-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N6nEQxsCfLXycoHjEEJc4dPwXs/4rrrV+r38oowijBzm8Eet3zQ9AmXE4bYfdqpw FEVpacbvfpyOuA4mrgFOiA== 0000899140-08-000207.txt : 20080128 0000899140-08-000207.hdr.sgml : 20080128 20080128170616 ACCESSION NUMBER: 0000899140-08-000207 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20080128 DATE AS OF CHANGE: 20080128 GROUP MEMBERS: ALTOS HORNOS DE MEXICO, S.A.B. DE C.V. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: QUEPASA CORP CENTRAL INDEX KEY: 0001078099 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING [7310] IRS NUMBER: 860879433 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56473 FILM NUMBER: 08554887 BUSINESS ADDRESS: STREET 1: 7550 E REDFIELD ROAD STREET 2: SUITE A CITY: SCOTTSDALE STATE: AZ ZIP: 85260 BUSINESS PHONE: 408-348-2665 MAIL ADDRESS: STREET 1: 7550 E REDFIELD ROAD STREET 2: SUITE A CITY: SCOTTSDALE STATE: AZ ZIP: 85260 FORMER COMPANY: FORMER CONFORMED NAME: QUEPASA COM INC DATE OF NAME CHANGE: 19990310 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Mexicans & Americans Trading Together, Inc. CENTRAL INDEX KEY: 0001378542 IRS NUMBER: 270144527 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 7550 IH 10 WEST STREET 2: SUITE 630 CITY: SAN ANTONIO STATE: TX ZIP: 78229 BUSINESS PHONE: 210-341-3777 MAIL ADDRESS: STREET 1: 7550 IH 10 WEST STREET 2: SUITE 630 CITY: SAN ANTONIO STATE: TX ZIP: 78229 SC 13D/A 1 m3963474b.txt FIRST AMENDMENT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 1) Under the Securities Exchange Act of 1934 Quepasa Corporation - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.001 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 74833W206 - -------------------------------------------------------------------------------- (CUSIP Number of Class of Securities) Andres Gonzalez Saravia Mexicans & Americans Trading Together, Inc. - -------------------------------------------------------------------------------- 7550 IH 10 West Suite 630 San Antonio, Texas 78229 (210) 341-3777 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Maurice M. Lefkort, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019 (212) 728-8000 January 25, 2008 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Schedule) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following: [ ] SCHEDULE 13D CUSIP No. 74833W206 - ----------- -------------------------------------------------------------------- 1 NAME OF REPORT PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Mexicans & Americans Trading Together, Inc. - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - ----------- -------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED 3,000,000 BY EACH REPORTING --------- ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 3,000,000 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 3,000,000 - ----------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 21.0% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - ----------- -------------------------------------------------------------------- SCHEDULE 13D CUSIP No. 74833W206 - ----------- -------------------------------------------------------------------- 1 NAME OF REPORT PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Altos Hornos de Mexico, S.A.B. de C.V. - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - ----------- -------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Mexico - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ 8 SHARED VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED 3,000,000 BY EACH REPORTING --------- ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 3,000,000 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 3,000,000 - ----------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 21.0% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - ----------- -------------------------------------------------------------------- This Amendment No. 1 amends the statement on Schedule 13D previously filed on October 27, 2006 (as amended by this Amendment No. 1, the "Schedule 13D"). The Schedule 13D relates to the common stock, par value $0.001 per share (the "Common Stock") of Quepasa Corporation, a Nevada corporation (the "Company"), and is being filed on behalf of Mexicans & Americans Trading Together, Inc., a Delaware corporation ("MATT Inc.") and Altos Hornos de Mexico, S.A.B. de C.V., a Mexican Variable Capital Company (Sociedad Anonima de Capital Variable) ("AHMSA"). MATT Inc. and AHMSA are sometimes collectively referred to herein as the "Reporting Persons." This Amendment No. 1 refers only to information which has materially changed since the filing of the original Schedule 13D and the items below are amended and supplemented as set forth below. Capitalized terms used herein and not otherwise defined have the meanings ascribed thereto in the original Schedule 13D. Item 4. Purpose of Transaction. Item 4 of the Schedule 13D is hereby supplemented by adding the following thereto: On October 30, 2007, the Company announced the appointment of John C. Abbott as Chief Executive Officer and Chairman of the Board of Directors of the Company effective October 25, 2007, the effective date of the resignation of Robert Stearns, the Company's previous Chief Executive Officer. At the time of his appointment, Mr. Abbott was engaged as a financial consultant to AHMSA. On January 25, 2008, MATT Inc. entered into a Note Purchase Agreement with the Company (the "Note Purchase Agreement"). Pursuant to the terms of the Note Purchase Agreement, on January 25, 2008: (i) MATT Inc. purchased a $5 million subordinated promissory note of the Company (the "Promissory Note"), (ii) the exercise price of the outstanding Series 1 Warrant to purchase 1,000,000 shares of Common Stock was reduced from $12.50 per share to $2.75 per share, (iii) the exercise price of the outstanding Series 2 Warrant to purchase 1,000,000 shares of Common Stock was reduced from $15.00 per share to $2.75 per share, and (iv) the Amended and Restated Support Agreement between the Company and MATT Inc. was terminated. The material terms of the Note Purchase Agreement, the Promissory Note and the warrant amendments are described in Item 6 below. Except as set forth above, neither the Reporting Persons nor, to the best of their knowledge, any person listed on the schedules to the original Schedule 13D, has any present plans or proposals that relate to or would result in any of the actions required to be described in Item 4 of Schedule 13D. The Reporting Persons may, at any time, review or reconsider their position with respect to the Company and formulate plans or proposals with respect to any of such matters. Item 5. Interest in Securities of the Issuer. Items 5(a) and 5(c) of the Schedule 13D are hereby amended and restated as follows: (a) MATT Inc. beneficially owns 3,000,000 shares of Common Stock, consisting of the 1,000,000 shares of Common Stock held by MATT Inc. and the 2,000,000 shares issuable upon exercise of the Warrants owned by MATT Inc. (together, the "Shares"). AHMSA may be 4 deemed to beneficially own the Shares by virtue of its ownership of MATT Inc. The Shares represent 21.0% of 14,279,511 total shares of Common Stock, calculated as the sum of (i) the 12,279,511 shares of Common Stock outstanding as of November 14, 2007, as reported in the Company's Quarterly Report on Form 10-QSB for the quarterly period ended September 30, 2007 (the "Reported Share Number"), and (ii) the 2,000,000 shares of Common Stock issuable upon exercise of the Warrants. Mr. Alonso Ancira, Chairman of the Board of Directors of AHMSA (of which MATT Inc. is a wholly owned subsidiary) and the sole member of the Board of Directors of MATT Inc., directly beneficially owns 11,833 share of Common Stock, consisting of 9,750 shares of Common Stock and options to purchase 2,083 shares of Common Stock. Such shares represent less than 0.1% of 12,281,594 total shares of Common Stock, calculated as the sum of (i) the Reported Share Number and (ii) the 2,083 shares of Common Stock issuable upon exercise of such options. (c) On January 25, 2008, pursuant to the Note Purchase Agreement and warrant amendments described in this Schedule 13D, the exercise price of the outstanding Series 1 Warrant to purchase 1,000,000 shares of Common Stock was reduced from $12.50 per share to $2.75 per share, and the exercise price of the outstanding Series 2 Warrant to purchase 1,000,000 shares of Common Stock was reduced from $15.00 per share to $2.75 per share. Mr. Ancira, in consideration for his service as a member of the Board of Directors of the Company, was granted 1,250 shares of Common Stock on December 31, 2007 pursuant to the Company's 2006 Stock Incentive Plan. Additionally, under the 2006 Stock Incentive Plan, on January 18, 2008, Mr. Ancira was granted 3,500 shares of Common Stock and options to purchase 12,500 shares of Common Stock, with such options vesting in 12 equal monthly installments over the 2008 calendar year. During the past 60 days, there were no other transactions in the Common Stock, or securities convertible or exercisable into shares of Common Stock, effected by the Reporting Persons nor, to the best of their knowledge, any person listed on the schedules to the original Schedule 13D. