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EXHIBIT G
CONTRIBUTION AGREEMENT
This Contribution Agreement (this "Agreement") is dated as of
June 28, 2002 and is by and between Xxxxx Communications Fund, L.P., a Delaware
limited partnership ("BCF") and Xxxxx Communications Fund (Cayman), L.P., a
Cayman Islands exempted limited partnership ("BCF Cayman").
WHEREAS, the limited partners of BCF and BCF Cayman are
identical (the "BCF Partners") and a capital contribution to either of BCF or
BCF Cayman satisfies the obligation of a BCF Partner to contribute capital to
the other;
WHEREAS, Xxxxx Capital Partners, L.L.C. ("BCP") is the general
partner of BCF and both BCP and Xxxxx Capital Partners (Anguilla), L.L.C. ("BCP
Anguilla") are general partners of BCF Cayman;
WHEREAS, the BCF Partners and BCP have previously made capital
contributions to BCF (the "QSC Contributions") which have been applied to the
purchase of 29,438,935 shares of common stock of QS Communications AG, a German
Aktiengesellschaft, held directly by BCF (the "QSC Securities") and BCF now
desires to contribute all of BCF's right, title and interest in and to the QSC
Securities to BCF Cayman;
NOW, THEREFORE, in consideration of the mutual promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
Article I. Contribution and Assignment of QSC Securities by BCF to BCF
Cayman
1.1. Contribution and Assignment.
(a) Subject to Section 1.1(c), BCF irrevocably and
unconditionally transfers, assigns and conveys, as of the date hereof and by way
of contribution, to BCF Cayman and BCP Anguilla, respectively, in the same
proportions as the QSC Contributions of the BCF Partners bear to the QSC
Contributions of BCP, BCF's entire right, title and interest to and in (a) the
QSC Securities, (b) all rights and privileges arising under each and every
purchase agreement, partnership agreement, operating agreement, shareholders
agreement, registration rights agreement or other executory contract pertaining
to the QSC Securities to which BCF is a party or by which BCF is bound and (c)
all claims relating to the QSC Securities whether or not known to BCF.
(b) BCP Anguilla hereby irrevocably and unconditionally
transfers, assigns and conveys, as of the date hereof and by way of
contribution, to BCF Cayman all the assets contributed to BCP Anguilla pursuant
to Section 1.1(a) above.
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1.2. Assumption of Obligations and Liabilities
(a) BCF Cayman hereby irrevocably and unconditionally
assumes, as of the date hereof (i) each and every obligation and liability of
the QSC Securities, (ii) all liabilities and obligations arising under any
purchase agreement, partnership agreement, operating agreement, shareholders
agreement, registration rights agreement or other executory contract pertaining
to the QSC Securities to which BCF is a party or by which BCF is bound, and
(iii) all claims against BCF relating to the QSC Securities, whether or not
known to BCF.
(b) Notwithstanding Section 1.2(a), the assumption of
obligations and liabilities related to the QSC Securities by BCF Cayman does not
include any obligations and liabilities to the extent (but only to the extent)
that such assumption would constitute a breach by BCF of any obligations or
would result in releasing any obligor from any obligation to BCF without
substituting BCF Cayman in place of BCF as the obligee. BCF and BCF Cayman agree
that any obligations and liabilities not assumed pursuant to this Section
1.2(b), while they remain unassumed, shall be treated for all purposes as if
they had been assumed by BCF Cayman as of the date of this Agreement.
(c) BCF hereby agrees to the substitution of BCF Cayman in
its place as obligor with respect to all obligations and liabilities assumed by
BCF Cayman.
Article II. Partnership Interest in BCF Cayman
2.1. In consideration of BCF's contribution of the QSC Securities to
BCF Cayman and BCP Anguilla pursuant to Section 1.1., (i) BCF Cayman issues to
BCF limited partner interests in BCF Cayman (the "BCF Cayman LP Interests"),
(ii) BCF Cayman issues to BCP Anguilla a general partner interest in BCF Cayman
(the "BCF Cayman GP Interest") and (iii) BCP Anguilla issues membership
interests to BCF (the "BCP Anguilla Membership Interests"), all representing the
right to receive all net proceeds relating to the QSC Securities, all subject to
and in accordance with the terms of the amended and restated limited partnership
agreement of BCF Cayman (the "BCF Cayman Partnership Agreement"), and the
limited liability company agreement of BCP Anguilla .
Article III. Distribution of Interests
3.1. BCF hereby distributes the BCF Cayman LP Interests to the BCF
Partners in proportion to their respective QSC Contributions and distributes the
BCP Anguilla Membership Interests to BCP. BCP distributes the BCP Anguilla
Membership Interests to its Members (pro rata in accordance with their
respective interests in BCP with respect to the QSC Securities).
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Article IV. Miscellaneous
4.1. Further Assurances
(a) Each of BCF and BCF Cayman undertakes and agrees to
execute (as applicable) one or more transfer documents and all such further
instruments, certificates and documents, and to take all such other actions, as
may be reasonably requested by each other, including without limitation
obtaining any necessary consents and executing any acknowledgements, in order to
vest more fully in each other all rights, privileges and other incidents of
ownership with respect to the assets transferred and the liabilities and
obligations assumed pursuant to this Agreement.
(b) With respect to each of the items referred to in Section
1.2, each of the parties undertakes to use its best efforts to obtain as
promptly as is practicable all such consents and approvals as may be required in
order to permit such items to be transferred. Pending the completion of such
transfers, the parties acknowledge that they intend for each of them to be
placed in the same economic position that it would have experienced if the
transfers of such items had been completed effective as of the date hereof. To
that end:
(i) all proceeds of any such items shall be remitted
by respective assignors to the respective assignees as promptly as it is
practicable to do so. Pending such remittance, such assignors shall hold all
such property in trust for the exclusive benefit of such assignees.
(ii) assignees under this Agreement shall indemnify
assignors and hold them harmless from and against any liability that they may
suffer or incur by reason of the inability of any such assignors to effect any
such transfer as of the date hereof.
4.2. Governing Law
This Agreement shall be governed by the laws of the State of
New York, without regard to conflicts of law principles.
4.3. Counterparts
This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which, when taken together, shall
constitute one instrument.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
XXXXX COMMUNICATIONS FUND, L.P.
By: Xxxxx Capital Partners, LLC
Its General Partner
By:
----------------------------
Xxxx X. Xxxxx
Manager
XXXXX COMMUNICATIONS FUND (CAYMAN), L.P.
By: Xxxxx Capital Partners
(Anguilla), LLC
Its General Partner
By:
----------------------------
Xxxx X. Xxxxx
Manager
Agreed
XXXXX CAPITAL PARTNERS, L.L.C.
By:
----------------------------------------
Xxxx X. Xxxxx
Manager
XXXXX CAPITAL PARTNERS (ANGUILLA), L.L.C.
By:
----------------------------------------
Xxxx X. Xxxxx
Manager
