1
Exhibit 4.09
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of March
9, 2000 by and among QUEPASA.COM, INC., a Nevada corporation ("quepasa"), and
GARY ACOSTA and JOHN BENEVENTI (collectively, the "Shareholders").
W I T N E S S E T H :
WHEREAS, quepasa, credito.com, inc., a Delaware corporation wholly-owned by
quepasa ("Credito"), realestateespanol.com, Inc., a Delaware corporation
wholly-owned by Credito ("Merger Sub"), Century Finance USA, Inc., a California
corporation d/b/a RealEstateEspanol.com, Inc. ("Century"), and the Shareholders
have entered into an Agreement and Plan of Merger dated March 9, 2000 (the
"Agreement and Plan of Merger"); and
WHEREAS, as a condition to the closing of the Agreement and Plan of Merger,
quepasa and the Shareholders have agreed to enter into this Agreement;
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:
1. DEFINITIONS
1.1 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.2 "Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by quepasa with
the SEC.
1.3 "Nasdaq" shall mean the Nasdaq National Market.
1.4 "quepasa Common Stock" shall mean the common stock, $.001 par
value, of quepasa.
1.5 "Registration Expenses" shall mean all expenses incurred by quepasa
in complying with Section 2.1 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for quepasa, fees and expenses of independent public accountants of
quepasa, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of quepasa which shall be paid in any event by quepasa).
1.6 "Registrable Securities" means (a) the quepasa Common Stock issued
to the Shareholders pursuant to Section 1.5 of the Agreement and Plan of Merger;
and (b) any additional securities issued to the Shareholders with respect to the
foregoing upon any stock split, stock dividend, recapitalization, dilution
adjustment or similar event.
2
1.7 "Securities Act" means the Securities Act of 1933, as amended and
the rules and regulations promulgated thereto by the SEC.
1.8 "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale.
1.9 "SEC" or "Commission" means the Securities and Exchange Commission.
1.10 All other capitalized terms used herein which are not specifically
defined shall have the meaning ascribed to them in the Agreement and Plan of
Merger.
2. REGISTRATION RIGHTS
2.1 Piggyback Registration Rights.
(a) Quepasa shall notify all Shareholders in writing at least fifteen
days prior to the filing of any registration statement under the Securities Act
for purposes of a public offering of securities of quepasa (including, but not
limited to, registration statements relating to secondary offerings of
securities of quepasa, but excluding registration statements (i) relating to
employee benefit plans, (ii) with respect to corporate reorganizations or other
transactions under Rule 145 of the Securities Act or any similar rule of the
Commission, (iii) a registration on any form that does not include substantially
the same information as would be required to be included in a registration
statement covering the Registrable Securities (including Form S-4 or any form
substituted therefor) or (iv) being filed for the account of other holders of
quepasa Common Stock who are entitled by right to exclude the Registrable
Securities in such registration statement and will afford each such Shareholder
an opportunity to include in such registration statement, at such Shareholder's
election, all or part of such Registrable Securities held by such Shareholder.
Each Shareholder desiring to include in any such registration statement all or
any part of the Registrable Securities held by it shall, within ten days after
the above-described notice from quepasa, so notify quepasa in writing. Such
notice shall state the intended method of disposition of the Registrable
Securities by such Shareholder. If a Shareholder decides not to include any or
all of its Registrable Securities in any registration statement thereafter filed
by quepasa, such Shareholder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by quepasa with respect to offerings of
its securities, all upon the terms and conditions set forth herein.
(b) Underwriting. If the registration statement under which quepasa
gives notice under this Section 2.1 is for an underwritten offering, quepasa
shall so advise the Shareholders of Registrable Securities. In such event, the
right of any such Shareholder to be included in a registration pursuant to this
Section 2.1 shall be conditioned upon such Shareholder's participation in such
underwriting and the inclusion of such Shareholder's Registrable Securities in
the underwriting to the extent provided herein. All Shareholders proposing to
distribute their Registrable Securities through such underwriting shall enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such
2
3
underwriting by quepasa. Notwithstanding any other provision of the Agreement,
if the underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, the number of shares that
may be included in the underwriting shall be allocated first, to quepasa and
second, to holders of Registrable Securities and other security holders, if any,
who have registration rights with respect to the securities they desire to have
registered in proportion, as nearly as practicable, to their respective holdings
of securities of quepasa. If any Shareholder disapproves of the terms of any
such underwriting, such Shareholder may elect to withdraw therefrom by written
notice to quepasa and the underwriter, delivered at least ten business days
prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration.
