Exhibit 2.7
WAIVER AGREEMENT
THIS WAIVER AGREEMENT is made and entered into as of the 8th day of
May, 2002, by and among: SIDEWARE SYSTEMS INC., a Yukon Territory,
Canada corporation ('PARENT'); KM ACQUISITION CORP., a Delaware
corporation and a wholly owned subsidiary of Parent ('MERGER SUB) and
KNOWLEDGEMAX, INC., a Delaware corporation (the "COMPANY"), SYD
ENTERPRISES LTD., a British Columbia, Canada corporation ("SYD"),
CHALK MEDIA CORP., a British Columbia, Canada corporation ("CHALK");
GRANT SUTHERLAND ("SUTHERLAND"); and JAMES L. SPEROS ("SPEROS").
1. Parent, Merger Sub and the Company are parties to an
Agreement and Plan of Merger and Reorganization dated December 7, 2001
(the "MERGER AGREEMENT"). Capitalized terms used in this Waiver
Agreement and not defined herein shall have the meanings given to such
terms in the Merger Agreement.
2. Parent, Merger Sub and the Company agree pursuant to
Section 1.2(a) of the Merger Agreement that the Closing date for the
Closing of the Merger shall be scheduled for May 16, 2002.
3. Parent, Merger Sub and the Company agree pursuant to
Section 1.2(b) of the Merger Agreement that the Merger shall become
effective on the Closing Date.
4. In order to allow Closing of the Merger on the Closing
Date, the Company hereby waives the condition precedent set forth in
Section 7.7 of the Merger Agreement.
5A. Chalk agrees that immediately upon execution of this Waiver
Agreement, Chalk will purchase 2,740,627 of its shares from SYD at a
price of US$0.09122 per share for an aggregate purchase price of
US$250,000 pursuant to the Share Repurchase Agreement dated March 27,
2002 between Parent, SYD and Chalk (the "SHARE REPURCHASE AGREEMENT")
5B. Chalk agrees that within two business days after Closing,
Chalk will purchase 4,933,129 of its shares from SYD at a price of
US$0.09122 per share for an aggregate purchase price of US$450,000,
pursuant to the Share Repurchase Agreement Chalk agrees to deposit the
said sum of US$450,000 into escrow at least one day prior to the
Closing Date.
6. Following the share purchase described in paragraph 4
hereof, SYD will own 10,951,294 shares of Chalk. Chalk shall have the
right to purchase any or all of such shares from SYD at a price of
US$0.09122 per share, pursuant to the Share Repurchase Agreement. For
example, if Chalk exercises its right to purchase all 10,951,294
shares from SYD, Chalk will pay an aggregate purchase price of
US$998,977. Parent, SYD and Chalk agree that paragraph 2.06 of the
Share Repurchase Agreement is hereby amended so that the date "July
19, 2002" is replaced with the date "July 31, 2002".
7A. On July 24, 2002 the parties shall determine the number of
shares of Chalk still owned by SYD i.e. those shares that have not
been purchased from SYD by Chalk (the "RESIDUAL SHARES"). Parent
shall then give notice on July 24, 2002 to Sutherland and Speros that:
a) Parent elects to have SYD continue to own the Residual
Shares and Sutherland and Speros have no obligation whatsoever with
respect to the purchase of the Residual Shares; or
b) Parent elects to sell the Residual Shares in return
for shares of Parent. In such event Sutherland shall transfer up to
3,200,000 Parent shares to Chalk in exchange for securities of Chalk
and Speros shall transfer up to 2,300,000 Parent shares to Chalk in
exchange for securities of Chalk, and on or before July 31, 2002 Chalk
shall purchase the Residual Shares from SYD, pursuant to the Share
Repurchase Agreement, by transferring Parent shares to SYD. Each such
Parent share shall have a deemed value equal to the average closing
price of such shares from July 1, 2002 to July 24, 2002, provided that
if the average closing price is less that US$0.181632 per share, the
minimum value of each such share shall be deemed to be US$0.181632.
Sutherland agrees to deposit the said 3,200,000 Parent shares in
escrow and Speros agrees to deposit the said 2,300,000 Parent shares
in escrow at least one day prior to the Closing Date.
