Filed by Bowne Pure Compliance



 




Exhibit 10.1


EXECUTION VERSION


NOTE PURCHASE AGREEMENT


This Note Purchase Agreement
(this “Agreement”) is made as of January 25,
2008, by and between Quepasa
Corporation, a Nevada corporation (the
“Company”), and Mexicans & Americans Trading Together,
Inc., a Delaware corporation (the
“Investor”).


WHEREAS, the
Company desires to raise additional capital, and the Investor is willing to
provide debt capital upon the terms and subject to the conditions set forth
herein; and


WHEREAS, in
connection with the foregoing, the Company and the Investor will amend:
(i) the existing Series 1 Warrant to purchase 1,000,000 shares of
Common Stock at an exercise price of $12.50 per share (subject to adjustment),
by executing an amendment in the form attached hereto as Exhibit A
(the “Series 1 Warrant Amendment”),
(ii) the existing Series 2 Warrant to purchase 1,000,000 shares of
Common Stock at an exercise price of $15.00 per share (subject to adjustment),
by executing an amendment in the form attached hereto as Exhibit B
(the “Series 2 Warrant Amendment” and, together
with the Series 1 Warrant Amendment, the “Warrant
Amendments”), and (iii) terminate the Amended and Restated
Support Agreement, signed November 20, 2006 but made effective as of
October 16, 2006 by and between the Company and Investor.


NOW, THEREFORE,
in consideration of the mutual covenants contained in this Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and the Investor agree as follows:


ARTICLE I.

PURCHASE AND SALE;
CLOSING


1.1
Purchase and Sale of Note; Amendment of Warrants; Termination of
Support Agreements. Effective as of the Closing:


(a) The
Company hereby sells to the Investor, and the Investor hereby purchases from
the Company, a subordinated promissory note of the Company in the form of
Exhibit C hereto (the “Note” and together
with this Agreement and the Warrant Amendments, the “Transaction
Documents”) for a price of $5,000,000 (the “Purchase
Price”).


(b) The
Company and the Investor shall each execute and deliver the Warrant Amendments.


 


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(c) The
Amended and Restated Support Agreement, signed November 20, 2006 but made
effective as of October 16, 2006 by and between the Company and the
Investor shall be terminated and shall be null and void (except for
Section 7 thereof, which shall survive in accordance with its terms), with
no further liability of any party thereto, whether in tort, contract or
otherwise (except for any liability related to Section 7 thereof, which
shall survive in accordance with its terms). Each of the Company and the
Investor hereby releases and forever discharges the other party hereto and its
subsidiaries, representatives and affiliates with respect to any and all
claims, rights, suits, debts, dues, sums of money, liabilities, accounts,
covenants, contracts, controversies, agreements, promises, damages, judgments,
claims and demands, of every nature whatsoever, whether in law or at equity,
whether known or unknown, from the beginning of time to the date hereof, which
such party had, now has or may have against the such Person arising out of,
based upon, or related to, the Amended and Restated Support Agreement
terminated hereby (except for Section 7 thereof, which shall survive in
accordance with its terms).


1.2
Closing. The closing of the purchase and sale of the Note,
the execution and delivery of the Warrant Amendments and the termination of the
Amended and Restated Support Agreement (the
“Closing”) shall occur at the offices of Willkie Farr
& Gallagher LLP, at 10:00 a.m. (New York time) within one business day
of the satisfaction of the conditions to closing set forth in Article III
hereof (except for such conditions which by their nature may only be satisfied
on the Closing Date) (the date upon which the Closing occurs, the
“Closing Date”).


(a) At the
Closing, the Company shall deliver or cause to be delivered to the Investor the following:


(i) the
Note registered in the name of the Investor;


(ii) the Series 1 Warrant Amendment;


(iii) the Series 2 Warrant Amendment; and


(iv) the certificate required by Section 3.1(c).


(b) At the
Closing, the Investor shall deliver or cause to be delivered to the Company the
following:


(i) the
Purchase Price, by wire transfer of immediately available funds, to an account
designated by the Company to the Investor in writing;


(ii) the Series 1 Warrant Amendment;


(iii) the Series 2 Warrant Amendment; and


(iv) the certificate required by Section 3.2(b), if applicable.


