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Exhibit 4.10
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement"), dated as of March 9, 2000 is
entered into by and among quepasa.com, inc., a Nevada corporation ("quepasa");
Gary Acosta and John Beneventi (together the "Shareholders" and each
individually a "Shareholder"); and Norwest Bank Arizona, N.A. (the "Escrow
Agent").
W I T N E S S E T H:
WHEREAS, quepasa, the Shareholders, Credito.com, Inc., a Delaware
corporation and wholly-owned subsidiary of quepasa ("Credito"),
realestateespanol.com, inc., a Delaware corporation and wholly-owned subsidiary
of quepasa ("Merger Sub"), and Century Finance USA, Inc., a California
corporation d/b/a RealEstateEspanol.com, Inc. ("Century"), have entered into an
Agreement and Plan of Merger (the "Merger Agreement") dated as of March 9, 2000;
and
WHEREAS, pursuant to Section 1.8 of the Merger Agreement the parties to the
Merger Agreement have agreed that 248,834 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; and
WHEREAS, pursuant to the Merger Agreement, quepasa and Credito on the one
hand and the Shareholders on the other hand have agreed that the Shareholders
will receive a portion of the quepasa Merger Shares only after the attainment of
the Target Amount (as defined below) within a certain period of time; and
WHEREAS, pursuant to Section 8.2 of the Merger Agreement, the Shareholders
have agreed to indemnify quepasa, Credito, Merger Sub and their agents for
certain liabilities, costs and expenses as provided in the Merger Agreement; and
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):
"Acceleration Event" means any of the following:
(a) With respect to 164,230 quepasa Merger Shares held by the Escrow
Agent in the name of Gary Acosta, the termination of the employment of Gary
Acosta by quepasa for any reason other than Pre-Share Release Cause;
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(b) With respect to 84,604 quepasa Merger Shares held by the Escrow
Agent in the name of John Beneventi, the termination of the employment of John
Beneventi by quepasa for any reason other than Pre-Share Release Cause;
(c) The achievement by the Merger Sub of the Target Amount at any time
on or before the first anniversary of the Effective Time;
(d) The failure by quepasa to maintain direct or indirect ownership and
control of Merger Sub or substantially all of its assets prior to the first
anniversary of the Effective Time;
(e) The failure of Merger Sub to continue the Business of Merger Sub in
accordance with the Business Plan; or
(f) Any act or omission on the part of quepasa or Merger Sub that
materially impedes or interferes with achievement of the Target Amount at any
time prior to the first anniversary of the Effective Time, including, without
limitation, failure to fund and support implementation of the Business Plan as
described in Section 8.10 of the Merger Agreement.
"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.
"Conversion Rate" means $8.0375.
"Gross Revenue" shall mean "Gross Income" (as such term is defined in
Section 61(a) of the Internal Revenue Code), determined on the accrual basis,
achieved by Merger Sub during the applicable period.
"Pre-Share Release Cause" shall have the meaning set forth in the
Employment Agreements dated as of the date hereof between quepasa and each of
the Shareholders.
"Target Amount" shall mean the achievement by the Merger Sub of
aggregate Gross Revenue of $1,045,000 within 12 months of the Effective Time.
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
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SECTION 2.2 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 stock certificates representing the Escrowed Shares, duly
endorsed in blank, or accompanied by stock powers duly endorsed in blank. The
Shareholders shall be entitled to all dividends and distributions paid on, and
to all voting rights relating to, the Escrowed Shares. The Escrowed Shares shall
appear as issued and outstanding on the books and records of quepasa.
SECTION 2.3 Release of Escrowed Shares.
