominees Limited
By:
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Name: Xxxxxx X. Xxxx, CFA
Title: Vice President and Deputy Managing
Director, Xxxxxxxxxxx Trust
(Bermuda) Limited
Address: 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
Schedule A - Covered Shares
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Name of Stockholder Number of Covered Shares
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Field Nominees Limited 276,500
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