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 Xxxxxxxx
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, Xxxxxx Xxxxx, Jr., Xxxxxxx X. Xxxxx 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/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Attorney-in-Fact
MOSCOW CABLECOM CORP.
By /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
