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Exhibit 4.08
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement"), dated as of January 28, 2000
is entered into by and among Verde Capital Partners, LLC, an Arizona limited
liability company, Alphabit Media Ventures, LLC, a California limited liability
company, Designet S.A. de C.V., a Mexico corporation, Designet Ventures, LLC, a
California limited liability company, and Cruttenden Roth Incorporated, a
California corporation (together the "Shareholders" and each individually a
"Shareholder"); quepasa.com, inc., a Nevada corporation ("Quepasa"); and Norwest
Bank Arizona, N.A. (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, Quepasa, the Shareholders, eTrato.com, Inc., a Delaware
corporation ("eTrato"), and eTrato Acquisition, Inc., a Delaware corporation and
wholly-owned subsidiary of Quepasa ("Merger Sub"), have entered into a Merger
Agreement (the "Merger Agreement") dated as of December 17, 1999; and
WHEREAS, pursuant to Section 8.2 of the Merger Agreement, the
Shareholders have agreed to indemnify Quepasa, Merger Sub and their agents for
certain liabilities, costs and expenses as provided in the Merger Agreement; and
WHEREAS, pursuant to the Merger Agreement, Quepasa and the Shareholders
have agreed to receive a portion of their compensation only after the passage of
time and the attainment of the Targets (as defined in the Merger Agreement); and
WHEREAS, pursuant to Section 1.8 of the Merger Agreement the parties to
the Merger Agreement have agreed that 50% of the Quepasa Merger Shares (as
defined in the Merger Agreement) shall be delivered to the Escrow Agent and this
Agreement establishes the terms and conditions pursuant to which the Escrow
Agent shall hold and disburse such shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
Definitions
SECTION 1.1 Definitions. Unless the context shall otherwise require,
capitalized terms used herein shall have the following meanings (such
definitions to be equally applicable to both the singular and plural forms of
the terms used):
"Business Day" means a day on which the Escrow Agent, at its address
set forth in Section 5.2, is open for the purpose of conducting a corporate
trust business.
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"Escrowed Shares" shall mean the 681,818 shares of Quepasa common
stock, $0.001 par value, that Quepasa is required to deliver to the Escrow Agent
pursuant to Section 1.8 of the Merger Agreement.
"Release Certificate" shall mean a certificate in the form of Schedule
A attached hereto, signed by Quepasa and the Shareholder Representative on
behalf of the Shareholders.
"Shareholder Representative" shall mean Verde Capital Partners, LLC, or
any other person designated in writing to Quepasa and the Escrow Agent by a
majority in interest of the Shareholders.
SECTION 1.2 Terms Defined in Merger Agreement. All capitalized terms
not defined herein shall have the respective meanings ascribed to such terms in
the Merger Agreement.
ARTICLE 2
The Escrowed Shares
SECTION 2.1 Appointment of Escrow Agent. The Shareholders and Quepasa
hereby appoint Norwest Bank Arizona, N.A., as Escrow Agent hereunder, and the
Escrow Agent hereby accepts such appointment
SECTION 2.2 Appointment of Shareholder Representative. The Shareholders
hereby appoint the Shareholder Representative to act on their behalf as provided
herein.
SECTION 2.3 Delivery of Escrowed Shares. Pursuant to the Merger
Agreement, at the Effective Time (as defined in the Merger Agreement) Quepasa
shall deliver to the Escrow Agent the stock certificates representing the
Escrowed Shares, duly endorsed in blank, or accompanied by stock powers duly
endorsed in blank. For each Shareholder, Quepasa shall deliver to the Escrow
Agent two share certificates, with each certificate representing 50% of such
Shareholder's pro-rata portion of the Escrowed Shares. For each Shareholder, one
certificate shall be deemed the "First Certificate" and the other shall be
deemed the "Second Certificate," provided that one or more Replacement
Certificates (as defined in Section 2.5 below) may subsequently be issued to
replace the Second Certificate pursuant to Section 2.5 below
SECTION 2.4 Release of Escrowed Shares. The Escrow Agent will hold the
Escrowed Shares in its possession until authorized hereunder to deliver such
shares, or a portion thereof, as follows:
(a) As mutually directed in writing by Quepasa and the Shareholder
Representative.