SECTION 2.4 (a) quepasa Escrowed Share Demand. Quepasa shall be entitled to
make a claim for distribution of Escrowed Shares (a "Claim") only: (i) to the
extent that such Claim is otherwise expressly indemnifiable under the terms of
the Merger Agreement, in which event the number of Escrowed Shares subject to
distribution to quepasa shall be equal to the dollar amount of the
indemnification liability divided by the Conversion Rate; or (ii) in the event
of the failure of Merger Sub to achieve the Target Amount, in which event all of
the Escrowed Shares then held by the Escrow Agent shall be subject to
distribution to quepasa. Should quepasa desire to make a Claim, quepasa shall
deliver to Escrow Agent and the Shareholders a notice, in the form of Exhibit A
hereto (the "quepasa Escrowed Share Demand"), setting forth the nature of the
Claim and the number of Escrowed Shares subject to such Claim (the "Claimed
Amount") and requesting that the Escrow Agent distribute to quepasa the Claimed
Amount of Escrowed Shares in the manner specified in such notice. Each quepasa
Escrowed Share Demand delivered to the Escrow Agent will be accompanied by
written evidence that a copy of such quepasa Escrowed Share Demand has been
given to each of the Shareholders. In the event of a Claim under subparagraph
(i) of this Section, if the dollar amount of the Claim is unknown, quepasa shall
make a bona fide estimate thereof. Until the Claimed Amount of Escrowed Shares
is distributed in accordance with Section 2.3(d) hereof, the Claim shall
represent a lien upon the Claimed Amount of Escrowed Shares and the Escrow Agent
shall not release Escrowed Shares to the Shareholders pursuant to Sections
2.3(e) hereof to the extent that such release would reduce the Escrowed Shares
below the Claimed Amount of Escrowed Shares.
(b) Shareholder Escrowed Share Demand. The Shareholders shall be
entitled to make a Claim only upon the occurrence of an Acceleration Event, in
which event Escrowed Shares then held by the Escrow Agent shall be subject to
distribution to the Shareholders. Should the Shareholders desire to make a
Claim, the Shareholders shall deliver to Escrow Agent and quepasa a notice, in
the form of Exhibit B hereto (the "Shareholder Escrowed Share Demand"), setting
forth the nature of the Acceleration Event and requesting that the Escrow Agent
distribute to the Shareholders the number of Escrowed Shares specified in such
notice. Until the Escrowed Shares are distributed in accordance with Section
2.3(e) hereof, the Escrowed Share Demand shall represent a lien upon the
Escrowed Shares and the Escrow Agent shall not release any Escrowed Shares to
quepasa pursuant to Sections 2.3(d) hereof.
(c) Confirmation of Distribution or Dispute Notice. After receiving a
copy of a quepasa Escrowed Share Demand, the Shareholders shall promptly, but in
no event more than two Business Days after such receipt, confirm the
distribution of the Escrowed Shares as set forth therein by executing the
quepasa Escrowed Share Demand where
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indicated and delivering it to the Escrow Agent; provided, that the Shareholders
shall not be required to so confirm such distribution if they believe that they
have reasonable grounds to challenge such distribution as provided in this
Section 2.3(c). After receiving a copy of a quepasa Escrowed Share Demand,
either or both of the Shareholders may challenge the requested distribution of
Escrowed Shares by delivering to the Escrow Agent and quepasa a written notice
setting forth the grounds for such challenge, in the form of Exhibit C hereto (a
"Dispute Notice"), within five Business Days after receipt of such quepasa
Escrowed Share Demand. After receiving a copy of a Shareholder Escrowed Share
Demand, quepasa shall promptly, but in no event more than two Business Days
after such receipt, confirm the distribution of the Escrowed Shares as set forth
therein by executing the Shareholder Escrowed Share Demand where indicated and
delivering it to the Escrow Agent; provided, that quepasa shall not be required
to so confirm such distribution if it believes that it has reasonable grounds to
challenge such distribution as provided in this Section 2.3(c). After receiving
a copy of a Shareholder Escrowed Share Demand, quepasa may challenge the
requested distribution of Escrowed Shares by delivering to the Escrow Agent and
the Shareholders a Dispute Notice setting forth the grounds for such challenge
within five Business Days after receipt of such Shareholder Escrowed Share
Demand.
(d) Distributions to quepasa. The Escrow Agent shall make a
distribution to quepasa from the Escrowed Shares: (i) as soon as practicable
after it receives a quepasa Escrowed Share Demand that has been confirmed by the
Shareholders in accordance with such quepasa Escrowed Share Demand; (ii) in
accordance with joint written instructions executed by quepasa and the
Shareholders, which instructions shall be set forth in a certificate in the form
of Exhibit D hereto delivered by quepasa and the Shareholders; or (iii) in
accordance with a certified copy of a court order evidencing a final judgment or
other order or in accordance with a copy of a binding arbitration award
evidencing a final, binding and enforceable award, which court order or
arbitration award shall be accompanied by a certificate in the form of Exhibit E
hereto delivered by quepasa. In the absence of any of the foregoing, and
notwithstanding anything to the contrary herein, quepasa shall not be entitled
to, and the Escrow Agent shall not make to quepasa, any distributions of the
Escrowed Shares.
