0000899140-11-000491.txt : 20110920 0000899140-11-000491.hdr.sgml : 20110920 20110919191627 ACCESSION NUMBER: 0000899140-11-000491 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20110920 DATE AS OF CHANGE: 20110919 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: 0228 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56473 FILM NUMBER: 111098270 BUSINESS ADDRESS: STREET 1: 324 DATURA STREET STREET 2: SUITE 114 CITY: WEST PALM BEACH STATE: FL ZIP: 33401 BUSINESS PHONE: 561-491-4181 MAIL ADDRESS: STREET 1: 324 DATURA STREET STREET 2: SUITE 114 CITY: WEST PALM BEACH STATE: FL ZIP: 33401 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 q6991468a.htm AMENDMENT NO. 4 q6991468a.htm


SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549

SCHEDULE 13D
(Amendment No. 4)

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.
5150 N. Loop 1604 West
San Antonio, Texas 78249
(210) 477-2779
(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

September 15, 2011
(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 § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following: o

 
 
 
 

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) o
 (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)     o
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
0
8
SHARED VOTING POWER
3,333,333
9
SOLE DISPOSITIVE POWER
0
10
SHARED DISPOSITIVE POWER
3,333,333
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
3,333,333
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*                             o
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9%
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) o
 (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)    o
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
Mexico
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
0
8
SHARED VOTING POWER
3,333,333
9
SOLE DISPOSITIVE POWER
0
10
SHARED DISPOSITIVE POWER
3,333,333
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
3,333,333
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*                             o
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9%
14
TYPE OF REPORTING PERSON*
OO

 
 
 

This Amendment No. 4 amends the statement on Schedule 13D previously filed on October 27, 2006, as amended by Amendment No. 1 previously filed on January 28, 2008, Amendment No. 2 previously filed on December 17, 2010 and Amendment No. 3 previously filed on July 21, 2011 (as so amended and as amended by this Amendment No. 4, 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 Anónima Bursátil de Capital Variable) (“AHMSA”).  MATT Inc. and AHMSA are sometimes collectively referred to herein as the “Reporting Persons.”  This Amendment No. 4 refers only to information which has materially changed since the filing of Amendment No. 3 to 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 or the prior amendments thereto, as applicable.
 
Item 4.              Purpose of Transaction.
 
Item 4 of the Schedule 13D is hereby supplemented by adding the following thereto:

As previously reported, on July 20, 2011, the Company announced its entry into an Agreement and Plan of Merger dated as of July 19, 2011 (the “Original Merger Agreement”) with IG Acquisition Company, a newly formed Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub”), and Insider Guides, Inc. (the “Target”), pursuant to which the Company has agreed to acquire the Target (the “Merger”).

On September 15, 2011, the Company announced its entry into Amendment No.1 (the “Amendment”) to the Original Merger Agreement (the Original Merger Agreement, as amended by the Amendment, the “Merger Agreement”).

In connection with the Company’s entry into the Amendment, on September 15, 2011, MATT Inc. and the Company amended and restated the Commitment Letter dated July 19, 2011 (the “Original Commitment Letter”), pursuant to which MATT Inc. undertook to provide, or cause to be provided, directly or indirectly to the Company, $5,000,000 of equity financing (the “Commitment”) through the purchase of shares of Common Stock solely for the purpose of funding a portion of the aggregate consideration to be paid to the Target’s stockholders in connection with the Merger, on the terms and subject to the conditions set forth therein.  The Original Commitment Letter, as amended and restated as of September 15, 2011 (as so amended and restated, the “Commitment Letter”), now provides that the purchase price for the Common Stock to be purchased with the Commitment will be the lesser of:  (a) $4.82 per share of Common Stock and (b) 85% of the average closing price of a share of Common Stock during the twenty (20) trading days ending with the trading day immediately prior to the Effective Time (as defined in the Merger Agreement).  The other material terms and conditions of the Original Commitment Letter remain unchanged and in full force and effect.

The description of the Commitment Letter contained herein is qualified in its entirety by reference to the Commitment Letter, which is filed as Exhibit 99.16 to the Schedule 13D and is hereby incorporated herein by reference.
 

