SECOND AMENDED SETTLEMENT AGREEMENT
This
Second Amended Settlement Agreement (this “Second Amended Agreement”), dated as of
April 14, 2021 (“Effective Date”), is
entered into between Infinite Group, Inc. (“IGI”) and the Pension Benefit Guaranty
Corporation (“PBGC”, and collectively
with IGI, the “Parties”).
Recitals
A. PBGC is a wholly
owned United States government corporation and agency established
under 29 U.S.C. § 1332 to administer the pension plan
termination insurance program created by Title IV of the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C.
§§ 1301-1461 (2018).
B. IGI is located in
Pittsford, New York and is incorporated in Delaware.
C. At all material
times, IGI had a wholly owned subsidiary, Xxxxx & Xxxxxxx,
Inc., which sponsored the Xxxxx & Whitney, Inc. Retirement Plan
(the “Plan”), a defined benefit
pension plan covered by the pension plan termination insurance
program under Title IV. PBGC asserted and IGI denied that after
December 31, 2002, IGI was the contributing sponsor of the
Plan.
D. In 2011, IGI and
PBGC entered into an agreement (1) terminating the Plan under 29
U.S.C. § 1342, (2) establishing November 30, 2001, as the
Plan’s termination date under 29 U.S.C. § 1348, and (3)
appointing PBGC as statutory trustee of the Plan.
E. IGI and PBGC
resolved all issues related to the termination of the Xxxxx &
Xxxxxxx Retirement Plan, IGI’s liabilities to PBGC under 29
U.S.C. §§ 1301-1461 in connection with such termination
(“Title IV
Liabilities”) and any other Plan-related liabilities
to PBGC or the Plan (collectively with the Title IV Liabilities,
the “Pension
Liabilities”), excluding any liability for breach of
fiduciary duty to the Plan, by executing a settlement agreement,
effective September 1, 2011 (the “Agreement”).
F. Pursuant to Section
3.2 of the Agreement, IGI delivered to PBGC a signed promissory
note dated October 17, 2011 and an amortization schedule for
quarterly payments of principal and interest payable in the
specified payment amounts set forth in the amortization
schedule.
G. On March 30, 2015,
IGI and PBGC entered into an agreement amending the Agreement (the
“First Amended
Agreement”), which revised the payment schedule
provided for in the Agreement.
H. IGI subsequently
defaulted and failed to pay certain payments due under the revised
payment schedule of the First Amended Agreement (such failure, the
“Default”).
The
Parties have reached an understanding to resolve the Default and
the Title IV Liabilities as follows:
Settlement Payments
1.
Settlement Amount;
Payment. IGI shall pay $200,000 to PBGC (the
“Settlement
Payment”) within 14 days after the Effective Date. The
Settlement Payment shall be paid in cash by wire transfer in
accordance with the instructions attached hereto as Exhibit A.
Release
2. Releases. On the 95ht day after payment
of the Settlement Payment, if no bankruptcy petition has been filed
by or against IGI before such 95th day, PBGC will be
deemed to have released IGI from the Title IV Liabilities and its
obligations under the Agreement, as modified by the First Amended
Agreement.
General Provisions
3. Governing Law. Except to any
extent preempted by federal law, the laws of the State of New York
(without giving effect to its principles of conflicts of law)
govern all matters relating to this Second Amended Agreement. Each
Party (a) consents to the exclusive jurisdiction of the U.S.
District Court for the District of Columbia and its appellate
courts for all matters relating to this Second Amended Agreement,
(b) consents that any action or proceeding relating to this Second
Amended Agreement may be brought in any such court, and (c) waives
any objection that it may now or hereafter have to the venue of any
such action or proceeding in such court or that such action or
proceeding was brought in an inconvenient court and agrees not to
plead or claim the same.
4. Entire Agreement. This Second
Amended Agreement (including all exhibits) constitutes the entire
and final agreement between the Parties with respect to the matters
provided for herein and no other agreement or understanding exists
between the Parties with respect to such matters.
5. Amendments. This Second Amended
Agreement may not be altered, amended, modified, or otherwise
changed in any respect except by an instrument in writing executed
by both Parties.
