THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS WARRANT CAN
BE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED,
AND APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE UNDERLYING SECURITIES
MAY NOT BE SOLD, TRANSFERRED, OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT, UNLESS SUCH REGISTRATION IS NOT THEN REQUIRED.
GREAT WESTERN LAND AND RECREATION, INC.
COMMON STOCK PURCHASE WARRANT
Warrant No. 1
THIS CERTIFIES THAT, for value received, Amortibanc Management, L.C., a
Texas limited liability company, its successors and permitted assigns (the
"Holder"), is entitled to subscribe for and purchase from Great Western Land and
Recreation, Inc., a Delaware corporation (the "Company"), at any time from and
after Midnight (Arizona time) on the date of the closing (the "Effective Time")
of the merger (the "Merger") of xxxxxxx.xxx, inc., a Nevada corporation
("quepasa"), with and into GWLAR, Inc. pursuant to the Merger Agreement dated as
of August 6, 2001 (the "Merger Agreement") among the Company, GWLR, LLC, GWLAR,
Inc. and quepasa until 5:00 p.m. (Arizona time) on the tenth anniversary of the
Effective Date (the "Exercise Period"), 14,827,175 shares of the Company's
common stock, $.01 par value per share (the "Common Stock"). The purchase price
for each share of Common Stock hereunder shall be in accordance with the
following table (subject to adjustment in accordance with this Warrant, the
"Purchase Price"), subject, however, to the provisions and upon the terms and
conditions set forth in this Warrant:
TRANCHE NUMBER OF SHARES EXERCISE PRICE
------------ ---------------- --------------
Tranche A 4,942,392 $0.30
Tranche B 4,942,392 $0.60
Tranche C 4,942,391 $1.20
This Warrant is one of the "Parent Warrants" referenced in the Merger
Agreement.
1. EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES. The rights
represented by this Warrant may be exercised by the Holder, in whole or in part,
at any time or from time to time during the Exercise Period, upon presentation
and surrender of this Warrant to the Company, at its principal executive office
as set forth in the Company's most recent filings with the Securities
and Exchange Commission, with a duly executed subscription (in the form attached
hereto) and accompanied by payment of the Purchase Price for each share of
Common Stock purchased. Such payment shall be made, in cash or by certified bank
or cashier's check, payable to the order of the Company. Notwithstanding the
foregoing provisions requiring payment in cash or by check, the Holder may from
time to time at the Holder's option pay the Purchase Price or any portion
thereof by surrendering to the Company, in lieu of such payment, the right of
the Holder to receive a number of shares of Common Stock having an aggregate
Market Value equal to such Purchase Price (or portion thereof) on the date of
exercise (a "Cashless Exercise"). For purposes of the foregoing, the "Market
Value" of a share of Common Stock as of a relevant date means the closing price
on the trading day preceding such date with respect to the Common Stock on a
national securities exchange or the Nasdaq National Market or Nasdaq SmallCap
Market or the Nasdaq OTC, as the case may be . The closing price shall be: (i)
the last sale price of shares of the Common Stock on such trading day or, if no
such sale takes place on such date, the average of the closing bid and asked
prices thereof on such date, in each case as officially reported by the
principal exchange on which the Common Stock is then listed or admitted to
trading or by the Nasdaq Stock Market; or (ii) if no shares of Common Stock are
then listed or admitted to trading on any national securities exchange or the
Nasdaq National Market or the Nasdaq SmallCap Market, the average of the
reported closing bid and asked prices thereof on such date in the
over-the-counter market as shown on the National Association of Securities
Dealers automated quotation system. The Cashless Exercise rights of the Holder
shall be of no force or effect unless the Common Stock is then listed, admitted
to trading, or reported.
The shares of Common Stock purchased hereunder shall be deemed to have been
issued to the Holder as of the close of business on the date on which this
Warrant shall have been surrendered to the Company, along with the subscription
and full payment, whether by cash or check, for the shares purchased.
Certificates for the shares so purchased and, unless this Warrant shall have
expired, a new Warrant representing the number of shares of Common Stock, if
any, with respect to which this Warrant shall not then have been exercised,
shall be delivered to the Holder within a reasonable time, and in any event
within 10 business days, after the Holder has complied with the provisions of
this Section 1.
