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As filed with the Securities and Exchange Commission on October 6, 2022
Registration No. 333-262167
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-1/A
(Pre-Effective Amendment No. 6)
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INFINITE GROUP, INC. |
(Exact name of registrant as specified in its charter) |
Delaware | | 7372 | | 52-1490422 |
(State or other jurisdiction of incorporation or organization) | | (Primary Standard Industrial Classification Code Number) | | (I.R.S. Employer Identification Number) |
Infinite Group, Inc.
175 Sully’s Trail, Suite 202
Pittsford, New York 14534
(585) 385-0610
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
James Villa
Chief Executive Officer
Infinite Group, Inc.
175 Sully’s Trail, Suite 202
Pittsford, New York 14534
(585) 385-0610
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Alexander R. McClean, Esq. C. Christopher Murillo, Esq. Harter Secrest & Emery LLP 1600 Bausch & Lomb Place Rochester, New York 14604 (585) 232-6500 | | Anthony W. Basch, Esq. J. Britton Williston, Esq. Kaufman & Canoles, P.C. 1021 East Cary Street, Suite 1400 Richmond, Virginia 23219 (804) 771-5700 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ |
Non-accelerated Filer | ☒ | Smaller reporting company | ☒ |
| | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
_______________________________________
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Infinite Group, Inc. is filing this Amendment No. 6 to its Registration Statement on Form S-1 (File No. 333-262167) as an exhibits-only filing. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16(a) of Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibits. The remainder of the Registration Statement is unchanged and has therefore been omitted.
Item 16. Exhibits and Financial Statement Schedules
The following exhibits to this registration statement included in the Index to Exhibits are incorporated by reference.
INDEX TO EXHIBITS
Exhibit No. | | Description |
1.1 | | Form of Underwriting Agreement (incorporated by reference to Amendment No. 4 to the Company's Registration Statement on Form S-1 filed on September 9, 2022) |
3.1 | | Certificate of Incorporation of the Company dated April 29, 1993 (incorporated herein by reference from the Company’s Registration Statement on Form S-1 (File# 33-61856). |
3.2 | | Certificate of Amendment of Certificate of Incorporation dated December 31, 1997 (incorporated herein by reference to Exhibit 3.2 to the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 1997). |
3.3 | | Certificate of Amendment of Certificate of Incorporation dated February 3, 1999 (incorporated herein by reference to Exhibit 3.3 to the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 1998). |
3.4 | | Certificate of Amendment of Certificate of Incorporation dated February 28, 2006 (incorporated herein by reference to Exhibit 3.4 to the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2005). |
3.5 | | By-Laws of the Registrant (incorporated herein by reference from the Company’s Registration Statement on Form S-1 (File# 33-61856). |
3.7 | | Form of Certificate of Amendment of Certificate Incorporation of the Registrant (Proposed Reverse Stock Split) (incorporated herein by reference to Company’s Registration Statement on Form S-1 filed on January 14, 2022). |
4.1 | | Specimen Stock Certificate (incorporated herein by reference from the Company’s Registration Statement on Form S-1 (File# 33-61856). |
4.2 | | Form of Redeemable Warrant (incorporated by reference to Amendment No. 5 to the Company’s Registration Statement of Form S-1 filed on September 20, 2022) |
4.3 | | Form of Pre-funded Warrant (incorporated by reference to Amendment No. 4 to the Company's Registration Statement on Form S-1 filed on September 9, 2022 ) |
4.4 | | Form of Underwriter’s Warrant (incorporated by reference to Amendment No. 2 to the Company's Registration Statement on Form S-1 filed on May 4, 2022 ) |
4.5 | | Form of Warrant Agent Agreement (Redeemable Warrants) (incorporated by reference to Amendment No. 4 to the Company's Registration Statement on Form S-1 filed on September 9, 2022 ) |
4.6 | | Form of Warrant Agent Agreement (Pre-funded Warrants) (incorporated by reference to Amendment No. 4 to the Company's Registration Statement on Form S-1 filed on September 9, 2022 ) |
5.1* | | Opinion of Harter Secrest & Emery, LLP |
10.1† | | 2009 Stock Option Plan (incorporated herein by reference to Exhibit 10.26 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008). |