(b) Upon receipt of a Release Certificate, as directed in such Release
Certificate.
SECTION 2.5 Replacement Certificates. If the Escrow Agent receives a
Release Certificate in the form of Schedule A attached hereto specifying that
Replacement Certificates
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are to be issued, the Escrow Agent shall, no later than the seventh Business Day
following the delivery of such Release Certificate, deliver to Quepasa (or upon
Quepasa's written instruction, to Quepasa's stock transfer agent) the
appropriate First Certificates or Second Certificates. Quepasa shall cancel such
certificates and promptly issue new certificates representing Quepasa Common
Stock (the "Replacement Certificates") to the Escrow Agent or to each
Shareholder (according to its pro-rata ownership of the remaining Escrowed
Shares), as set forth in the Release Certificate, calculated by subtracting the
amount of the Losses specified in such Release Certificate from $7,500,000 or
$3,750,000, as the case may be, and then dividing that amount by $11. (For
example, aggregate Losses of $1,000,000 to be satisfied by shares represented by
the First Certificates would result in the issuance of Replacement Certificates
representing an aggregate of 250,000 shares of Quepasa Common Stock ($3,750,000
- - $1,000,000 = $2,750,000; $2,750,000/$11 = 250,000.) The Replacement
Certificates shall be distributed to the Escrow Agent or the Shareholders, as
set forth in the Release Certificate, no later than the Business Day following
the Escrow Agent's receipt thereof.
ARTICLE 3
Rights as Shareholder
SECTION 3.1 Rights as Holder. Nothing herein shall be deemed to create
in the Escrow Agent any rights as a shareholder of Quepasa. If and until the
Escrowed Shares are delivered by the Escrow Agent to Quepasa in accordance
herewith, the Shareholders shall possess all rights of ownership of a record
shareholder of Quepasa (including the right to vote such shares and receive
dividends). The Escrowed Shares will appear as issued and outstanding on
Quepasa's balance sheet.
ARTICLE 4
Escrow Agent
SECTION 4.1 Compensation of Escrow Agent; Indemnification.
(a) The Escrow Agent shall be entitled to an initial fee of $1,000 and
an annual fee of $1,500 as reasonable compensation for its services under and
pursuant to this Agreement. Quepasa shall pay (i) the initial fee on the date
hereof and (ii) the annual fee within five Business Days after each anniversary
of the date hereof if the Escrowed Shares remain in escrow on the anniversary
date.
(b) The Escrow Agent acknowledges and agrees that it will provide the
services described herein in consideration of the fee recited herein and that
the Escrow Agent shall not be entitled to receive, and no other party hereto
shall be obligated to pay, the Escrow Agent any other fees for services
hereunder.
(c) Quepasa and the Shareholders will jointly (but not severally)
indemnify and hold harmless the Escrow Agent and its officers and employees from
and against any and all losses, costs, charges, expenses, judgments and
liabilities, including, without limitation,
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reasonable expenses of counsel and expenses of litigation incurred while acting
in good faith to carry out the transactions contemplated by this Agreement;
provided, however, that the Escrow Agent shall not be entitled to such
indemnification to the extent that any such losses, costs, changes, expenses,
judgments or liabilities are caused by the negligent action, negligent failure
to act, willful misconduct, or failure to act of the Escrow Agent or its
officers or employees.
(d) Should any controversy arise between the parties with respect to
this Agreement, or with respect to the right to receive any of the Escrowed
Shares, the Escrow Agent shall have the right to institute a bill of
interpleader in any court of competent jurisdiction as specified in Section 5.10
of this Agreement to determine the rights of the parties. Should a bill of
interpleader be instituted, or should the Escrow Agent become involved in
litigation in any manner whatsoever on account of this Agreement or the Escrowed
Shares, Quepasa and the Shareholders will pay the Escrow Agent reasonable
attorneys' fees incurred by the Escrow Agent, and any other disbursements,
expenses, losses, costs, and damages in connection with or resulting from such
litigation.