 
 
4
 
Also on September 15, 2011, and in connection with the Company’s entry into the Amendment, MATT Inc. entered into an Affirmation (the “Affirmation”) with respect to the Parent Voting Agreement, dated as of July 19, 2011 (the “Voting Agreement”), entered into by MATT Inc. in connection with the Company’s entry into the Original Merger Agreement.  The Affirmation provides that notwithstanding anything to the contrary contained in the Voting Agreement, the Amendment shall not constitute a “Material Adverse Amendment” under the Voting Agreement and the execution and delivery of the Amendment shall not trigger the “Expiration Time” (as defined in the Merger Agreement) or the termination of the Voting Agreement.

In connection with the Company’s entry into the Amendment, 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. also entered into an Affirmation, in the form of the Affirmation, of the Parent Voting Agreement entered into by him in connection with the Company’s entry into the Original Merger Agreement.

The description of the Affirmation is qualified in its entirety by reference to the Affirmation, which is filed as Exhibit 99.17 to the Schedule 13D and is hereby incorporated herein by reference.
  
Except as set forth above, neither the Reporting Persons nor, to the best of their knowledge, any person listed on Schedules A, B and C to Amendment No. 2 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 3,333,333 shares of Common Stock, consisting of the 1,333,333 shares of Common Stock held by MATT Inc. and the 2,000,000 shares of Common Stock issuable upon exercise of the Warrants owned by MATT Inc. (together, the “Shares”). AHMSA may be deemed to beneficially own the Shares by virtue of its ownership of MATT Inc.  The Shares represent 17.9% of 18,668,281 total shares of Common Stock, calculated as the sum of (a) the 16,668,281 shares of Common Stock outstanding as represented by the Company in its most recent report on Form 10-Q filed on August 15, 2011 (the “Aggregate Share Number”), and (b) 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 78,750 shares of Common Stock, consisting of 16,750 shares of Common Stock and options to purchase 62,000 shares of Common Stock.  Such shares represent less than 0.5% of 16,730,281 total shares of Common Stock, calculated as the sum of (x) the Aggregate Share Number and (y) the 62,000 shares of Common Stock issuable upon exercise of such options.
 
 
 
5
 
 
(c)       Other than the Commitment, during the past 60 days, there were no transactions in the Common Stock, or securities convertible into or exercisable for shares of Common Stock, effected by the Reporting Persons nor, to the best of their knowledge, any person listed on Schedules A, B and C to Amendment No. 2 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 supplemented by adding the following thereto:
 
As described in greater detail in Item 4 above, in connection with the entry by the Company into the Amendment, on September 15, 2011 MATT Inc. entered into the Commitment Letter and the Affirmation. The information included in Item 4 above regarding the Commitment Letter and the Affirmation is hereby incorporated by reference into this Item 6.
 
The descriptions of the and the Commitment Letter and the Affirmation are qualified in their entirety by reference to the Commitment Letter and the Affirmation, which are filed as Exhibits 99.16 and 99.17 to the Schedule 13D, respectively, and are hereby incorporated herein by reference.
 
Item 7.              Material to be Filed as Exhibits.
 
99.16
Amended and Restated Commitment Letter, dated as of September 15, 2011, by and between Mexicans & Americans Trading Together, Inc. and Quepasa Corporation.
 
99.17
Affirmation of Parent Voting Agreement, dated as of September 15, 2011, by Mexicans & Americans Trading Together, Inc.
 
[Signatures on following page]
 

 

 

 
  6
 

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:  September 19, 2011
 
MEXICANS & AMERICANS TRADING TOGETHER, INC.
 

 
By:  /s/ Andres Gonzalez-Saravia Coss          
Name:  Andres Gonzalez-Saravia Coss
Title:    President
 
 
ALTOS HORNOS DE MEXICO, S.A.B. DE C.V.
 

 
By:   /s/ Andres Gonzalez-Saravia Coss        
Name:  Andres Gonzalez-Saravia Coss
Title:    Legal Director
 

 

 

 

 

 

 

 

 

 

 

 

 

 
[SIGNATURE PAGE TO AMENDMENT NO. 4 TO SCHEDULE 13D
WITH RESPECT TO THE COMMON STOCK OF QUEPASA CORPORATION]


 
 
 

EXHIBIT INDEX
 

Exhibit Number
 
  
Description
99.16
  
Amended and Restated Commitment Letter, dated as of September 15, 2011, by and between Mexicans & Americans Trading Together, Inc. and Quepasa Corporation.
99.17
  
Affirmation of Parent Voting Agreement, dated as of September 15, 2011, by Mexicans & Americans Trading Together, Inc.