10.2 | | Form of Stock Option Agreement (incorporated herein by reference from the Company’s Registration Statement on Form S-1 (File# 33-61856). |
10.3 | | Promissory Note dated August 13, 2003 in favor of Carle C. Conway (incorporated herein by reference to the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2002). |
10.4 | | Modification Agreement No. 3 to Promissory Notes between Allan Robbins and the Company dated October 1, 2005 (incorporated herein by reference to Exhibit 10.20 to the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2005). |
10.5 | | Collateral Security Agreement between the Company and Northwest Hampton Holdings, LLC dated February 15, 2006 (incorporated herein by reference to Exhibit 10.26 to the Company’s Annual Report on Form 10- KSB for the fiscal year ended December 31, 2005). |
10.6 | | Collateral Security Agreement between the Company and Allan Robbins dated February 15, 2006 (incorporated herein by reference to Exhibit 10.27 to the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2005). |
10.7 | | Purchase and Sale Agreement between the Company and Amerisource Funding, Inc. dated May 21, 2004 (incorporated herein by reference to Exhibit 10.22 to the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2006). |
10.8 | | Account Modification Agreement between the Company and Amerisource Funding, Inc. dated August 5, 2005 (incorporated herein by reference to Exhibit 10.33 to the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2006). |
10.9 | | Promissory Note between Northwest Hampton Holdings, LLC and the Company dated September 30, 2009 (incorporated herein by reference to Exhibit 10.27 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009). |
10.10 | | Demand Promissory Note between Allan M. Robbins and the Company dated August 13, 2010 (incorporated herein by reference to Exhibit 10.31 to the Company’s Quarter Report on Form 10-Q for the quarterly period ended September 30, 2010). |
10.11 | | Stock Option Agreement between the Company and Donald W. Reeve dated September 5, 2013 (incorporated herein by reference to Exhibit 10.33 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014). |
10.12 | | Stock Option Agreement between the Company and Donald W. Reeve dated December 1, 2014 (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 4, 2014). |
10.13 | | Software Assets Purchase Agreement between the Company and UberScan, LLC and Christopher B. Karr and Duane Pfeiffer (incorporated herein by reference to Exhibit 10.35 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014). |
10.14 | | Amendment to Promissory Note between the Company and Northwest Hampton Holdings, LLC dated December 31, 2015 (incorporated herein by reference to Exhibit 10.41 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2017). |
10.15 | | Promissory Note between the Company and James Leonardo Managing Member of a Limited Liability Corporation to be formed dated March 14, 2016 (incorporated herein by reference to Exhibit 10.38 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2017). |
10.16 | | Stock Option Agreement between the Company and Donald W. Reeve dated September 30, 2016 (incorporated herein by reference to Exhibit 10.2 to the Company’s Quarter Report on Form 10-Q for the quarterly period ended September 30, 2016). |
10.17 | | Line of Credit and Note Agreement between the Company and Andrew Hoyen dated July 18, 2017 (incorporated herein by reference to Exhibit 10.1 to the Company’s Quarter Report on Form 10-Q for the quarterly period ended June 30, 2017). |
10.18 | | Stock option agreement between the Company and Andrew Hoyen dated July 18, 2017 for 400,000 common shares (incorporated herein by reference to Exhibit 10.2 to the Company’s Quarter Report on Form 10-Q for the quarterly period ended June 30, 2017). |
10.19 | | Stock option agreement between the Company and Andrew Hoyen dated July 18, 2017 for 100,000 common shares (incorporated herein by reference to Exhibit 10.3 to the Company’s Quarter Report on Form 10-Q for the quarterly period ended June 30, 2017). |
10.20 | | Line of Credit and Note Agreement between the Company and Harry Hoyen dated September 21, 2017 (incorporated herein by reference to Exhibit 10.1 to the Company’s Quarter Report on Form 10-Q for the quarterly period ended September 30, 2017). |
10.21 | | Amendment to Promissory Note between the Company and Northwest Hampton Holdings, LLC dated December 8, 2016 (incorporated herein by reference to Exhibit 10.43 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2017). |
10.22 | | Modification #1 to Line of Credit Note and Agreement between Harry Hoyen and the Company dated December 28, 2017 (incorporated herein by reference to Exhibit 10.44 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2017). |