Example: If Chalk is to purchase 10,951,294 shares from
SYD at a price of US$0.09122 per share, the aggregate purchase price
will be US$998,977. If the average closing price described above is
say US$0.15, Chalk will transfer 5,500,000 Parent shares to SYD at a
deemed minimum price of (US$998,977/5,500,000 Parent shares =)
US$0.181632 per share as full and final payment for the Residual
Shares. If the average closing price is say US$0.25 per share, Chalk
will transfer (US$998,977/US$0.25 =) 3,995,906 Parent shares to SYD as
full and final payment for the Residual Shares.
7B. Chalk, SYD and Parent agree that SYD should have some
protection against dilution of SYD's share ownership in Chalk.
However, Chalk, SYD and Parent further agree that Chalk is required to
raise funds for working capital purposes and to exercise its rights to
buy shares pursuant to the Share Repurchase Agreement. In particular,
Chalk is attempting to raise US$812,500 for working capital purposes
of which US$401,875 has been raised to date leaving a further
US$410,625 to be raised, if possible. In addition, Chalk is
attempting to raise US$2,000,000 to purchase shares from SYD pursuant
to the Share Repurchase Agreement of which US$300,000 has been raised
and US$700,000 will be provided pursuant to this Waiver Agreement
leaving a further US$1,000,000 to be raised, if possible. The
attached SCHEDULE A shows SYD's share ownership in Chalk from time to
time. Chalk, SYD and Parent agree that until July 31, 2002, SYD's
fully diluted percentage ownership of Chalk will not be less than as
set out in the attached Schedule A, without the prior written consent
of Parent.
8. This Waiver Agreement shall be binding upon and shall enure
to the benefit of the parties hereto and their respective successors
and assigns.
9. The undersigned parties represent and warrant to one
another (i) that all corporate action on the part of such party or, if
applicable, such party's officers, directors and shareholders
necessary for the authorization of this Waiver Agreement and the
performance of all of such party's obligations hereunder have been
taken and (ii) that this Waiver Agreement, when executed and
delivered, will create valid and binding obligations on such party
enforceable in accordance with their terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws of general application affecting enforcement of creditors'
rights, and (b) general principles of equity that restrict the
availability of equitable remedies.
10. Except as set forth in this Waiver Agreement, the terms and
conditions of the Merger Agreement shall remain unchanged and in full
force and effect in accordance with its terms.
11. Modifications to this Waiver Agreement may only be made in
writing, signed by each of the parties hereto.
12. If one or more of the provisions hereof shall for any
reason be held to be invalid, illegal or unenforceable in any respect
under applicable law, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and this Waiver
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein, and the
remaining provisions hereof shall be given full force and effect.
13. Each of the undersigned parties agrees that at any time and
from time to time it will promptly execute and deliver such further
instruments and documents and take such further action as reasonably
necessary to carry out the full intent and purpose of this Waiver
Agreement.
14. The terms of this Waiver Agreement shall be governed by the
laws of the State of Delaware, without regard to its conflict of law
principals.
15. This Waiver Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
The parties hereto have caused this Waiver Agreement to be
executed and delivered as of the date first written above.
SIDEWARE SYSTEMS INC., KM ACQUISTION CORP.,
a Yukon Territory corporation a Delaware corporation
By: /s/ "James L. Speros" By: /s/ "James L. Speros
------------------------- -------------------------
James L. Speros, President Name: James L. Speros
Title: CEO
SYD ENTERPRISES LTD.
A British Columbia corporation
By: /s/ "James L. Speros" KNOWLEDGEMAX, INC.,
--------------------------- A Delaware Corpoation
James L. Speros, President
By: /s/ "E. Linwood Pearce"
-----------------------------
E. Linwood Pearce, Chairman
and Co-Chief Executive Officer
CHALK MEDIA CORP.
