**Exhibit 10.4**

 

CONTRIBUTION AGREEMENT

 

This Contribution Agreement (*“Agreement”*) is entered intoeffective as of December 1, 2003 (the *“Effective Date”*) by and amongOutBack Management Services, L.L.C., a Texas limited liability company (*“OutBackManagement”*), MAC Partners, L.P., a Texas limited partnership (*“MACPartners”*), 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 broadbandassets, 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 assetsto WBOW, in exchange for a 50% ownership interest in WBOW (the *“MACInterest”*).

 

NOW, THEREFORE, in consideration of the foregoing and of the mutualcovenants and agreements hereinafter set forth, the parties hereby agree asfollows:

 

1.                                       Contributionby, and Issuance to, OutBack Management.

 

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

 

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

 

2.                                       Contributionby, and Issuance to, MAC Partners.

 

(a)          Subject to the terms and conditions of thisAgreement, MAC Partners hereby conveys, transfers and assigns to WBOW, and WBOWhereby receives and accepts from MAC Partners, (i) all of MAC Partners’ right,title and interest in the broadband assets owned by MAC Partners (the *“MACAcquired Assets”*) and (ii) all revenues of MAC Partners derivedon 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, andsubject to the terms and conditions of this Agreement, WBOW hereby issues theMAC Interest to MAC Partners.

 

3.                                       Regulationsof WBOW.  Contemporaneously with theexecution of this Agreement, each of OutBack Management and MAC Partners shallexecute the Regulations of WBOW, which shall govern their respective rightswith respect to the OutBack Interest and the MAC Interest, respectively.

 

4.                                       Representationsand Warranties of OutBack Management.

 

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

 

(b)         OutBack Management has all requisite power andauthority to execute this Agreement and the other documents contemplated bythis Agreement, and to consummate the transactions contemplated hereby andthereby.

 

(c)          The execution and delivery of this Agreementby OutBack Management do not, and the consummation by OutBack Management of thetransactions contemplated hereby will not: (i) violate any law, rule, regulation, ordinance or order, (ii) conflictwith any provision of the articles of organization or regulations of OutBackManagement, (iii) result in the creation of any lien or encumbrance upon any ofthe OutBack Acquired Assets, (iv) result in a default under, give rise to aright of termination, cancellation or loss of a benefit under, or breach anyprohibition or restriction on transfer contained in any agreement to whichOutBack Management is a party or to which any of its properties is subject, or(v) require the consent, approval, order or authorization of, or theregistration, declaration or filing with (A) any court, governmental oradministrative 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 toall of the OutBack Acquired Assets, free and clear of all liens andencumbrances, and WBOW will acquire good and valid title to the OutBackAcquired Assets, free and clear of all liens and encumbrances.

 

(e)          Schedule 1a contains a list of (i) allcontracts, agreements, commitments, and all other legally binding arrangementsrelating 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 ofthe parties thereto.  Each of theOutBack Contracts is in full force and effect and will continue in full forceand effect following the transactions contemplated by this Agreement withoutthe breach of any terms or conditions thereof or the forfeiture or impairmentof any rights thereunder and without the consent, approval or act of, or themaking of any filing with, any other person. OutBack Management has performed in all material respects allobligations required to be performed by it to date under the OutBack Contractsand is not in breach or default thereunder. To OutBack Management’s knowledge, each party to the OutBack Contractsother than OutBack Management has performed in all material respects allobligations required to be performed by it to date under the OutBack Contractsand is not in breach or default thereunder. No defenses, offsets or counterclaims to any OutBack Contracts have beenasserted by any party thereto.  OutBackManagement has not waived any rights under any OutBack Contracts.  To OutBack Management’s knowledge, no partyhas any intention to cancel, to discontinue, to fail to renew, to replace orotherwise to terminate any OutBack Contracts. True and complete copies of each of the OutBack Contracts have beendelivered or made available to MAC Partners.

 

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

 

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

 

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

 

5.                                       Representationsand Warranties of MAC Partners.

 

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

 

(b)         MAC Partners has all requisite power andauthority to execute this Agreement and the other documents contemplated bythis Agreement, and to consummate the transactions contemplated hereby andthereby.

