a5464677ex10_28.htm


    
      Exhibit
        10.28

       

      SEVERANCE
        AGREEMENT AND RELEASE OF CLAIMS

      


       

      This
        Severance Agreement and Release of Claims (hereinafter referred to as the
        “Agreement”) is made and entered into this 31st day of July, 2007
        (hereinafter referred to as the “Execution Date”) by and between
InPlay Technologies, Inc., a Nevada
        corporation (hereinafter referred to as “Employer”)
        and Robert J. Brilon (hereinafter referred to as
“Executive”).

       

      RECITALS

       

      WHEREAS,
        Executive was employed by Employer as its Chief Executive Officer, President,
        and Chief Financial Officer;

       

      WHEREAS,
        the terms and conditions of Executive’s employment with Employer are set forth
        in an Employment Agreement between Employer and Executive dated October 1,
        2005
        (hereinafter referred to as the “Employment Agreement”);

       

      WHEREAS,
        the Company’s Board of Directors placed Executive on administrative leave,
        effective June 27, 2007;

       

      WHEREAS,
        Executive’s employment with Employer was terminated on June 27, 2007, effective
        July 27, 2007 (hereinafter the “Separation Date”);

       

      WHEREAS,
        Executive’s termination of employment was an “InPlay Initiated Separation” for
        reasons other than Cause, Executive’s Death or Disability, or a Change of
        Control, as provided for under Section 3.1(c)(ii) of the Employment
        Agreement;

       

      WHEREAS,
        in connection with his employment and at various dates, Employer granted
        to
        Executive options to purchase an aggregate of 591,471 shares of Employer’s
        common stock (hereinafter referred to as the “Options”) pursuant to
        various option agreements between Executive and the Company (hereinafter
        referred to as the “Option Agreements”), and, as of the Separation Date,
        some of the Options have vested and some of the Options have not vested under
        the terms of the Option Agreements;

       

      WHEREAS,
        Executive and Employer, in order to settle, compromise and fully and finally
        release any and all claims and potential claims against Employer or the Released
        Parties (as defined below in Paragraph 6) arising out of Executive’s employment
        and the termination thereof, have agreed to resolve these matters on the
        terms
        and conditions set forth herein; and

       

      WHEREAS,
        Executive acknowledges that he is individually waiving, including on behalf
        of
        his marital community, rights and claims described herein in exchange for
        consideration in addition to anything of value to which Executive may be
        already
        entitled.

       

      AGREEMENT

       

      NOW,
        THEREFORE, in consideration of the mutual promises and covenants contained
        herein, the parties agree as follows:

       

      1.           Recitals;
        Effective Date.  The recitals set forth above are true, accurate,
        and correct, and are incorporated in this Agreement by this reference and
        made a
        material part of this Agreement.  This Agreement shall become
        effective on the eighth calendar day after the Execution Date so long as
        Executive has not revoked the Agreement under Paragraph 16 of this Agreement
        (hereinafter referred to as the “Effective Date”).

       

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      2.           Employment-Related
        Compensation.

       

      (a)           Executive
        acknowledges and agrees that upon receipt of the payroll check for the pay
        period ending approximately July 31, 2007, he has received from Employer
        all
        compensation to which he is entitled for services provided to Employer through
        the Separation Date.  Executive further acknowledges and agrees that
        he is not entitled to any accrued benefits as a result of his employment
        with
        Employer, other than accrued vacation benefits as provided for in the Employment
        Agreement, and that he has received reimbursement from Employer of all
        reasonable business expenses incurred by him through the Separation Date,
        if
        any, in accordance with Employer’s expense reimbursement policy and
        practices.