2.2 Obligations of quepasa. Whenever required to effect the registration of
any Registrable Securities pursuant to Section 2.1 herein, quepasa shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(b) Furnish to the Shareholders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them;
(c) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Shareholders;
provided that quepasa shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(d) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Shareholder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
(e) Notify each Shareholder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
and
(f) Use its best efforts to furnish, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters, (i) an opinion, dated as of such date, of the
counsel representing quepasa for the purposes of such
3
4
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and (ii)
a letter dated as of such date, from the independent certified public
accountants of quepasa, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering addressed to the underwriters.
2.4 Expenses of Registration. Quepasa shall pay all Registration Expenses,
except the Shareholders shall bear all Selling Expenses attributable to their
Registrable Securities being registered and fees of their counsel.
3. INDEMNIFICATION
3.1 To the extent permitted by law, quepasa will indemnify and hold
harmless each Shareholder, any underwriter (as defined in the Securities Act)
for such Shareholder and each person, if any, who controls such Shareholder or
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation") by quepasa: (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by quepasa of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and quepasa
will pay to each such Shareholder, underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided however, that the indemnity agreement contained in this Section 3.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
quepasa, which consent shall not be unreasonably withheld, nor shall quepasa be
liable in any such case for any such loss, claim, damage, liability or action to
the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Shareholder, underwriter or
controlling person of such Shareholder or from such Shareholder's failure to
deliver, at the time required by the Securities Act, a final or amended
prospectus that corrects any actual or alleged untrue statement or omission
contained in any preliminary prospectus or prior prospectus if such Shareholder
previously has been provided such final or amended prospectus in accordance with
Section 2.3.
3.2 To the extent permitted by law, each Shareholder will, if Registrable
Securities held by such Shareholder are included in the securities as to which
such registration qualifications or compliance is being effected, indemnify and
hold harmless quepasa, each of its directors, its officers and each person, if
any, who controls quepasa within the meaning of the Securities Act, any
underwriter and any other Shareholder selling securities under such registration
statement or any of such other Shareholder's partners, directors or officers or
any
4
5
person who controls such Shareholder, against any losses, claims, damages or
liabilities (joint or several) to which quepasa or any such director, officer,
controlling person, underwriter or other such Shareholder, or controlling person
of such other Shareholder may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in strict conformity with written
information furnished by such Shareholder under an instrument duly executed by
such Shareholder and stated to be specifically for use in connection with such
registration; and each such Shareholder will pay any legal or other expenses
reasonably incurred by quepasa or any such director, officer, controlling
person, underwriter or other Shareholder, or partner, officer, director or
controlling person of such other Shareholder in connection with investigating or
defending any such loss, claim, damage, liability or action if it is judicially
determined that there was such a Violation; provided, however, that the
indemnity agreement contained in this Section 3.2 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Shareholder, which consent
shall not be unreasonably withheld; and provided further, that in no event shall
any indemnity under this Section 3 exceed the net proceeds from the offering
received by such Shareholder.
3.3 Promptly after receipt by an indemnified party under this Section 3 of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 3, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of liability to the indemnified party under this
Section 3 but only to the extent such failure is materially prejudicial to its
ability to defend such action, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 3.
3.4 If the indemnification provided for in this Section 3 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the Violation(s) that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law by reference to, among other things, whether the untrue or
alleged
5
6
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided, that in
no event shall any contribution by a Shareholder hereunder exceed the net
proceeds from the offering received by such Shareholder.
3.5 The obligations of quepasa and Shareholders under this Section 3 shall
survive completion of any offering of Registrable Securities in a registration
statement and the termination of this agreement. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
4. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to cause quepasa to register Registrable Securities pursuant to
this Agreement may be assigned by a Shareholder to a transferee or assignee of
Registrable Securities which is a Shareholder's family member or trust or other
entity controlled by or formed for the benefit of an individual Shareholder or
family; provided, however, (i) the transferor shall, within ten days after such
transfer, furnish to quepasa written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned and (ii) such transferee shall agree to
be subject to all restrictions set forth in this Agreement.
5. RULE 144 REPORTING
With a view to making available to the Shareholders the benefits of certain
rules and regulations of the SEC which may permit the sale of the Registrable
Securities to the public without registration, quepasa agrees to use its best
efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act;
(b) File with the SEC, in a timely manner, all reports and other
documents required of quepasa under the Exchange Act; and
(c) So long as a Shareholder owns any Registrable Securities, furnish
to such Shareholder forthwith upon request: (i) a written statement by quepasa
as to its compliance with the reporting requirements of Rule 144 of the
Securities Act and of the Exchange Act; (ii) a copy of the most recent annual or
quarterly report of quepasa; and (iii) such other reports and documents as a
Shareholder may reasonably request in availing itself of any rule or regulation
of the SEC allowing it to sell any such securities without registration.
