EXHIBIT

10.04




 




STOCK PURCHASE AGREEMENT




 




This Stock Purchase Agreement (this “Agreement”) is

made and entered into as of the 19th day of August, 2002, by and between Zamba

Corporation, a Delaware corporation (the “Company”), and Brian Lawton (the

“Purchaser”).




 




WHEREAS, the Company owns shares of Series A preferred

stock, $.0001 par value per share (“Zamba’s NextNet Stock”) of NextNet

Wireless, Inc., a Delaware corporation (“NextNet”), pursuant to the Series A

Preferred Stock Purchase Agreement dated as of September 21, 1998 between Zamba

and NextNet (the “Zamba Purchase Agreement”); and




 




WHEREAS, Zamba’s NextNet Stock can be converted to

common shares of NextNet at the exchange ratio of three shares of common stock

for every one share of preferred stock; and




 




WHEREAS, Zamba’s NextNet Stock is also subject to the

Amended and Restated Investors’ Rights Agreement dated as of July 10, 2000

among Zamba, NextNet and the Investors and Founders identified therein (the

“Investors’ Rights Agreement”), Right of First Refusal Agreement dated as of

September 21, 1998 among the Zamba, NextNet and the Series B Purchasers

identified therein (the “Right of First Refusal Agreement”), and the Voting

Agreement dated September 21, 1998, by and among NextNet, the Company and certain

other investors (the “Voting Agreement”); and




 




WHEREAS, the Purchaser is thoroughly familiar with the

Company’s and NextNet’s business, financial condition and prospects; and




 




WHEREAS, the Purchaser desires to purchase from the

Company and the Company desires to sell to the Purchaser certain of its shares

of Zamba’s NextNet Stock; and




 




WHEREAS, the Purchaser acknowledges that there is no

established trading market or other current valuation for Zamba’s NextNet Stock

or the Shares to be issued hereunder;




 




NOW, THEREFORE, in consideration of the premises and

other good and valuable consideration, the receipt and adequacy of which are

hereby acknowledged, the parties agree as follows:




 




1.             Purchase and Sale of Preferred Stock.  In

consideration of this Agreement, the Company hereby agrees to sell to the

Purchaser, and the Purchaser hereby agrees to purchase from the Company, the

Shares in accordance with the following terms:




 




(a)           The Company hereby sells to the

Purchaser, and the Purchaser hereby purchases from the Company, 8,334 shares of

Zamba’s NextNet Stock (the “Shares”), at a purchase price of $6.00 per share,

for an aggregate purchase price of $50,004. 

Promptly upon execution of this Agreement, the Purchaser shall pay the

full amount of the purchase price to the Company by wire transfer in

immediately available funds to an account designated in writing by the Company.




 




(b)           Promptly upon receipt of the purchase

price, the Company shall present the transaction to the independent members of

the Company’s Board of Directors for the approval or disapproval of the Board

of Directors.  If the Company’s Board of

Directors disapproves the transaction, the full purchase price shall be

promptly refunded to the Purchaser.  If

the Company’s Board of Directors approves the transaction, the Company shall,

within five business days of such approval, deliver to NextNet a notice

pursuant to the Right of First Offer set forth in Section 1.1 of the Right of

First Refusal Agreement (the “Refusal Agreement”) dated September 21, 1998 by

and among the Company, NextNet, and the holders of the Series B Preferred Stock

of NextNet.




 





























 




(c)           If NextNet elects to exercise its

right of first refusal pursuant to Section 1(b) above, the Purchase Price shall

be refunded to the Purchaser within five business days of the Company’s receipt

of full payment from NextNet for the Shares, and the Purchaser shall not

receive any of the Shares.  If NextNet

declines to exercise its right of first refusal, the Company shall, within five

business days after the Company’s receipt of NextNet’s notice to decline its

right, notify each investor in NextNet eligible under the Refusal Agreement of

its opportunity to exercise its pro rata right of first refusal pursuant to the

Refusal Agreement.




 




(d)           If any of the eligible investors in

NextNet  elects to exercise its pro rata

right of first refusal pursuant to Section 1(c) above, the Company will forward

to the Purchaser the payments the Company receives from such investor(s) within

five business days of the Company’s receipt of such payment, and the number of

Shares that the Purchaser will receive pursuant to this Agreement shall be

reduced on a pro rata basis.  Within ten

business days after the expiration of the investor refusal period, the Company

shall deliver to the Purchaser a certificate registered in the Purchaser’s name

representing the number of Shares purchased.