10.23 | | Stock option agreement between the Company and Harry Hoyen dated December 28, 2017 for 400,000 common shares (incorporated herein by reference to Exhibit 10.45 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2017). |
10.24 | | Stock option agreement between the Company and Harry A. Hoyen III dated May 14, 2019 (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on May 16, 2019). |
10.25† | | 2019 Stock Option Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on August 22, 2019). |
10.26 | | Stock option agreement between the Company and Andrew Hoyen dated December 10, 2019 (incorporated herein by reference to Exhibit 10.49 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2019). |
10.27 | | Stock Option Agreement between the Company and Donald W. Reeve dated December 23, 2019 (incorporated herein by reference to Exhibit 10.50 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2019). |
10.28 | | Stock Option Agreement between the Company and James Villa dated December 23, 2019 (incorporated herein by reference to Exhibit 10.51 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2019). |
10.29 | | Stock option agreement between the Company and Andrew Hoyen dated December 23, 2019 (incorporated herein by reference to Exhibit 10.52 to the Company’s Current report on Form 10-K for the fiscal year ended December 31, 2019). |
10.30 | | Small Business Administration Note Payable Agreement with Upstate Bank (incorporated herein by reference to Exhibit 10.1 to the Company’s Quarter Report on Form 10-Q for the quarterly period ended March 31, 2020). |
10.31† | | 2020 Stock Option Plan (incorporated herein by reference to Exhibit 10.2 to the Company’s Quarter Report on Form 10-Q for the quarterly period ended March 31, 2020). |
10.32 | | Amendment to Promissory Note between the Company and Northwest Hampton Holdings, LLC dated November 17, 2020 (incorporated herein by reference to Exhibit 10.55 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020). |
10.33 | | Promissory Note between Donald Reeve and the Company dated December 30, 2020 (incorporated herein by reference to Exhibit 10.56 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020). |
10.34 | | Second Amended Settlement Agreement between the Company and the Pension Benefit Guaranty Corporation dated April 12, 2021 (incorporate herein by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on August 17, 2021). |
10.35 | | Stock Purchase Agreement, dated November 3, 2021, by and between the Company and Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on November 15, 2021). |
10.36 | | Promissory Note, issued November 3, 2021, by the Company to Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q on November 15, 2021). |
10.37 | | Warrant, issued November 3, 2021, by the Company to Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q filed on November 15, 2021). |
10.38 | | Warrant, issued November 3, 2021, by the Company to J.H. Darbie & Co., Inc. (incorporated herein by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q filed on November 15, 2021). |
10.39 | | Subscription Agreement, dated November 2, 2021, by and between the Company and Richard Popper (incorporated herein by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q filed on November 15, 2021). |
10.40 | | Form of Indemnification Agreement between the Registrant and each of its directors and executive officers. (incorporated by reference to Amendment No. 2 to the Company's Registration Statement on Form S-1 filed on May 4, 2022 ) |
10.41† | | 2021 Equity Incentive Plan (incorporated herein by reference to Company’s Registration Statement on Form S-1 filed on January 14, 2022). |
10.42 | | Stock Purchase Agreement, dated February 11, 2022, by and between the Company and Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 18, 2022). |
10.43 | | Promissory Note, issued February 11, 2022, by the Company to Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on February 18, 2022). |
10.44 | | Warrant, issued February 11, 2022, by the Company to Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on February 18, 2022). |
10.45 | | Warrant, issued February 11, 2022, by the Company to J.H. Darbie & Co., Inc. (incorporated herein by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on February 18, 2022). |
10.46 | | Amendment No. 1, dated February 18, 2022, by and between the Company and Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed on February 18, 2022). |
