EXHIBIT 10-E
AGREEMENT
This Agreement, dated as of July 23, 2002 (the "Agreement"), is entered
into by and between Infinite Group, Inc. a Delaware corporation (together with
its successors and permitted assigns, the "Company"), and Cockfield Holdings
Limited (together with its successors and permitted assigns, "Cockfield").
Recitals
A. The Company and Cockfield are parties to that certain Private Equity
Line of Credit Agreement, dated as of November 20, 2000, as amended (the
"Purchase Agreement").
B. Pursuant to the Purchase Agreement, the Company issued Cockfield
warrants to purchase 200,000 shares of the Company's Common Stock (the
"Warrant").
C. Cockfield and the Company wish to terminate the Purchase Agreement and
amicably resolve all matters pertaining to the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Cockfield, intending to be legally bound, hereby
agree as follows.
1. Termination and Release. The Purchase Agreement and the agreements entered
into in connection therewith, and any amendments thereto, except as set forth in
Section 6 hereunder, are hereby terminated, whereupon such agreements shall
become void and of no further force and effect, and neither party shall have any
legal liability to the other as a result of such termination, and that, except
as set forth in Section 5 hereunder, each party shall be irrevocably,
unconditionally and generally released and forever discharged (each, a
"Releasee") from any and all debts, obligations, reckonings, promises,
covenants, agreements, contracts, endorsements, bonds, suits, actions,
specialties, claims, controversies, causes of action, defaults, demands or
judgments, at law or in equity, which any of such parties ever had, now has or
hereafter can, shall or may have, against such Releasee under or in connection
with the transactions contemplated by the Purchase Agreement.
2. Representations and Warranties. Each party to this Agreement hereby
represents and warrants to the other that (x) it has the requisite corporate and
other authority to enter into, deliver and fulfill its obligations under this
Agreement and each other document delivered by it in connection herewith, (y)
that each of this Agreement and each other document to which it is a party that
is delivered to the other party hereto has been duly authorized and executed by
such party and, when delivered to the other party, will be its legal and binding
obligation, enforceable against it in accordance with its terms.
3. The Warrant. All of the terms, provisions and conditions of the Warrants
shall remain in full force and effect.
4. Admissions; Press Releases. Neither party hereto will issue any press release
or make any other public announcement relating to this Agreement unless the
content thereof is mutually agreed by both parties, or if such party is advised
by its counsel that such press release or public announcement is required by
law, in which case the party making such statement shall endeavor to provide the
other party with a copy of such statement prior to its public release. This
Agreement and any payments made or documents delivered pursuant hereto are not
an admission or concession by either party or any of their respective affiliated
entities, predecessors, officers, employees, agents, advisors, representatives,
successors or assigns of any liability, fault, wrongdoing, or illegal acts or
omissions. Neither party or its agents shall directly or indirectly make any
oral or written statements that either party or any of their respective
affiliated entities, predecessors, officers, employees, advisors, agents, or
representatives, successors or assigns have made or implied any such admission
or concession.
5. Survival of Certain Provisions of the Purchase Agreement. It is understood
and agreed that the provisions of Article 7 and Section 8.9 of the Purchase
Agreement, the Warrant, Sections 6 and 7 of the registration rights agreement
entered into in connection with the Purchase Agreement (the "Registration Rights
Agreement") and any provisions of the Registration Rights Agreement as they
pertain to the shares of the Company's common stock underlying the Warrant shall
survive the execution of this Agreement and continue in full force and effect
solely with respect to the Registration Statement.
6. Miscellaneous.
(a) The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, except in a
writing executed by each of the Company and Cockfield. No waiver of
any term of this Agreement shall be effective except if contained in
a writing by the party against whom such waiver is to be enforced,
and no such waiver shall be a continuing waiver or extend to any
additional matters or further events, each of which must be
addressed in a separate writing.
2
(b) All notices or other communications or deliveries under this
Agreement shall be in writing, addressed to a party in accordance
with the information set forth by such party on its signature page
to this Agreement, or such other address as such party may hereafter
indicate in a writing to the other, given in accordance with this
provision. All notices and other communications shall be deemed to
given and effective on the earliest of (i) the date of transmission,
if such notice or communication is delivered via facsimile on a
business day, (ii) the business day after the date of transmission,
if such notice or communication is delivered via facsimile on a day
that is not a business day, (iii) the business day following the
date of mailing, if sent by nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such
notice is given.
(c) A party may not assign its obligations under this Agreement without
the prior written consent of the other party. This Agreement shall
inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties. This Agreement is intended
for the benefit of and may only be enforced by Cockfield and the
Company and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by,
any other person or entity.
(d) This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and, all
of which taken together shall constitute one and the same Agreement.
In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation
of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such
facsimile signature were the original thereof.
(e) This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without
regard to the principles of conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretation,
enforcement and defense of this Agreement and the transactions
contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, directors, officers,
shareholders, employees or agents) (each a "Proceeding") shall be
commenced exclusively in the state and federal courts sitting in the
City of New York, Borough of Manhattan (the "New York Courts"). Each
party hereto hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts for all Proceedings, and hereby
irrevocably waives, and agrees not to assert in any such Proceeding,
any claim that it is not personally subject to the jurisdiction of
any of the New York Courts, or that such Proceeding is improper.
Each party hereto hereby irrevocably waives personal service of
process and
3
consents to process being served in any such Proceeding by mailing a
copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. Each
party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Agreement or
the other documents delivered in connection herewith. If either
party shall commence a Proceeding to enforce any provisions of this
Agreement, then the prevailing party in such Proceeding shall be
reimbursed by the other party for its attorneys fees and other costs
and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
(f) The headings herein are for convenience only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language used in this Agreement
will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be
applied against any party.
(g) If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any
way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision that is a reasonable
substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
(h) This Agreement, together with the Annexes hereto, contains the
entire understanding of the parties with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters, which
the parties acknowledge have been merged into this Agreement and its
Annexes.
***********************
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
this 23rd day of July, 2002.
INFINITE GROUP, INC.
By: /s/ Clifford G. Brockmyre II
----------------------------------
Name: Clifford G. Brockmyre II
Title: Chairman
COCKFIELD HOLDINGS LIMITED
By: /s/ David Sims
----------------------------------
Name: David Sims
Title: Director
5