SECTION 4.2 Escrow Agent's Performance; Duty of Care.
(a) The Escrow Agent accepts and agrees to hold the Escrowed Shares and
consents and agrees to perform and comply with all of the terms and provisions
on its part contained in this Agreement. The Escrow Agent shall not be charged
with knowledge of content or conditions of the Merger Agreement.
(b) The Escrow Agent shall take no action except as provided herein and
shall have no responsibilities to the parties hereto except those specifically
provided for herein. In performing its duties and obligations hereunder, the
Escrow Agent shall exercise the same degree of skill and care as is ordinarily
exercised by similar institutions in the holding of negotiable instruments under
similar circumstances.
(c) No provision of this Agreement shall be construed to relieve the
Escrow Agent from liability for its own failure to act in accordance with
subsection 4.2(b), its own negligent action, its own negligent failure to act or
its own willful misconduct or that of its officers or employees; provided,
however; that (i) the duties and obligations of the Escrow Agent shall be
determined solely by the express provisions of this Agreement; (ii) the Escrow
Agent shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, and (iii) in the
absence of bad faith on the part of the Escrow Agent, the Escrow Agent may
conclusively rely, as to the truth of the statements expressed therein, upon any
documents furnished to the Escrow Agent and conforming to the requirements of
this Agreement and the Escrow Agent may rely and shall be protected in acting
upon any document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
SECTION 4.3 Resignation by the Escrow Agent. The Escrow Agent may at
any time resign from the trusts hereby created by giving at least 30 days
written notice to Quepasa and the Shareholder Representative, and such
resignation shall take effect on the later of the date specified in such notice
or upon the appointment of a successor Escrow Agent pursuant to the
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provisions of Section 4.5 of this Agreement and acceptance by the successor
Escrow Agent of such trusts.
SECTION 4.4 Removal of the Escrow Agent. The Escrow Agent may be
removed at any time, by an instrument or concurrent instruments in writing
delivered to the Escrow Agent, duly executed by Quepasa and the Shareholder
Representative; provided, however, that such removal shall not take effect prior
to the appointment of a successor Escrow Agent pursuant to the provisions of
Section 4.5 of this Agreement and acceptance by the successor Escrow Agent of
the trusts hereby created.
SECTION 4.5 Appointment of Successor Escrow Agent. In case the Escrow
Agent hereunder shall (a) resign pursuant to Section 4.3 hereof, (b) be removed
pursuant to Section 4.4 hereof, or (c) be dissolved, taken under the control of
any public officer or officers or of a receiver appointed by the court, or
otherwise become incapable of acting hereunder, a successor will be appointed by
Quepasa with the consent of the Shareholder Representative (which consent shall
not be unreasonably withheld). If no successor Escrow Agent shall have been so
appointed and have accepted appointment within 30 days of the giving of written
notice by the resigning Escrow Agent or within 30 days of the giving of written
notice of removal by the Shareholder Representative and Quepasa or within 30
days of the Shareholder Representative's or Quepasa's knowledge of any of the
events specified in clause (c) of the preceding sentence, the Escrow Agent, the
Shareholder Representative, the Shareholders, Quepasa or any of them may
petition any court of competent jurisdiction for the appointment of a successor
Escrow Agent. Every such successor Escrow Agent appointed pursuant to the
provisions of this Section 4.5 shall be willing to accept the trusteeship of the
Escrowed Shares under the terms and conditions of this Agreement.
Notwithstanding Section 4.4 or 4.5 or any other provision contained in this
Agreement to the contrary, no resignation or removal of an Escrow Agent shall
take effect until a duly appointed successor Escrow Agent has received the full
amount of the Escrowed Shares.