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Item 6 of the Schedule 13D is hereby amended by adding the following thereto: Pursuant to the Note Purchase Agreement, the Company sold to MATT Inc. the subordinated Promissory Note for $5,000,000. Interest accrues at the rate of 4.46%, compounded annually, until the principal amount is paid in full. The Company is obligated to repay the principal amount of the Promissory Note, together with all accrued and outstanding interest in respect of such principal amount, upon the first to occur of (i) October 16, 2016, (ii) the exercise by MATT Inc. of all or any part of the Series 1 Warrant and/or Series 2 Warrant, but only in the principal amount (which together with all accrued interest) is equal to the exercise price paid by MATT Inc. in such warrant exercise, (iii) any liquidation, dissolution, winding up or liquidating dividend of the Company, (iv) the commencement of any voluntary or involuntary insolvency or bankruptcy case or proceeding, (v) the occurrence of an event of default resulting in the acceleration of the maturity of the Promissory Note or (vi) upon the occurrence of (x) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the stockholders of the Company immediately prior to such 5 consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; (y) any transaction or series of related transactions to which the Company is a party in which in excess of fifty percent (50%) of the Company's voting power is transferred; or (z) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company; except in the case of this clause (vi) for a transaction with respect to which the weighted average (based on daily trading volume of the principal market) closing price of the Company's common stock for the 30 days following the announcement of such transaction exceeded $2.75 per share (adjusted for stock splits, dividends and similar transactions subsequent to the date hereof) with respect to which the price of the Common Stock for the 30 days following the announcement such transaction exceeds $2.75 per share. The Company may repay the Promissory Note at any time. The Company and MATT Inc. expressly agreed that the indebtedness evidenced by the Promissory Note is subordinated in right of payment to the prior payment in full of all obligations of the Company, whether currently outstanding or incurred in the future, for the payment of indebtedness for borrowed money (including those in which the Company is responsible or liable as obligor, guarantor or otherwise), except indebtedness obligations of the Company which by their express terms are pari passu in right of payment to the Promissory Note ("Pari Passu Debt"). Any payments received by MATT Inc. with respect to the Promissory Note when such payment is prohibited by the terms of the Promissory Note are required to be held by MATT Inc. in trust for the benefit of the holders of obligations of the Company senior to the Pari Passu Debt. The Promissory Note also provides that in the event that MATT Inc. receives any payment with respect to the Promissory Note (other than a payment or deemed payment in connection with the surrender of the Promissory Note in payment of the exercise price of the Warrants) that is greater than its pro rata share (based on outstanding principal amount) of all payments concurrently made to the holders of Pari Passu Debt, then the amount of such payment in excess of the pro rata share (the "Excess Payment") shall be held by MATT Inc., in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to, the holders of Pari Passu Debt as their interests may appear or their representative under the agreements (if any) pursuant to which Pari Passu Debt may have been issued, as their respective interests may appear, for application to the payment of all Obligations with respect to Pari Passu Debt remaining unpaid. The Promissory Note also includes certain debt covenants. Under the Promissory Note, the Company must make ratable payments to MATT Inc. if the Company makes any payments on Pari Passu Debt. Additionally, pursuant to the Promissory Note the Company may not incur or become liable for any indebtedness for borrowed money without the prior written consent of the holders of a majority of the outstanding principal amount of the Promissory Note and all Pari Passu Debt, voting as a single class, except for certain carveouts which include (a) purchase money debt and capital lease obligations used to finance the acquisition of equipment in the ordinary course of business, not exceeding the purchase price of the equipment financed or subject to the capital lease, as the case may be, and not imposing a lien or security interest on any assets other than the equipment so financed, (b) other indebtedness for borrowed money not to 6 exceed $3 million and (c) Pari Passu Debt. Events of default under the Promissory Note include the Company's (i) failure to pay principal or interest when due, (ii) breach of any of its representations or warranties in the Note Purchase Agreement, (iii) failure to comply with or perform any covenant contained in the Promissory Note that is not cured within 15 days and (iv) default in the payment of principal of or interest on any borrowed money indebtedness exceeding $500,000 or the acceleration of any such indebtedness. Upon the occurrence of an event of default, in addition to the entire outstanding principal balance and accrued interest becoming due, interest accrues at a default rate of interest that is five percentage points (5.0%) higher than the original rate of interest. Pursuant to the Note Purchase Agreement, MATT Inc. and the Company entered into an amendment of each of the outstanding Warrants. Pursuant to the terms of the amendment, the exercise price of each of the Warrants was reduced to $2.75 per share. Each Warrant remains exercisable for 1,000,000 shares of Common Stock (2,000,000 shares in the aggregate) and expires at 5:00 p.m. E.S.T. on October 17, 2016. Pursuant to the terms of the Warrant amendments, MATT Inc. is entitled to pay the exercise price of either of the Warrants (in whole or in part) through the surrender of all or a portion of the Promissory Note or any other promissory note due to MATT Inc. from the Company. In addition, pursuant to the Note Purchase Agreement, the Amended and Restated Support Agreement between the Company and MATT Inc. whereby MATT Inc. was obligated (x) to use its commercially reasonable efforts to generate advertising and other commercial revenue for the Company, with such revenue resulting in certain adjustments to the exercise prices of the Warrants and (y) to provide certain jet services, was terminated. The descriptions in this Schedule 13D of the Note Purchase Agreement, the Promissory Note and the warrant amendments are qualified by reference to such documents, forms of which are included as exhibits to this Schedule 13D, and incorporated herein by reference. As described above, under the 2006 Stock Incentive Plan, Mr. Ancira was granted options to purchase 12,500 shares of Common Stock, at an exercise price of $2.49 per share, in consideration for his service as a member of the Board of Directors of the Company. Such options will be subject to the terms of a standard option grant agreement and vest in 12 equal monthly installments through December 31, 2008. The options expire on January 18, 2018. Item 7. Material to be Filed as Exhibits. 