2. RESTRICTIONS ON TRANSFER OF WARRANT. The Holder may not sell, assign
pledge, hypothecate or otherwise transfer any rights under this Warrant to
anyone other than (a) any officer or partner of the Holder; (b) any successor to
the business of the Holder; (c) any affiliate of the Holder; (d) a transfer
within the Family Group of the Holder, or (e) any transferee who receives this
Warrant by operation of law as a result of the death or dissolution of any
holder permitted by this Section 2. The Holder's "Family Group" means such
Holder's spouse and lineal descendants (whether natural or adopted) and any
trust formed and maintained solely for the benefit of such Holder, such Holder's
spouse and/or such Holder's lineal descendants. In the case of Amortibanc
Management, L.C., "Family Group" shall also include members of the Family Group
of Xxxxxxx Xxxxxx.
3. RESERVATION OF SHARES. The Company covenants and agrees that all
securities that it may issue upon the exercise of the rights represented by this
Warrant will, upon issuance, be fully paid and nonassessable and free from all
taxes, liens and charges. The Company further
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agrees that at all such times there shall be authorized and reserved for
issuance upon exercise of this Warrant such number of shares of Common Stock as
shall be required for issuance on full exercise of this Warrant.
4. EXCHANGE, ASSIGNMENT, OR LOSS OF WARRANT.
(a) Subject to subsection (b) below, this Warrant is exchangeable and
may be divided or combined with other Warrants that carry the same rights,
without expense other than as provided in this Section 4, at the option of
the Holder, upon presentation and surrender hereof to the Company, for
other Warrants of different denominations entitling the holder(s) thereof
to purchase in the aggregate the same number of shares of Common Stock at
each Purchase Price purchasable hereunder. To effect any exchange, the
Holder shall provide the Company written notice of any exchange signed by
the Holder specifying the names and denominations in which new Warrants are
to be issued.
(b) This Warrant may not be sold, transferred, assigned, or
hypothecated except as permitted under Section 2 herein and except in
compliance with Federal and state securities laws. Any permitted transfer
shall be made by surrender of this Warrant to the Company, together with a
duly executed assignment (in the form of the assignment attached to this
Warrant) and funds or common stock sufficient to pay any transfer tax,
whereupon the Company shall, without charge, execute and deliver a new
Warrant or Warrants in the name(s) of the assignee(s) named in such
instrument of assignment, and this Warrant shall be canceled. Any
transferee of this Warrant, by its acceptance thereof, agrees to be bound
by the terms of this Warrant, with the same force and effect as if a
signatory thereto.
(c) The Company will execute and deliver a new Warrant of like tenor
and date upon receipt by the Company of evidence satisfactory to it of the
loss, theft, destruction, or mutilation of this Warrant, and (i) in the
case of loss, theft, or destruction, upon receipt by the Company of
indemnity satisfactory to the Company, or (ii) in the case of mutilation,
upon presentation, surrender, and cancellation of this Warrant.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity.
The rights of the Holder are limited to those expressed in the Warrant and are
not enforceable against the Company except to the extent set forth herein.
6. ADJUSTMENT AND OTHER EVENTS.
(a) If the Company shall, after the Issue Date, declare any dividend
or other distribution upon its outstanding Common Stock payable in Common
Stock or shall subdivide its outstanding shares of Common Stock into a
greater number of shares, then the number of shares of Common Stock that
may thereafter be purchased upon the exercise of the rights represented by
this Warrant must be increased in proportion to the increase through such
dividend, distribution, or subdivision, and the Purchase Price must be
decreased in such proportion. If the Company shall at any time combine the
outstanding shares of its Common Stock into a smaller number of
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shares, the number of shares of Common Stock that may thereafter be
purchased upon the exercise of the rights represented hereby will be
decreased in proportion to the decrease through such combination, and the
Purchase Price will be increased in such proportion.