       

      (b)           In
        accordance with Section 1.3(f) of the Employment Agreement, Employer will
        pay
        Executive the gross amount of $128,927.88 (One Hundred Twenty Eight Thousand
        Nine Hundred Twenty Seven Dollars and Eighty-Eight Cents), less any applicable
        withholding for state and federal taxes, as payment for 991.02 hours of accrued
        but unused vacation benefits.  By signing below, Executive expressly
        authorizes the following deductions from this amount: (i) $1,620.00 (One
        Thousand Six Hundred Twenty Dollars and No Cents) to purchase one (1) Dell
        Precision 390 desktop computer and one (1) ViewSonic 22” computer monitor
        previously purchased by Employer that Executive will retain after the Separation
        Date (upon completion of this purchase, Executive shall hold all right, title,
        and interest to this property, subject to the obligations imposed by Article
        II
        of his Employment Agreement, should this equipment contain any Confidential
        Information or Trade Secrets of InPlay, as referenced therein); and (ii)
        $1,767.94 (One Thousand Seven Hundred Sixty Seven Dollars and Ninety-Four
        Cents)
        for personal charges made
        by Executive that were paid inadvertently by Employer and for Employer charges
        for which Executive was both reimbursed and credited on his personal credit
        card
        for returns of purchased items.

       

      3.           Options.  Employer
        and Executive hereby acknowledge and agree that, as a result of Employer’s
        decision to terminate Executive’s employment under Section 3.1(c)(ii) of the
        Employment Agreement, all unvested Options held by Executive shall immediately
        vest and become exerciseable on the day prior to the Separation
        Date.  The exercise of all vested options held by Executive shall be
        subject to and determined in accordance with the terms of the Option
        Agreements.

       

      4.           Severance
        Benefits.

       

      (a)           Provided
        Executive does not revoke this Agreement pursuant to Paragraph 16 herein,
        in
        consideration of the covenants, promises, and undertakings of Executive set
        forth in this Agreement, Employer hereby agrees that it will provide Executive
        with payments, the sum of which is equal to two times Executive’s current gross
        annual base salary of $270,600, or a total of $541,200 (Five Hundred Forty
        One
        Thousand Two Hundred Dollars and No Cents), as a severance benefit, to be
        paid
        to Executive over a two-year period in equal installments timed to coincide
        with
        each of Employer’s payroll periods, less any applicable withholding for state
        and federal taxes, commencing on the Effective Date.

       

      (b)           Provided
        Executive does not revoke this Agreement pursuant to Paragraph 16 herein,
        in
        consideration of the covenants, promises, and undertakings of Executive set
        forth in this Agreement, Employer hereby agrees that it will provide Executive
        the gross amount of $250,000 (Two Hundred Fifty Thousand Dollars and No Cents),
        less any applicable withholding for state and federal taxes, as an agreed-upon
        amount to comply with the bonus payment obligation arising under Section
        3.2(c)
        of the Employment Agreement.  The parties hereto acknowledge and agree
        that this agreed-upon amount shall constitute full and complete satisfaction
        of
        any bonus payment to be made to Executive under the terms of the Employment
        Agreement, and that the release of claims given by Executive in Paragraph
        6
        below specifically covers and encompasses any bonus-related claims that could
        be
        made by Executive, other than for actual payment of the amount provided in
        this
        Paragraph 4(b).  This agreed-upon bonus payment shall be paid to
        Executive within a reasonable period of time after the Effective
        Date.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (c)           Provided
        Executive does not revoke this Agreement pursuant to Paragraph 16 herein,
        in
        consideration of the covenants, promises, and undertakings of Executive set
        forth in this Agreement, Employer shall continue to pay Executive’s, his
        spouse’s, and his dependent children’s medical and dental insurance premiums to
        maintain coverage under Employer’s group medical and dental insurance plans,
        only to the extent such premiums are not covered by any subsequent employer
        of
        Executive during the two-year period following the Separation Date (the
“Extended Benefits Period”).  Employer shall make the required
        standard premium payments on behalf of Executive, his spouse, and his dependent
        children during the Extended Benefits Period.  To the extent permitted
        by Employer’s then health benefits provider, any rights required to be provided
        to Executive by local, state, and federal rules or regulations shall be granted
        at the end of the Extended Benefits Period (i.e., COBRA
        notification).