EX-99.16 2 q6991468b.htm AMENDED AND RESTATED COMMITMENT LETTER q6991468b.htm
Exhibit 99.16


MEXICANS & AMERICANS TRADING TOGETHER, INC.
5150 N. Loop 1604 West
San Antonio, TX 78249


July 19, 2011, as amended
and restated as of September 15, 2011

Quepasa Corporation
324 Datura Street, Suite 114
West Palm Beach, Florida 33401

Amended and Restated Commitment Letter

Ladies and Gentlemen:
 
Reference is made to that certain Commitment Letter dated July 19, 2011 (the “Original Commitment Letter”). We understand that Quepasa Corporation, a Nevada corporation (“QPSA”), desires to acquire Insider Guides, Inc. (the “Target”) pursuant to an Agreement and Plan of Merger, as amended by Amendment No. 1 thereto, dated as of the date hereof (the “Amendment”), true, correct and complete copies of which, including the exhibits and schedules thereto, and the other agreements referred to therein, are attached as Exhibit A hereto (such Agreement and Plan of Merger, as amended by the Amendment, the “Merger Agreement,” and such transaction, the “Merger”).  We also understand that the Merger is to be effected by the merger of the Target with and into IG Acquisition Company, a newly formed Delaware corporation and wholly owned subsidiary of QPSA (“Merger Sub”), with Merger Sub as the surviving corporation.  Capitalized terms used herein but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.  The Original Commitment Letter is hereby amended and restated in its entirety as set forth in this Amended and Restated Commitment Letter (this “Commitment Letter”), is hereby superseded in its entirety by this Commitment Letter and is of no further force or effect.  From and after the date of this Commitment Letter, references to the Original Commitment Letter shall be deemed to refer to this Commitment Letter.
 
1. Commitment.  Please be advised that subject to the satisfaction of the conditions set forth below, Mexicans & Americans Trading Together, Inc., a Delaware corporation (“MATT”), hereby undertakes to provide, or cause to be provided, directly or indirectly to QPSA, $5,000,000 of equity financing (the “Commitment”) through the purchase of shares of common stock of QPSA (the “Common Stock”) solely for the purpose of funding a portion of the aggregate consideration to be paid to Target’s shareholders (the “Sellers”) in connection with the Merger.  The purchase price for the Common Stock to be purchased with the Commitment shall be the lesser of:  (a) $4.82 per share of Common Stock and (b) 85% of the average closing price of a share of Common Stock during the twenty (20) trading days ending with the trading day immediately prior to the Effective Time.  In addition, the purchaser of the Common Stock shall receive registration rights, as set forth in greater detail on Exhibit B hereto.
 
 
 
 
 
 
2. Conditions.  The obligation of MATT to fund the Commitment shall be subject to:  (a) the execution and delivery of definitive documentation satisfactory to MATT in respect of the purchase of Common Stock and the related registration rights, on the terms set forth in this Commitment Letter and on other terms and conditions typical for transactions of this type and satisfactory to MATT, it being understood that the Common Stock shall be purchased pursuant to a securities purchase agreement no less favorable to MATT than the Company’s securities purchase agreement dated December 14, 2010; (b) the approval of the Financing Transaction by the stockholders of QPSA to the extent required by the rules and regulations of the New York Stock Exchange; (c) the satisfaction or waiver (with the written consent of MATT) of each of the conditions set forth in Articles VI and VII of the Merger Agreement (other than Section 6.6 of the Merger Agreement solely with respect to, and to the extent of, the Commitment); and (d) the closing of the Merger pursuant to and in accordance with the terms of the Merger Agreement, with no amendment, modification or waiver of the Merger Agreement without the written consent of MATT.
 
3. Termination.  The obligation of MATT to fund the Commitment shall terminate automatically and immediately upon the earliest to occur of (a) closing of the Merger; (b) the termination of the Merger Agreement, (c) any amendment, modification or waiver of the Merger Agreement without the consent of MATT, (d) the execution of legally binding, definitive documentation for a Financing Transaction that does not include the Commitment; and (e) the Outside Date.
 