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ARTICLE II.

REPRESENTATIONS AND WARRANTIES


2.1
Representations and Warranties of the Company. The Company
hereby makes the following representations and warranties to the Investor (and
any permitted assignees) as of the date hereof (all references to the Company
in this Section 2.1, except for paragraphs (a) and (b), shall mean
the Company and its subsidiaries):


(a) Organization. The Company is
duly organized, validly existing and in good standing under the laws of the State of
Nevada, with the requisite power and authority to own and use its properties
and assets and to carry on its business as currently conducted.


(b) Authorization; Enforcement. The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by the Transaction Documents and
otherwise to conduct its business as currently conducted or proposed to be
conducted, and to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Company and no further
action is required by the Company in connection therewith. This Agreement has
been, and as of the Closing Date each of the Transaction Documents will be,
duly executed and delivered by the Company and as of the date hereof this
Agreement constitutes and as of the Closing Date each of the Transaction
Documents will constitute a valid and binding obligation of the Company
enforceable against it in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’ rights
generally and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable remedies
(collectively (i) and (ii), the “Enforceability
Exceptions”).


(c) No Conflicts. The execution,
delivery and performance of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated thereby do not and
will not (i) conflict with or violate any provision of the Company’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents, (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument or other understanding to which the
Company is a party or by which any property or asset of the Company is bound or
affected, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority (collectively,
“Legal Requirements”) to which the Company is
subject (including federal and state securities laws and regulations), or by
which any property or asset of the Company is bound or affected.


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(d) No Consents. No consent,
approval, authorization or order of, or any filing by the Company or declaration with,
any court or governmental agency or body or other person or entity
(collectively, a “Person”) is required in connection
with the execution and delivery by the Company of the Transaction Documents and
the consummation by the Company of the transactions contemplated thereby,
except (i) the filing by the Company with the Securities and Exchange
Commission (the “Commission”) of one or more
prospectus supplements to the prospectus forming a part of the Company’s
effective registration statement on Form SB-2, as amended, filed on
January 30, 2007, (ii) the filing by the Company with the Commission
of a current report on Form 8-K under the Securities Exchange Act of 1934, as
amended (“Exchange Act”), and (iii) those
consents, approvals, authorizations, orders, filings, or declarations that have
been made or obtained prior to the date of this Agreement.


(e) Capitalization. The number of
shares and type of all authorized, issued and outstanding capital stock of the
Company, and all shares of Common Stock reserved for issuance under the
Company’s option and incentive plans, warrants and preferred stock is set
forth on Schedule 2.1(e) hereto. Except for the warrants and stock
options listed on Schedule 2.1(e), which schedule lists the number
of shares issuable upon the exercise of such warrants and stock options and the
exercise price and the expiration date of such warrants and stock options, on
the Closing Date there will be no shares of Common Stock or any other equity
security of the Company issuable upon conversion or exchange of any security of
the Company convertible into or exchangeable for shares of capital stock of the
Company, nor will there be any rights, options or warrants outstanding or other
agreements to acquire shares of Common Stock nor will the Company be
contractually obligated to purchase, redeem or otherwise acquire any of its
outstanding shares. There are no anti-dilution or price adjustment provisions
contained in any security issued by the Company, or in any agreement to which
the Company is a party and which provides rights to security holders, that will
be triggered by the transactions contemplated by this Agreement.


(f) SEC Reports. Except as set forth
on Schedule 2.1(f), the Company has filed all reports required to be filed by
it under the Exchange Act, including pursuant to Section 13(a) or Section 15(d)
thereof, and the rules and regulations of the Commission promulgated
thereunder, since January 1, 2006 (the foregoing reports and any materials
incorporated therein by reference being collectively referred to herein as the
“SEC Reports”) on a timely basis, or has received a
valid extension of such time of filing and has filed any such SEC Reports prior
to the expiration of any such extension. Except as set forth on
Schedule 2.1(f), as of their respective dates (except as expressly
corrected in a subsequent SEC Report filed prior to the date of this
Agreement), the SEC Reports complied in all material respects with the
requirements of the Securities Act of 1933, as amended (the
“Securities Act”), and the Exchange Act and the rules
and regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed (except as expressly corrected in a subsequent SEC Report
filed prior to the date of this Agreement), contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.