10.47 | | Modification Agreement to Promissory Note originally dated December 30, 2020 between the Company and Donald Reeve dated March 31, 2022 (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 1, 2022) |
10.48 | | Modification Agreement to Promissory Note originally dated May 25, 2021 between the Company and Donald Reeve dated March 31, 2022 (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on April 1, 2022) |
10.49 | | Stock Purchase Agreement, dated April 12, 2022, by and between the Company and Talos Victory Fund, LLC (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 15, 2022). |
10.50 | | Promissory Note, issued April 12, 2022, by the Company to Talos Victory Fund, LLC (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on April 15, 2022). |
10.51 | | Warrant, issued April 12, 2022, by the Company to Talos Victory Fund, LLC (incorporated herein by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on April 15, 2022). |
10.52 | | Warrant, issued April 12, 2022, by the Company to J.H. Darbie & Co., Inc. (incorporated herein by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on April 15, 2022). |
10.53 | | Stock Purchase Agreement, dated May 27, 2022, by and between the Company and Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on June 3, 2022). |
10.54 | | Promissory Note, issued May 27, 2022, by the Company to Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on June 3, 2022). |
10.55 | | Warrant, issued May 27, 2022, by the Company to Mast Hill Fund, L.P. (incorporated herein by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on June 3, 2022). |
10.56 | | Warrant, issued May 27, 2022, by the Company to J.H. Darbie & Co., Inc. (incorporated herein by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on June 3, 2022). |
10.57 | | Modification Agreement to Promissory Note originally dated December 30, 2020 between the Company and Donald Reeve dated June 30, 2022 (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on July 7, 2022). |
10.58 | | Modification Agreement to Promissory Note originally dated May 25, 2021 between the Company and Donald Reeve dated June 30, 2022 (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on July 7, 2022). |
10.59 | | Modification Agreement to Line of Credit Note and Agreement originally dated July 17, 2017 between the Company and Andrew Hoyen dated July 29, 2022 (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8--K filed on August 4, 2022). |
10.60 | | Loan Agreement between the Company and Celtic Bank dated August 8, 2022 (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8--K filed on August 12, 2022).. |
10.61 | | Modification Agreement to Promissory Note originally dated December 30, 2020 between the Company and Donald Reeve dated September 6, 2022 (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on September 8, 2022). |
10.62 | | Modification Agreement to Promissory Note originally dated May 25, 2021 between the Company and Donald Reeve dated September 6, 2022 (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on September 8, 2022). |
14 | | Form of Code of Business Conduct and Ethics (incorporated herein by reference to Company’s Registration Statement on Form S-1 filed on January 14, 2022). |
21.1 | | Subsidiary of the Registrant (incorporated herein by reference to Company’s Registration Statement on Form S-1 filed on January 14, 2022). |
23.1 | | Consent of Freed Maxick CPAs, P.C., independent registered public accounting firm (incorporated by reference to Amendment No. 5 to the Company’s Registration Statement of Form S-1 filed on September 20, 2022) |
23.2* | | Consent of Harter Secrest & Emery, LLP (included in Exhibit 5.1) |
* | Filed herewith. |
| |
† | Management contract or compensatory plan or arrangement |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized in the Town of Pittsford, State of New York, on October 6, 2022.
| INFINITE GROUP, INC. | |
| | |
| /s/ James Villa | |
| James Villa | |
| Chief Executive Officer | |
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | | Title | | Date |
| | | | |
/s/ James Villa | | Chief Executive Officer and Director | | October 6, 2022 |
James Villa | | (Principal Executive Officer) | | |
| | | | |
/s/ Richard Glickman | | Vice President of Finance and Chief Accounting Officer | | October 6, 2022 |
Richard Glickman | | (Principal Financial Officer and Principal Accounting Officer) | | |
| | | | |
/s/ Donald W. Reeve | | Chairman of the Board | | October 6, 2022 |
Donald W. Reeve | | | | |
| | | | |
/s/ Andrew Hoyen | | President, Chief Operating Officer and Director | | October 6, 2022 |
Andrew Hoyen | | | | |
EXHIBIT 5.1
October 6, 2022
Infinite Group, Inc.
