EXHIBIT

10.64




 




STOCK

PURCHASE AGREEMENT




 




This Stock Purchase Agreement (this “Agreement”) is

made and entered into as of the 12 day of Feb, 2003, by and between Zamba

Corporation, a Delaware corporation (the “Company”), and John Schwieters (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 into

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

common stock for every one share of Zamba’s NextNet Stock; and




 




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

Second Amended and Restated Investors’ Rights Agreement dated as of November

14, 2002 among the Company, 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 Company, NextNet and the Series B

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

Second Amended and Restated Voting Agreement dated November 14, 2002, among

NextNet, the Company and certain other investors (the “Voting Agreement”); and




 




WHEREAS, the Purchaser is thoroughly familiar with

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;




 




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, shares of Zamba’s NextNet

Stock in accordance with the following terms:




 




(a)           The Company hereby sells to the

Purchaser, and the Purchaser hereby purchases from the Company, a number of

shares of Zamba’s NextNet Stock (the “Shares”) that is determined by dividing

the aggregate purchase price of $250,000 by a per share purchase price that is

the lesser of $6.00 per share or such lower per share price (on a common share

equivalent basis, without giving effect to differences in rights) that




 




2





























 




NextNet receives on sales of other preferred

stock  for aggregate consideration of at

least $250,000 on or before March 31, 2003. 

Promptly upon execution of this Agreement, and as a condition to the

Company taking the steps outlined in subparagraph (b) below, the Purchaser

shall pay the full amount of the purchase price to the Company by check or 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 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.




 




(c)           If NextNet elects to exercise its

right of first refusal pursuant to Section 1.1 of the Right of First Refusal

Agreement, 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, without interest, and the Purchaser shall not receive any of the

purchased shares of Zamba’s NextNet Stock. 

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

Right of First Refusal Agreement of its opportunity to exercise its pro rata

right of first refusal pursuant to the Right of First Refusal Agreement.




 




(d)           If any of the eligible investors in

NextNet elects to exercise its pro rata right of first refusal pursuant to

Section 1.1 of the Right of First Refusal Agreement, 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 of Zamba’s NextNet Stock that the Purchaser will receive pursuant to

this Agreement shall be reduced on a share-for-share basis basis.  Promptly after the expiration of the

investor pro rata right of first refusal period, the Company shall deliver to

the Purchaser a certificate registered in the Purchaser’s name representing the

number of shares of Zamba’s NextNet Stock purchased.




 




2.             Representations

and Warranties of the Purchaser.  As

a material inducement for the Company’s issuance and sale of the shares of

Zamba’s NextNet Stock, the Purchaser represents, warrants, covenants and

acknowledges to the Company that:




 




(a)           The Purchaser understands that the

sale of the shares of Zamba’s NextNet Stock pursuant to the terms hereof has

not been registered under the Securities Act of 1933, as amended (the

“Securities Act”), or applicable state securities laws.  Instead, the Company is selling the Shares

pursuant to exemptions from such laws and in doing so is relying on, among

other things, the Purchaser’s representations, warranties, covenants and

acknowledgements contained herein.




 




(b)           The Purchaser is 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.




 




3





























 




(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 of

Zamba’s NextNet Stock.




 




(d)           The Purchaser has been provided with

or given access to such information concerning NextNet, including, but not limited

to, its business, financial condition and prospects (collectively, “NextNet’s

Business”), as the Purchaser has requested and/or deems necessary and has

utilized such information to the Purchaser’s satisfaction for the purpose of

making an investment in the shares of Zamba’s NextNet Stock pursuant to the

terms hereof.  The Purchaser hereby

acknowledges that it has made its own independent investigation of NextNet’s

Business and that it is not relying on any information which may been provided

by the Company, including, but not limited to, the Company’s officers,

directors, employees, agents and other representatives (collectively, the

“Company Representatives”), in connection with its purchase of the shares of

Zamba’s NextNet Stock.  The Purchaser

hereby agrees to indemnify and hold harmless each Company Representative in

connection with any loss, claim or demand which the Purchaser now has or in the

future may have in connection with its purchase of the shares of Zamba’s

NextNet Stock pursuant to the terms hereof.




 




(e)           The Purchaser understands that the

purchase of the shares of Zamba’s NextNet Stock is a highly speculative

investment and involves a high degree of risk. 

The Purchaser acknowledges that it may not ever be able to resell the

shares of Zamba’s NextNet Stock purchased pursuant to the terms hereof, whether

at the price paid by the Purchaser or otherwise.  The Purchaser believes that the investment in the shares of

Zamba’s NextNet Stock 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 of Zamba’s NextNet Stock

and can afford a complete loss of such investment.