       

      (d)           Provided
        Executive does not revoke this Agreement pursuant to Paragraph 16 herein,
        in
        consideration of the covenants, promises, and undertakings of Executive set
        forth in this Agreement, Employer also shall pay to Executive the amount
        of
        $6,659.50 (Six Thousand Six Hundred Fifty Nine Dollars and Fifty Cents) to
        pay
        one-half of the remaining amount due on the automobile lease of the Lexus
        automobile presently co-leased by Executive and Employer.  Employer
        will pay this amount to Executive within a reasonable period of time after
        the
        Effective Date.  In return for this payment, Executive agrees to
        promptly take all necessary actions and execute all necessary documentation
        in
        order to release Employer from any continuing or other obligations under
        the
        automobile lease of the Lexus automobile presently co-leased by Executive
        and
        Employer.

       

      5.           Adequate
        Consideration.  Executive acknowledges and agrees that Paragraph 4
        of this Agreement includes substantial consideration to Executive in addition
        to
        anything of value to which he is, as a matter of law, otherwise
        entitled.

       

      6.           Release
        of All Claims.  In consideration of the severance benefits set
        forth in Paragraph 4 of this Agreement, Executive, for himself, his spouse,
        their marital community, heirs, estates, representatives, executors, successors
        and assigns, hereby fully, forever, irrevocably, and unconditionally release
        and
        discharge Employer, its shareholders, affiliates, subsidiaries, employees
        benefit plans, any co-employers or joint employers, their officers, directors,
        employees, agents, attorneys, administrators, representatives, successors,
        heirs, assigns, and all persons acting by, through, under, or in concert
        with
        them (collectively referred to as the “Released Parties”), from any and
        all claims which he may have against them, or any of them, which could have
        arisen out of any act or omission occurring from the beginning of time to
        the
        Execution Date of this Agreement, whether now known or unknown, asserted
        or
        unasserted. This release includes, but is not limited to, any and all claims
        brought or that could be brought under the Employment Agreement, the Option
        Agreements, or any other agreements between Employer and Executive (except
        for
        this Agreement), as well as any and all claims brought or that could be brought
        pursuant to or under the Age Discrimination in Employment Act, Americans
        with
        Disabilities Act, Title VII of the Civil Rights Act of 1964, the Civil Rights
        Act of 1991, the National Labor Relations Act, the Fair Labor Standards Act,
        the
        Employee Retirement and Income Security Act (ERISA), the Securities and Exchange
        Acts of 1933 and 1934, the Sarbanes-Oxley Act, any other securities-related
        statute or law, the Consolidated Omnibus Budget Reconciliation Act (COBRA),
        the
        Family and Medical Leave Act, the Equal Pay Act, the Arizona Civil Rights
        Act,
        the Arizona Employment Protection Act, Arizona’s wage and hour statutes, and any
        other statute set forth in the United States Code or in the statutes or codes
        of
        any state, including but not limited to Arizona, that pertains or relates
        to, or
        otherwise touches upon, the employment relationship between Employer and
        Executive and the Released Parties, including (but not limited to) any and
        all
        actions for breach of contract, express or implied, breach of the covenant
        of
        good faith and fair dealing, express or implied, promissory estoppel, wrongful
        termination in violation of public policy, all other claims for wrongful
        termination and constructive discharge, hostile work environment, and all
        other
        tort claims, including, but not limited to, assault, battery, false
        imprisonment, intentional interference with contractual relations, intentional
        or negligent infliction of emotional distress, invasion of privacy, negligence,
        negligent investigation, negligent hiring, supervision, or retention,
        defamation, intentional or negligent misrepresentation, fraud, and any and
        all
        other laws and regulations relating to employment, employment termination,
        employment discrimination, harassment, and/or retaliation, wages, hours,
        employee benefits, compensation, sexual harassment, and any and all claims
        for
        attorneys’ fees and costs, pursuant to or arising under any federal, state, or
        local statute, law, regulation, ordinance, or order.  This release of
        claims expressly includes, but is not limited to, any and all claims arising
        out
        of and/or in any way related to Executive’s employment with Employer or the
        circumstances of the termination of that employment, as well as any claims
        arising out of and/or in any way related to the Employment Agreement or the
        Option Agreements, including but not limited to any claims for any bonus
        amounts, vacation pay amounts, or any other benefits thereunder; provided,
        however, that by signing this Agreement, Executive is not waiving any rights
        or
        claims that may arise after the Execution Date of this Agreement.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      7.           Board
        Resignation.  In further consideration of the severance benefits
        provided for above in Paragraph 4 of this Agreement, contemporaneous with
        the
        execution of this Agreement, Executive agrees to voluntarily resign as a
        member
        of the Company’s Board of Directors, and to execute any and all documentation
        necessary to effectuate his resignation, including but not limited to the
        form
        of Resignation attached hereto as Exhibit A.