(e) Distributions to the Shareholders. The Escrow Agent shall release
Escrowed Shares to the Shareholders: (i) on the tenth Business Day after it
receives a Shareholder Escrowed Share Demand that has been confirmed by quepasa
in accordance with such Shareholder Escrowed Share Demand; (ii) in accordance
with joint written instructions executed by quepasa and the Shareholders, which
instructions shall be set forth in a certificate in the form of Exhibit F hereto
delivered by quepasa and the Shareholders; or (iii) in accordance with a
certified copy of a court order evidencing a final judgment or other order or in
accordance with a copy of a binding arbitration award evidencing a final,
binding and enforceable award, which court order or arbitration award shall be
accompanied by a certificate in the form of Exhibit G hereto delivered by the
Shareholders. In the absence of any of the foregoing, and notwithstanding
anything to the contrary herein, the Shareholders shall not be entitled to, and
the Escrow Agent shall not make to the Shareholders, any distributions of the
Escrowed Shares.
SECTION 2.5 Dispute Resolution Procedures.
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(a) Amicable Resolution. After timely delivery of a Dispute Notice, quepasa
and the Shareholders will attempt amicably to resolve the matters that are the
basis for such Dispute Notice ("Dispute") and, upon such resolution, will
deliver to the Escrow Agent written directions executed jointly by quepasa and
the Shareholders in the form of Exhibit D or F hereto with respect to
distribution of the Escrowed Shares or, if appropriate, quepasa or the
Shareholders will withdraw the related Escrowed Share Demand.
(b) Arbitration.
(i) Generally; Notice. If any Dispute is not resolved pursuant to
Section 2.4(a) prior to the tenth Business Day after the related Dispute Notice
is delivered to quepasa or the Shareholders, then quepasa and the Shareholders
may mutually agree, in their sole and absolute discretion, to commence an
arbitration proceeding pursuant to this Section 2.4(b) in accordance with the
Commercial Arbitration Rules of the American Arbitration Association as in
effect from time to time (the "AAA Rules"). Notwithstanding the foregoing, in
the event that quepasa challenges a Shareholder Escrowed Share Demand based
solely on any Acceleration Event described in Section 1.1(f) above, arbitration
in accordance with the AAA Rules shall be the sole and exclusive method for
resolving the Dispute. In the case of any other Dispute, such arbitration will
be the sole and exclusive method of resolving such Dispute only if the parties
so agree. Except as otherwise provided in the AAA Rules, the arbitration
procedures described in this Section 2.4(b) and any Final Arbitration Award (as
defined below) will be governed by, and will be enforceable pursuant to, the
Uniform Arbitration Act as in effect in the State of California from time to
time.
(ii) Selection of Arbitrator. If an arbitration proceeding is
commenced, quepasa and the Shareholders will attempt to select a single
arbitrator by mutual agreement. If no such arbitrator is selected within ten
Business Days of the parties' agreement to commence an arbitration proceeding,
then an arbitrator (experienced in matters of the type that are the subject
matter of the Dispute, to the extent available) will be selected in accordance
with the AAA Rules.
(iii) Conduct of Arbitration. The arbitration will be conducted under
the AAA Rules. In the case of an arbitration commenced because of a Dispute with
respect to the existence of an Acceleration Event described in Section 1.1(f)
above, all of the provisions of Sections 1283.1, 1283.05 and 1282.6 of the
California Code of Civil Procedure are expressly incorporated in this agreement
to arbitrate. All other arbitrations will be conducted under the AAA Rules, as
modified by any written agreement between quepasa and the Shareholders. The
arbitrator (the "Arbitrator") will conduct the arbitration in a manner so that
the final result, determination, finding, judgment or award determined by the
Arbitrator (the "Final Arbitration Award") is made or rendered as soon as
practicable, and the parties will use reasonable efforts to cause a Final
Arbitration award to occur not later than the 60th day after the Arbitrator is
selected. The Final Arbitration Award will include a determination with respect
to the matters contained in the Arbitration Notice (the "Determination") and
written directions to the Escrow Agent to make disbursements from the Escrowed
Shares (or, if appropriate, withdrawal of a request for such action or
disbursement) that are appropriate in order to give effect to the provisions of
this Agreement in light of the Determination, and either quepasa or the
Shareholders may deliver a copy of such directions to the Escrow Agent as
provided in Section
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2.3(d)(iii) or 2.3(e)(iii). Any Final Arbitration Award will be final and
binding upon quepasa and the Shareholders and there will be no appeal from or
reexamination of any Final Arbitration Award, except in the case of fraud,
perjury or evident partiality or misconduct by the Arbitrator prejudicing the
rights of quepasa and the Shareholders.
