EXHIBIT

10.65




 




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 




 





























 




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.




 




2





























 




(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




 




3





























 




(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.




 




4





























 




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.




 




5





























 




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.




 




6





























 




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.




 




7





























 




(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.




 




8





























 




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


  	

   


  	

   


  





 




9