(b) If, after the date of original issuance of this Warrant (the
"Issue Date"), there shall occur (i) any reclassification, capital
reorganization, or other change of outstanding Common Stock of the Company
(other than a change described or referred to in Subsection 6(a)), or (ii)
any consolidation or merger of the Company with or into another corporation
or other entity (other than a consolidation or merger in which the Company
is the continuing corporation and that does not result in any
reclassification, capital reorganization or other change of the shares of
Common Stock issuable upon exercise of this Warrant), or (iii) sale or
conveyance to a third party of all or substantially all of the Company's
assets as an entirety, then and in such event the terms of this Section 6
will be deemed to be appropriately adjusted, and the Company will cause
effective provision to be made, so that the Holder shall have the right
thereafter, by exercising this Warrant, to purchase the kind and amount of
shares of stock and other securities and property, if any receivable upon
such reclassification, capital reorganization, or other change,
consolidation, merger, sale or conveyance that the Holder would have
received had this Warrant been exercised in full immediately prior to such
event.
(c) If, after the Issue Date, the Company shall at any time or from
time to time (i) distribute (otherwise than as a dividend in cash or in
Common Stock or in securities convertible into or exchangeable for Common
Stock) to the holders of Common Stock (or grant any rights to such holders
to acquire) assets, including stock or other securities of the Company (or
the right to acquire the same) or any subsidiary, without any consideration
paid or to be paid by such holders or for a consideration paid less than
the fair market value of such assets as reasonably and objectively
determined by the Board of Directors of the Company, or (ii) declare a
distribution, right or dividend upon the Common Stock in cash or assets
other than shares of Common Stock, THEN the Company shall reserve, and the
Holder of this Warrant shall thereafter upon exercise of this Warrant be
entitled to receive, for each share of Common Stock purchasable hereunder
on the record date established by the Company for the determination of
holders of Common Stock entitled to receive such distribution, right or
dividend (or if no such record date shall have been established, on the
date of such distribution, grant of such right or payment of such
dividend), (i) the amount of such assets that would have been distributable
to, or as to which such right would have been granted to, the Holder hereof
or (ii) the amount of such dividend (to the extent above-stated) that the
Holder would have received, had the Holder been a holder of the number of
shares of Common Stock purchasable under this Warrant on such record (or
other) date. Such entitlement by the Holder shall be without increase in
(except in respect for the consideration, if any, paid for such assets by
the holders of Common Stock) the then current Purchase Price.
(d) If: (i) there shall be an event requiring an adjustment as
provided in subsections 6(a) or 6(b); (ii) the Company shall make a
distribution that may come within subsection 6(c); (iii) the Company shall
offer for subscription pro rata to the holders of its Common Stock any
additional shares of stock of any class, or other rights; or (iv) there
shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Company; then, in any one
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or more of such cases, the Company shall give to the Holder (1) at least
twenty business days' prior written notice of the date on which the books
of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights, or for determining rights to vote in
respect of any merger, consolidation, reorganization or reclassification,
and (2) in the case of any such merger, consolidation, reorganization or
reclassification at least twenty business days' prior written notice of the
date when the same shall take place or the date on which the books of the
Company shall close or a record shall be taken for same, whichever is the
earlier. Such notice in accordance with the foregoing clause and to the
extent applicable shall specify (A) in the case of any such dividend,
distribution or subscription rights, the date on which the holders of
Common Stock shall be entitled thereto, and (B) when the holders of Common
Stock shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such merger, consolidation, reorganization,
liquidation or winding up, as the case may be. Upon the happening of an
event requiring adjustment of the Purchase Price or the kind or amount of
securities or property purchasable hereunder, the Company shall forthwith
give notice to the Holder, which notice shall be accompanied by a
certificate of the Company, stating the adjusted Purchase Price and the
adjusted number of shares of Common Stock purchasable or the kind and
amount of any such securities or property purchasable upon exercise of this
Warrant, as the case may be, and setting forth in reasonable detail the
method of calculation and the facts upon which the calculation is based.
(e) No fractional shares of Common Stock or script representing
fractional shares of Common Stock shall be issued upon the exercise of this
Warrant, and the Company shall have no obligation for any cash payment with
respect thereto. If a fractional share shall result from adjustments in the
number of shares of Common Stock purchasable hereunder, the number of
shares of Common Stock purchasable hereunder shall, on an aggregate basis
taking into account all prior adjustments, be rounded up to the next whole
number.