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(g) Financial Statements. Except as
set forth on Schedule 2.1(g), the financial statements filed with the
Commission as a part of the SEC Reports present fairly, in all material
respects, the financial position of the Company and its subsidiaries on a
consolidated basis as of and at the dates indicated and the results of their
consolidated operations and cash flows for the periods specified therein,
subject, in the case of interim financial statements, to normal year-end
adjustments which are not expected to be material in amount, and except as
expressly corrected in a subsequent SEC Report filed prior to the date of this
Agreement. Except as set forth on Schedule 2.1(g), such financial
statements have been prepared in conformity with generally accepted accounting
principles as applied in the United States and in effect as of the date of the
applicable financial statements and supporting schedules, as applicable,
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto, and comply in all material
respects with the Securities Act, the Exchange Act and the applicable rules and
regulations of the Commission thereunder.


(h) Absence of Undisclosed
Liabilities. Except as reflected in the Company’s balance sheet as of
September 30, 2007 included in the SEC Reports, the Company does not have
any debt or material obligation or liability (whether accrued, absolute,
contingent, liquidated, threatened, or otherwise, whether due or to become
due), except: (i) taxes not yet due and payable, (ii) current
liabilities incurred and obligations under agreements entered into, in the
ordinary course of business consistent with past practice (none of which are
delinquent), and (iii) contingent liabilities specifically referenced in
the notes to such balance sheet.


(i) Investment Company. The Company
is not, and is not an affiliate of, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.


2.2
Representations and Warranties of the Investor. The Investor
hereby makes the following representations and warranties to the Company as of
the date hereof.


(a) Organization. The Investor is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to own
and use its properties and assets and to carry on its business as currently
conducted.


(b) Authorization; Enforcement. The
Investor has the requisite power and authority to enter into and to consummate
the transactions contemplated by the Transaction Documents and otherwise to
carry out its obligations thereunder. The execution and delivery by the
Investor of each of the Transaction Documents to which it is a party and the
performance by the Investor of the transactions contemplated thereby have been
duly authorized by all necessary action on the part of the Investor. This
Agreement has been, and as of the Closing Date each of the Transaction
Documents will be duly executed and delivered by Investor and as of the date
hereof this Agreement constitutes and as of the Closing Date each of the
Transaction Documents will constitute a valid and binding obligation of the
Investor, enforceable against it in accordance with its terms, except for any
Enforceability Exceptions.


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(c) No Conflicts. The execution,
delivery and performance of the Transaction Documents by the Investor and the
consummation by the Investor of the transactions contemplated thereby do not
and will not (i) conflict with or violate any provision of the
Investor’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both)
of, any agreement, credit facility, debt or other instrument or other
understanding to which the Investor is a party or by which any property or
asset of the Investor is bound or affected, or (iii) result in a violation
of any Legal Requirements to which the Investor is subject (including federal
and state securities laws and regulations), or by which any property or asset
of the Investor is bound or affected.


(d) Investment Intent. The Investor
understands that the Note has not been registered under the Securities Act, or
any applicable state securities law. The Investor is acquiring the Note for
investment purposes only and not with a view to or for distributing or
reselling such Note or any part thereof, has no present intention of
distributing the Note and has no arrangement, agreement, or understanding
(directly or indirectly) with any other Person regarding the distribution of
the Note (provided, however, that this representation and warranty shall not in
any way limit the Investor’s right to sell the Note in compliance with
applicable federal and state securities laws).


(e) Investor Status. At the time the
Investor was offered the Note it was, and at the date hereof it is, an
“accredited investor,” as such term is defined under the Securities
Act. The Investor is not a registered broker-dealer under Section 15 of
the Exchange Act.


(f) Experience of the Investor. The
Investor, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters as
to be capable of evaluating the merits and risks of the prospective investment
in the Note and has evaluated the merits and risks of such investment. The
Investor is able to bear the economic risk of an investment in the Note and is
able to afford a complete loss of such investment.


