Exhibit 10.3
WRITTEN CONSENT AND
WAIVER
THIS WRITTEN CONSENT AND WAIVER is
dated as of August 17, 2005 (this “ Consent and
Waiver ”), is made by Capital Resource Partners IV, L.P.,
a Delaware limited partnership (“ CRP ”) and
delivered to SoftBrands, Inc., a Delaware corporation (the
“ Company ”), pursuant to the terms of the CRP
Purchase Agreement, Series B Certificate of Designations and
the Series B Warrants, each as defined below.
W
I T N
E S S E T
H
WHEREAS, pursuant to that certain
Senior Subordinated Secured Note and Warrant Purchase Agreement,
dated as of November 26, 2002, as amended by Amendment Number
1, Amendment Number 2, Amendment Number 3 and Amendment Number 4
thereto, between the Company and CRP (the “ CRP Purchase
Agreement ”), CRP is the holder of (i) all of the
outstanding shares of Series B Convertible Preferred Stock,
par value $0.01 per share (the “ Series B Preferred
Stock” ), of the Company and (ii) warrants to
purchase an aggregate of 4,016,518 shares of common stock of the
Company (the “ Series B Warrants
”);
WHEREAS, the rights, privileges and
powers of the holders of Series B Preferred Stock are governed
by the Series B Convertible Preferred Stock Certificate of
Designations, dated as of August 18, 2004 (the “
Series B Certificate of Designations
”);
WHEREAS, to facilitate the issuance
and sale of its Series C Convertible Preferred Stock and
warrants to purchase shares of Common Stock (the “
Series C Warrants ” and, together with the
Series C Convertible Preferred Stock, the “
Series C Securities ”) to ABRY Mezzanine
Partners, L.P., a Delaware limited partnership, ABRY Investment
Partnership, L.P., a Delaware limited partnership (together, the
“ ABRY Purchasers ”) and CRP pursuant to the
Series C Convertible Preferred Stock and Warrant Purchase
Agreement, dated as of the date hereof (the “
Series C Purchase Agreement ”), the Company
desires to obtain the waiver by CRP as the holder of Series B
Preferred Stock of certain notice requirements and consent rights
set forth in the CRP Purchase Agreement, Series B Certificate
of Designations, Series B Warrants and the other documents
executed in connection therewith (collectively, the “
Series B Governing Documents ”);
WHEREAS, CRP has agreed to waive all
of its rights to purchase New Securities (as defined in the CRP
Purchase Agreement) under Section 3.07 of the CRP
Purchase Agreement because it is entering into the Series C
Purchase Agreement simultaneously herewith purchasing the
Series C Securities;
WHEREAS, pursuant to
Section 4 of the Series B Certificate of
Designations, the Company is required to obtain the consent of a
majority of the holders of the Series B Preferred Stock to,
among other things, (i) amend or supplement any provision of
the Certificate of Incorporation
