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EXHIBIT 10.21
INPLAY TECHNOLOGIES, INC.
COMMON STOCK WARRANT
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT
FILED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT.
This certifies
that, for good and valuable consideration, receipt of which
is hereby acknowledged,
______________________ ("Holder") is entitled to
purchase, subject to the terms and
conditions of this Warrant, from InPlay
Technologies, Inc., a Nevada corporation
(the "Company"), _______________ fully
paid and nonassessable shares of the
Company's common stock, $0.001 par value
per share ("Common Stock") of the Company,
in accordance with Section 2 hereof,
during the period commencing on December
27, 2005 (the "Commencement Date") and
ending at 5:00 p.m. California time, on
December 27, 2010 (the "Expiration
Date"), at which time this Warrant will
expire and become void unless earlier
exercised or terminated as provided herein,
including, without limitation,
pursuant to Section 3 below.
This Warrant is being issued to
the Holder in connection with the closing
of the transactions contemplated by that
certain Securities Purchase Agreement,
dated as of December 27, 2005, by and among
the Company and the Investors named
therein (the "Purchase Agreement").
Capitalized terms used herein and not
otherwise defined shall have the meanings
given them in the Purchase Agreement.
1. Exercise
Price. The initial purchase price for the Shares shall be $3.44
per share. Such price shall be subject to
adjustment pursuant to the terms
hereof (such price, as adjusted from time
to time, is hereinafter referred to as
the "Exercise Price").
2. Exercise and
Payment. At any time after the Commencement Date, this
Warrant may be exercised, in whole or in
part, from time to time by the Holder,
during the term hereof, by surrender of
this Warrant and the notice of exercise
annexed hereto (the "Notice of Exercise")
duly completed and executed by the
Holder to the Company at the principal
executive offices of the Company,
together with payment of an amount equal to
the Exercise Price then in effect
multiplied by the number of Shares thereby
purchased, as designated in the
Notice of Exercise. Payment of such
aggregate Exercise Price may be made by the
Holder in cash, by check payable to the
order of the Company or by wire transfer
of immediately available funds to an
account designated by the Company.
3. Call of
Warrant. In the event the Closing Price of the Common Stock on
the Trading Market equals or exceeds $5.50
per share (as adjusted for any stock
split, stock dividend,
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combination, recapitalization or similar
event) for a period of 60 consecutive
Trading Days, then, following the end of
such period, the Company may deliver to
each Holder, at the last address appearing
on the records of the Company, a
written notice, in accordance with Section
18(b) below and containing the
information specified below (the "Call
Notice"), requiring each such Holder to
exercise such Holder's Warrant in the
manner provided in Section 2 above by no
later than 5:00 P.M. (Arizona time) on the
tenth full Business Day following
each such Holder's receipt of such Call
Notice (the "Redemption Date") Any such
Call Notice delivered in the manner
provided herein and in Section 18(b) below
shall be conclusively presumed to have been
given whether or not the Holder
actually receives such notice. In the event
a Holder fails to exercise its
Warrant in the manner provided in Section 2
above prior to 5:00 P.M. (Arizona
time) on the Redemption Date, such Warrant
shall automatically be deemed
canceled, terminated and of no further
force or effect, and the Company shall
have no further obligations under this
Warrant other than the obligation to pay
to such Holder an amount equal to $0.01
(the "Redemption Price") upon surrender
of the Warrant. For purposes of this
Section 3, the following terms shall have
the following meanings:
(a) "Business Day" means any day except Saturday, Sunday and any
day
which is a federal legal holiday or a day
on which banking institutions in the
State of New York are authorized or
required by law or other governmental action
to close.
(b) "Closing Price" means the closing price per share of the
Common
Stock on the applicable Trading Market for
a Trading Day.
(c) "Trading Day" means (i) a day on which the Common Stock is
traded
on a Trading Market, or (ii) if the Common
Stock is not quoted on any Trading
Market, a day on which the Common Stock is
quoted in the over-the-counter market
as reported by the Pink Sheets, LLC (or any
similar organization or agency
succeeding to its functions of reporting
prices).
(d) "Trading Market" means whichever of the New York Stock
Exchange,
the American Stock Exchange, the NASDAQ
National Market, the NASDAQ SmallCap
Market or OTC Bulletin Board on which the
Common Stock is listed or quoted for
trading on the date in question.
