Exhibit 10.4


 


CONTRIBUTION AGREEMENT


 


This Contribution Agreement (“Agreement”) is entered into
effective as of December 1, 2003 (the “Effective Date”) by and among
OutBack Management Services, L.L.C., a Texas limited liability company (“OutBack
Management”), MAC Partners, L.P., a Texas limited partnership (“MAC
Partners”), and Worldwide Blue Ocean Wireless Communications,
L.L.C., a Texas limited liability company (“WBOW”).


 


RECITALS


 


WHEREAS, OutBack Management desires to contribute all of its broadband
assets, including equipment and contracts, to WBOW, in exchange for a 50%
ownership interest in WBOW (the “OutBack Interest”); and


 


WHEREAS, MAC Partners desires to contribute all of its broadband assets
to WBOW, in exchange for a 50% ownership interest in WBOW (the “MAC
Interest”).


 


NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:


 


1.                                       Contribution
by, and Issuance to, OutBack Management.


 


(a)          Subject to the terms and conditions of this
Agreement, OutBack Management hereby conveys, transfers and assigns to WBOW,
and WBOW hereby receives and accepts from OutBack Management, (i) all of
OutBack Management’s right, title and interest in the broadband assets owned by
OutBack Management as set forth on Schedule 1a attached hereto and
valued at approximately $42,000 (the “OutBack Acquired Assets”) and (ii)
all revenues of OutBack Management derived on and after the Effective Date from
the OutBack Acquired Assets (collectively, the “OutBack Contribution”).


 


(b)         In exchange for the OutBack Contribution, and
subject to the terms and conditions of this Agreement, WBOW hereby issues the
OutBack Interest to OutBack Management.


 


2.                                       Contribution
by, and Issuance to, MAC Partners.


 


(a)          Subject to the terms and conditions of this
Agreement, MAC Partners hereby conveys, transfers and assigns to WBOW, and WBOW
hereby receives and accepts from MAC Partners, (i) all of MAC Partners’ right,
title and interest in the broadband assets owned by MAC Partners (the “MAC
Acquired Assets”) and (ii) all revenues of MAC Partners derived
on and after the


 


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Effective Date from the MAC Acquired Assets
(collectively, the “MAC Contribution”).


 


(b)         In exchange for the MAC Contribution, and
subject to the terms and conditions of this Agreement, WBOW hereby issues the
MAC Interest to MAC Partners.


 


3.                                       Regulations
of WBOW.  Contemporaneously with the
execution of this Agreement, each of OutBack Management and MAC Partners shall
execute the Regulations of WBOW, which shall govern their respective rights
with respect to the OutBack Interest and the MAC Interest, respectively.


 


4.                                       Representations
and Warranties of OutBack Management.


 


(a)          OutBack Management is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Texas and has the requisite power and authority to own, lease and
operate its assets and to carry on its business as it is now being conducted.


 


(b)         OutBack Management has all requisite power and
authority to execute this Agreement and the other documents contemplated by
this Agreement, and to consummate the transactions contemplated hereby and
thereby.


 


(c)          The execution and delivery of this Agreement
by OutBack Management do not, and the consummation by OutBack Management of the
transactions contemplated hereby will not: 
(i) violate any law, rule, regulation, ordinance or order, (ii) conflict
with any provision of the articles of organization or regulations of OutBack
Management, (iii) result in the creation of any lien or encumbrance upon any of
the OutBack Acquired Assets, (iv) result in a default under, give rise to a
right of termination, cancellation or loss of a benefit under, or breach any
prohibition or restriction on transfer contained in any agreement to which
OutBack Management is a party or to which any of its properties is subject, or
(v) require the consent, approval, order or authorization of, or the
registration, declaration or filing with (A) any court, governmental or
administrative agency, commission, authority, board, bureau or instrumentality,
whether federal, state or local, or (B) any individual, corporation,
partnership, joint venture, trust, business association or other entity.


 


(d)         OutBack Management has good and valid title to
all of the OutBack Acquired Assets, free and clear of all liens and
encumbrances, and WBOW will acquire good and valid title to the OutBack
Acquired Assets, free and clear of all liens and encumbrances.