(g) No General Solicitation. The
Investor is not purchasing the Note as a result of any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio or presented at any seminar or
through any other general solicitation or general advertisement.


(h) Access to Information. The
Investor acknowledges that it has reviewed the SEC Reports and has been afforded
(i) the opportunity to ask such questions as it has deemed necessary of,
and to receive answers from, representatives of the Company concerning the
terms and conditions of the offering of the Note and the merits and risks of
investing therein; (ii) access to information about the Company and its
financial condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment; and
(iii) the opportunity to obtain such additional information that the
Company possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the
investment.


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ARTICLE III.

CLOSING CONDITIONS


3.1 Conditions to
Investor’s Obligations. The obligation of the Investor to consummate
the transactions contemplated by this Agreement is subject to the satisfaction
(unless waived in writing by the Investor) of each of the following conditions
on or prior to the Closing Date:


(a) No law, rule, regulation or order
shall have been adopted or issued by a governmental authority (including a court of competent
jurisdiction), having the effect of making any of the transactions contemplated
by this Agreement illegal or otherwise prohibiting the consummation of any of
the transactions contemplated by this Agreement.


(b) The Company shall have received,
before or concurrently with the Closing of the transactions contemplated by this Agreement, not less
than $2 million in additional debt capital upon terms and subject to
conditions no less favorable to the Company than those set forth herein,
excluding for purposes of such determination Section 1.1(c) hereof. The
terms and conditions set forth in the documents attached hereto as
Exhibit D are deemed to meet this condition. This
Section 3.1(b) shall in no way serve to limit the terms of or the
Investor’s rights under the Transaction Documents. As provided in the
Note, the Company agrees that such additional new indebtedness will include
terms designating such indebtedness as pari passu debt and that (except
for accepting the surrender of all or a portion of such $2 million
additional indebtedness in payment of all or a portion of the exercise price of
warrants to acquire common stock in the Company) Company shall not make any
payments on such $2 million additional new indebtedness unless and until
the Company pays a ratable payment on the Note.


(c) The Company shall have executed
and delivered a certificate to the effect that the condition set forth in Section 3.1(b)
above shall have been satisfied and if the Closing Date is other than the date
of this Agreement, that the representations and warranties of the Company are
true and correct as of the Closing Date.


3.2 Conditions to
the Company’s Obligations. The obligation of the Company to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction (unless waived in writing by the Company) of each of the following
conditions on or prior to the Closing Date:


(a) No law, rule, regulation or order
shall have been adopted or issued by a governmental authority (including a court of competent
jurisdiction), having the effect of making any of the transactions contemplated
by this Agreement illegal or otherwise prohibiting the consummation of any of
the transactions contemplated by this Agreement.


(b) If the Closing Date is other than
the date of this Agreement, the Investor shall have executed and delivered a certificate to the
effect that that the representations and warranties of the Investor are true
and correct as of the Closing Date.


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ARTICLE IV.

MISCELLANEOUS


4.1
Filing of Prospectus Supplement. The Company shall prepare
and file with the Commission as soon as practicable, but in no event later than
30 days after the date of closing of the Warrant Amendments and the
purchase and sale of the Note pursuant to this Agreement, a prospectus
supplement to the prospectus forming a part of the Company’s effective
registration statement on Form SB-2, as amended, filed on January 30,
2007, which registration statement, together with all exhibits and materials
incorporated by reference or deemed to be incorporated by reference therein,
registers the resale from time to time by the Investor of the shares of Common
Stock issuable upon exercise of the Series 1 Warrant and Series 2
Warrant. Such prospectus supplement shall disclose the material terms of the
transactions contemplated by this Agreement to the extent required by the rules
and regulations promulgated by the Commission under the Securities Act of 1933,
as amended, and in form and substance reasonably satisfactory to Investor.


4.2 Fees
and Expenses. At Closing, the Company shall reimburse Investor for the
fees and expenses of its counsel, not to exceed $17,500. Except as otherwise
set forth in this Agreement or any other agreement between the parties, each
party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company and the Investor acknowledge that each has been
represented by its own separate legal counsel in its review and negotiation of
the Transaction Documents.