99.7 Form of Note Purchase Agreement, dated January 25, 2008, by and between Quepasa Corporation and Mexicans & Americans Trading Together, Inc. 99.8 Form of Promissory Note, dated as of January 25, 2008, issued by Quepasa Corporation to Mexicans & Americans Trading Together, Inc. 99.9 Form of Amendment No. 1 to Series 1 Common Stock Purchase Warrant, dated as of January 25, 2008, by and between the Company and Mexicans & Americans Trading Together, Inc. 7 99.10 Form of Amendment No. 1 to Series 2 Common Stock Purchase Warrant, dated as of January 25, 2008, by and between the Company and Mexicans & Americans Trading Together, Inc. [Signatures on following page] 8 SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: January 28, 2008 MEXICANS & AMERICANS TRADING TOGETHER, INC. By: /s/ Andres Gonzalez Saravia ------------------------------------- Name: Andres Gonzalez Saravia Title: President ALTOS HORNOS DE MEXICO, S.A.B. DE C.V. By: /s/ Andres Gonzalez Saravia ------------------------------------- Name: Andres Gonzalez Saravia Title: Legal Director [SIGNATURE PAGE TO AMENDMENT NO. 1 TO SCHEDULE 13D WITH RESPECT TO THE COMMON STOCK OF QUEPASA CORPORATION] EX-99.7 3 m3963474c.txt NOTE PURCHASE AGREEMENT Exhibit 99.7 NOTE PURCHASE AGREEMENT THIS NOTE PURCHASE AGREEMENT (this "Agreement") is made as of January 25, 2008, by and between QUEPASA CORPORATION, a Nevada corporation (the "Company"), and MEXICANS & AMERICANS TRADING TOGETHER, INC., a Delaware corporation (the "Investor"). WHEREAS, the Company desires to raise additional capital, and the Investor is willing to provide debt capital upon the terms and subject to the conditions set forth herein; and WHEREAS, in connection with the foregoing, the Company and the Investor will amend: (i) the existing Series 1 Warrant to purchase 1,000,000 shares of Common Stock at an exercise price of $12.50 per share (subject to adjustment), by executing an amendment in the form attached hereto as Exhibit A (the "Series 1 Warrant Amendment"), (ii) the existing Series 2 Warrant to purchase 1,000,000 shares of Common Stock at an exercise price of $15.00 per share (subject to adjustment), by executing an amendment in the form attached hereto as Exhibit B (the "Series 2 Warrant Amendment" and, together with the Series 1 Warrant Amendment, the "Warrant Amendments"), and (iii) terminate the Amended and Restated Support Agreement, signed November 20, 2006 but made effective as of October 16, 2006 by and between the Company and Investor. NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Investor agree as follows: ARTICLE I. PURCHASE AND SALE; CLOSING 1.1 Purchase and Sale of Note; Amendment of Warrants; Termination of Support Agreements. Effective as of the Closing: (a) The Company hereby sells to the Investor, and the Investor hereby purchases from the Company, a subordinated promissory note of the Company in the form of Exhibit C hereto (the "Note" and together with this Agreement and the Warrant Amendments, the "Transaction Documents") for a price of $5,000,000 (the "Purchase Price"). (b) The Company and the Investor shall each execute and deliver the Warrant Amendments. (c) The Amended and Restated Support Agreement, signed November 20, 2006 but made effective as of October 16, 2006 by and between the Company and the Investor shall be terminated and shall be null and void (except for Section 7 thereof, which shall survive in accordance with its terms), with no further liability of any party thereto, whether in tort, contract or otherwise (except for any liability related to Section 7 thereof, which shall survive in accordance with its terms). Each of the Company and the Investor hereby releases and forever discharges the other party hereto and its subsidiaries, representatives and affiliates with respect to any and all claims, rights, suits, debts, dues, sums of money, liabilities, accounts, covenants, contracts, controversies, agreements, promises, damages, judgments, claims and demands, of every nature whatsoever, whether in law or at equity, whether known or unknown, from the beginning of time to the date hereof, which such party had, now has or may have against the such Person arising out of, based upon, or related to, the Amended and Restated Support Agreement terminated hereby (except for Section 7 thereof, which shall survive in accordance with its terms). 1.2 Closing. The closing of the purchase and sale of the Note, the execution and delivery of the Warrant Amendments and the termination of the Amended and Restated Support Agreement (the "Closing") shall occur at the offices of Willkie Farr & Gallagher LLP, at 10:00 a.m. (New York time) within one business day of the satisfaction of the conditions to closing set forth in Article III hereof (except for such conditions which by their nature may only be satisfied on the Closing Date) (the date upon which the Closing occurs, the "Closing Date"). (a) At the Closing, the Company shall deliver or cause to be delivered to the Investor the following: (i) the Note registered in the name of the Investor; (ii) the Series 1 Warrant Amendment; (iii) the Series 2 Warrant Amendment; and (iv) the certificate required by Section 3.1(c). (b) At the Closing, the Investor shall deliver or cause to be delivered to the Company the following: (i) the Purchase Price, by wire transfer of immediately available funds, to an account designated by the Company to the Investor in writing; (ii) the Series 1 Warrant Amendment; (iii) the Series 2 Warrant Amendment; and (iv) the certificate required by Section 3.2(b), if applicable. ARTICLE II. REPRESENTATIONS AND WARRANTIES 2.1 Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to the Investor (and any permitted assignees) as of the date hereof (all references to the Company in this Section 2.1, except for paragraphs (a) and (b), shall mean the Company and its subsidiaries): (a) Organization. The Company is duly organized, validly existing and in good standing under the laws of the State of Nevada, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. 2 (b) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to conduct its business as currently conducted or proposed to be conducted, and to carry out its obligations thereunder. The execution and delivery of each of the Transaction Documents by the Company and the consummation by it of the transactions contemplated thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company in connection therewith. This Agreement has been, and as of the Closing Date each of the Transaction Documents will be, duly executed and delivered by the Company and as of the date hereof this Agreement constitutes and as of the Closing Date each of the Transaction Documents will constitute a valid and binding obligation of the Company enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies (collectively (i) and (ii), the "Enforceability Exceptions"). (c) No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated thereby do not and will not (i) conflict with or violate any provision of the Company's certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument or other understanding to which the Company is a party or by which any property or asset of the Company is bound or affected, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority (collectively, "Legal Requirements") to which the Company is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected. (d) No Consents. No consent, approval, authorization or order of, or any filing by the Company or declaration with, any court or governmental agency or body or other person or entity (collectively, a "Person") is required in connection with the execution and delivery by the Company of the Transaction Documents and the consummation by the Company of the transactions contemplated thereby, except (i) the filing by the Company with the Securities and Exchange Commission (the "Commission") of one or more prospectus supplements to the prospectus forming a part of the Company's effective registration statement on Form SB-2, as amended, filed on January 30, 2007, (ii) the filing by the Company with the Commission of a current report on Form 8-K under the Securities Exchange Act of 1934, as amended ("Exchange Act"), and (iii) those consents, approvals, authorizations, orders, filings, or declarations that have been made or obtained prior to the date of this Agreement. (e) Capitalization. The number of shares and type of all authorized, issued and outstanding capital stock of the Company, and all shares of Common Stock reserved for issuance under the Company's option and incentive plans, warrants and preferred stock is set forth on Schedule 2.1(e) hereto. Except for the warrants and stock options listed on Schedule 2.1(e), which schedule lists the number