6. MISCELLANEOUS
6.1 No Waiver; Cumulative Remedies. No failure or delay on the part of any
party to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver
6
7
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
6.2 Amendments and Waivers. Except as hereinafter provided, amendments to
this Agreement shall require and shall be effective upon receipt of the written
consent of quepasa and the Shareholders of at least a majority in interest of
the Registrable Securities. Except as hereinafter provided, compliance with any
covenant or provision set forth herein may be waived upon written consent by the
party or parties whose rights are being waived; provided, however, that the
rights of Shareholders of Registrable Securities can be waived only upon the
written consent of a majority in interest of the Registrable Securities then
held by the Shareholders. Notwithstanding the foregoing, no waivers or
amendments shall be effective to reduce the percentage in interest of the
Registrable Securities then held by the Shareholders required under this
Section. Any waiver or amendments may be given subject to satisfaction of
conditions stated therein and any waiver or amendments shall be effective only
in the specific instance and for the specific purpose for which given.
6.3 Notices.
As the terms "notice" or "notices" are used herein as between the parties,
such term shall mean a written document, explaining in reason for the notice,
and the same shall be mailed by United States Postal Service Via Certified Mail,
Return Receipt Requested, or by recognized overnight courier service, addressed
as follows:
If to quepasa: quepasa.com, inc.
400 East Van Buren, 4th Floor
Phoenix, Arizona 85004
FAX: 602-716-0200
Attn: Gary Trujillo
With a copy to (which copy
shall not constitute notice): Brownstein, Hyatt & Farber, P.C.
410 17th Street, 22nd Floor
Denver, Colorado 80202
FAX: 303-223-1111
Attn: Jeffrey Knetsch
If to Century: Century Finance USA, Inc.
1650 Hotel Circle North, Suite 215
San Diego, California 92108
FAX: 619-209-4755
Attn: [_________]
7
8
With a copy to (which copy
shall not constitute notice): Sheppard, Mullin, Richter & Hampton, LLP
501 West Broadway
San Diego, CA 92101
FAX: 619-234-3815
Attn: Amy Tranckino
If to Gary Acosta: Gary Acosta
c/o Century Finance USA, LLC
1650 Hotel Circle North, Suite 215
San Diego, California 92108
FAX: 619-209-4755
With a copy to (which copy
shall not constitute notice): Sheppard, Mullin, Richter & Hampton, LLP
501 West Broadway
San Diego, CA 92101
FAX: 619-234-3815
Attn: Amy Tranckino
If to John Beneventi: John Beneventi
c/o Century Finance USA, LLC
1650 Hotel Circle North, Suite 215
San Diego, California 92108
FAX: 619-209-4755
With a copy to (which copy
shall not constitute notice): Sheppard, Mullin, Richter & Hampton, LLP
501 West Broadway
San Diego, CA 92101
FAX: 619-234-3815
Attn: Amy Tranckino
Such notice shall be deemed to have been given on the date placed in the U.S.
Mails or delivered to the overnight courier service, whether actually received
by the addressee or not. The parties may from time to time amend the above
addresses and names by written notice given the other party.
6.4 Termination. This Agreement shall terminate with respect to any holder
of Registrable Securities on the earlier of the date that all of such holder's
Registrable Securities (a) have been sold pursuant to a registration statement
under the Securities Act or (b) may immediately be sold by such Holder pursuant
to Rule 144 under the Securities Act during any 90 day period; provided,
however, that this Agreement shall not terminate if any shares are subject to
any then-effective registration rights pursuant to Section 2 hereof.
6.5 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns,
8
9
except that quepasa shall not have the right to delegate its obligations
hereunder or to assign its rights hereunder.
6.6 Prior Agreements. This Agreement constitutes the entire agreement
between the parties and supersedes any prior understandings or agreements
concerning the subject matter hereof.
6.7 Severability. The provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of a provision contained in this Agreement,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of a provision, had never been contained herein, and such
provisions or part reformed so that it would be valid, legal and enforceable to
the maximum extent possible.
6.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Arizona.
6.9 Headings. Article, section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
6.10 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.11 Further Assurances. From and after the date of this Agreement, upon
the request of any party hereto, the other parties shall execute and deliver
such instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
10
IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the day and year first above written.
QUEPASA.COM, INC.
By: /s/ Gary Trujillo
Title:
CENTURY FINANCE USA, INC. d/b/a
REALESTATEESPANOL.COM, INC.
By: [signature not required]
Title:
GARY ACOSTA
/s/ Gary Acosta
JOHN BENEVENTI
/s/ John Beneventi
10