4.3
Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Nevada,
without giving effect to conflict of laws or any other rules or principles
which may require the application of the laws of any other jurisdiction.


4.4
Entire Agreement. This Agreement, together with the exhibits
and schedules hereto, the Notes, and the Warrant Amendments, contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into
such documents, exhibits and schedules.


4.5
Binding Effect. All of the terms, provisions and conditions
hereof shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto, and their respective heirs, personal
representatives, successors and assigns.


4.6
Headings; Construction. The headings contained herein are for
the purposes of convenience only, and will not be deemed to constitute a part
of this Agreement or to affect the meaning or interpretation of this Agreement
in any way. Unless the context clearly states otherwise, the use of the
singular or plural in this Agreement shall include the other and the use of any
gender shall include all others. The parties have participated jointly in the
negotiation and drafting of this Agreement. If any ambiguity or question of
intent or interpretation arises, no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. All references herein to Sections shall refer to
this Agreement unless the context clearly otherwise requires.


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4.7
Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given upon (a) transmitter’s
confirmation of receipt of a facsimile transmission, if during normal business
hours of a business day, otherwise on the next business day, (b) confirmed
delivery by a standard overnight carrier or when delivered by hand or
(c) the expiration of five (5) business days (or seven
(7) business days where the addressee is not in the United States) after
the day when mailed by certified or registered mail, postage prepaid, to the
addresses set forth in on the signature pages hereto or to such other address
as any party may, from time to time, designate in a written notice given in a
like manner.


4.8
Severability of Provisions. If a court in any proceeding
holds any provision of this Agreement or its application to any Person or
circumstance invalid, illegal or unenforceable, the remainder of this
Agreement, or the application of such provision to persons or circumstances
other than those to which it was held to be invalid, illegal or unenforceable,
shall not be affected, and shall be valid, legal and enforceable to the fullest
extent permitted by law, but only if and to the extent such enforcement would
not materially and adversely frustrate the parties’ essential objectives
as expressed in this Agreement. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties intend that the court add to this
Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be valid and enforceable, so as to effect the original intent
of the parties to the greatest extent possible.


4.9 Third
Party Beneficiaries. This Agreement does not create, and will not be
construed as creating, any rights enforceable by any Person not a party to this
Agreement.


4.10
Amendment. This Agreement may be amended, modified,
superseded, or canceled only by a written instrument signed by all of the
parties hereto and any of the terms, provisions and conditions hereof may be
waived, only by a written instrument signed by the waiving party.


4.11
Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts and each such counterpart shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument. Facsimile signatures on this
Agreement shall be deemed to be original signatures for all purposes.


4.12
Survival. The representations, warranties, covenants and
agreements contained herein shall survive the purchase and sale of the Note.


[Signatures on following page]


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IN WITNESS
WHEREOF, the parties hereto have caused this Note Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.


QUEPASA CORPORATION 

7550 E. Redfield Road, Suite A 

Scottsdale, AZ 85260 

Fax:
                                                       


Attn: John C. Abbott 

  

By: /s/ John C.
Abbott                          


Name: John C. Abbott 

Title: Chief Executive Officer and Chairman of
the Board of Directors 

  

MEXICANS & AMERICANS TRADING TOGETHER, INC. 

7550 IH 10 West, Suite 630

San Antonio, TX 78229 

Fax:
                                                       


Attn: Andres Gonzalez Saravia 

  

By: /s/ Andres Gonzalez
Saravia          

Name: Andres Gonzalez Saravia 

Title: President


 





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Exhibit A


Form of Series 1 Warrant Amendment


See Exhibit 10.4 filed with this Form 8-K.


 





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Exhibit B


Form of Series 2 Warrant Amendment


See Exhibit 10.5 filed with this Form 8-K.


 





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Exhibit C


Form of Note


See Exhibit 10.11 filed with this Form 8-K.


 





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Exhibit D


Form of Transaction Documents of

Richard L. Scott Investments, LLC


See Exhibits 10.6, 10.9, 10.10, and 10.12 filed with this Form 8-K.








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