 


(e)          Schedule 1a contains a list of (i) all
contracts, agreements, commitments, and all other legally binding arrangements
relating to the OutBack Acquired Assets and (ii) all permits, concessions,
authorizations or licenses relating to the OutBack Acquired Assets
(collectively, the “OutBack Contracts”).  Each


 


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of the OutBack Contracts is a legal, valid and binding obligation of
the parties thereto.  Each of the
OutBack Contracts is in full force and effect and will continue in full force
and effect following the transactions contemplated by this Agreement without
the breach of any terms or conditions thereof or the forfeiture or impairment
of any rights thereunder and without the consent, approval or act of, or the
making of any filing with, any other person. 
OutBack Management has performed in all material respects all
obligations required to be performed by it to date under the OutBack Contracts
and is not in breach or default thereunder. 
To OutBack Management’s knowledge, each party to the OutBack Contracts
other than OutBack Management has performed in all material respects all
obligations required to be performed by it to date under the OutBack Contracts
and is not in breach or default thereunder. 
No defenses, offsets or counterclaims to any OutBack Contracts have been
asserted by any party thereto.  OutBack
Management has not waived any rights under any OutBack Contracts.  To OutBack Management’s knowledge, no party
has any intention to cancel, to discontinue, to fail to renew, to replace or
otherwise to terminate any OutBack Contracts. 
True and complete copies of each of the OutBack Contracts have been
delivered or made available to MAC Partners.


 


(f)            The revenues of OutBack Management derived
from the OutBack Acquired Assets for the one-month period commencing the
Effective Date and through December 31, 2003 (all of which are part of the
OutBack Contribution) are $11,875.


 


(g)         OutBack Management agrees to furnish to WBOW, management services pursuant to a separate
management services agreement to be negotiated between OutBack Management and
WBOW.


 


(h)         The representations and warranties, including
Schedule 1a attached hereto, furnished by OutBack Management to WBOW and
MAC Partners in connection with the transactions contemplated by this Agreement
do not contain any untrue statement of material fact and do not omit any
material fact necessary in order to make the statements made, in light of the
circumstances in which they are made, not misleading.


 


5.                                       Representations
and Warranties of MAC Partners.


 


(a)          MAC Partners is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Texas and has the requisite power and authority to own, lease and operate its
assets and to carry on its business as it is now being conducted.


 


(b)         MAC Partners has all requisite power and
authority to execute this Agreement and the other documents contemplated by
this Agreement, and to consummate the transactions contemplated hereby and
thereby.


 


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(c)          The execution and delivery of this Agreement
by MAC Partners do not, and the consummation by MAC Partners of the
transactions contemplated hereby will not: 
(i) violate any law, rule, regulation, ordinance or order, (ii) conflict
with any provision of the agreement of limited partnership of MAC Partners,
(iii) result in the creation of any lien or encumbrance upon any of the MAC
Acquired Assets, (iv) result in a default under, give rise to a right of
termination, cancellation or loss of a benefit under, or breach any prohibition
or restriction on transfer contained in any agreement to which MAC Partners is
a party or to which any of its properties is subject, or (v) require the
consent, approval, order or authorization of, or the registration, declaration
or filing with (A) any court, governmental or administrative agency,
commission, authority, board, bureau or instrumentality, whether federal, state
or local, or (B) any individual, corporation, partnership, joint venture,
trust, business association or other entity.


 


(d)         MAC Partners has good and valid title to all
of the MAC Acquired Assets, free and clear of all liens and encumbrances, and
WBOW will acquire good and valid title to the MAC Acquired Assets, free and
clear of all liens and encumbrances.


 


(e)          MAC Partners agrees to furnish to WBOW, turnkey office, reception, furniture,
telecommunications and internet hosting services, plus accounting and
treasury functions, plus consulting services as needed.


 


(f)            The representations and warranties,
including Schedule 1a attached hereto, furnished by MAC Partners to WBOW
and OutBack Management in connection with the transactions contemplated by this
Agreement do not contain any untrue statement of material fact and do not omit
any material fact necessary in order to make the statements made, in light of
the circumstances in which they are made, not misleading.