 

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(c)          The execution and delivery of this Agreementby MAC Partners do not, and the consummation by MAC Partners of thetransactions contemplated hereby will not: (i) violate any law, rule, regulation, ordinance or order, (ii) conflictwith 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 MACAcquired Assets, (iv) result in a default under, give rise to a right oftermination, cancellation or loss of a benefit under, or breach any prohibitionor restriction on transfer contained in any agreement to which MAC Partners isa party or to which any of its properties is subject, or (v) require theconsent, approval, order or authorization of, or the registration, declarationor filing with (A) any court, governmental or administrative agency,commission, authority, board, bureau or instrumentality, whether federal, stateor local, or (B) any individual, corporation, partnership, joint venture,trust, business association or other entity.

 

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

 

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

 

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

 

6.                                       Indemnification.

 

(a)          OutBack Management does hereby agree todefend and to indemnify WBOW, MAC Partners and their respective officers,managers, directors, employees, members, stockholders, agents andrepresentatives 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 inaccuracyof any representation or warranty of OutBack Management contained in thisAgreement or any document delivered in connection herewith.

 

(b)         MAC Partners does hereby agree to defend andto indemnify WBOW, OutBack Management and their respective officers, managers,directors, employees, members, stockholders, agents and representativesagainst, and to hold them harmless from, any loss, liability, claim, damage orother 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 orwarranty of MAC Partners contained in this Agreement or any document deliveredin connection herewith.

 

## 7.                                       Notices.  All notices and other communicationshereunder shall be in writing and shall be deemed given if delivered personallyor by overnight courier or telecopier with proof of delivery or mailed byregistered or certified mail (return receipt requested) to the parties at thefollowing addresses (or at such other address for a party as shall be specifiedby like notice):

##  

### (a)                                  ifto WBOW, to

###  

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

2705 Canton Street

Dallas, Texas  75226

Facsimile:  (469) 227-7955

 

### (b)                                 ifto OutBack Management, to

###  

OutBack Management Services, L.L.C.

 

 

Facsimile: (         )                

 

### (c)                                  ifto 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 beenduly given to the party to whom it is directed upon delivery.  Any notice that is delivered by overnightcourier or facsimile in the manner provided herein shall be conclusivelypresumed to have been given to the party to whom it is addressed at the closeof business, local time of the recipient, on the next day after delivery to thecourier or transmission.  Any noticethat is addressed and mailed in the manner herein provided shall beconclusively presumed to have been given to the party to whom it is addressedat the close of business, local time of the recipient, on the fourth day afterthe day it is so placed in the mail.

 

## 8.                                       Survival.  The covenants and agreements contained inthis Agreement (including the rights to indemnification provided herein) and inany document delivered in connection herewith shall survive the Closing andshall remain in full force and effect, regardless of any investigation made byor on behalf of any party hereto.  Allrepresentations and warranties set forth in this Agreement or in anySchedule or document furnished pursuant hereto shall survive the Closingand shall remain in full force and effect, regardless of any investigation madeby or on behalf of any party hereto.

 

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

 

## 10.                                 EntireAgreement; No Third Party Beneficiaries. This Agreement (including the documents and instruments referred toherein) (a) constitutes the entire agreement and supersedes all prioragreements and understandings, both written and oral, between the parties withrespect to the subject matter hereof and (b) is not intended to confer upon anyperson other than the parties hereto any rights or remedies hereunder.

 

## 11.                                 GoverningLaw.  This Agreement shall begoverned 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 therights, interests or obligations hereunder shall be assigned by any of theparties hereto without the prior written consent of the other parties.  Subject to the preceding sentence, thisAgreement will be binding upon, inure to the benefit of and be enforceable bythe parties and their respective successors and permitted assigns.

 

## 13.                                 EntireAgreement; Amendment.  Each of the parties represents that nopromise or agreement which is not expressed in this Agreement, has been made tosuch party in executing this Agreement, and none of the parties is relying uponany statement or representation not contained in this Agreement.  ThisAgreement constitutes the entire understanding among the parties heretorelative to the subject matter hereof, superseding any and all prioragreements, arrangements, and understandings, written or oral, between theparties.  This Agreement may beamended only by a written instrument duly signed by each of the parties hereto.

 

## 14.                                 FurtherAssurances.  Each party heretoagrees to execute and deliver any and all documents, and to perform such otheracts, as may be reasonably necessary or expedient to further the purposes ofthis Agreement or any document delivered in connection herewith or to furtherassure the benefits intended to be conferred hereby or thereby.

 

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IN WITNESS WHEREOF, OutBack Management, MAC Partners and WBOW havecaused 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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