SECTION 4.6 Concerning any Successor Escrow Agent. Every successor
Escrow Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Shareholder Representative and Quepasa an instrument
in writing accepting such appointment hereunder, and thereupon such successor
shall become fully vested with all the trusts, powers, rights, obligations,
duties, remedies, immunities and privileges of its predecessor as if originally
named herein; but, nevertheless, (i) such predecessor shall, on the written
request of the Shareholder Representative or Quepasa, or such successor, execute
and deliver an instrument transferring to such successor Escrow Agent all the
trusts, powers, rights, obligations, duties, remedies, immunities and privileges
of such predecessor hereunder and (ii) such predecessor shall deliver all of the
Escrowed Shares to its successor. Should any instrument in writing from the
Shareholder Representative, the Shareholders or Quepasa be required by any
successor Escrow Agent for more fully and certainly vesting in such successor,
any and all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Shareholders, the Shareholder Representative
or Quepasa at the expense of Quepasa and the Shareholders.
SECTION 4.7 Term of Escrow Agreement. This Agreement shall remain in
full force and effect until all the Escrowed Shares have been distributed to the
Shareholders or Quepasa in
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accordance with Section 2.4 hereof and the Escrow Agent shall have received all
fees and other sums owed to it hereunder.
SECTION 4.8 Merger, Conversion, Consolidation, or Succession to
Business. Any corporation into which the Escrow Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion, or consolidation to which the Escrow Agent shall be a party,
or any corporation succeeding to all or substantially all of the corporate trust
business of the Escrow Agent, shall be the successor of the Escrow Agent
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
ARTICLE 5
Shareholder Representative
SECTION 5.1 Appointment. The Shareholders irrevocably make, constitute
and appoint Verde Capital Partners, LLC as their agent (the "Shareholder
Representative") and authorize and empower it to fulfill the role of Shareholder
Representative hereunder.
SECTION 5.2 Duties. The Shareholder Representative shall:
(a) receive all notices and communications directed to the Shareholders
under this Agreement and forward such notices and communications to all
Shareholders within four days of receipt by the Shareholder Representative;
(b) within seven days of forwarding such notices and communications by
the Shareholder Representative, all Shareholders shall meet in person or by
conference telephone, electronic video screen communication, or similar
communication equipment (so long as all Shareholders participating in the
meeting can hear one another), to determine what actions the Shareholders should
or should not take in response to such notice or communications;
(c) ensure that all such decisions (whether to act or not act) be
memorialized in writing by the Shareholders;
(d) take any action (or take no action) as the Shareholder
Representative is directed to do pursuant only to a written consent of a
majority in interest of the Shareholders to take (or not take) such action; and
(e) act in good faith and exercise the same degree of duty and care in
performing its duties and obligations hereunder as is exercised by other
entities under similar circumstances.
SECTION 5.3 Liability. The Shareholder Representative shall not be
liable to the Shareholders for its performance under this Agreement except for
the Shareholder Representative's own negligent action, failure to act in good
faith, or willful misconduct. In the absence of bad faith on the part of the
Shareholder Representative, the Shareholder
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Representative may conclusively rely, as to the truth of the statements
expressed therein, upon any documents furnished to the Shareholder
Representative and conforming to the requirements of this Agreement and the
Shareholder Representative may rely and shall be protected in acting upon any
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
SECTION 5.4 Compensation: The Shareholder will not be compensated for
the performance of its services under this Agreement.
ARTICLE 6
Miscellaneous
SECTION 6.1 Waivers; Amendments.
(a) No failure or delay by any party in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. No waiver of any provision
of this Agreement or consent to any departure therefrom shall in any event be
effective unless the same shall be authorized as provided in subsection 5.1(b)
below, and then such waiver or consent shall be effective only in the specific
instance for the purpose for which given. No notice or demand on any party in
any case shall entitle such party to any other or further notice or demand in
similar or other circumstances.
(b) No provision of this Agreement may be waived, amended,
supplemented, or modified except pursuant to an agreement in writing entered
into by the Shareholder Representative (or the Shareholders), Quepasa and the
Escrow Agent.
