**EXHIBIT10.04**

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#### **STOCK PURCHASE AGREEMENT**

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This Stock Purchase Agreement (this “Agreement”) ismade and entered into as of the 19th day of August, 2002, by and between ZambaCorporation, a Delaware corporation (the “Company”), and Brian Lawton (the“Purchaser”).

 

WHEREAS, the Company owns shares of Series A preferredstock, $.0001 par value per share (“Zamba’s NextNet Stock”) of NextNetWireless, Inc., a Delaware corporation (“NextNet”), pursuant to the Series APreferred Stock Purchase Agreement dated as of September 21, 1998 between Zambaand NextNet (the “Zamba Purchase Agreement”); and

 

WHEREAS, Zamba’s NextNet Stock can be converted tocommon shares of NextNet at the exchange ratio of three shares of common stockfor every one share of preferred stock; and

 

WHEREAS, Zamba’s NextNet Stock is also subject to theAmended and Restated Investors’ Rights Agreement dated as of July 10, 2000among Zamba, NextNet and the Investors and Founders identified therein (the“Investors’ Rights Agreement”), Right of First Refusal Agreement dated as ofSeptember 21, 1998 among the Zamba, NextNet and the Series B Purchasersidentified therein (the “Right of First Refusal Agreement”), and the VotingAgreement dated September 21, 1998, by and among NextNet, the Company and certainother investors (the “Voting Agreement”); and

 

WHEREAS, the Purchaser is thoroughly familiar with theCompany’s and NextNet’s business, financial condition and prospects; and

 

WHEREAS, the Purchaser desires to purchase from theCompany and the Company desires to sell to the Purchaser certain of its sharesof Zamba’s NextNet Stock; and

 

WHEREAS, the Purchaser acknowledges that there is noestablished trading market or other current valuation for Zamba’s NextNet Stockor the Shares to be issued hereunder;

 

NOW, THEREFORE, in consideration of the premises andother good and valuable consideration, the receipt and adequacy of which arehereby acknowledged, the parties agree as follows:

 

1.             Purchase and Sale of Preferred Stock.  Inconsideration of this Agreement, the Company hereby agrees to sell to thePurchaser, and the Purchaser hereby agrees to purchase from the Company, theShares in accordance with the following terms:

 

(a)           The Company hereby sells to thePurchaser, and the Purchaser hereby purchases from the Company, 8,334 shares ofZamba’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 thefull amount of the purchase price to the Company by wire transfer inimmediately available funds to an account designated in writing by the Company.

 

(b)           Promptly upon receipt of the purchaseprice, the Company shall present the transaction to the independent members ofthe Company’s Board of Directors for the approval or disapproval of the Boardof Directors.  If the Company’s Board ofDirectors disapproves the transaction, the full purchase price shall bepromptly refunded to the Purchaser.  Ifthe Company’s Board of Directors approves the transaction, the Company shall,within five business days of such approval, deliver to NextNet a noticepursuant to the Right of First Offer set forth in Section 1.1 of the Right ofFirst Refusal Agreement (the “Refusal Agreement”) dated September 21, 1998 byand among the Company, NextNet, and the holders of the Series B Preferred Stockof NextNet.

 

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(c)           If NextNet elects to exercise itsright of first refusal pursuant to Section 1(b) above, the Purchase Price shallbe refunded to the Purchaser within five business days of the Company’s receiptof full payment from NextNet for the Shares, and the Purchaser shall notreceive any of the Shares.  If NextNetdeclines to exercise its right of first refusal, the Company shall, within fivebusiness days after the Company’s receipt of NextNet’s notice to decline itsright, notify each investor in NextNet eligible under the Refusal Agreement ofits opportunity to exercise its pro rata right of first refusal pursuant to theRefusal Agreement.

 

(d)           If any of the eligible investors inNextNet  elects to exercise its pro rataright of first refusal pursuant to Section 1(c) above, the Company will forwardto the Purchaser the payments the Company receives from such investor(s) withinfive business days of the Company’s receipt of such payment, and the number ofShares that the Purchaser will receive pursuant to this Agreement shall bereduced on a pro rata basis.  Within tenbusiness days after the expiration of the investor refusal period, the Companyshall deliver to the Purchaser a certificate registered in the Purchaser’s namerepresenting the number of Shares purchased.