of shares issuable upon the exercise of such warrants and 3 stock options and the exercise price and the expiration date of such warrants and stock options, on the Closing Date there will be no shares of Common Stock or any other equity security of the Company issuable upon conversion or exchange of any security of the Company convertible into or exchangeable for shares of capital stock of the Company, nor will there be any rights, options or warrants outstanding or other agreements to acquire shares of Common Stock nor will the Company be contractually obligated to purchase, redeem or otherwise acquire any of its outstanding shares. There are no anti-dilution or price adjustment provisions contained in any security issued by the Company, or in any agreement to which the Company is a party and which provides rights to security holders, that will be triggered by the transactions contemplated by this Agreement. (f) SEC Reports. Except as set forth on Schedule 2.1(f), the Company has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or Section 15(d) thereof, and the rules and regulations of the Commission promulgated thereunder, since January 1, 2006 (the foregoing reports and any materials incorporated therein by reference being collectively referred to herein as the "SEC Reports") on a timely basis, or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. Except as set forth on Schedule 2.1(f), as of their respective dates (except as expressly corrected in a subsequent SEC Report filed prior to the date of this Agreement), the SEC Reports complied in all material respects with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Reports, when filed (except as expressly corrected in a subsequent SEC Report filed prior to the date of this Agreement), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (g) Financial Statements. Except as set forth on Schedule 2.1(g), the financial statements filed with the Commission as a part of the SEC Reports present fairly, in all material respects, the financial position of the Company and its subsidiaries on a consolidated basis as of and at the dates indicated and the results of their consolidated operations and cash flows for the periods specified therein, subject, in the case of interim financial statements, to normal year-end adjustments which are not expected to be material in amount, and except as expressly corrected in a subsequent SEC Report filed prior to the date of this Agreement. Except as set forth on Schedule 2.1(g), such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States and in effect as of the date of the applicable financial statements and supporting schedules, as applicable, applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto, and comply in all material respects with the Securities Act, the Exchange Act and the applicable rules and regulations of the Commission thereunder. (h) Absence of Undisclosed Liabilities. Except as reflected in the Company's balance sheet as of September 30, 2007 included in the SEC Reports, the Company does not have any debt or material obligation or liability (whether accrued, absolute, contingent, liquidated, threatened, or otherwise, whether due or to become due), except: (i) taxes not yet due and payable, (ii) current liabilities incurred and obligations under agreements entered into, in the 4 ordinary course of business consistent with past practice (none of which are delinquent), and (iii) contingent liabilities specifically referenced in the notes to such balance sheet. (i) Investment Company. The Company is not, and is not an affiliate of, an "investment company" within the meaning of the Investment Company Act of 1940, as amended. 2.2 Representations and Warranties of the Investor. The Investor hereby makes the following representations and warranties to the Company as of the date hereof. (a) Organization. The Investor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. (b) Authorization; Enforcement. The Investor has the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations thereunder. The execution and delivery by the Investor of each of the Transaction Documents to which it is a party and the performance by the Investor of the transactions contemplated thereby have been duly authorized by all necessary action on the part of the Investor. This Agreement has been, and as of the Closing Date each of the Transaction Documents will be duly executed and delivered by Investor and as of the date hereof this Agreement constitutes and as of the Closing Date each of the Transaction Documents will constitute a valid and binding obligation of the Investor, enforceable against it in accordance with its terms, except for any Enforceability Exceptions. (c) No Conflicts. The execution, delivery and performance of the Transaction Documents by the Investor and the consummation by the Investor of the transactions contemplated thereby do not and will not (i) conflict with or violate any provision of the Investor's certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument or other understanding to which the Investor is a party or by which any property or asset of the Investor is bound or affected, or (iii) result in a violation of any Legal Requirements to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor is bound or affected. (d) Investment Intent. The Investor understands that the Note has not been registered under the Securities Act, or any applicable state securities law. The Investor is acquiring the Note for investment purposes only and not with a view to or for distributing or reselling such Note or any part thereof, has no present intention of distributing the Note and has no arrangement, agreement, or understanding (directly or indirectly) with any other Person regarding the distribution of the Note (provided, however, that this representation and warranty shall not in any way limit the Investor's right to sell the Note in compliance with applicable federal and state securities laws). 5 (e) Investor Status. At the time the Investor was offered the Note it was, and at the date hereof it is, an "accredited investor," as such term is defined under the Securities Act. The Investor is not a registered broker-dealer under Section 15 of the Exchange Act. (f) Experience of the Investor. The Investor, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters as to be capable of evaluating the merits and risks of the prospective investment in the Note and has evaluated the merits and risks of such investment. The Investor is able to bear the economic risk of an investment in the Note and is able to afford a complete loss of such investment. (g) No General Solicitation. The Investor is not purchasing the Note as a result of any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or through any other general solicitation or general advertisement. (h) Access to Information. The Investor acknowledges that it has reviewed the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Note and the merits and risks of investing therein; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. ARTICLE III. CLOSING CONDITIONS 3.1 Conditions to Investor's Obligations. The obligation of the Investor to consummate the transactions contemplated by this Agreement is subject to the satisfaction (unless waived in writing by the Investor) of each of the following conditions on or prior to the Closing Date: (a) No law, rule, regulation or order shall have been adopted or issued by a governmental authority (including a court of competent jurisdiction), having the effect of making any of the transactions contemplated by this Agreement illegal or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement. (b) The Company shall have received, before or concurrently with the Closing of the transactions contemplated by this Agreement, not less than $2 million in additional debt capital upon terms and subject to conditions no less favorable to the Company than those set forth herein, excluding for purposes of such determination Section 1.1(c) hereof. The terms and conditions set forth in the documents attached hereto as Exhibit D are deemed to meet this condition. This Section 3.1(b) shall in no way serve to limit the terms of or the Investor's rights under the Transaction Documents. As provided in the 6 Note, the Company agrees that such additional new indebtedness will include terms designating such indebtedness as pari passu debt and that (except for accepting the surrender of all or a portion