SECTION 6.2 Notices. All communications and notices required by any
provision of this Agreement to be given by one party hereto to any other party
hereto shall also be contemporaneously given by the party giving any such notice
to the other party hereto. All communications and notices under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed by overnight mail delivery service, return receipt requested, or
transmitted by telex, telecopy or other wire transmission (with request for
assurance of receipt in a manner customary for communications of such respective
type) to the appropriate following address:
To Quepasa:
quepasa.com, inc.
400 East Van Buren, 4th Floor
Phoenix, AZ 85004
FAX: 602-716-0200
Attention: Gary Trujillo
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With a copy to:
Brownstein, Hyatt & Farber, P.C.
410 17th Street, 22nd Floor
Denver, CO 80202
FAX: 303-223-1111
Attention: Jeffrey Knetsch
If to Verde Capital Partners, LLC:
Verde Capital Partners, LLC
2525 East Camelback Road, Suite 1150
Phoenix, AZ 85016
FAX: 602-522-3159
Attention: Ernest C. Garcia III
With a copy to:
Snell & Wilmer, L.L.P.
One Arizona Center
Phoenix, AZ 85016
FAX: 602-382-6070
Attention: Steven D. Pidgeon, Esq.
If to Alphabit Media Ventures, LLC:
Alphabit Media, Inc.
1112 Harrison Street
San Francisco, CA 94103
FAX: 415-252-9343
Attention: Steve Landman
With a copy to:
Crosby, Heafey, Roach & May, P.C.
Four Embarcadero Center, Suite 1900
San Francisco, CA 94111
FAX: 415-391-8269
Attention: Matthew P. Fisher
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If to Designet S.A. de C.V. or Designet Ventures, LLC:
Designet S.A. de C.V.
Napoles 59, Primer Piso
Col. Juarez
Mexico, D.S. 06600
FAX: 011-525-286-8124
Attention: Elias Terman
With a copy to:
Mitchell & Shea
1540 Sixth Avenue
San Diego, CA 92101
FAX: 619-702-6534
If to Cruttenden Roth Incorporated:
Cruttenden Roth Incorporated
24 Corporate Plaza
Newport Beach, CA 92660
FAX: 949-720-7223
Attention: Aaron Gurewitz
If to Escrow Agent, to:
Norwest Bank Arizona, N.A.
Corporate Trust Services
MAC S4101-080
100 W. Washington St., 8th Floor
Phoenix, Arizona 85003
Attn.: Eunice Ortega
FAX: (602) 378-2333
or at such other address as a party may designate by notice to the other parties
hereto in accordance with this Section.
SECTION 6.3 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Arizona,
without regard to its conflicts of law doctrine.
SECTION 6.4 Counterparts. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts, each
of which, when so executed and delivered, shall be an original, but all of which
together shall constitute one and the same instrument.
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SECTION 6.5 Severability. If any term or provision of this Agreement or
the application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or such provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable any remaining
terms or provisions of this Agreement or the application of such term or
provision to circumstances other than those as to which it is held invalid or
unenforceable. To the extent permitted by applicable law, the parties hereto
waive any provision of law that renders any term or provision of this Agreement
invalid or unenforceable in any respect.
SECTION 6.6 Headings. The headings of the Sections and subsections of
this Agreement have been inserted for convenience of reference only and shall in
no way restrict or otherwise modify any of the terms or provisions hereof.
SECTION 6.7 Entire Agreement. This Agreement and the Merger Agreement
supersede all prior agreements, written or oral, between or among any of the
parties hereto relating to the transactions contemplated hereby or thereby and
each of the parties hereto represents and warrants to the others that this
Agreement and the Merger Agreement constitute the entire agreement among the
parties relating to the transactions contemplated hereby and thereby.
SECTION 6.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, other than
strictly in accordance with the provisions of Section 4.3 through 4.6.