(iv) Quepasa and the Shareholders agree that a Final Arbitration Award
may be enforced in any state or federal court in the State of California or any
other state or federal court having jurisdiction over the subject matter of the
related Dispute.
(v) Expenses. Each prevailing party in any arbitration proceeding in
connection with this Agreement also will be entitled to recover from any
non-prevailing party(ies) such prevailing party's reasonable attorneys' fees and
disbursements in addition to any damages or other remedies awarded to it, and
the non-prevailing party(ies) also will be required to pay all other costs and
expenses associated with the arbitration; provided that (x) if the Arbitrator is
unable to determine that a party is a prevailing party in any such arbitration
proceeding, then such costs and expenses will be equitably allocated by such
Arbitrator upon the basis of the outcome of such arbitration proceeding, (y) if
the Arbitrator is unable to allocate such costs and expenses in such a manner,
then the costs and expenses of such arbitration will be paid one-half by quepasa
and one-half by the Shareholders, and each party will pay the out-of-pocket
expenses incurred by it and (z) the Escrow Agent shall not be considered a
"non-prevailing party" for purposes of this Section 2.4(b)(v). As part of any
Final Arbitration Award, the Arbitrator may designate the prevailing party(ies)
for purposes of this Section 2.4(b)(v). Except as provided in the preceding
sentences, each party to this Agreement will bear its own costs and expenses
(including legal fees and disbursements) in connection with any such proceeding
or submission.
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. Unless 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
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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, 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
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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 Shareholders, 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 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 Shareholders; 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 Shareholders (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 Shareholders and quepasa or within 30 days of the
Shareholder's or quepasa's knowledge of any of the events specified in clause
(c) of the preceding sentence, the Escrow Agent, 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 Shareholders 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
Shareholders or quepasa, or such successor, execute and deliver an instrument
transferring
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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 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 Shareholders 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 accordance with Section 2.3 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
Miscellaneous
SECTION 5.1 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 Shareholders, quepasa and the Escrow Agent.
SECTION 5.2 Notices. All notices and other communications hereunder shall
be in writing and shall be sufficiently given if made by hand delivery, by
telecopier, by recognized overnight courier service, or by registered or
certified mail (postage prepaid and
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return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by it by like notice):
If to quepasa, to:
quepasa.com, inc.
400 East Van Buren, 4th Floor
Phoenix, AZ 85004
FAX: 602-716-0200
Attention: Gary Trujillo
With a copy (which shall not constitute notice) to:
Brownstein, Hyatt & Farber, P.C.
410 17th Street, 22nd Floor
Denver, CO 80202
FAX: 303-223-1111
Attention: Jeffrey Knetsch
If to Gary Acosta, to:
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 (which shall not constitute notice) to:
Sheppard, Mullin, Richter & Hampton, LLP
501 West Broadway
San Diego, CA 92101
FAX: 619-234-3815
Attn: Amy Tranckino
If to John Beneventi, to:
John Beneventi
c/o Century Finance USA, LLC
1650 Hotel Circle North, Suite 215
San Diego, California 92108
FAX: 619-209-4755
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With a copy (which shall not constitute notice) to:
Sheppard, Mullin, Richter & Hampton, LLP
501 West Broadway
San Diego, CA 92101
FAX: 619-234-3815
Attn: Amy Tranckino
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
All such notices and other communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; three business days
after being deposited in the mail, postage prepaid, if delivered by mail; the
next business day, if by recognized overnight courier service; and when receipt
acknowledged, if telecopied; provided, however, notice to a party's attorney
shall not constitute notice to such party.
SECTION 5.3 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California,
without regard to its conflicts of law doctrine.
SECTION 5.4 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.
SECTION 5.5 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.