of such $2 million additional indebtedness in payment of all or a portion of the exercise price of warrants to acquire common stock in the Company) Company shall not make any payments on such $2 million additional new indebtedness unless and until the Company pays a ratable payment on the Note. (c) The Company shall have executed and delivered a certificate to the effect that the condition set forth in Section 3.1(b) above shall have been satisfied and if the Closing Date is other than the date of this Agreement, that the representations and warranties of the Company are true and correct as of the Closing Date. 3.2 Conditions to the Company's Obligations. The obligation of the Company to consummate the transactions contemplated by this Agreement is subject to the satisfaction (unless waived in writing by the Company) of each of the following conditions on or prior to the Closing Date: (a) No law, rule, regulation or order shall have been adopted or issued by a governmental authority (including a court of competent jurisdiction), having the effect of making any of the transactions contemplated by this Agreement illegal or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement. (b) If the Closing Date is other than the date of this Agreement, the Investor shall have executed and delivered a certificate to the effect that that the representations and warranties of the Investor are true and correct as of the Closing Date. ARTICLE IV. MISCELLANEOUS 4.1 Filing of Prospectus Supplement. The Company shall prepare and file with the Commission as soon as practicable, but in no event later than 30 days after the date of closing of the Warrant Amendments and the purchase and sale of the Note pursuant to this Agreement, a prospectus supplement to the prospectus forming a part of the Company's effective registration statement on Form SB-2, as amended, filed on January 30, 2007, which registration statement, together with all exhibits and materials incorporated by reference or deemed to be incorporated by reference therein, registers the resale from time to time by the Investor of the shares of Common Stock issuable upon exercise of the Series 1 Warrant and Series 2 Warrant. Such prospectus supplement shall disclose the material terms of the transactions contemplated by this Agreement to the extent required by the rules and regulations promulgated by the Commission under the Securities Act of 1933, as amended, and in form and substance reasonably satisfactory to Investor. 4.2 Fees and Expenses. At Closing, the Company shall reimburse Investor for the fees and expenses of its counsel, not to exceed $17,500. Except as otherwise set forth in this Agreement or any other agreement between the parties, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses 7 incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company and the Investor acknowledge that each has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. 4.3 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Nevada, without giving effect to conflict of laws or any other rules or principles which may require the application of the laws of any other jurisdiction. 4.4 Entire Agreement. This Agreement, together with the exhibits and schedules hereto, the Notes, and the Warrant Amendments, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. 4.5 Binding Effect. All of the terms, provisions and conditions hereof shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto, and their respective heirs, personal representatives, successors and assigns. 4.6 Headings; Construction. The headings contained herein are for the purposes of convenience only, and will not be deemed to constitute a part of this Agreement or to affect the meaning or interpretation of this Agreement in any way. Unless the context clearly states otherwise, the use of the singular or plural in this Agreement shall include the other and the use of any gender shall include all others. The parties have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity or question of intent or interpretation arises, no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. All references herein to Sections shall refer to this Agreement unless the context clearly otherwise requires. 4.7 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given upon (a) transmitter's confirmation of receipt of a facsimile transmission, if during normal business hours of a business day, otherwise on the next business day, (b) confirmed delivery by a standard overnight carrier or when delivered by hand or (c) the expiration of five (5) business days (or seven (7) business days where the addressee is not in the United States) after the day when mailed by certified or registered mail, postage prepaid, to the addresses set forth in on the signature pages hereto or to such other address as any party may, from time to time, designate in a written notice given in a like manner. 4.8 Severability of Provisions. If a court in any proceeding holds any provision of this Agreement or its application to any Person or circumstance invalid, illegal or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those to which it was held to be invalid, illegal or unenforceable, shall not be affected, and shall be valid, legal and enforceable to the fullest extent permitted by law, but only if and to the extent such enforcement would not materially and adversely frustrate the parties' essential objectives as expressed in this Agreement. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties intend that the court add to this Agreement 8 a provision as similar in terms to such invalid or unenforceable provision as may be valid and enforceable, so as to effect the original intent of the parties to the greatest extent possible. 4.9 Third Party Beneficiaries. This Agreement does not create, and will not be construed as creating, any rights enforceable by any Person not a party to this Agreement. 4.10 Amendment. This Agreement may be amended, modified, superseded, or canceled only by a written instrument signed by all of the parties hereto and any of the terms, provisions and conditions hereof may be waived, only by a written instrument signed by the waiving party. 4.11 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. Facsimile signatures on this Agreement shall be deemed to be original signatures for all purposes. 4.12 Survival. The representations, warranties, covenants and agreements contained herein shall survive the purchase and sale of the Note. [Signatures on following page] 9 IN WITNESS WHEREOF, the parties hereto have caused this Note Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above. QUEPASA CORPORATION 7550 E. Redfield Road, Suite A Scottsdale, AZ 85260 Fax: Attn: By: ------------------------------------ Name: Title: MEXICANS & AMERICANS TRADING TOGETHER, INC. 7550 IH 10 West, Suite 630 San Antonio, TX 78229 Fax: Attn: By: --------------------------------------- Name: Title: EX-99.8 4 m3963437d.txt SUBORDINATED PROMISSORY NOTE Exhibit 99.8 SUBORDINATED PROMISSORY NOTE Principal Amount: $5,000,000 Scottsdale, Arizona Interest Rate Per Annum: 4.46% January 25, 2008 FOR VALUE RECEIVED, the undersigned QUEPASA CORPORATION, a Nevada corporation (the "Maker"), hereby promises to pay to the order of MEXICANS & AMERICANS TRADING TOGETHER, INC., a Delaware corporation (the "Payee"), the unpaid principal amount of all amounts loaned by Payee to Maker under this Subordinated Promissory Note (the "Note") together with all accrued and outstanding interest in respect of such principal amount and all other amounts payable hereunder, in accordance with the terms of this Note. 1. Extension of Loan. On the date hereof, Payee is extending a loan of $5,000,000 to Maker. By its execution of this Note, Maker acknowledges receipt of such funds. 