       

      8.           No
        Pending Claims.

       

      (a)           Executive
        represents and warrants that there are no claims, charges, injunctions,
        restraining orders, lawsuits, or any similar matters of any kind filed by
        him or
        on his behalf or for his benefit presently pending against Employer or the
        Released Parties, or any of them, in any forum whatsoever, including, without
        limitation, in any state or federal court, or before any federal, state,
        or
        local administrative agency, board, or governing body.

       

      (b)           Employer
        and the Released Parties represent and warrant that there are no claims,
        charges, injunctions, restraining orders, lawsuits, or any similar matters
        of
        any kind filed by it or on its behalf or for its benefit presently pending
        against Executive, in any forum whatsoever, including, without limitation,
        in
        any state or federal court, or before any federal, state, or local
        administrative agency, board, or governing body.

       

      9.           Covenant
        Not to Sue.  Executive, for himself, for his spouse, his marital
        community, heirs, estates, representatives, executors, successors and assigns,
        covenants not to file any lawsuits, complaints, claims, or charges, on his
        behalf or in any representative capacity, in any state or federal court or
        before any federal, state, or local administrative agency, board, or governing
        body against Employer or the Released Parties, or any of them, on and/or
        for any
        and all of the claims released by this Agreement.

       

      10.           Preclusive
        Effect of Agreement.  Executive acknowledges, understands, and
        agrees that this Agreement may be pled as a complete bar to any action or
        suit
        before any court or administrative body with respect to any lawsuit, complaint,
        charge, or claim under federal, state, local, or other law relating to any
        possible claim that existed or may have existed against Employer or the Released
        Parties, or any of them, arising out of any event occurring from the beginning
        of time through the Execution Date of this Agreement, except Executive’s claims
        or rights arising out of Executive’s ownership of the Shares.

       

      11.           Covenant
        Not to Reapply.  Executive agrees and covenants that he will not
        reapply for any position as an Executive or independent contractor with Employer
        or any of its affiliates in the future, and he expressly waives and releases
        Employer and any affiliates from any and all possible or potential liability
        associated with the refusal to consider or refusal to hire him for any position
        in the future.

       

      12.           Non-Disparagement.  Executive
        agrees that neither he nor anyone acting directly or indirectly on his behalf
        will make any knowingly derogatory or disparaging statement about the Employer
        or the Released Parties, or any of them, to any current, former, or prospective
        Employer customers, contractors, vendors, directors, officers, shareholders,
        employees, or affiliates, to any member of the press or media, or to any
        other
        persons about Employer or the Released Parties, nor knowingly directly or
        indirectly take any action which is intended to embarrass any of
        them.  Employer similarly agrees that neither it nor any authorized
        person acting on its behalf will make any knowingly derogatory or disparaging
        statement about Executive to any current, former, or prospective Employer
        customers, contractors, vendors, directors, officers, shareholders, employees,
        or affiliates, to any member of the press or media, or to any other persons
        about Executive, nor knowingly directly or indirectly take any action which
        is
        intended to embarrass Executive.  For purposes of this Paragraph 12, a
        disparaging statement is any communication, oral or written, which would
        cause
        or to tend to cause the recipient of the communication to question the business
        condition, integrity, competence, fairness or good character of the person
        to
        whom or entity to which the communication relates.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      13.           Return
        of Employer Property; Cooperation in Transitioning of Duties.  On
        or before the Separation Date, Executive agrees to return to Employer all
        Employer property in his actual or constructive possession.  Executive
        further agrees, prior to the Separation Date, to use his best professional
        efforts to orderly transition his job duties and responsibilities to his
        designated successor.