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SECTION 5.6 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 5.7 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 5.8 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 5.9 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 5.10 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 San Diego County in the State of California, 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 5.11 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.
12
13
IN WITNESS WHEREOF, quepasa, the Shareholders 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
GARY ACOSTA
/s/ Gary Acosta
-------------------------------------
JOHN BENEVENTI
/s/ John Beneventi
-------------------------------------
NORWEST BANK ARIZONA, N.A., as Escrow Agent
By: /s/ Eunice Ortega
-------------------------------------
Name: Eunice Ortega
Its: Trust Officer
13
14
Exhibit A
QUEPASA ESCROWED SHARE DEMAND
To: [Escrow Agent]
This certificate is issued pursuant to Section 2.3(a) of the Escrow
Agreement, dated as of March __, 2000 (the "Escrow Agreement"), by and among
quepasa.com, inc. ("quepasa"), Gary Acosta and John Beneventi, and Norwest Bank
Arizona, N.A. (the "Escrow Agent") Capitalized terms herein shall have the
meaning ascribed to them in the Escrow Agreement.
[FIRST ALTERNATIVE:
The undersigned hereby makes a Claim against the Escrowed Shares pursuant
to Section 2.3(a)(i) of the Escrow Agreement. The nature of the Claim is as
follows (attach additional sheets if necessary):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The undersigned hereby certifies that it is entitled to _________ Escrowed
Shares in respect of the Claim, which amount was calculated as follows:
________________ [AMOUNT OF CLAIM] divided by $8.0375.]
[SECOND ALTERNATIVE:
The undersigned hereby makes a Claim against the Escrowed Shares pursuant
to Section 2.3(a)(ii) of the Escrow Agreement as a result of the failure of the
Merger Sub to achieve the Target Amount. The undersigned hereby certifies that
it is entitled to all of the Escrowed Shares currently held by the Escrow Agent
in respect of the Claim.]
You are hereby instructed to deliver [as soon as practicable] [on
______________ ________ [date]] ____________ Escrowed Shares held by you to
quepasa at the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[SIGNATURE PAGE FOLLOWS]
SECTION 5.12
15
quepasa.com, inc.
By:
--------------------------------
Name:
--------------------------
Its:
--------------------------
Confirmation of Release:
Gary Acosta
- -------------------------------------
John Beneventi
- -------------------------------------
2
16
Exhibit B
SHAREHOLDER ESCROWED SHARE DEMAND
To: [Escrow Agent]
This certificate is issued pursuant to Section 2.3(b) of the Escrow
Agreement, dated as of March __, 2000 (the "Escrow Agreement"), by and among
quepasa.com, inc., Gary Acosta and John Beneventi (the "Shareholders"), and
Norwest Bank Arizona, N.A. ("Escrow Agent"). Capitalized terms herein shall have
the meaning ascribed to them in the Escrow Agreement.
The undersigned hereby makes a Claim against the Escrowed Shares pursuant
to Section 2.3(b) of the Escrow Agreement as a result of the occurrence of the
following Acceleration Event: __________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The undersigned hereby certifies that it is entitled to [____________]
Escrow Shares currently held by the Escrow Agent in respect of the Claim.
You are hereby instructed to deliver [as soon as practicable] [on
______________ ________________ [date]] ___________________ Escrowed Shares held
by you to [_______________________________________________] at the following
address: _______________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[SIGNATURE PAGE FOLLOWS]
17
Gary Acosta
----------------------------------
John Beneventi
----------------------------------
Confirmation of Release:
quepasa.com, inc.
By:
-----------------------------
Name:
---------------------------
Its:
----------------------------
2
18
Exhibit C
DISPUTE NOTICE
To: [Escrow Agent]
This Dispute Notice is issued pursuant to Section 2.3(c) of the Escrow
Agreement, dated as of March __, 2000 (the "Escrow Agreement"), by and among
quepasa.com, inc. ("quepasa"), Gary Acosta and John Beneventi (the
"Shareholders"), and Norwest Bank Arizona, N.A. ("Escrow Agent"). Capitalized
terms herein shall have the meaning ascribed to them in the Escrow Agreement.
[quepasa]/[The Shareholders] hereby dispute the [Shareholder Escrowed Share
Demand]/[quepasa Escrowed Share Demand] based upon the following grounds:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[The Shareholders:
Gary Acosta
___________________________
John Beneventi
___________________________
[quepasa.com, inc.
