LLC MEMBERSHIP INTEREST









EXHIBIT 10.59




 




STOCK

PURCHASE AGREEMENT




 




This Stock Purchase Agreement (this “Agreement”) is

made and entered into as of the 25th day of March, 2002, by and

between Zamba Corporation, a Delaware corporation (the “Company”), and Joseph

B. Costello (the “Purchaser”).




 




WHEREAS, the Company owns 2,400,000 shares of Series A

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

NextNet Wireless, Inc., a Delaware corporation (“NextNet”), which represents

approximately 33% of the outstanding capital stock of NextNet; and




 




WHEREAS, the Purchaser is the Chairman of the

Company’s Board of Directors and the Chairman of NextNet’s Board of Directors,

and therefore is thoroughly familiar with the Company’s and NextNet’s business,

financial condition and prospects; and




 




WHEREAS, pursuant to a Stock Purchase Agreement dated

February 26, 2002 (the “February Stock Purchase Agreement”), the Purchaser has

previously agreed to purchase from the Company and the Company has agreed to

sell certain of its shares of Zamba’s NextNet Stock; and




 




WHEREAS, the Purchaser desires to purchase additional

shares (the “Shares”) of Zamba’s NextNet Stock pursuant to the terms of this

Agreement; 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; and




 




WHEREAS, Purchaser agrees that the number of Shares to

be issued to the Purchaser hereunder shall be determined in accordance with the

procedures set forth in Section 1(b) below.




 




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)           Purchaser agrees to pay to the

Company an aggregate purchase price of $400,000 (the “Purchase Price”) for the

Shares.  Promptly following the

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)           In order to determine the number of

Shares to be received by the Purchaser from the Company in exchange for the

Purchase Price, the Company and the 




 





























Purchaser hereby agree that the number of Shares shall

be determined by dividing the Purchase Price by the price per share of Zamba’s

NextNet Stock, with the price per share determined by the first to occur of the

following events:




 




(i)            the price per share of Zamba’s

NextNet Stock determined upon the merger, consolidation, sale of all or

substantially all of the assets or any other change-in-control of NextNet in

which NextNet is not the continuing corporation after such merger,

consolidation, sale of all or substantially all of the assets or other such

change-in-control;




(ii)           the price per share of Zamba’s

NextNet Stock established upon the Company’s sale of any shares of Zamba’s

NextNet Stock to any third party;




(iii)          if the events specified in (i) or

(ii)above have not occurred by December 31, 2002, the Company and the Purchaser

shall agree to engage an independent accountant, valuation expert or other

entity experienced in the valuation of companies substantially similar to

NextNet to prepare a valuation of Zamba’s NextNet Stock, which valuation shall

be binding upon the Company and the Purchaser.




(c)           Notwithstanding the foregoing, if the

valuation determined pursuant to Section 1(b) above would otherwise result in

the issuance of a greater number of shares of Zamba’s NextNet Stock than the

number of shares of Zamba’s NextNet Stock then owned by the Company, after

subtracting the number of shares to be provided to the Purchaser pursuant to

the February Stock Purchase Agreement, the number of Shares to be issued to the

Purchaser under this Agreement shall be limited to the number of shares of

Zamba’s NextNet Stock then owned by the Company.




(d)           Within ten business days after the

determination of the number of Shares to be issued to the Purchaser in

accordance with the provisions set forth in Section 1(b) above, 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 (the “Refusal Agreement”)

dated September 21, 1998 by and among Zamba Corporation (“Zamba”) (formerly

known as “Racotek, Inc.”), NextNet Wireless, Inc. (“NextNet”) (formerly known

as “NextNet, Inc.”) and the holders of the Series B Preferred Stock of NextNet.




(e)           If NextNet elects to exercise its

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

be refunded to the Purchaser within ten 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 ten

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.




(f)            If any of the eligible investors in

NextNet  elects to exercise its pro rata

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

to the 




 




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Purchaser the payments the Company receives from such

investor(s) within ten 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, and subject to the limitations set forth in Section 1(c) above,

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 has 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.




(c)           As the Chairman of the Company’s and

NextNet’s Board of Directors, the Purchaser has detailed knowledge of the

Company’s and NextNet’s business, financial condition and prospects.  In addition, the Purchaser has been provided

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

requested from the Company and has utilized such information to his

satisfaction for the purpose of obtaining information regarding the Company’s

and NextNet’s business, financial condition and prospects.




(d)           The Purchaser is acquiring the Shares

for his own account, for investment purposes only, and without the intention of

reselling or redistributing the Shares;




(e)           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 of the Shares and for which the Shares were

pledged, would constitute an intent inconsistent with the foregoing

representation.




(f)            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.




 




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(g)           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.




3.             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 imposed by applicable securities laws.




4.             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 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(b) 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(b)(ii) above.




5.             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.




 




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6.             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)           Legend.  The Shares issued to the Purchaser pursuant

to this Agreement shall contain the following legend:




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.




 




(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:


  	

   


  	

  Joseph B. Costello


  
	

   


  	

   


  	

  2880 Lakeside Drive, Suite 250


  
	

   


  	

   


  	

  Santa Clara, California 95054


  
	

   


  	

   


  	

  Fax: (408) 727-0235


  





 




(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 




 




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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)            Headings.  Section headings used in this Agreement have

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




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

accounting and other similar expenses incurred in connection with the

transaction contemplated by this Agreement.




 




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            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/ Joseph B.

  Costello


  	

   


  
	

  Name:


  	

  Michael H. Carrel


  	

   


  	

  Joseph B. Costello


  	

   


  	 

	

  Title:


  	

  CFO


  	

   


  	

   


  	

   


  	 

	

   


  	

   


  	

   


  	

   


  	

   


  	 

								





 




 




 




 




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