 




2.             Representations and Warranties of the

Purchaser.  As a material inducement for the Company’s

issuance and sale of the Shares, the Purchaser represents, warrants, covenants

and acknowledges to the Company that:




 




(a)           The Purchaser understands that the

issuance of the Shares have not been registered under the Securities Act of

1933, as amended (the “Securities Act”), or applicable state securities

laws.  Instead, the Company is issuing

the Shares pursuant to exemptions from such laws and in doing so is and would

be relying on, among other things, the Purchaser’s representations, warranties,

covenants and acknowledgements contained herein.




 




(b)           The Purchaser qualifies as an

“accredited investor” as such term is defined in Rule 501(a) of Regulation D

under the Securities Act, and as further represented in Section 3 of this

Agreement.




 




(c)           The Purchaser has sufficient

knowledge and experience in financial and business matters that the Purchaser

is capable of evaluating the merits and risks of investing in the Shares.




 




(d)           The Purchaser has been provided with

or given access to such additional information as the Purchaser has requested

from the Company (including the opportunity to meet with Company officers and

to review all the documents that Purchaser may have requested) and has utilized

such information to his satisfaction for the purpose of obtaining in addition

to, or verifying the accuracy of the information provided, regarding the

Company’s and NextNet’s business, financial condition and prospects.




 




(e)           The Purchaser understands that the

purchase of the Shares is a highly speculative investment and involves a high

degree of risk.  The Purchaser believes

that the investment in the Shares is suitable based upon the Purchaser’s

investment objectives and financial needs and the Purchaser has adequate means

of providing for current financial needs and personal contingencies, has no

need for liquidity of investment with respect to the Shares and can afford a

complete loss of such investment.




 




(f)            The Purchaser is acquiring the

Shares for his own account, for investment purposes only, and without the

intention of reselling or redistributing the Shares.




 




(g)           The Purchaser is aware that, in the

view of the Securities and Exchange Commission, a purchase of the Shares with

an intent to resell by reason of any foreseeable specific contingency or

anticipated change in market values, or any change in NextNet’s condition, or

in connection with a contemplated liquidation or settlement of any loan

obtained for the acquisition




 




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of the Shares and for which the Shares were pledged,

would constitute an intent inconsistent with the foregoing representation.




 




(h)           If, contrary to the Purchaser’s

foregoing intentions, he should later desire to dispose of or transfer any of

the Shares in any manner, the undersigned shall not do so without (i) first

obtaining an opinion of counsel satisfactory to the Company and NextNet that

such proposed disposition or transfer may lawfully be made without registration

pursuant to the Securities Act and applicable state securities laws or

(ii) registering the resale of the Shares under the Securities Act and

applicable state securities laws.




 




(i)            Neither the Company nor NextNet has

any obligation to register the Shares for resale under the Securities Act or

any applicable state securities laws, or to take any other action which would

facilitate the availability of federal or state registration exemptions in

connection with any resale of the Shares. 

Accordingly, the Purchaser may be prohibited by law from selling or

otherwise transferring or disposing of the Shares and may have to bear the economic

risk of his investment in NextNet for an indefinite period.




 




(j)            The Purchaser, if other than an

individual, represents that (a) the Purchaser was not organized for the

specific purpose of acquiring the Shares; and (b) this Agreement has been duly

authorized by all necessary action on the part of the Purchaser, has been duly

executed by an authorized officer or representative of the Purchaser, and is a

legal, valid, and binding obligation of the Purchaser enforceable in accordance

with its terms.




 




(k)           There is no investment banker,

broker, finder or other intermediary which has been retained by or is

authorized to act on behalf of Purchaser who might be entitled to any fee or

commission from the Company upon consummation of the transactions contemplated

by this Agreement.




 




(l)            Purchaser agrees to be bound by the

transfer restrictions described in Section 3.6 of the Series A Preferred Stock

Purchase Agreement dated as of September 21, 1998 between Zamba and NextNet.




 




(m)          Purchaser acknowledges that the provisions

of the Right of First Refusal Agreement dated as of September 21, 1998 among

the Zamba, NextNet and the Series B Purchasers identified therein shall

continue to apply to the Shares held by Purchaser.




 




(n)           Purchaser acknowledges that he or she

has already received a copy of the Amended and Restated Investors’ Rights

Agreement dated as of July 10, 2000 among Zamba, NextNet and the Investors and

Founders identified therein (the “Investors’ Rights Agreement”).  Purchaser understands that, pursuant to the

terms of the Investors’ Rights Agreement, the registration rights described in

Section 1 and the right of first offer described in Section 2.6 thereof have

not been assigned to the Purchaser by Zamba. 

Accordingly, the Purchaser is not entitled to any registration rights or

rights of first offer with respect to the Purchaser’s ownership of the Shares.