 

2.             Representations and Warranties of thePurchaser.  As a material inducement for the Company’sissuance and sale of the Shares, the Purchaser represents, warrants, covenantsand acknowledges to the Company that:

 

(a)           The Purchaser understands that theissuance of the Shares have not been registered under the Securities Act of1933, as amended (the “Securities Act”), or applicable state securitieslaws.  Instead, the Company is issuingthe Shares pursuant to exemptions from such laws and in doing so is and wouldbe 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 Dunder the Securities Act, and as further represented in Section 3 of thisAgreement.

 

(c)           The Purchaser has sufficientknowledge and experience in financial and business matters that the Purchaseris capable of evaluating the merits and risks of investing in the Shares.

 

(d)           The Purchaser has been provided withor given access to such additional information as the Purchaser has requestedfrom the Company (including the opportunity to meet with Company officers andto review all the documents that Purchaser may have requested) and has utilizedsuch information to his satisfaction for the purpose of obtaining in additionto, or verifying the accuracy of the information provided, regarding theCompany’s and NextNet’s business, financial condition and prospects.

 

(e)           The Purchaser understands that thepurchase of the Shares is a highly speculative investment and involves a highdegree of risk.  The Purchaser believesthat the investment in the Shares is suitable based upon the Purchaser’sinvestment objectives and financial needs and the Purchaser has adequate meansof providing for current financial needs and personal contingencies, has noneed for liquidity of investment with respect to the Shares and can afford acomplete loss of such investment.

 

(f)            The Purchaser is acquiring theShares for his own account, for investment purposes only, and without theintention of reselling or redistributing the Shares.

 

(g)           The Purchaser is aware that, in theview of the Securities and Exchange Commission, a purchase of the Shares withan intent to resell by reason of any foreseeable specific contingency oranticipated change in market values, or any change in NextNet’s condition, orin connection with a contemplated liquidation or settlement of any loanobtained 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’sforegoing intentions, he should later desire to dispose of or transfer any ofthe Shares in any manner, the undersigned shall not do so without (i) firstobtaining an opinion of counsel satisfactory to the Company and NextNet thatsuch proposed disposition or transfer may lawfully be made without registrationpursuant to the Securities Act and applicable state securities laws or(ii) registering the resale of the Shares under the Securities Act andapplicable state securities laws.

 

(i)            Neither the Company nor NextNet hasany obligation to register the Shares for resale under the Securities Act orany applicable state securities laws, or to take any other action which wouldfacilitate the availability of federal or state registration exemptions inconnection with any resale of the Shares. Accordingly, the Purchaser may be prohibited by law from selling orotherwise transferring or disposing of the Shares and may have to bear the economicrisk of his investment in NextNet for an indefinite period.

 

(j)            The Purchaser, if other than anindividual, represents that (a) the Purchaser was not organized for thespecific purpose of acquiring the Shares; and (b) this Agreement has been dulyauthorized by all necessary action on the part of the Purchaser, has been dulyexecuted by an authorized officer or representative of the Purchaser, and is alegal, valid, and binding obligation of the Purchaser enforceable in accordancewith its terms.

 

(k)           There is no investment banker,broker, finder or other intermediary which has been retained by or isauthorized to act on behalf of Purchaser who might be entitled to any fee orcommission from the Company upon consummation of the transactions contemplatedby this Agreement.

 

(l)            Purchaser agrees to be bound by thetransfer restrictions described in Section 3.6 of the Series A Preferred StockPurchase Agreement dated as of September 21, 1998 between Zamba and NextNet.

 

(m)          Purchaser acknowledges that the provisionsof the Right of First Refusal Agreement dated as of September 21, 1998 amongthe Zamba, NextNet and the Series B Purchasers identified therein shallcontinue to apply to the Shares held by Purchaser.