4. Relationship of Parties; Absence of Fiduciary Relationships.  QPSA agrees that MATT is acting, and will act, under this Commitment Letter as an independent contractor and not as a fiduciary, advisor or agent of QPSA.  Nothing in this Commitment Letter shall be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between MATT and its affiliates, on the one hand, and QPSA or its management, stockholders, creditors or affiliates or any other person, on the other hand.  QPSA acknowledges and agrees that (a) the transactions contemplated by this Commitment Letter are arm’s-length commercial transactions, (b) in connection therewith and in the process leading to such transactions, MATT is acting solely as a principal and not as fiduciary, agent or advisor of QPSA or its management, stockholders, creditors or affiliates or any other person, (c) MATT has not assumed a fiduciary, advisory, agency or similar responsibility or relationship in favor of QPSA or its management, stockholders, creditors or affiliates or any other person with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether such relationship has existed or is currently existing); and (d) QPSA has consulted its own legal and financial advisors to the extent QPSA has deemed appropriate. QPSA further acknowledges and agrees that QPSA is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. QPSA agrees that it shall not claim that MATT has rendered advisory services of any nature or in any respect, or owes a fiduciary, agency or similar duty to QPSA or its management, stockholders, creditors or affiliates or any other person, in connection with such transactions or the process leading thereto.  For the avoidance of doubt, for purposes of this Commitment Letter, QPSA shall be deemed to not be an affiliate of MATT.
 
5. No Obligation As Shareholder.  Nothing contained in this Commitment Letter shall constitute an obligation of MATT to vote any of its existing shares of Common Stock or other securities of QPSA in connection with the Merger, shall bind MATT to any of the provisions of the Merger Agreement or shall in any way limit MATT in its capacity as a stockholder of QPSA.
 
 
 
-2-
 
 
6. Confidentiality.  Prior to any disclosure of this Commitment Letter by MATT, this Commitment Letter shall be treated as confidential and is being provided to QPSA solely in connection with the Merger.  This Commitment Letter may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of MATT.  Notwithstanding the foregoing, this Commitment Letter may be provided (a) to QPSA employees and advisors who have a need to know such information in connection with the Merger Agreement and the transactions contemplated thereby, (b) to the Target, subject to the terms of a confidentiality agreement reasonably acceptable to MATT and of which MATT is made a third party beneficiary, and (c) as required by applicable law.
 
7. Indemnification.  To induce MATT to enter into this Commitment Letter, QPSA shall indemnify and hold harmless MATT, its affiliates (including, but not limited to, any Permitted Assignee(s)), the respective stockholders, members, directors, officers, partners, agents and employees of MATT and its affiliates, and any person controlling MATT or any of its affiliates (collectively, “Indemnified Persons”) from and against, and QPSA agrees that no Indemnified Person shall have any liability to QPSA or its owners, parents, affiliates, security holders or creditors for, any costs, losses, claims, damages or liabilities (including actions or proceedings in respect thereof) (collectively, “Liabilities”) related to or arising out of the Commitment, MATT’s performance thereof or any other action MATT is requested to take in connection with the Commitment or this Commitment Letter, except that this clause shall not apply to any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the bad faith of such Indemnified Person.  If any Indemnified Person becomes involved in any capacity in any action, claim, suit, investigation or proceeding, actual or threatened, brought by or against any person, including stockholders of QPSA, Target or Sellers in connection with or as a result of the Commitment, MATT’s performance thereof or any other action MATT is requested to take in connection with the Commitment or this Commitment Letter, QPSA also agrees to reimburse such Indemnified Persons for their expenses (including, without limitation, reasonable legal fees and other costs and expenses incurred in connection with investigating, preparing for and responding to third party subpoenas or enforcing the indemnification provision of this Section 7) as such expenses are incurred. QPSA’s obligations pursuant to this Section 7 shall inure to the benefit of any successors, assigns, heirs and personal representatives of each Indemnified Person and are in addition to any rights that each Indemnified Person may have at common law or otherwise.
 
8. Fees and Expenses.  QPSA shall pay all reasonable documented expenses incurred by MATT and its affiliates (including the reasonable documented fees, expenses, charges and disbursements of counsel to MATT and its affiliates) in connection with the transactions contemplated hereunder and the preparation of this Commitment Letter and the definitive documentation in respect of the Commitment, regardless of whether the Merger is consummated.
 