 




3.             Accredited Investor Status.  The

Purchaser is an “accredited investor” as defined in Rule 501(a) of Regulation D

of the Securities Act, because the Purchaser meets at least one of the

following criteria (please check one):




 




ý            The Purchaser is a natural person

whose individual net worth, or joint net worth with his or her spouse, exceeds

$1,000,000 at the time of the Purchaser’s purchase; or




 




o            The Purchaser is a natural person

who had an individual income in excess of $200,000 in each of the two most

recent years or joint income with the Purchaser’s spouse in excess of




 




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$300,000 in each of those years and who reasonably

expects to reach the same income level in the current year; or




 




o            The Purchaser is either (i) a bank

as defined in Section 3(a)(2) of the Securities Act, or any savings and loan

association or other institution as defined in Section 3(a)(5)(A) of the

Securities Act whether acting in its individual or fiduciary capacity, any

broker or dealer registered pursuant to Section 15 of the Securities Exchange

Act of 1934, (ii) an insurance company as defined in Section 2(13) of the

Securities Act, (iii) an investment company registered under the Investment

Company Act of 1940 or a business development company as defined in Section

2(a)(48) of such Act, (iv) a Small Business Investment Company licensed by the

U.S. Small Business Administration under Section 301(c) or (d) of the Small

Business Investment Act of 1958, or (v) an employee benefit plan within the

meaning of Title I of the Employee Retirement Income Security Act of 1974, if

the investment decision is made by a plan fiduciary, as defined in Section

3(21) of such Act, which plan fiduciary is either a bank, savings and loan

association, insurance company or registered investment adviser, or if the

employee benefit plan has total assets in excess of $5,000,000 or, if a self

directed plan, with investment decisions made solely by persons who are

accredited investors; or




 




o            The Purchaser is a private business

development company as defined in Section 202(a)(22) of the Investment Advisers

Act of 1940; or




 




o            The Purchaser is an organization

described in Section 501(c)(3) of the Internal Revenue Code, a corporation,

Massachusetts or similar business trust, or partnership, not formed for the

specific purpose of acquiring the Shares, with total assets in excess of

$5,000,000; or




 




o            The Purchaser is a director or

executive officer of the Company; or




 




o            The Purchaser is a trust, with total

assets in excess of $5,000,000, not formed for the specific purpose of

acquiring the Shares, whose purchase is directed by a sophisticated person as

described in Rule 506(b)(2)(ii) of Regulation D of the Securities Act; or




 




o            The Purchaser is any entity in which

all of the equity owners are accredited investors.




 




4.             Representations and Warranties of the Company.  As

a material inducement for the Purchaser’s purchase of the Shares, the Company

represents, warrants, covenants and acknowledges to the Purchaser that:




 




(a)           The Company is a corporation duly

organized, validly existing and in good standing under the laws of the State of

Delaware and has the requisite corporate power and authority to own its

properties and to carry on its business as now being conducted and presently

proposed to be conducted.




 




(b)           The Shares are being transferred to

the Purchaser free and clear of any liens, encumbrances or other restrictions,

other than restrictions on transfer that are contained in the Zamba Purchase

Agreement, the Right of First Refusal Agreement, the Investors Rights

Agreement, the Voting Agreement, all of which as they may be amended from time

to time, or are otherwise set forth herein or imposed by applicable securities

laws.




 




5.             Merger, Consolidation or Other Change in

Control of the Company or NextNet.




 




(a)           If the Company shall at any time

consolidate with or merge into to another corporation (where the Company is not

the continuing corporation after such merger, consolidation, sale of all or

substantially all of its assets or other change-in-control), or the Company

shall sell, transfer or lease all or substantially all of its assets, then, in

any such case, the




 




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Purchaser thereupon (and thereafter) shall continue to

be entitled to be bound by the terms of this Agreement and shall be entitled to

receive the number of Shares determined in accordance with Section 1 above.




 




(b)           If NextNet shall at any time

consolidate with or merge into another corporation (where NextNet is not the

continuing corporation after such merger, consolidation or other

change-in-control), or NextNet shall sell, transfer or lease all or

substantially all of its assets, then, in any such case, the Purchaser

thereupon (and thereafter) shall be entitled to receive the number of Shares

(or the proceeds resulting from the sale of such Shares in connection with such

merger, consolidation, or other change-in-control) determined in accordance

with Section 1 above.




 




6.             Insolvency

or Bankruptcy of the Company or NextNet. 