 

(n)           Purchaser acknowledges that he or shehas already received a copy of the Amended and Restated Investors’ RightsAgreement dated as of July 10, 2000 among Zamba, NextNet and the Investors andFounders identified therein (the “Investors’ Rights Agreement”).  Purchaser understands that, pursuant to theterms of the Investors’ Rights Agreement, the registration rights described inSection 1 and the right of first offer described in Section 2.6 thereof havenot been assigned to the Purchaser by Zamba. Accordingly, the Purchaser is not entitled to any registration rights orrights of first offer with respect to the Purchaser’s ownership of the Shares.

 

3.             Accredited Investor Status.  ThePurchaser is an “accredited investor” as defined in Rule 501(a) of Regulation Dof the Securities Act, because the Purchaser meets at least one of thefollowing criteria (please check one):

 

ý            The Purchaser is a natural personwhose 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 personwho had an individual income in excess of $200,000 in each of the two mostrecent 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 reasonablyexpects to reach the same income level in the current year; or

 

o            The Purchaser is either (i) a bankas defined in Section 3(a)(2) of the Securities Act, or any savings and loanassociation or other institution as defined in Section 3(a)(5)(A) of theSecurities Act whether acting in its individual or fiduciary capacity, anybroker or dealer registered pursuant to Section 15 of the Securities ExchangeAct of 1934, (ii) an insurance company as defined in Section 2(13) of theSecurities Act, (iii) an investment company registered under the InvestmentCompany Act of 1940 or a business development company as defined in Section2(a)(48) of such Act, (iv) a Small Business Investment Company licensed by theU.S. Small Business Administration under Section 301(c) or (d) of the SmallBusiness Investment Act of 1958, or (v) an employee benefit plan within themeaning of Title I of the Employee Retirement Income Security Act of 1974, ifthe investment decision is made by a plan fiduciary, as defined in Section3(21) of such Act, which plan fiduciary is either a bank, savings and loanassociation, insurance company or registered investment adviser, or if theemployee benefit plan has total assets in excess of $5,000,000 or, if a selfdirected plan, with investment decisions made solely by persons who areaccredited investors; or

 

o            The Purchaser is a private businessdevelopment company as defined in Section 202(a)(22) of the Investment AdvisersAct of 1940; or

 

o            The Purchaser is an organizationdescribed in Section 501(c)(3) of the Internal Revenue Code, a corporation,Massachusetts or similar business trust, or partnership, not formed for thespecific purpose of acquiring the Shares, with total assets in excess of$5,000,000; or

 

o            The Purchaser is a director orexecutive officer of the Company; or

 

o            The Purchaser is a trust, with totalassets in excess of $5,000,000, not formed for the specific purpose ofacquiring the Shares, whose purchase is directed by a sophisticated person asdescribed in Rule 506(b)(2)(ii) of Regulation D of the Securities Act; or

 

o            The Purchaser is any entity in whichall of the equity owners are accredited investors.

 

4.             Representations and Warranties of the Company.  Asa material inducement for the Purchaser’s purchase of the Shares, the Companyrepresents, warrants, covenants and acknowledges to the Purchaser that:

 

(a)           The Company is a corporation dulyorganized, validly existing and in good standing under the laws of the State ofDelaware and has the requisite corporate power and authority to own itsproperties and to carry on its business as now being conducted and presentlyproposed to be conducted.

 

(b)           The Shares are being transferred tothe Purchaser free and clear of any liens, encumbrances or other restrictions,other than restrictions on transfer that are contained in the Zamba PurchaseAgreement, the Right of First Refusal Agreement, the Investors RightsAgreement, the Voting Agreement, all of which as they may be amended from timeto time, or are otherwise set forth herein or imposed by applicable securitieslaws.

 

5.             Merger, Consolidation or Other Change inControl of the Company or NextNet.

 

(a)           If the Company shall at any timeconsolidate with or merge into to another corporation (where the Company is notthe continuing corporation after such merger, consolidation, sale of all orsubstantially all of its assets or other change-in-control), or the Companyshall sell, transfer or lease all or substantially all of its assets, then, inany such case, the

 

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Purchaser thereupon (and thereafter) shall continue tobe entitled to be bound by the terms of this Agreement and shall be entitled toreceive the number of Shares determined in accordance with Section 1 above.

