Exhibit
10.33
AMENDMENT NO. 1 TO CHANGE IN
CONTROL SEVERANCE AGREEMENT
This Amendment No. 1 (“ Amendment
”) is made and entered into this 16th day of July, 2009, to
be effective as provided pursuant to Section 6 herein, by
and among INPLAY TECHNOLOGIES, INC. , a Nevada corporation
(the “ Company ”), and
MARK SOKOLOWSKI (“ Executive
”).
RECITALS
WHEREAS , the Company and Executive are
parties to a Change in Control Severance Agreement dated April 15,
2008 (the “ Agreement ”), by and among the
Company and Executive;
WHEREAS , the Company is presently in negotiations
concerning, and intends to enter into an Asset Purchase Agreement
on or about June 26, 2009 with Wacom Co. Ltd. (the “
Purchase Agreement ”) providing for Wacom Co.
Ltd.’s (“ Wacom “) purchase of the all of
the Company’s assets (the “ Pending Transaction
”);
WHEREAS , following the close of the Pending Transaction
and settlement of Company creditor claims, the Company intends to
wind up all of its affairs, cease all operations, and permanently
close;
WHEREAS , pursuant to Section 6(a) of the
Agreement, any amendment or modification to the Agreement must be
in writing, signed by both the Company and Executive;
and
WHEREAS , the Company and Executive believe that, in
light of the Pending Transaction, it is in their mutual best
interests to amend the Agreement pursuant to the provisions
contained herein.
AGREEMENT
NOW THEREFORE , in consideration of the premises, the mutual
covenants and agreements herein contained, and other valuable
consideration, the receipt, adequacy, and sufficiency whereof are
hereby acknowledged, the parties hereto, intending to be legally
bound, the Agreement is hereby amended as follows.
1.
Section 1 of the Agreement, “Change in Control,”
and all subparts thereto, is hereby amended and restated as
follows:
Closing Bonus . Provided that the Pending
Transaction closes in accordance with substantially all of the
terms and conditions set forth in the Purchase Agreement, in
recognition of Executive’s work to complete the Pending
Transaction, the Company or its successor or assign shall pay to
Executive a Closing Bonus (the “ Closing Bonus
”) in the gross amount of Two Hundred Fifteen Thousand
Dollars and No Cents ($215,000.00), less all applicable state and
federal tax withholdings, to be paid in three