By: _______________________
Name: _____________________
Its: ______________________
19
Exhibit D
MUTUALLY AGREED DISTRIBUTION
[TO QUEPASA]
CERTIFICATE
To: [Escrow Agent]
This certificate is issued pursuant to Section 2.3(d) of the Escrow
Agreement, dated as of March __, 2000 (the "Escrow Agreement"), by and among
quepasa.com, inc. ("quepasa"), Gary Acosta and John Beneventi, and Norwest Bank
Arizona, N.A. (the "Escrow Agent"). Capitalized terms herein shall have the
meaning ascribed to them in the Escrow Agreement.
You are hereby instructed to deliver [as soon as practicable] [on
______________ ________ [date]] ______________ Escrowed Shares held by you
to quepasa at the following address: _____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
quepasa.com, inc.
By: ____________________________
Name: ____________________
Its: _____________________
Gary Acosta
_________________________________
John Beneventi
_________________________________
2
20
Exhibit E
COURT ORDER OR ARBITRATION AWARD
[TO QUEPASA]
CERTIFICATE
To: [Escrow Agent]
This certificate is issued pursuant to Section 2.3(d) of the Escrow
Agreement, dated as of March __, 2000 (the "Escrow Agreement"), by and among
quepasa.com, inc. ("quepasa"), Gary Acosta and John Beneventi, and Norwest Bank
Arizona, N.A. ("Escrow Agent"). Capitalized terms herein shall have the meaning
ascribed to them in the Escrow Agreement.
The undersigned hereby certifies that (i) it has been awarded a judgment
for damages by a court of competent jurisdiction or the Arbitrator, (ii) a true
and correct copy of the order or other evidence of judgment, or of the award of
arbitrator, accompanies this certificate, and (iii) it is entitled to receive
Escrowed Shares in the amount set forth below in accordance with Section 2.3(d)
of the Escrow Agreement.
You are hereby instructed to deliver [as soon as practicable] [on
______________ ________ [date]] ____________ Escrowed Shares held by you to
quepasa to the following address: _____________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
quepasa.com, inc.
By: _______________________
Name: ________________
Its: _________________
21
Exhibit F
MUTUALLY AGREED DISTRIBUTION
[TO SHAREHOLDERS]
CERTIFICATE
To: [Escrow Agent]
This certificate is issued pursuant to Section 2.3(d) of the Escrow
Agreement, dated as of March __, 2000 (the "Escrow Agreement"), by and among
quepasa.com, inc., Gary Acosta and John Beneventi (the "Shareholders"), and
Norwest Bank Arizona, N.A. ("Escrow Agent"). Capitalized terms herein shall have
the meaning ascribed to them in the Escrow Agreement.
You are hereby instructed to deliver [as soon as practicable] [on
______________ __________________ [date]] ___________________ Escrowed Shares
held by you to [__________________________________________] at the following
address: ______________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
quepasa.com, inc.
By: ___________________________________________
Name: ____________________________________
Its: _____________________________________
Gary Acosta
_______________________________________________
John Beneventi
________________________________________________
22
Exhibit G
COURT ORDER OR ARBITRATION AWARD
[TO SHAREHOLDERS]
CERTIFICATE
To: [Escrow Agent]
This certificate is issued pursuant to Section 2.3(d) of the Escrow
Agreement, dated as of March __, 2000 (the "Escrow Agreement"), by and among
quepasa.com, inc., Gary Acosta and John Beneventi (the "Shareholders"), and
Norwest Bank Arizona, N.A. ("Escrow Agent"). Capitalized terms herein shall have
the meaning ascribed to them in the Escrow Agreement.
The undersigned hereby certifies that (i) it has been awarded a judgment
for damages by a court of competent jurisdiction or the Arbitrators, (ii) a true
and correct copy of the order or other evidence of judgment, or of the award of
arbitrator, accompanies this certificate, and (iii) it is entitled to receive
Escrowed Shares in the amount set forth below in accordance with Section 2.3(e)
of the Escrow Agreement.
You are hereby instructed to deliver [as soon as practicable] [on
______________ ________ [date]] __________ Escrowed Shares held by you to the
Shareholders to the following address: ________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Gary Acosta
__________________________________
John Beneventi
__________________________________