       

      14.           Non-Admission.  Execution
        of this Agreement and compliance with its terms shall not be considered or
        deemed an admission by Employer of any liability whatsoever, or as an admission
        by Employer of any violation of Executive’s rights or the rights of any other
        person, a violation of any order, law, statute or duty, or breach of any
        duty
        owed to Executive or any other person.  Employer specifically
        disclaims any and all such liability.

       

      15.           Review.  A
        copy of this Agreement was delivered to Executive on June 27,
        2007.  Executive acknowledges and agrees that he was provided with
        more than twenty-one (21) days from the date he was presented with this
        Agreement to consider this Agreement, and that this twenty-one (21) day review
        period was extended by mutual agreement of the parties until the Execution
        Date.

       

      16.           Revocation.  Executive
        may revoke this Agreement for a period of seven (7) days after he signs
        it.  Executive agrees that if he elects to revoke this Agreement, he
        will notify Employer, care of Employer’s Chairman of its Board of Directors,
        (with a copy to Quinn P. Williams, Greenberg Traurig, LLP, 2375 East Camelback
        Road, Suite 700, Phoenix, Arizona, 85016), in writing, on or before the
        expiration of the revocation period.  Receipt of proper and timely
        notice of revocation by Employer cancels and voids this
        Agreement.  Provided that Executive does not provide notice of
        revocation, this Agreement will become effective upon the Effective
        Date.

       

      17.           Cooperation.  During
        the period that Executive is on administrative leave and continuing after
        the
        Separation Date, Executive agrees to provide reasonable assistance to Employer
        (including assistance with litigation and arbitration matters), upon Employer’s
        reasonable request, concerning Executive’s previous responsibilities as Chief
        Executive Officer, President, and Chief Financial Officer of
        Employer.  Such assistance may include, but is not limited to,
        communicating and/or meeting with Employer’s attorneys, giving deposition
        testimony, attending depositions, reviewing pleadings, including discovery
        pleadings, and attending and giving testimony in court and arbitration
        proceedings.  Similarly, Employer agrees to cooperate with Executive
        and provide reasonable assistance to him (including assistance with litigation
        and arbitration matters), upon the Executive's reasonable request, concerning
        Executive's previous responsibilities as Chief Executive Officer, President,
        and
        Chief Financial Officer of Employer.  Such assistance may include, but
        is not limited to, communicating and/or meeting with Executive's attorneys,
        providing access to company documents and employees of Employer who may be
        important as witnesses in connection with such litigation or arbitration
        matters.

      


      18.           Bylaw
        Indemnification.  In accordance with Section 4.2 of the Employment
        Agreement, Employer agrees that following the Separation Date, the
        indemnification provisions under Employer’s Bylaws will continue in full force
        and effect for the benefit of Executive for so long as such indemnification
        provisions would have any application to claims against Executive.

      


      19.           Knowing
        and Voluntary.  Executive represents and warrants that he was
        advised by Employer to consult with an attorney of his own choosing concerning
        the provisions set forth herein, and that he was represented in the negotiations
        leading to this Agreement by S. Cash Nickerson, Esq.  Executive
        further represents and warrants that he has carefully read and fully understands
        all of the provisions of this Agreement, including the fact that he is releasing
        all claims and potential claims against Employer and the Released Parties,
        and
        that he is entering into this Agreement, without coercion, and with full
        knowledge of its significance and the legal consequences
        thereof.  Executive represents and warrants that he understands that,
        as part of this Agreement, he is releasing and waiving any claims he believes
        he
        may have under the Age Discrimination in Employment Act.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      20.           Amendment.
        This Agreement shall be binding upon the parties and may not be amended,
        supplemented, changed, or modified in any manner, orally or otherwise, except
        by
        an instrument in writing of concurrent or subsequent date signed by all of
        the
        parties hereto.

       

      21.           Entire
        Agreement.  This Agreement and exhibits hereto contain and
        constitute the entire understanding and agreement between the parties hereto
        with respect to the subject matter hereof, and, except as otherwise provided
        herein, cancel all prior or contemporaneous oral or written understandings,
        negotiations, agreements, commitments, representations, and promises in
        connection herewith.  Notwithstanding the forgoing, nothing set forth
        in this Agreement shall cancel, terminate, modify, suspend, or otherwise
        affect
        the provisions and obligations set forth in Article II of the Employment
        Agreement, which survive the termination of Executive’s employment with
        Employer.