6. Execution; Delivery. This
Second Amended Agreement may be executed in one or more
counterparts and by different Parties on separate counterparts,
each of which will be deemed an original, but all of which together
will constitute one and the same instrument. Delivery of an
executed counterpart by facsimile or emailed PDF file (to
XXxxxxxxx@xxxxx.xxx for IGI; to Xxxx Marie Breen
xxxxx.xxxx@xxxx.xxx for PBGC) will be equally as effective as
delivery of an original executed counterpart.
7. Severability. If any provision
in this Second Amended Agreement is invalid, inoperative, or
unenforceable, the remaining provisions thereof remain in effect if
both the economic and legal substance of the transactions
contemplated thereby is not materially affected in any manner
adverse to either Party. Otherwise, the Parties shall negotiate in
good faith to rewrite any such provision so as to, as nearly and
fairly as possible, approach the economic and legal substance
originally intended.
8. Construction. The language used
in this Second Amended Agreement is deemed to be the language
chosen by the Parties to express their mutual intent, and no rule
of strict construction applies against any Party. Nor does any rule
of construction favoring a non-draftsman apply. A reference to any
statute is deemed also to refer to all rules and regulations
promulgated under the statute, unless the context requires
otherwise. Unless specifically otherwise provided or the context
otherwise requires, the singular includes the plural and the plural
the singular; the word “or” is deemed to include
“and/or”; the words “including”,
“includes” and “include” are deemed to be
followed by the words “without limitation”; the words
“herein,” “hereof,” “hereby,”
“hereunder,” “herewith,” and words of
similar import refer to this Second Amended Agreement as a whole
and not to any particular subdivision unless expressly so limited;
and references to sections or exhibits are to those of this Second
Amended Agreement. Headings in this Second Amended Agreement are
included for convenience of reference only and do not constitute a
part hereof for any other purpose.
9. Notices. Each notice, demand,
instruction, or other communication required or permitted under
this Second Amended Agreement to any Party (any of the foregoing, a
“Notice”) must be in
writing, is effective upon receipt if received on a business day
(or otherwise, on the next day that is a business day), and must be
delivered by a nationally recognized pre-paid overnight delivery
service. Unless otherwise specified in a prior Notice sent or
delivered in accordance with the foregoing provisions of this
Section 9, each
Notice must be sent to the Parties as indicated below:
In the
case of IGI to:
Infinite Group,
Inc.
Attn:
X. Xxxxxxxx
175
Sully’s Trail, Suite 202
Pittsford, NY
14532
In the
case of PBGC to:
Pension
Benefit Guaranty Corporation
Corporate Finance
and Restructuring Department
Attn:
Xxxxxx Xxxxx, Deputy Director of CFRD
0000 X
Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X.
00000-0000
With a
copy to: XXXxxxxxxxxx@xxxx.xxx
10. Each Party
represents and warrants that it is authorized to enter into this
Second Amended Agreement and that this Second Amended Agreement
constitutes its legal, valid, and binding contract enforceable
against it by the other Party in accordance with the terms hereof.
Each signatory represents and warrants that he or she is authorized
to execute this Second Amended Agreement on behalf of the Party for
whom he or she has signed and to bind such Party
hereunder.
11. Advice of Counsel. Each Party
represents and warrants that it has been represented and advised by
counsel or has had full opportunity to be represented and advised
by counsel with respect to this Second Amended Agreement and all
matters covered by it.
12.
Costs. Each Party
will bear its own costs and expenses, including attorneys’
fees, in connection with the preparation, execution, and delivery
of this Second Amended Agreement, and in connection with the
consummation of the transactions contemplated hereby.
13.
No Third-Party
Beneficiaries. This Second Amended Agreement is intended to
be and is for the sole and exclusive benefit of IGI and PBGC, any
other Controlled Group Members (but only with respect to
Section 2) and
their respective successors and assigns. Nothing expressed in or to
be implied from this Second Amended Agreement gives any other
person or entity any legal or equitable right, remedy, or claim
against any Party under or in respect of this Second Amended
Agreement.
IN
WITNESS WHEREOF, the Parties have executed and delivered this
Second Amended Agreement as of the Effective Date.
INFINITE
GROUP, INC.
_/s/
Xxxxx X. Villa________
Name:
Xxxxx X. Xxxxx
Title:
CEO
PENSION
BENEFIT GUARANTY CORPORATION
__/s/
Xxxxx X. Xxxx ______
Name:
Xxxxx X. Xxxx
Title:
Deputy Chief Investment Officer