2. Repayment of Principal. (a) As between Maker and Payee. Maker shall repay the principal amount of this Note, together with all accrued and outstanding interest in respect of such principal amount and all other amounts payable hereunder upon the first to occur of: (i) October 16, 2016, (ii) the exercise by Holder (as defined therein) of all or a portion of that certain Common Stock Purchase Warrant (Series 1) for 1,000,000 shares of Common Stock, issued as of October 17, 2006, as amended, and/or that certain Common Stock Purchase Warrant (Series 2) for 1,000,000 shares of Common Stock, issued as of October 17, 2006, as amended, but only in the principal amount (which together with all accrued interest) is equal to the exercise price payable by the Payee to Maker with respect to the exercise of such Warrants, (iii) any liquidation, dissolution, winding up, or liquidating dividend of Maker, (iv) the commencement of any Insolvency or Liquidation Proceeding (as defined below), (v) upon the acceleration of the maturity hereof by Payee after the occurrence of an Event of Default hereunder as provided in Section 11, or (vi) upon the occurrence of (x) any consolidation or merger of Maker with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the stockholders of the Maker immediately prior to such consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; (y) any transaction or series of related transactions to which the Maker is a party in which in excess of fifty percent (50%) of the Maker's voting power is transferred; or (z) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Maker; except in the case of this clause (vi) for a transaction with respect to which the weighted average (based on daily trading volume of the principal market) closing price of Maker's common stock for the 30 days following the announcement of such transaction exceeded $2.75 per share (adjusted for stock splits, dividends and similar transactions subsequent to the date hereof). This Note may be prepaid, in whole or in part, at any time, at the option of the Maker. (b) As among holders of Pari Passu Debt. Subject to Section 12, in the event that the Payee receives any payment with respect to this Note (other than a payment or deemed payment pursuant to Section 2(a)(ii)) that is greater than its pro rata share (based on outstanding principal amount) of all payments concurrently made to the holders of Pari Passu Debt, then the amount of such payment in excess of the pro rata share (the "Excess Payment") shall be held by Payee, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to, the holders of Pari Passu Debt as their interests may appear or their Representative under the agreements (if any) pursuant to which Pari Passu Debt may have been issued, as their respective interests may appear, for application to the payment of all Obligations with respect to Pari Passu Debt remaining unpaid. Payee shall be subrogated to the rights of holders of Pari Passu Debt to the extent that distributions otherwise payable to Payee have been applied to the payment of Pari Passu Debt. 3. Payment of Interest. Interest shall accrue on the unpaid principal amount outstanding hereunder from the date of this Promissory Note until such principal amount is paid in full at an interest rate equal at all times to the rate set forth above, compounded annually. Maker shall only be required to pay interest on the outstanding principal amount in connection with the payment (or prepayment) or maturity of principal hereunder. 4. No Right of Set-Off. Maker shall not have, and hereby expressly waives, the right to withhold and set-off against any amount due hereunder any amounts due Maker from Payee. 5. Payment Mechanics. Principal, interest and other amounts due hereunder are payable in lawful money of the United States of America in same day or immediately available funds to the account of Payee as specified in writing, or at such other place or places as the Payee may, from time to time, designate in writing. All computations of interest under this Note shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) occurring in the period for which such interest is payable. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a business day, such payment shall be due instead on the next succeeding business day, and such extension of time shall in such case be included in the computation of such payment of interest and not in the computation of the succeeding payment of interest. 2 6. Certain Covenants (a) Payment on Pari Passu Debt. Maker shall not make any payments on any Pari Passu Debt (other than the acceptance of such Pari Passu Debt in payment of the exercise price of any warrant for Maker's common stock in a manner similar to Section 2(a)(ii) hereof) unless and until Maker pays a ratable payment on this Note (for example, if Maker pays, in cash, 50% of the outstanding principal amount of any Pari Passu Debt, then Maker must simultaneously pay, in cash, 50% of the principal amount of this Note). (b) Incurrence of Indebtedness. Without the prior written consent of the holders of a majority of the outstanding principal amount of this Note and the Pari Passu Debt voting as a single class (the "Requisite Holders"), the Company and its subsidiaries shall not incur, create, assume, or in any manner become or be liable, as principal obligor, guarantor, or otherwise, with respect to any indebtedness for borrowed money (whether secured or unsecured, and including capital leases), except the following: (i) Purchase Money Debt and Capital Lease Obligations. Purchase money debt and capital lease obligations used to finance the acquisition of equipment in the ordinary course of business, not exceeding the purchase price of the equipment financed or subject to the capital lease, as the case may be, and not imposing a lien or security interest on any assets other than the equipment so financed. (ii) Other Indebtedness. Other Indebtedness for borrowed money not to exceed $3 million. (iii) Pari Passu Debt. The Pari Passu Debt incurred in connection with and as a condition to the incurrence of this Note. (iv) Endorsements. Endorsements of negotiable or similar instruments for collection or deposit in the ordinary course of business. (c) Right to Participate in Future Lendings. To the extent that Maker incurs additional indebtedness due to any holder of Pari Passu Debt or any affiliate of such holder, Payee shall have the right (but not the obligation) to provide its pro rata share (based on the outstanding principal amount of this Note and such Pari Passu Debt) of such additional indebtedness. 7. Expenses. Maker shall pay on demand all reasonable costs and expenses incurred by or on behalf of Payee in connection with Payee's exercise of any or all of its rights and remedies under this Note, including, without limitation, in each case reasonable attorneys' fees. 8. Assignment. Subject to compliance with the Securities Act of 1933, as amended, and any applicable state or other federal securities laws, Payee shall have the right to assign its 3 rights hereunder or any interest herein without the prior written consent of Maker. Upon delivery of written notice to Maker of any such assignment, any such assignee shall, except as otherwise specified in the relevant assignment document, succeed to all of the rights of Payee hereunder. Maker may not assign its obligations hereunder without the prior written consent of Payee. All the covenants, stipulations, promises and agreements made by or contained in this Note on behalf of the Maker shall bind its successors, whether so expressed or not. 9. Governing Law; Waiver of Jury Trial. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. PAYEE AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS NOTE OR THE NOTE PURCHASE AGREEMENT. 10. No Implied Waiver; Waivers. No failure on the part of Payee to exercise, and no delay in exercising, any right under this Note shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought. 11. Default; Default Interest. Time is of the essence of this Note. If any Event of Default shall occur hereunder, which Event of Default is not cured following the giving of any applicable notice and within any applicable cure period set forth herein, and in such event, the entire outstanding principal balance of the indebtedness evidenced hereby, together with any other sums advanced hereunder, together with all unpaid interest accrued thereon, shall, at the option of Payee and without notice to Maker, at once become due and payable and may be collected forthwith, regardless of the stipulated date of maturity. Further, upon the occurrence of any Event of Default as set forth herein, at the option of Payee and upon written notice to Maker, all accrued and unpaid interest, if any, shall be added to the outstanding principal balance hereof, and the entire outstanding principal balance, as so adjusted, shall bear interest thereafter until paid at an annual rate (the "Default Rate") equal to the lesser of (i) the rate that is five percentage points (5.0%) in excess of the above-specified interest rate, or (ii) the maximum rate of interest allowed to be charged under applicable law (the "Maximum Rate"), regardless of whether or not there has been an acceleration of the payment of principal as set forth herein. All such interest shall be paid at the time of and as a condition precedent to the curing of any such Event of Default. 