Upon the insolvency or bankruptcy (whether voluntary or involuntary) of

the Company or NextNet, or the appointment of or taking possession by a receiver,

liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Company

or NextNet or any substantial part of the Company’s or NextNet’s property, or

any general assignment for the benefit of creditors of the Company or NextNet,

the Purchaser shall be an unsecured general creditor of the Company or NextNet,

as applicable, and shall not have any security interest or other rights in

connection with this Agreement or the Shares purchased hereunder.




 




7.             Miscellaneous.




 




(a)           Binding Effect.  This Agreement shall be binding upon and

inure to the benefit of and be enforceable against the parties hereto and their

respective successors and permitted assigns.




 




(b)           Governing Law.  This Agreement shall in all respects be

governed by, and enforced and interpreted in accordance with, the laws of the

State of Minnesota, except with respect to its rules relating to conflicts of

laws.




 




(c)           Legends.  The Shares issued to the Purchaser pursuant

to this Agreement shall contain the following legends:




 




THESE

SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,

OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR

OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR

EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.  ACCORDINGLY, THESE SHARES MAY NOT BE SOLD, TRANSFERRED OR

OTHERWISE DISPOSED OF WITHOUT (i) AN OPINION OF COUNSEL SATISFACTORY TO ZAMBA

CORPORATION THAT SUCH SALE, TRANSFER OR OTHER DISPOSITION MAY LAWFULLY BE MADE

WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE

SECURITIES LAWS OR (ii) SUCH REGISTRATION.




 




THE

SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND AMONG THE

COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY (A COPY OF WHICH MAY BE

OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE

PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME

BOUND BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT.




 




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THE

SALE, PLEADE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS

CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN RIGHT OF FIRST

REFUSAL AGREEMENT BY AND BETWEEN THE STOCKHOLDER, THE CORPORATION AND CERTAIN HOLDERS

OF PREFERRED STOCK OF THE CORPORATION. 

COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE

SECRETARY OF THE CORPORATION




 




(d)           Notices.  All notices, consents, requests, demands,

instructions or other communications provided for herein shall be in writing

and shall be deemed validly given, made and served when (a) delivered

personally, (b) sent by certified or registered mail, postage prepaid,

(c) sent by reputable overnight delivery service, or (d) sent by

telephonic facsimile transmission, and, pending the designation of another

address, addressed as follows:




 




	

  If to the

  Company:


  	

   


  	

  Zamba Corporation


  	

   


  
	

   


  	

   


  	

  3033 Excelsior

  Blvd., Suite 200


  	

   


  
	

   


  	

   


  	

  Minneapolis,

  Minnesota 55416


  	

   


  
	

   


  	

   


  	

  Attn:  Chief Financial Officer


  	

   


  
	

   


  	

   


  	

  Fax: (952)

  893-3948


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  If to the

  Purchaser:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

  Fax:


  	

   


  
					





 




(e)           Entire Agreement and Counterparts.  This Agreement evidences the entire

agreement between the Company and the Purchaser relating to the subject matter

hereof and supersedes in all respects any and all prior oral or written

agreements or understandings.  This

Agreement may not be amended or modified, and no provisions hereof may be

waived, except by written instrument signed by both the Company and the

Purchaser.  This Agreement may be

executed in counterparts, each of which shall be deemed an original and all of

which, when taken together, shall constitute one Agreement.




 




(f)            The Purchaser and the Company

understand the meaning and legal consequences of the agreements,

representations and warranties contained herein.  The Purchaser and the Company agree that such agreements,

representations and warranties shall survive and remain in full force and

effect after the execution hereof and payment for the Shares.




 




(g)           Any controversy or claim arising out

of or relating to this Agreement, the Subscriber’s purchase of Shares or any

breach of this Agreement, shall be settled by arbitration administered by the

American Arbitration Association in accordance with its Securities Arbitration

Rules, and judgment on the award rendered by the Arbitrator(s) may be entered

in any court having jurisdiction thereof.




 




(h)           Headings.  Section headings used in this Agreement have

no legal significance and are used solely for convenience of reference.




 




(i)            Expenses.  Each party shall pay for its own legal,

accounting and other similar expenses incurred in connection with the

transaction contemplated by this Agreement.




 




IN WITNESS WHEREOF, the Company and the Purchaser have

executed this Agreement as of the date set forth in the first paragraph.




 




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  THE COMPANY:


  	

  THE PURCHASER:


  
	

   


  	

   


  
	

  ZAMBA CORPORATION


  	

   


  
	

   


  	

   


  	

   


  
	

  By:


  	

   /s/ Michael H. Carrel


  	

   


  	

  /s/ Brian R. Lawton


  	

   


  
	

  Name:


  	

   Michael H. Carrel


  	

  Name: Brian R. Lawton


  
	

  Title :


  	

   CFO


  	

   


  
					





 




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