175 Sully’s Trail, Suite 202
Pittsford, New York 14534
Re: Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel to Infinite Group, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission, pursuant to the Securities Act of 1933, as amended (the “Securities Act”), of the Company’s Registration Statement on Form S-1 (File No. 333-262167) (the “Registration Statement”). The Registration Statement covers the underwritten public offering and sale of the following securities (the “Securities”):
| | 1. | up to 3,500,000 Units (as defined herein) consisting of either |
| | | | | |
| | | a. | (the “Common Units”), with each Common Unit to consist of: |
| | | | | |
| | | | i. | one share of common stock, par value $0.001 per share (the “Common Stock”, and all shares of Common Stock contained within the Units are the “Shares”); and |
| | | | | |
| | | | ii. | three redeemable warrants each to purchase one share of Common Stock at an exercise price equal to the public offering price per Unit (the “Redeemable Warrants”); or |
| | | | | |
| | | b. | (the “Pre-funded Units” and together with the Common Units, the “Units”) in lieu of Common Units, with each Pre-funded Unit to consist of: |
| | | | | |
| | | | i. | one pre-funded warrant each to purchase one share of Common Stock at an exercise price of $0.001 per share (the “Pre-funded Warrants”); and |
| | | | | |
| | | | ii. | three Redeemable Warrants; |
| | | | | |
| | 2. | up to 525,000 additional Shares and/or additional Pre-funded Warrants, and/or up to 1,575,000 additional Redeemable Warrants pursuant to the over-allotment option of the Underwriter (as defined below) described in the Registration Statement; |
| | | | | |
| | 3. | up to 140,000 warrants each to purchase one share of Common Stock at an exercise price equal to 125% of the public offering price per Unit (the “Underwriter’s Warrants” and together with the Redeemable Warrants, and the Pre-funded Warrants, the “Warrants”); |
| 1600 BAUSCH & LOMB PLACE ROCHESTER, NY 14604-2711 PHONE: 585.232.6500 FAX: 585.232.2152 |
| rochester, ny • buffalo, ny • albany, ny • corning, ny • new york, ny |
Infinite Group, Inc.
October 6, 2022
Page 2
| | 4. | shares of Common Stock issuable upon exercise of the Redeemable Warrants (the “Redeemable Warrant Shares”); |
| | | |
| | 5. | shares of Common Stock issuable upon exercise of the Pre-funded Warrants (the “Pre-funded Warrant Shares”); and |
| | | |
| | 6. | shares of Common Stock issuable upon exercise of the Underwriter’s Warrants (the “Underwriter’s Warrant Shares” and together with the Redeemable Warrant Shares, and Pre-funded Warrant Shares, the “Warrant Shares”). |
We understand that the Securities are to be sold to the Underwriter as described in the Registration Statement pursuant to an underwriting agreement (the “Underwriting Agreement”), substantially in the form filed as an exhibit to the Registration Statement, to be entered into by and among the Company and Aegis Capital Corp. (the “Underwriter”).
In connection with the foregoing, we have examined originals or copies of such corporate records of the Company, certificates and other communications of public officials, certificates of officers of the Company and such other documents as we have deemed relevant or necessary for the purpose of rendering the opinions expressed herein. As to questions of fact material to those opinions, we have, to the extent we deemed appropriate, relied on certificates of officers of the Company and on certificates and other communications of public officials. We have assumed the genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies thereof, the due authorization, execution and delivery by the parties thereto other than the Company of all documents examined by us, and the legal capacity of each individual who signed any of those documents. In addition, we have assumed that (a) each of the Underwriting Agreement, Warrants, Warrant Agent Agreement, and Prefunded Warrant Agent Agreement (the “Transaction Documents”) will be duly executed and delivered by all parties thereto, (b) the Underwriter has the power, corporate or otherwise, to enter into and perform its obligations under the Underwriting Agreement and that the Underwriting Agreement will be a valid and binding obligation of the Underwriter, (c) there will not have occurred, prior to the date of the issuance of the Warrant Shares: (i) any change in law affecting the validity or enforceability of the Warrants or (ii) any amendments to the Transaction Documents, (d) at the time of the issuance and sale of the Securities: (i) the Company is validly existing and in good standing under the law of the State of Delaware, (ii) the Company has not amended its certificate of incorporation or bylaws, (iii) the board of directors of the Company and any committee thereof has not taken any action to amend, rescind or otherwise reduce its prior authorization of the issuance of the Securities, and (iv) the Company will receive consideration in excess of par value for the issuance of the Shares, (e) the Registration Statement becomes and remains effective, and the prospectus which is a part of the Registration Statement, and the prospectus delivery requirements with respect thereto, fulfill all of the requirements of the Securities Act, throughout all periods relevant to the opinion, and (f) the Securities will be offered in the manner and on the terms identified or referred to in the Registration Statement, including all amendments thereto..