12. Subordination . Maker and Payee agree that the indebtedness evidenced by the Note is subordinated in right of payment, to the extent and in the manner provided herein, to the prior payment in full of all Senior Obligations (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Obligations. 4 (a) Upon any payment or distribution of assets of Maker of any kind or character, whether in cash, property or securities, to creditors in any Insolvency or Liquidation Proceeding with respect to Maker, all amounts due or to become due under or with respect to all Senior Obligations shall first be paid indefeasibly in full in cash before any payment is made on account of this Note. Upon any such Insolvency or Liquidation Proceeding, any payment or distribution of assets of Maker of any kind or character, whether in cash, property or securities, to which Payee would be entitled shall be paid by Maker or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by Payee if received by it, directly to the holders of Senior Obligations (pro rata to such holders on the basis of the amounts of Senior Obligations held by such holders) or their Representative, as their interests may appear, for application to the payment of the Senior Obligations remaining unpaid until all such Senior Obligations have been paid indefeasibly in full in cash, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Senior Obligations. (b) (i) Upon the receipt of a notice of default and during the continuation of any default in the payment of principal of, interest or premium, if any, on any Senior Obligations, or in the event that any event of default (other than a payment default) with respect to any Senior Obligations shall have occurred and Maker has received notice thereof and such default shall be continuing and shall have resulted in such Senior Obligation becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, or (ii) upon the receipt of a notice of default and during the continuation of any event of default, other than an event of default as described in clause (i) above, with respect to any Senior Obligations that permits the holders of such Senior Obligations (or their Representative or Representatives) to declare such Senior Obligations due and payable prior to the date on which it would otherwise have become due and payable, then no cash payment or other distribution or transfer of assets shall be made by or on behalf of Maker on account of this Note (except that the issuance of common stock to Payee pursuant to the Series 1 and Series 2 warrant as contemplated in Section 2(a)(ii) in return for the full or partial surrender by Payee of this Note shall be permitted), unless and until such default shall have been cured or waived in writing in accordance with the instruments governing such Senior Obligations or such acceleration shall have been rescinded or annulled. (c) In the event that the Payee receives any payment with respect to this Note at a time when such payment is prohibited by the provisions hereof, such payment shall be held by Payee, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to, the holders of Senior Obligations as their interests may appear or their Representative under the agreements (if any) pursuant to which Senior Obligations may have been issued, as their respective interests may appear, for application to the payment of all Obligations with respect to Senior Obligations remaining unpaid to the extent necessary to pay 5 such Senior Obligations in full in accordance with their terms, after giving effect to any concurrent payment or distribution to or for the holders of Senior Obligations. (d) After all Senior Obligations are paid in full and until this Note is paid in full, Payee shall be subrogated (equally and ratably with all other Pari Passu Debt) to the rights of holders of Senior Obligations to receive distributions applicable to Senior Obligations to the extent that distributions otherwise payable to Payee have been applied to the payment of Senior Obligations. A distribution made under this Note to holders of Senior Obligations that otherwise would have been made to Payee is not, as between Maker and Payee, a payment by Maker on this Note. (e) The "Subordination" section of this Note defines the relative rights of Payee and holders of Senior Obligations. Nothing in this Note shall impair, as between Maker and Payee, the obligations of Maker, which are absolute and unconditional, to pay principal of and interest on this Note in accordance with its terms or affect the relative rights of Payee and creditors of Maker other than their rights in relation to holders of Senior Obligations. (f) No right of any holder of Senior Obligations to enforce the subordination of the indebtedness evidenced by this Note shall be impaired by any act or failure to act by Maker or Payee or by the failure of Maker or Payee to comply with this Note. (g) Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Obligations, or any of them, may, at any time and from time to time, without the consent of or notice to Payee, without incurring any liabilities to Payee and without impairing or releasing the subordination and other benefits provided in this Note or the obligations of Payee to the holders of the Senior Obligations, even if any right of reimbursement or subrogation or other right or remedy of Payee is affected, impaired or extinguished thereby, take any action with respect to the Senior Obligations, including, without limitation, any one or more of the following: (i) change the manner, place or terms of payment or change or extend the time of payment of, or renew, exchange, amend, increase or alter, the terms of any Senior Obligations, any security therefor or guaranty thereof or any liability of any obligor thereon (including any guarantor) to such holder, or any liability incurred directly or indirectly in respect thereof or otherwise amend, renew, exchange, extend, modify, increase or supplement in any manner any Senior Obligations or any instrument evidencing or guaranteeing or securing the same or any agreement under which Senior Obligations are outstanding; (ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any property pledged, mortgaged or 6 otherwise securing Senior Obligations or any liability of any obligor thereon, to such holder, or any liability incurred directly or indirectly in respect thereof; (iii)settle or compromise any Senior Obligations or any other liability of any obligor of the Senior Obligations to such holder or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including, without limitation, Senior Obligations) in any manner or order; and (iv) fail to take or to record or to otherwise perfect, for any reason or for no reason, any lien or security interest securing Senior Obligations by whomsoever granted, exercise or delay in or refrain from exercising any right or remedy against any obligor or any guarantor or any other person, elect any remedy and otherwise deal freely with any obligor and any security for the Senior Obligations or any liability of any obligor to such holder or any liability incurred directly or indirectly in respect thereof. (h) Whenever a distribution is to be made or a notice given to holders of Senior Obligations, the distribution may be made and the notice given to their Representative. Upon any payment or distribution of assets of Maker referred to in the "Subordination" section of this Note, Payee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction or upon any certificate of such Representative or of the liquidating trustee or agent or other person making any distribution to Payee for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Obligations and other indebtedness of Maker, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to the "Subordination" section of this Note. 13. Definitions. (a) "Event of Default" means the occurrence of any of the following: (i) Maker's failure to pay principal or interest when due under this Note. (ii) Any representation or warranty by Maker in the Note Purchase Agreement of even date herewith was incorrect in any material respect as of the date thereof. (iii)Fifteen (15) days following Payee's written notice to Maker of Maker's failure to comply with, observe, or perform any covenant contained in this Note; provided, however, as to any such breach that is reasonably susceptible to being cured, the occurrence of such breach shall not constitute an Event of Default hereunder if such breach is fully cured within such fifteen (15) day period. 