 
 
-3-
 
 
9. Participation Right.  To the extent QPSA obtains financing of all or a portion of the Cash Consideration in addition to the Commitment, MATT shall have the right to elect to invest the amount of the Commitment on the same terms as such additional financing.  To the extent QPSA proposes to obtain financing of all or a portion of the Cash Consideration without requiring MATT to invest the Commitment, QPSA shall provide MATT with a right of first refusal to provide up to one-half of such financing on the same terms and conditions as proposed by such third party.
 
10. Assignability.  The rights and obligations under this Commitment Letter may not be assigned by either party hereto without the prior written consent of the other party hereto and any attempted assignment shall be null and void and be of no force or effect. Notwithstanding the foregoing, MATT may assign all or a portion of its obligation to fund the Commitment to one or more of its affiliates (each, a “Permitted Assignee”); provided, that, no such assignment shall relieve MATT of its obligations under this Commitment Letter. This Commitment Letter may be amended by the unilateral action of MATT solely to reflect the addition of one or more Permitted Assignees of all or a portion of MATT’s obligation to fund the Commitment.
 
11. Amendments.  Except with respect to the addition of Permitted Assignees to this Commitment Letter as provided in Section 10, this Commitment Letter may not be amended, and no provision hereof waived or modified, except by an instrument signed by each of the parties hereto.
 
12. Governing Law; Jurisdiction.  This Commitment Letter shall be deemed to be made in and in all respects shall be interpreted, construed and governed by and in accordance with the laws of the State of New York applicable to contracts executed in and to be performed therein without regard to the conflicts of law principles thereof.  Any and all claims arising out of, relating to or in connection with the Commitment, this Commitment Letter or the subject matter hereof, shall be brought exclusively in the United States District Court for the Southern District of New York (or if such court lacks subject matter jurisdiction, in the courts of the State of New York in the County of New York) (the “Designated Court”).  The parties hereby irrevocably submit to the personal jurisdiction of the Designated Courts, solely in respect of any such claims, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in the Designated Courts, that the venue thereof may not be appropriate or that this Commitment Letter may not be enforced in or by the Designated Courts.
 
13. WAIVER OF JURY TRIAL.  THE PARTIES HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
 
14. No Recourse; Remedies.  QPSA acknowledges and agrees that no person other than QPSA and MATT has any obligation hereunder and that no recourse shall be had hereunder or under any document or instrument delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, any former, current or future equity holder, controlling person, director, officer, employee, attorney, agent, affiliate, general or limited partner, manager, member, representative or assignee of the undersigned, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law or otherwise.  The parties hereto waive any and all claims for incidental, consequential or punitive damages arising out of any breach of this Commitment Letter.
 
 
 
-4-
 
 
15. Third-Party Beneficiaries.  This Commitment Letter shall be binding on MATT solely for the benefit of QPSA, and nothing set forth in this Commitment Letter shall be construed to confer upon or give to any other person (including, the stockholders of QPSA, Merger Sub or any of the Target and the Sellers and their respective affiliates) any benefits, rights or remedies under or by reason of, or any rights to enforce or cause QPSA to enforce, MATT’s obligation to fund the Commitment or any provisions of this Commitment Letter.  No person, including QPSA, the stockholders of QPSA, Merger Sub or any of the Target and the Sellers and their respective affiliates may assert any quasi-contract, reliance-based, tort-based or equitable theories of liability based on this Commitment Letter.  The Indemnified Persons are intended third party beneficiaries of the obligations of QPSA set forth in the section of this Commitment Letter titled Indemnification, and may enforce such provisions in their own name.  Each party hereto hereby agree that, except as set forth in the preceding sentence, any representations, warranties, covenants and agreements set forth herein are solely for the benefit of the parties hereto, in accordance with and subject to the terms of this Commitment Letter, and this Commitment Letter is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder or in respect hereof.
 
16. Entire Agreement.  This Commitment Letter constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral (including, without limitation, the Original Commitment Letter), among the parties hereto with respect to the subject matter hereof.
 
17. Counterparts.  This Commitment Letter may be executed in or more counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and same instrument.  Signatures delivered by facsimile, or as attachments to e-mails, shall be effective as originals.
 