 

(b)           If NextNet shall at any timeconsolidate with or merge into another corporation (where NextNet is not thecontinuing corporation after such merger, consolidation or otherchange-in-control), or NextNet shall sell, transfer or lease all orsubstantially all of its assets, then, in any such case, the Purchaserthereupon (and thereafter) shall be entitled to receive the number of Shares(or the proceeds resulting from the sale of such Shares in connection with suchmerger, consolidation, or other change-in-control) determined in accordancewith Section 1 above.

 

6.             Insolvencyor Bankruptcy of the Company or NextNet. Upon the insolvency or bankruptcy (whether voluntary or involuntary) ofthe Company or NextNet, or the appointment of or taking possession by a receiver,liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Companyor NextNet or any substantial part of the Company’s or NextNet’s property, orany 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 inconnection with this Agreement or the Shares purchased hereunder.

 

7.             Miscellaneous.

 

(a)           Binding Effect.  This Agreement shall be binding upon andinure to the benefit of and be enforceable against the parties hereto and theirrespective successors and permitted assigns.

 

(b)           Governing Law.  This Agreement shall in all respects begoverned by, and enforced and interpreted in accordance with, the laws of theState of Minnesota, except with respect to its rules relating to conflicts oflaws.

 

(c)           Legends.  The Shares issued to the Purchaser pursuantto this Agreement shall contain the following legends:

 

**THESESHARES 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 OROTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OREXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.  ACCORDINGLY, THESE SHARES MAY NOT BE SOLD, TRANSFERRED OROTHERWISE DISPOSED OF WITHOUT (i) AN OPINION OF COUNSEL SATISFACTORY TO ZAMBACORPORATION THAT SUCH SALE, TRANSFER OR OTHER DISPOSITION MAY LAWFULLY BE MADEWITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATESECURITIES LAWS OR (ii) SUCH REGISTRATION.**

 

**THESHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND AMONG THECOMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY (A COPY OF WHICH MAY BEOBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THEPERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOMEBOUND BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT.**

 

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**THESALE, PLEADE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THISCERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN RIGHT OF FIRSTREFUSAL AGREEMENT BY AND BETWEEN THE STOCKHOLDER, THE CORPORATION AND CERTAIN HOLDERSOF PREFERRED STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THESECRETARY OF THE CORPORATION**

 

(d)           Notices.  All notices, consents, requests, demands,instructions or other communications provided for herein shall be in writingand shall be deemed validly given, made and served when (a) deliveredpersonally, (b) sent by certified or registered mail, postage prepaid,(c) sent by reputable overnight delivery service, or (d) sent bytelephonic facsimile transmission, and, pending the designation of anotheraddress, 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 entireagreement between the Company and the Purchaser relating to the subject matterhereof and supersedes in all respects any and all prior oral or writtenagreements or understandings.  ThisAgreement may not be amended or modified, and no provisions hereof may bewaived, except by written instrument signed by both the Company and thePurchaser.  This Agreement may beexecuted in counterparts, each of which shall be deemed an original and all ofwhich, when taken together, shall constitute one Agreement.

 

(f)            The Purchaser and the Companyunderstand 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 andeffect after the execution hereof and payment for the Shares.

 

(g)           Any controversy or claim arising outof or relating to this Agreement, the Subscriber’s purchase of Shares or anybreach of this Agreement, shall be settled by arbitration administered by theAmerican Arbitration Association in accordance with its Securities ArbitrationRules, and judgment on the award rendered by the Arbitrator(s) may be enteredin any court having jurisdiction thereof.

 

(h)           Headings.  Section headings used in this Agreement haveno 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 thetransaction contemplated by this Agreement.

 

IN WITNESS WHEREOF, the Company and the Purchaser haveexecuted 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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