7 (iv) Default in the payment of principal of, interest or premium, if any, on any Senior Obligation or Pari Passu Debt exceeding Five Hundred Thousand and No/100 Dollars ($500,000.00) (a "Material Debt") in the aggregate or in the event that any event of default (other than a payment default) with respect to any Material Debt shall have occurred and Maker has received notice thereof and such default shall have resulted in such Material Debt becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable. (b) "Insolvency or Liquidation Proceeding" means (i) any voluntary or involuntary insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding, relative to Maker or to the creditors of Maker, as such, or to the assets of Maker, or (ii) any liquidation, dissolution, reorganization or winding up of Maker, whether voluntary or involuntary and involving insolvency or bankruptcy, or (iii) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of Maker. (c) "Obligations" means any principal, interest, penalties, expenses, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Senior Obligations or Pari Passu Debt, as the case may be. (d) "Pari Passu Debt" means any indebtedness of Maker which by its terms is pari passu in right of payment to this Note and which contains provision substantially similar to Section 2(b) hereof. Maker agrees that the approximately $2 million of additional new indebtedness of Maker incurred in connection with and as a condition to this Note includes terms designating such indebtedness as Pari Passu Debt. (e) "Representative" means the trustee, agent or representative for any Senior Obligations or Pari Passu Debt, as the case may be. (f) "Senior Obligations" shall mean all obligations (whether now outstanding or hereafter incurred) for the payment of indebtedness for borrowed money which Maker is responsible or liable as obligor, guarantor or otherwise, except those which by their express terms are pari passu in right of payment with this Note. [Remainder of page intentionally left blank] 8 IN WITNESS WHEREOF, the undersigned has executed this Promissory Note as of the date first set forth above. QUEPASA CORPORATION By: ------------------------------------- Name: Title: ACCEPTED: MEXICANS & AMERICANS TRADING TOGETHER, INC. By: ------------------------------------ Name: Title: Signature Page to Quepasa Subordinated Promissory Note EX-99.9 5 m3963474e.txt AMENDMENT TO WARRANT NO. 1 Exhibit 99.9 AMENDMENT NO. 1 Dated January 25, 2008 TO QUEPASA CORPORATION Common Stock Purchase Warrant (Series 1) Warrant No. MATT No.1 1,000,000 Shares of Common Stock Issued as of October 17, 2006 This AMENDMENT NO. 1 (this "Amendment") TO QUEPASA CORPORATION COMMON STOCK PURCHASE WARRANT (SERIES 1), FOR 1,000,000 SHARES OF COMMON STOCK, WARRANT NO. MATT NO.1 (the "Warrant"), is made this 25th day of January 2008 by QUEPASA CORPORATION, a Nevada corporation (the "Company") and MEXICANS & AMERICANS TRADING TOGETHER, INC. (the "Holder") pursuant to Section 13 of the Warrant. Certain capitalized terms used in this Amendment and not otherwise defined have the meaning ascribed to them in the Warrant. WHEREAS, the Company and Holder have entered into that certain Note Purchase Agreement dated as of January 25, 2008, pursuant to which, among other things, Holder will provide debt financing to the Company; WHEREAS, it is a condition to Holder's obligations under the Note Purchase Agreement that the Company execute and deliver this Amendment; NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Section 1. Amendment of Section 1. Exercise Price. Section 1 of the Warrant is amended and restated in its entirety as follows: The Exercise Price for any shares of Common Stock purchased upon exercise of this Warrant shall be $2.75 per share, subject to adjustment as provided herein. Section 2. Amendment of Section 2. Exercise of Warrant. Section 2 of the Warrant is amended by adding the following at the end thereof: Notwithstanding anything contained herein to the contrary, Holder may pay the Exercise Price, in whole or in part, through the surrender of all or a portion of any promissory note due to the Holder from the Company. Section 3. Deletion of Section 8.2. Section 8.2 of the Warrant is deleted in its entirety. Section 4. Effect of Amendment. On and after the date hereof, each reference in the Warrant to "this Warrant", "hereof", "hereunder" or words of like import referring to the Warrant shall mean and be a reference to the Warrant as amended by this Amendment. The Warrant, as amended by this Amendment, shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Section 5. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Nevada regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. [The remainder of this page is intentionally blank.] -2- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized signatories as of the date first indicated above. QUEPASA CORPORATION 7550 E. Redfield Road, Suite A Scottsdale, AZ 85260 Fax: Attn: By: ------------------------------------ Name: Title: MEXICANS & AMERICANS TRADING TOGETHER, INC. 7550 IH 10 West, Suite 630 San Antonio, TX 78229 Fax: Attn: By: --------------------------------------- Name: Title: Signature Page to Amendment to Warrant No. 1 EX-99.10 6 m3963474f.txt AMENDMENT NO. 1 TO SERIES 2 Exhibit 99.10 AMENDMENT NO. 1 Dated January 25, 2007 TO QUEPASA CORPORATION Common Stock Purchase Warrant (Series 2) Warrant No. MATT No.2 1,000,000 Shares of Common Stock Issued as of October 17, 2006 This AMENDMENT NO. 1 (this "Amendment") TO QUEPASA CORPORATION COMMON STOCK PURCHASE WARRANT (SERIES 2), FOR 1,000,000 SHARES OF COMMON STOCK, WARRANT NO. MATT NO.2 (the "Warrant"), is made this 25th day of January 2008 by QUEPASA CORPORATION, a Nevada corporation (the "Company") and MEXICANS & AMERICANS TRADING TOGETHER, INC. (the "Holder") pursuant to Section 13 of the Warrant. Certain capitalized terms used in this Amendment and not otherwise defined have the meaning ascribed to them in the Warrant. WHEREAS, the Company and Holder have entered into that certain Note Purchase Agreement dated as of January 25, 2008, pursuant to which, among other things, Holder will provide debt financing to the Company; WHEREAS, it is a condition to Holder's obligations under the Note Purchase Agreement that the Company execute and deliver this Amendment; NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Section 1. Amendment of Section 1. Exercise Price. Section 1 of the Warrant is amended and restated in its entirety as follows: The Exercise Price for any shares of Common Stock purchased upon exercise of this Warrant shall be $2.75 per share, subject to adjustment as provided herein. Section 2. Amendment of Section 2. Exercise of Warrant. Section 2 of the Warrant is amended by adding the following at the end thereof: Notwithstanding anything contained herein to the contrary, Holder may pay the Exercise Price, in whole or in part, through the surrender of all or a portion of any promissory note due to the Holder from the Company. Section 3. Deletion of Section 8.2. Section 8.2 of the Warrant is deleted in its entirety. Section 4. Effect of Amendment. On and after the date hereof, each reference in the Warrant to "this Warrant", "hereof", "hereunder" or words of like import referring to the Warrant shall mean and be a reference to the Warrant as amended by this Amendment. The Warrant, as amended by this Amendment, shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Section 5. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Nevada regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. [The remainder of this page is intentionally blank.] - 2 - IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized signatories as of the date first indicated above. QUEPASA CORPORATION 7550 E. Redfield Road, Suite A Scottsdale, AZ 85260 Fax: Attn: By: ------------------------------------ Name: Title: MEXICANS & AMERICANS TRADING TOGETHER, INC. 7550 IH 10 West, Suite 630 San Antonio, TX 78229 Fax: Attn: By: --------------------------------------- Name: Title: Signature Page to Amendment to Warrant No. 2 -----END PRIVACY-ENHANCED MESSAGE-----