       

      22.           Paragraph
        Titles.  The paragraph titles in this Agreement are for
        convenience only; they form no part of this Agreement and shall not affect
        its
        interpretation.

       

      23.           Construction.  The
        parties hereto acknowledge and agree that each party has participated in
        the
        drafting of this Agreement and has had the opportunity to have this document
        reviewed by the respective legal counsel for the parties hereto and that
        the
        normal rule of construction to the effect that any ambiguities are to be
        resolved against the drafting party shall not be applied to the interpretation
        of this Agreement.  No inference in favor of, or against, any party
        shall be drawn from the fact that one party has drafted any portion
        hereof.

       

      24.           Execution
        in Counterparts; Facsimile Signatures.  This Agreement may be
        executed in any number of counterparts, each of which shall be deemed to
        be an
        original as against any party whose signature appears thereon, and all of
        which
        shall together constitute one and the same instrument.  This Agreement
        shall become binding when one or more counterparts hereof, individually or
        taken
        together, shall bear the signatures of the parties reflected hereon as the
        signatories.  Facsimile signatures shall be sufficient and fully
        binding.

       

      25.           Choice
        of Law and Venue.  This Agreement shall be governed by the laws of
        the State of Arizona, without regard to the conflicts of laws or principles
        thereof.  With respect to any litigation based on, arising out of, or
        in connection with this Agreement, the parties expressly submit to the personal
        jurisdiction of the Superior Court of the State of Arizona in and for the
        County
        of Maricopa or the United States District Court for the District of Arizona,
        and
        the parties hereby expressly waive, to the fullest extent permitted by law,
        any
        objection that they may now or hereafter have, to the laying of venue of
        any
        such litigation brought in any such court referred to above, including without
        limitation any claim that any such litigation has been brought in an
        inconvenient forum.

       

      26.           Severability.
        Should any provision in this Agreement or any provision of any agreement
        incorporated or referenced herein be declared or determined by any court
        to be
        illegal or invalid, the validity of the remaining parts, terms, or provisions
        shall not be affected, and the illegal or invalid part, term, or provision
        shall
        be deemed not to be a part of this Agreement.

       

      27.           Waiver.  The
        failure of a party to insist upon strict adherence to any obligation of this
        Agreement shall not be considered a waiver or deprive that party of the right
        thereafter to insist upon strict adherence to that term or any other term
        of
        this Agreement.  Any waiver of any provision of this Agreement must be
        in a written instrument signed and delivered by the party waiving the
        provision.

       

      28.           Successors
        and Assigns.  This Agreement shall be binding upon and inure to
        the benefit of, as applicable, the parties’ respective successors, assigns,
        heirs, estates, and representatives.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      29.           Attorneys’
        Fees and Costs.  Executive and Employer agree that each party will
        bear its own costs and attorneys’ fees in connection with all matters related to
        the subject matter of this Agreement and the settlement of those matters
        encompassed by this Agreement.  Should any legal action be commenced
        arising out of this Agreement, the prevailing party in any such action shall
        be
        entitled to an award of attorneys’ fees and costs incurred therein.

       

      30.           Reasonableness
        of Terms.  Executive acknowledges and agrees that the terms set
        forth in this Agreement, individually and collectively, are commercially
        reasonable, as contemplated by Section 3.2(c) of the Employment
        Agreement.

       

      


      By
        signing
        below, the parties acknowledge that they have carefully read and fully
        understand all of the provisions of this Agreement and that they are voluntarily
        entering into this Agreement.

       

       

      
        	Robert
                J. Brilon	 	InPlay
                Technologies, Inc.
	“Executive”	 	“Employer”
	 	 	 
	 	 	 
	/s/
                Robert J. Brilon 	 	By:  /s/
                Steven P. Hanson
	 	 	 
	 	 	 
	
                Dated:  July  31,
                  2007

              	 	Its:  Chairman
                and CEO
	 	 	 
	 	 	 
	 	 	Dated:
                July 31, 2007