 




(f)            The Purchaser is acquiring the

shares of Zamba’s NextNet Stock for its own account, for investment purposes

only, and without the intention of reselling or redistributing the same.




 




(g)           The Purchaser is aware that, in the

view of the Securities and Exchange Commission, a purchase of the shares of

Zamba’s NextNet Stock 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 of the shares of Zamba’s

NextNet Stock and for which such shares were pledged, would constitute an

intent inconsistent with the foregoing representation.




 




(h)           If, contrary to the Purchaser’s

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

the shares of Zamba’s NextNet Stock in any manner, the undersigned shall not do

so without (i) first obtaining an opinion of counsel satisfactory to NextNet that

such proposed disposition or transfer may lawfully be made without registration

pursuant to the Securities Act and applicable state securities laws or




 




4





























 




(ii) registering the resale of such shares under

the Securities Act and applicable state securities laws.




 




(i)            Neither the Company nor NextNet has

any obligation to register the shares of Zamba’s NextNet Stock 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 such shares.  Accordingly, the Purchaser may be prohibited

by law from selling or otherwise transferring or disposing of the Shares and

likely will may have to bear the economic risk of its 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 of Zamba’s NextNet Stock; 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 or NextNet 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 Zamba Purchase Agreement.




 




(m)          Purchaser acknowledges that the

provisions of the Right of First Refusal Agreement shall continue to apply to

the shares of Zamba’s NextNet Stock owned by Purchaser.




 




(n)           Purchaser acknowledges that he or she

has already received a copy of 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 the Company.  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 of Zamba’s NextNet

Stock purchased pursuant to the terms hereof.




 




(o)           Purchaser acknowledges that the

shares of Zamba’s NextNet Stock shall continue to be subject to the terms and

conditions of the Zamba Purchase Agreement, the Investors’ Rights Agreement,

and the Voting Agreement, except for the provisions of those agreements that,

by their nature, are not transferable or assignable to Purchaser.




 




(p)           Until such time as Zamba beneficially

holds fewer than 100,000 shares of NextNet Series A Preferred Stock, Purchaser

shall vote or act with respect to any and all of its shares of NextNet Series A

Preferred Stock so as to elect the nominee of Zamba to be the representative of

the Series A shareholders on the NextNet Board of Directors.




 




5





























 




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




 




ý            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 $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 of Zamba’s NextNet Stock, with total

assets in excess of $5,000,000; or




 




o            The Purchaser is a director or

executive officer of NextNet; 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 of Zamba’s NextNet Stock, 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.




 




6





























 




4.             Representations

and Warranties of the Company.  As a

material inducement for the Purchaser’s purchase of the shares of Zamba’s

NextNet Stock to be purchased pursuant to the terms hereof, 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 of Zamba’s NextNet Stock

being sold to the Purchaser pursuant to the terms hereof will be 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 prior to the delivery of the

shares of Zamba’s NextNet Stock 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

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 of Zamba’s NextNet Stock determined in accordance with Section 1 above.




 




(b)           If prior to the delivery of the

shares of Zamba’s NextNet Stock 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 of Zamba’s NextNet Stock (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 of Zamba’s NextNet Stock to be purchased hereunder.




 




7





























 




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 of Zamba’s NextNet Stock 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 NEXTNET WIRELESS, INC. 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 NEXTNET

WIRELESS, INC. 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.




 




THE SALE, PLEDGE, 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,

NEXTNET WIRELESS, INC. 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.




 




8





























 




(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 of Zamba’s NextNet

Stock to be purchased pursuant to the terms hereof.




 




(g)           Any controversy or claim arising out

of or relating to this Agreement, the Purchaser’s purchase of the shares of

Zamba’s NextNet Stock 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.




 




9





























 




IN WITNESS WHEREOF, the Company and the Purchaser have

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




 




	

  THE COMPANY:


  	

   


  	

   


  	

  THE PURCHASER:


  
	

   


  	

   


  	

   


  	

   


  
	

  ZAMBA CORPORATION


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Michael H. Carrel


  	

   


  	

   


  	

  /s/ John Schwieters


  	

   


  
	

  Name:


  	

  Michael H. Carrel


  	

   


  	

   


  	

  Name: John Schwieters


  	

   


  
	

  Title:


  	

  Chief Financial Officer


  	

   


  	

   


  	

   


  





 




10