18. Expiration.  This Commitment Letter shall expire and be null and void if a signed counterpart of this Commitment Letter is not delivered to MATT by 5:00 p.m. Eastern time on September 16, 2011.  By its signature below, QPSA agrees to be bound by all of the terms of the conditions of this Commitment Letter, and represents and warrants that this Commitment Letter is a legal, valid and binding obligation of QPSA enforceable in accordance with its terms, and that this Commitment Letter has been approved by a majority of the members of QPSA’s board of directors excluding those directors who are affiliated with, or have other conflicting relationships with, MATT and its affiliates.
 
Signature page follows.
 

 

 
 
 
-5- 
 

Very truly yours,
 

 
 
MEXICANS & AMERICANS TRADING TOGETHER, INC.
   
 
By:       /s/ Andres Gonzalez-Saravia Coss
Name:  Andres Gonzalez-Saravia Coss
Title:     President
 
 
 
  
ACKNOWLEDGED AND AGREED:
  
 
 
 
  
QUEPASA CORPORATION
  
 
 
 
  
By:        /s/ Michael Matte                       
Name:   Michael Matte                           
Title:     CFO                                          
 
    

 
 
 
 
 

[SIGNATURE PAGE TO AMENDED AND RESTATED COMMITMENT LETTER]
 

 
 
 
 

Exhibit A
 
Merger Agreement
 

 

 

 
 
 

Exhibit B
 
Registration Rights
 
QPSA shall grant MATT and its Permitted Assignee(s) customary registration rights with respect to all shares of Common Stock and shares of Common Stock issuable upon conversion or exercise of other securities of QPSA held by them after giving effect to the funding of the Commitment and the closing of the Merger, including, but not limited to:  (i) two demand registration rights; (ii) unlimited piggyback rights (which rights shall provide for pro rata participation with holders of shares of Common Stock registered pursuant to rights under the Sale Rights Agreement); and (iii) unlimited S-3 or equivalent rights.  For the avoidance of doubt, such registration rights shall be no less favorable to MATT and its Permitted Assignee(s) than the rights provided to MATT under that certain Registration Rights Agreement made as of October 17, 2006 by and between QPSA and MATT.
 

 EX-99.17 3 q6991468c.htm AFFIRMATION OF PARENT VOTING AGREEMENT q6991468c.htm
 
Exhibit 99.17
AFFIRMATION


Dated as of September 15, 2011

To:    Insider Guides, Inc. (the “Company”)
Quepasa Corporation (the “Parent”)

Reference is hereby made to (i) the Parent Voting Agreement, dated as of July 19, 2011, by and among the Parent, the Company and the undersigned (the “Voting Agreement”), and (ii) the Agreement and Plan of Merger (the “Merger Agreement”), dated as of July 19, 2011, by and among the Parent, IG Acquisition Company, a Delaware corporation and wholly-owned subsidiary of Parent, and the Company.

The undersigned understands and acknowledges that the Company is contemplating entering into Amendment No. 1 to the Merger Agreement (the “Amendment”), pursuant to which the terms of the consideration payable pursuant to the Merger Agreement shall be modified, a true, correct and complete copy of which Amendment and the other documents referenced in this Affirmation have been provided to the undersigned.

In consideration for, and as a condition to, consummation of the transactions described in the Merger Agreement, as amended by the Amendment, the undersigned agrees as follows:

1.           Notwithstanding anything to the contrary contained in the Voting Agreement, the Amendment shall not constitute a “Material Adverse Amendment” and the execution and delivery by the Company of the Amendment shall not trigger the “Expiration Time” or the termination of the Voting Agreement.

This Affirmation may be executed in counterparts, each of which when so executed shall be deemed an original, but all of which when taken together shall constitute one and the same instrument.


[SIGNATURE PAGE FOLLOWS]

 
 
 
 

 
IN WITNESS WHEREOF, the undersigned has executed this Affirmation as of the day and year first above written.

 
 
  SHAREHOLDER:
   
   
 
MEXICANS & AMERICANS TRADING TOGETHER, INC.
   
 
By:       /s/ Andres Gonzalez-Saravia Coss
Name:  Andres Gonzalez-Saravia Coss
Title:     President
   
   
 
Address:
 
5150 N. Loop 1604 West 
San Antonio, Texas 78249
Attention: Andres Gonzalez-Saravia Coss
 

   


 
 
 
 

 


[SIGNATURE PAGE TO AFFIRMATION]