(f) Irrespective of any adjustment or change in the Purchase Price or
the number of shares of Common Stock or other securities actually
purchasable under this Warrant, this Warrant may continue to express the
Purchase Price and the number of shares of Common Stock purchasable
hereunder as such price and number of shares were expressed on this Warrant
when initially issued.
7. REGISTRATION RIGHTS UNDER THE SECURITIES ACT OF 1933. The Holder shall
have the registration rights with respect to the Registrable Securities
contained in the Registration Rights Agreement dated as of the date hereof
between Amortibanc Management, L.C. and the Company. For the purposes of this
Section 7, the term "Registrable Securities" shall mean any Common Stock
purchasable upon exercise of the Parent Warrants (or any Warrant(s) issued in
replacement or upon transfer thereof), and any other capital stock issued or
issuable with respect to the Common Stock issued or issuable upon the exercise
of any Parent Warrant.
8. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
(a) This Warrant and the shares of Common Stock or any other security
issued or issuable upon exercise of this Warrant may not be offered or sold
except in compliance with
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the Act and then only against receipt of an agreement of such person to
whom such offer or sale is made to comply with the provisions of this
Section 8 with respect to any resale or other disposition of such
securities; except that no such agreement shall be required from any person
purchasing shares of Common Stock pursuant to a registration statement
effective under the Act.
(b) The Company may cause a legend in substantially the form set
forth on the first page of this Warrant to be placed on each Warrant and
certificate representing shares of Common Stock, any Common Stock Warrant
or any other security issued or issuable upon exercise of this Warrant,
unless counsel for the Company is of the opinion as to any such certificate
that such legend is unnecessary.
9. NOTICE. All notices and other communications provided for herein shall
be in writing and telecopied, mailed or personally delivered to the intended
recipient to the following addresses: (i) if to the Holder, to 0000 X.
Xxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, XX 00000, and (ii) if to the Company, at
its principal executive office as set forth in the Company's most recent filings
with the Securities and Exchange Commission. The Holder and the Company may
change its address for delivery of notice to such other address as may be
designated therefor by written notice to the other hereunder. All such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
10. SURVIVAL. The various rights and obligations of the Holder and of the
Company as set forth in Sections 7 and 8 herein shall survive the exercise and
surrender of this Warrant.
11. SUCCESSORS AND ASSIGNS. All the covenants and provisions of this
Warrant shall bind and inure to the benefit of the Holder and the Company and
their respective successors and assigns.
12. DESCRIPTIVE HEADINGS. The descriptive headings of the several Sections
of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of
Delaware, without giving effect to
conflicts of laws principles.
* * * * *
6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by its officer duly authorized.
DATED: August 6, 2001.
GREAT WESTERN LAND AND RECREATION, INC.
By:
---------------------------------
Xxx X. Xxxxx
President
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ASSIGNMENT
(to be executed only upon assignment of the Warrant)
FOR VALUE RECEIVED, the undersigned assigns and transfers to the Assignee
named below all of the rights of the undersigned under the attached Warrant with
respect to the shares of Common Stock of Great Western Land and Recreation,
Inc., a
Delaware corporation (the "Company"), set forth below:
Name Number Exercise
of Assignee Address of Shares Price
----------- ------- --------- --------
The undersigned does hereby irrevocably constitute and appoint the
Secretary of the Company as attorney-in-fact to transfer such right on the books
of the Company, with full power of substitution.
Dated:
-----------------------
By:
-----------------------------------
Its:
----------------------------------
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SUBSCRIPTION
(To be executed only upon exercise of Warrant)
Great Western Land and Recreation, Inc.
0000 X. Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
The undersigned hereby elects to purchase, pursuant to the provisions of
the within Warrant held by the undersigned, _________ shares of Common Stock
from Tranche __ .
(Check Appropriate Box)
|_| Payment of the Purchase Price per share accompanies this Subscription.
|_| Pursuant to Section 1 of the within Warrant, the undersigned hereby
surrenders the right to receive ____ shares of Common Stock to which this
exercise relates, in payment of the Purchase Price for all shares of Common
Stock to which this exercise relates.
DATED:
-----------------------------
--------------------------------------
By:
-----------------------------------
Its:
----------------------------------
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