The Call Notice
shall specify (i) the Redemption Price, (ii) the Redemption
Date, (iii) the place where the Warrants
shall be delivered, and (iv) that the
right to exercise the Warrant will
terminate at 5:00 P.M. (Arizona time) on the
Redemption Date. No failure to deliver the
Call Notice nor any defect therein or
in the delivery thereof shall affect the
validity of the proceedings for such
redemption except as to a Holder (a) to
whom a Call Notice was not delivered, or
(b) whose Call Notice was defective. An
affidavit of the Secretary or an officer
of the Company that a Call Notice has been
delivered in the manner provided in
Section 18(b) shall, in the absence of
fraud, be prima facie evidence of the
facts stated therein.
Any right to
exercise a Warrant shall terminate at 5:00 P.M. (Arizona time)
on the Redemption Date. On and after the
Redemption Date, Holders of the
Warrants shall have no further rights
except to receive, upon surrender of the
Warrant, the Redemption Price.
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4. Reservation
of Shares. The Company hereby agrees that at all times there
shall be reserved for issuance and delivery
upon exercise of this Warrant such
number of shares of Common Stock or other
shares of capital stock of the Company
as from time to time are issuable upon
exercise of this Warrant. All such shares
shall be duly authorized, and when issued
upon such exercise, shall be validly
issued, fully paid and non-assessable, free
and clear of all liens, security
interests, charges and other encumbrances
or restrictions on sale and free and
clear of all preemptive rights.
5. Delivery of
Stock Certificates. Within a reasonable time after exercise,
in whole or in part, of this Warrant, the
Company shall issue in the name of and
deliver to the Holder a certificate or
certificates for the number of fully paid
and nonassessable shares of Common Stock
which the Holder shall have requested
in the Notice of Exercise. If this Warrant
is exercised in part, the Company
shall deliver to the Holder a new Warrant
for the unexercised portion of this
Warrant at the time of delivery of such
stock certificate or certificates.
6. No Fractional
Shares. No fractional shares or scrip representing
fractional shares will be issued upon
exercise of this Warrant. If, upon any
exercise of this Warrant, a fraction of a
share results, the Company will pay
the Holder the difference between the cash
value of the fractional share and the
portion of the Exercise Price allocable to
the fractional share.
7. Listing.
Prior to the issuance of any shares of Common Stock upon
exercise of this Warrant, the Company shall
secure the listing of such shares of
Common Stock upon each national securities
exchange or automated quotation
system, if any, upon which shares of Common
Stock are then listed (subject to
official notice of issuance upon exercise
of this Warrant) and shall maintain,
so long as any other shares of Common Stock
shall be so listed, such listing of
all shares of Common Stock from time to
time issuable upon the exercise of this
Warrant; and the Company shall so list on
each national securities exchange or
automated quotation system, and shall
maintain such listing of, any other shares
of capital stock of the Company issuable
upon the exercise of this Warrant if
and so long as any shares of the same class
shall be listed on such national
securities exchange or automated quotation
system.
8. Charges,
Taxes and Expenses. The Company shall pay all transfer taxes or
other incidental charges, if any, incurred
or arising in connection with the
transfer of the Shares purchased pursuant
to the exercise hereof from the
Company to the Holder.
9. Loss, Theft,
Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory
to it of the loss, theft,
destruction or mutilation of this Warrant,
and in case of loss, theft or
destruction, of indemnity or security
reasonably satisfactory to the Company,
and upon reimbursement to the Company of
all reasonable expenses incidental
thereto, and upon surrender and
cancellation of this Warrant, if mutilated, the
Company will make and deliver a new Warrant
of like tenor and dated as of the
date of such cancellation, in lieu of this
Warrant.
10. Saturdays,
Sundays, Holidays, Etc. If the last or appointed day for the
taking of any action or the expiration of
any right required or granted herein
shall be a Saturday or a Sunday or shall be
a legal holiday, then such action
may be taken or such right may be exercised
on the next succeeding weekday that
is not a legal holiday.
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11. Adjustment
of Exercise Price and Number of Shares. The Exercise Price
and the number of and kind of securities
purchasable upon exercise of this
Warrant shall be subject to adjustment from
time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company
shall at any time after the date hereof but
prior to the expiration of this
Warrant subdivide its outstanding
securities as to which purchase rights under
this Warrant exist, by stock split or
otherwise, or combine its outstanding
securities as to which purchase rights
under this Warrant exist, by reverse
stock split or otherwise, the number of
Shares as to which this Warrant is
exercisable as of the date of such
subdivision or combination will be
proportionately increased in the case of a
subdivision, or proportionately
decreased in the case of a combination.
Appropriate adjustments
