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EXHIBIT 10.22
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, Roth Capital
Partners, LLC ("Holder") is entitled to
purchase, subject to the terms and
conditions of this Warrant, from InPlay
Technologies, Inc., a Nevada corporation
(the "Company"), 127,273 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, December 27,
2010 (the "Expiration Date"), at which
time this Warrant will expire and become
void unless earlier exercised or
terminated as provided herein. The shares
of Common Stock of the Company for
which this Warrant is exercisable, as
adjusted from time to time pursuant to the
terms hereof, are hereinafter referred to
as the "Shares."
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 $4.22
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.
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3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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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10. 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 also will be
made to the Exercise Price, provided that
the aggregate Exercise Price payable
for the total number of Shares purchasable
under this Warrant as of such date
shall remain the same.
(b) Stock Dividend. If at any time after the date hereof the
Company
declares a dividend or other distribution
on Common Stock payable in Common
Stock or Convertible Securities without
payment of any consideration by such
holder for the additional shares of Common
Stock or the Convertible Securities
(including the additional shares of Common
Stock issuable pursuant to the terms
thereof), then the number of Shares of
Common Stock for which this Warrant may
be exercised shall be increased as of the
record date (or the date of such
dividend distribution if no record date is
set) for determining which holders of
Common Stock shall be entitled to receive
such dividend, in proportion to the
increase in the number of outstanding
shares (and shares of Common Stock
issuable pursuant to the terms of the
Convertible Securities) of Common Stock as
a result of such dividend, and the Exercise
Price shall be adjusted so that the
aggregate Exercise Price payable for the
total number of Shares purchasable
under this Warrant immediately after the
record date (or on the date of such
distribution, if applicable) for such
dividend will equal the aggregate Exercise
Price so payable immediately before such
record date (or on the date of such
distribution, if applicable). As used
herein, "Convertible Securities" means
evidences of indebtedness, shares of stock
or other securities which are
convertible into or exercisable or
exchangeable for, with or without payment of
additional consideration, shares of Common
Stock, either immediately or upon the
arrival of a specified date or the
happening of a specified event or both.
(c) Other Distributions. If at any time after the date hereof
the
Company distributes to holders of its
Common Stock, other than as part of its
dissolution or liquidation or the winding
up of its affairs, any shares of its
capital stock, any evidence of indebtedness
or any of its assets (other than
cash, Common Stock or