SECTION 6.9 Binding Effect. All agreements, representations, warranties
and indemnities in this Agreement and in any agreement, document or certificate
delivered concurrently with the execution of this Agreement or from time to time
hereafter shall bind the party making the same and its successors and assigns
and shall inure to the benefit of each party for whom made and its permitted
successors and assigns.
SECTION 6.10 Choice of Forum. The parties agree that any legal action
or proceeding with respect to or arising out of this Agreement shall be brought
in any federal or state court in Maricopa County in the State of Arizona, which
courts shall have exclusive original jurisdiction over any dispute or
controversy with respect to or arising out of this Agreement. The parties
irrevocably consent to the service of process out of any of such courts in any
such action or proceeding by the mailing of copies thereof by registered or
certified airmail, postage prepaid, to the Shareholders, Quepasa or the Escrow
Agent, as the case may be, at their respective addresses for notices as
specified in Section 5.2 and that such service shall be effective five Business
Days after such mailing. Nothing herein shall affect the right to serve process
in any other manner permitted by law.
SECTION 6.11 Conflicts with Merger Agreement. In the event the
provisions of this Agreement are inconsistent with or contradict the terms of
the Merger Agreement, the terms of the Merger Agreement shall govern.
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IN WITNESS WHEREOF, Quepasa, the Shareholders, the Shareholder
Representative and the Escrow Agent have executed this Agreement as of the date
first written above.
QUEPASA.COM, INC.
By: /s/ Gary Trujillo
-----------------
Gary Trujillo,
Chairman/Chief Executive Officer
SHAREHOLDERS:
VERDE CAPITAL PARTNERS, LLC
By: /s/ Ernest C. Garcia II
-----------------------
Name: Ernest C. Garcia II
Its: Member
ALPHABIT MEDIA VENTURES, LLC
By: /s/ Steven Landman
------------------
Name: Steven Landman
Its: CFO
DESIGNET S.A. DE C.V.
By: /s/ Elias M. Terman
-------------------
Name: Elias M. Terman
Its: President
DESIGNET VENTURES, LLC
By: /s/ Elias M. Terman
--------------------
Name: Elias M. Terman
Its: President
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CRUTTENDEN ROTH INCORPORATED
By: /s/ Aaron M. Gurewitz
---------------------
Name: Aaron M. Gurewitz
Its: Principal
NORWEST BANK ARIZONA, N.A., as Escrow Agent
By:/s/ Eunice Ortega
-----------------
Name: Eunice Ortega
Its: Trust Officer
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Schedule A
CERTIFICATE
Reference is made to the Escrow Agreement (the "Escrow Agreement") by
and among Verde Capital Partners, LLC, an Arizona limited liability company,
Alphabit Media Ventures, LLC, a California limited liability company, Designet
S.A. de C.V., a Mexico corporation, Designet Ventures, LLC, a California limited
liability company, and Cruttenden Roth Incorporated, a California corporation
(together the "Shareholders" and each individually a "Shareholder");
quepasa.com, inc., a Nevada corporation ("Quepasa"); and Norwest Bank Arizona,
N.A. (the "Escrow Agent"). Capitalized terms used herein but not defined herein
have the meanings assigned such terms in the Escrow Agreement.
[FIRST ALTERNATIVE - TO BE DELIVERED ONLY WITH RESPECT TO THE FIRST
CERTIFICATES]
As of the date hereof, the Surviving Corporation (as defined in the
Merger Agreement) has achieved the Targets (as defined in the Merger Agreement)
and Quepasa has incurred no Losses (as defined in the Merger Agreement). Quepasa
and the Shareholders hereby authorize the Escrow Agent to release the First
Certificates on the later of either (i) April 24, 2000 or (ii) the first
Business Day after receiving this Certificate.
[SECOND ALTERNATIVE - TO BE DELIVERED ONLY WITH RESPECT TO THE SECOND
CERTIFICATES]
As of the date hereof, the Surviving Corporation (as defined in the
Merger Agreement) has achieved the Targets (as defined in the Merger Agreement)
and Quepasa has incurred no Losses (as defined in the Merger Agreement). Quepasa
and the Shareholders hereby authorize the Escrow Agent to release the Second
Certificates on the later of either (i) July 24, 2000 or (ii) the first Business
Day after receiving this Certificate.