A British Columbia corporation
AND
By: /s/ "Grant Sutherland"
------------------------- By: /s/"Edwin S. Grosvenor"
Grant Sutherland --------------------------
Edwin S. Grosvenor
Co-Chief Executive Officer
/s/ "James L. Speros" /s/ "Grant Sutherland"
----------------------- ----------------------------
James L. Speros Grant Sutherland
Schedule A
Pro forma
March 31, 2002 May 7, 2002 May 8, 2002
Number Basic FD Number Basic FD Number Basic FD
of Shares % % of Shares % % of shares % %
--------------------------- -------------------------- --------------------------
Common Shares
Outstanding
- ------------------------
Sideware 18,625,050 60.1% 53.9% 18,625,050 55.5% 50.2% 15,884,423 47.3% 42.8%
Other Investors 10,463,251 33.7% 30.3% 10,463,251 31.1% 28.2% 10,463,251 31.1% 28.2%
New Investors:
working capital - 0.0% 0.0% 2,572,000 7.7% 6.9% 2,572,000 7.7% 6.9%
New Investors:
Sideware Buyback I 1,928,000 6.2% 5.6% 1,928,000 5.7% 5.2% 1,928,000 5.7% 5.2%
New Investors:
Sideware Buyback II - 0.0% 0.0% - 0.0% 0.0% 2,740,627 8.2% 7.4%
New Investors:
Sideware Buyback III - 0.0% 0.0% - 0.0% 0.0% - 0.0% 0.0%
New Investors:
Sideware Buyback IV - 0.0% 0.0% - 0.0% 0.0% - 0.0% 0.0%
- ----------------------------------------------------- ------------------------- ----------------------------
Total Common
Shares OUtstanding 31,016,301 100.0% 89.8% 33,588,301 100.0% 90.5% 33,588,301 100.0% 90.5%
- ---------------------------------------------------- ------------------------- ----------------------------
Share Purchase Warrants
- ------------------------
CML 600,000 1.7% 600,000 1.6% 600,000 1.6%
Sideware 500,000 1.4% 500,000 1.3% 500,000 1.3%
Special Warrant
Holders 2,431,525 7.0% 2,431,525 6.6% 2,431,525 6.6%
- ----------------------------------------------------- -------------------------- --------------------------
Total Shares Purchase
Warrants Outstanding 3,531,525 10.2% 3,531,525 9.5% 3,531,525 9.5%
- ----------------------------------------------------- --------------------------- --------------------------
Employee Stock Options
- ------------------------
Total Stock Options
Outstanding 3,075,000 8.9% 3,075,000 8.3% 3,075,000 8.3%
- ----------------------------------------------------- -------------------------- --------------------------
Total Stock Options
Outstanding 3,075,000 8.9% 3,075,000 8.3% 3,075,000 8.3%
- ----------------------------------------------------- -------------------------- --------------------------
Total Fully Diluted
Shares Outstanding 34,547,826 100.0% 100.0% 37,119,826 100.0% 100.0% 37,119,626 100.0% 100.0%
- ----------------------------------------------------- -------------------------- ----------------------------
May 16, 2002 July 31, 2002
Number Basic FD Number Basic FD
of shares % % of shares % %
----------------------------- -----------------------------
Common Shares
Outstanding
- ------------------------
Sideware 10,951,294 30.2% 27.6% - 0.0% 0.0%
Other Investors 10,463,251 28.9% 26.3% 10,463,251 28.9% 26.3%
New Investors:
working capital 5,200,000 14.4% 13.1% 5,200,000 14.4% 13.1%
New Investors:
Sideware Buyback I 1,928,000 5.3% 4.8% 1,928,000 5.3% 4.8%
New Investors:
Sideware Buyback II 2,740,827 7.6% 6.9% 2,740,627 7.6% 6.9%
New Investors:
Sideware Buyback III 4,933,129 13.6% 12.4% 4,933,129 13.6% 12.4%
New Investors:
Sideware Buyback IV - 0.0% 0.0% 10,951,294 30.2% 27.6%
- --------------------------------------------------------- ----------------------------
Total Common
Shares OUtstanding 36,216,301 100.0% 91.1% 36,216,301 100.0% 91.1%
- --------------------------------------------------------- ----------------------------
Share Purchase Warrants
- ------------------------
CML 600,000 1.5% 600,000 1.5%
Sideware 500,000 1.3% 500,000 1.3%
Special Warrant
Holders 2,431,525 6.1% 2,431,525 6.1%
- -------------------------------------------------------- -----------------------------
Total Shares Purchase
Warrants Outstanding 3,531,525 8.9% 3,531,525 8.9%
- -------------------------------------------------------- -----------------------------
Employee Stock Options
- ------------------------
Total Stock Options
Outstanding 3,075,000 7.7% 3,075,000 7.7%
- -------------------------------------------------------- ------------------------------
Total Stock Options
Outstanding 3,075,000 7.7% 3,075,000 7.7%
- -------------------------------------------------------- ------------------------------
Total Fully Diluted
Shares Outstanding 39,747,826 100.0% 100.0% 39,747,826 100.0% 100.0%
- -------------------------------------------------------- ------------------------------