Based upon the foregoing, and subject to the additional qualifications set forth below, we are of the opinion that:
| | 1. | the Units have been duly authorized for issuance and, when issued and paid for in accordance with the terms of the Underwriting Agreement, will be valid and legally binding obligations of the Company; |
| | | |
| | 2. | the Shares have been duly authorized for issuance and, when issued and paid for in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable; |
Infinite Group, Inc.
October 6, 2022
Page 3
| | 3. | the Redeemable Warrants have been duly authorized for issuance and, when issued, sold and delivered by the Company in accordance with and in the manner described in the Registration Statement, the Warrant Agent Agreement and the Underwriting Agreement, will be validly issued and will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms; |
| | | |
| | 4. | the Pre-funded Warrants have been duly authorized for issuance and, when issued, sold and delivered by the Company in accordance with and in the manner described in the Registration Statement, the Prefunded Warrant Agent Agreement and the Underwriting Agreement, will be validly issued and will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms; |
| | | |
| | 5. | the Underwriter’s Warrants have been duly authorized for issuance and, when issued, sold and delivered by the Company in accordance with and in the manner described in the Registration Statement and the Underwriting Agreement, will be validly issued and will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms; |
| | | |
| | 6. | the Redeemable Warrant Shares have been duly authorized for issuance and, when issued and delivered by the Company upon valid exercise of the Redeemable Warrants and against receipt of the exercise price therefor, in accordance with and in the manner described in the Registration Statement, the Warrant Agent Agreement and Redeemable Warrants, will be validly issued, fully paid and non-assessable; |
| | | |
| | 7. | the Pre-funded Warrant Shares have been duly authorized for issuance and, when issued and delivered by the Company upon valid exercise of the Pre-funded Warrants and against receipt of the exercise price therefor, in accordance with and in the manner described in the Registration Statement, the Prefunded Warrant Agent Agreement and Pre-funded Warrants, will be validly issued, fully paid and non-assessable; and |
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| | 8. | the Underwriter’s Warrant Shares have been duly authorized for issuance and, when issued and delivered by the Company upon valid exercise of the Underwriter’s Warrant and against receipt of the exercise price therefor, in accordance with and in the manner described in the Registration Statement and the Underwriter’s Warrant, will be validly issued, fully paid and non-assessable. |
The opinions rendered in paragraphs 1, 3, 4, and 5 above are subject to (i) bankruptcy, insolvency, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws affecting the rights and remedies of creditors generally, and (ii) constitutional and public policy limitations and general principles of equity (regardless of whether enforcement may be sought in a proceeding in equity or at law). In addition, we express no opinion as to: the right to collect any payment to the extent that such payment constitutes a penalty, premium, forfeiture or late payment charge; the enforceability of the governing law and forum selection provisions contained in any of the Transaction Documents; waivers of right to trial by jury or defense; or any purported right of indemnification or exculpation with respect to illegal acts, intentional torts, violation of securities laws, negligence or willful misconduct.
The opinions expressed herein are limited exclusively to the applicable provisions of the Delaware General Corporate Law (the “DGCL”) and the law of the State of New York as currently in effect, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
This opinion letter has been prepared in accordance with the customary practice of lawyers who regularly give, and lawyers who regularly advise opinion recipients concerning, opinions of the type contained herein.
Infinite Group, Inc.
October 6, 2022
Page 4
This opinion letter deals only with the specified legal issues expressly addressed herein, and you should not infer any opinion that is not explicitly addressed herein from any matter stated in this letter.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and the reference to this firm under the caption “Legal Matters” in the prospectus contained in the Registration Statement. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder. This opinion is rendered to you as of the date hereof and we assume no obligation to advise you or any other person hereafter with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein even though the change may affect the legal analysis or legal conclusion or other matters in this letter.
| | Very truly yours, | |
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| | /s/ Harter Secrest & Emery LLP | |