 


6.                                       Indemnification.


 


(a)          OutBack Management does hereby agree to
defend and to indemnify WBOW, MAC Partners and their respective officers,
managers, directors, employees, members, stockholders, agents and
representatives against, and to hold them harmless from, any loss, liability,
claim, damage or other expense (including reasonable legal fees and expenses),
as incurred, relating to, arising out of or in connection with any inaccuracy
of any representation or warranty of OutBack Management contained in this
Agreement or any document delivered in connection herewith.


 


(b)         MAC Partners does hereby agree to defend and
to indemnify WBOW, OutBack Management and their respective officers, managers,
directors, employees, members, stockholders, agents and representatives
against, and to hold them harmless from, any loss, liability, claim, damage or
other expense (including reasonable legal fees and expenses), as incurred,
relating to, arising


 


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out of or in connection with any inaccuracy of any representation or
warranty of MAC Partners contained in this Agreement or any document delivered
in connection herewith.


 


7.                                       Notices.  All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or by overnight courier or telecopier with proof of delivery or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):


 


(a)                                  if
to WBOW, to


 


Worldwide Blue Ocean Wireless Communications, L.L.C.


2705 Canton Street


Dallas, Texas  75226


Facsimile:  (469) 227-7955


 


(b)                                 if
to OutBack Management, to


 


OutBack Management Services, L.L.C.


 


 


Facsimile: 
(         )                


 


(c)                                  if
to MAC Partners, to


 


MAC Partners, L.P.


2705 Canton Street


Dallas, Texas  75226


Facsimile:  (469) 227-7955


 


Any notice that is delivered personally shall be deemed to have been
duly given to the party to whom it is directed upon delivery.  Any notice that is delivered by overnight
courier or facsimile in the manner provided herein shall be conclusively
presumed to have been given to the party to whom it is addressed at the close
of business, local time of the recipient, on the next day after delivery to the
courier or transmission.  Any notice
that is addressed and mailed in the manner herein provided shall be
conclusively presumed to have been given to the party to whom it is addressed
at the close of business, local time of the recipient, on the fourth day after
the day it is so placed in the mail.


 


8.                                       Survival.  The covenants and agreements contained in
this Agreement (including the rights to indemnification provided herein) and in
any document delivered in connection herewith shall survive the Closing and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any party hereto.  All
representations and warranties set forth in this Agreement or in any
Schedule or document furnished pursuant hereto shall survive the Closing
and shall remain in full force and effect, regardless of any investigation made
by or on behalf of any party hereto.


 


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9.                                       Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which,
taken together, shall be considered one and the same agreement.


 


10.                                 Entire
Agreement; No Third Party Beneficiaries. 
This Agreement (including the documents and instruments referred to
herein) (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.


 


11.                                 Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of Texas,
excluding the conflicts of law or choice of law provisions thereof.


 


12.                                 Assignment.  Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties.  Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.


 


13.                                 Entire
Agreement; Amendment.  Each of the parties represents that no
promise or agreement which is not expressed in this Agreement, has been made to
such party in executing this Agreement, and none of the parties is relying upon
any statement or representation not contained in this Agreement.  This
Agreement constitutes the entire understanding among the parties hereto
relative to the subject matter hereof, superseding any and all prior
agreements, arrangements, and understandings, written or oral, between the
parties.  This Agreement may be
amended only by a written instrument duly signed by each of the parties hereto.


 


14.                                 Further
Assurances.  Each party hereto
agrees to execute and deliver any and all documents, and to perform such other
acts, as may be reasonably necessary or expedient to further the purposes of
this Agreement or any document delivered in connection herewith or to further
assure the benefits intended to be conferred hereby or thereby.


 


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IN WITNESS WHEREOF, OutBack Management, MAC Partners and WBOW have
caused this Agreement to be signed by their respective duly authorized parties,
all as of the date first written above.


 


	
  OutBack Management
  Services, L.L.C.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John Mills

  	
   

  	
   

  
	
  Name: 

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MAC Partners, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Dennis McLaughlin

  	
   

  	
   

  
	
  Name: 

  	
   

  	
   

  	
   

  
	
  Title:

  	
  General Manager

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Worldwide Blue
  Ocean Wireless Communications, L.L.C.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Marcus Taber Wetz

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Secretary

  	
   

  	
   

  
									



 


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Schedule 1a


 


OutBack Acquired Assets 


 


Equipment:


 


 


Contracts:  


 


 


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