[THIRD ALTERNATIVE]
1) As of the date hereof, the Surviving Corporation (as defined in the
Merger Agreement) has achieved the Targets and Quepasa has incurred Losses (as
defined in the Merger Agreement) of $_________.
2) If the amount in paragraph 1 above is greater than or equal to
$7,500,000, Quepasa and the Shareholders hereby authorize the Escrow Agent to
release the First Certificates and the Second Certificates to Quepasa.
3) If the amount in paragraph 1 is greater than or equal to $3,750,000
but less than $7,500,000, Quepasa and the Shareholders hereby authorize the
Escrow Agent to release the First Certificates to Quepasa and to return the
Second Certificates to Quepasa to be canceled and Replacement Certificates for
the Second Certificates to be issued to the Escrow Agent in accordance with
Section 2.5 of the Escrow Agreement. If the date hereof is on or after July 24,
2000, Quepasa shall issue such Replacement Certificates to the Shareholders; if
the date hereof is
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prior to July 24, 2000, Quepasa shall return such Replacement
Certificates to the Escrow Agent, to be released according to Section 2.4 of the
Escrow Agreement.
4) If the amount in paragraph 1 is less than $3,750,000,
Quepasa and the Shareholders hereby authorize the Escrow Agent to return the
First Certificates to Quepasa to be canceled and Replacement Certificates to be
issued to the Shareholders in accordance with Section 2.5 of the Escrow
Agreement. If the date hereof is on or after April 24, 2000, Quepasa shall issue
such Replacement Certificates to the Shareholders; if the date hereof is prior
to April 24, 2000, Quepasa shall return such Replacement Certificates to the
Escrow Agent, to be released according to Section 2.4 of the Escrow Agreement.
The Second Certificates shall remain in escrow until released in accordance with
Section 2.4 of the Escrow Agreement.
[FOURTH ALTERNATIVE - TO BE DELIVERED ONLY WITH RESPECT TO THE SECOND
CERTIFICATES]
1) As of the date hereof, the Surviving Corporation (as defined in the
Merger Agreement) has achieved the Targets and Quepasa has incurred Losses (as
defined in the Merger Agreement) of $_________ in excess of the amount of Losses
set forth in any previous Certificate(s) delivered to the Escrow Agent.
2) If the amount in paragraph 1 above is greater than or equal to
$3,750,000, Quepasa and the Shareholders hereby authorize the Escrow Agent to
release the Second Certificates to Quepasa.
3) If the amount in paragraph 1 is less than $3,750,000, Quepasa and
the Shareholders hereby authorize the Escrow Agent to return the Second
Certificates to Quepasa to be canceled and Replacement Certificates to be issued
to the Shareholders in accordance with Section 2.5 of the Escrow Agreement. If
the date hereof is on or after July 24, 2000, Quepasa shall issue such
Replacement Certificates to the Shareholders; if the date hereof is prior to
July 24, 2000, Quepasa shall return such Replacement Certificates to the Escrow
Agent, to be released according to Section 2.4 of the Escrow Agreement.
[FIFTH ALTERNATIVE]
As of the date hereof, a Change of Control (as defined in the Merger
Agreement) has occurred. Quepasa and the Shareholders hereby authorize the
Escrow Agent to release all of the Escrowed Shares to the Shareholders.
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IN WITNESS WHEREOF, Quepasa and the Shareholders have executed this
Certificate as of
-------------------------------.
QUEPASA.COM, INC.
By:
-----------------------------------
Name:-----------------------------------
Its: -----------------------------------
SHAREHOLDERS:
BY VERDE CAPITAL PARTNERS, LLC
AS SHAREHOLDER REPRESENTATIVE
By:
----------------------------------
Name:----------------------------------
Its: ----------------------------------
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