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 which impairs
or adversely effects the specified rights, preferences, priorities, privileges,
powers or other rights of the holders of Series B Preferred Stock and (ii) create
certain additional classes or series of shares of stock;


 





















 


WHEREAS,
pursuant to Section 7.02(u) of the CRP Purchase Agreement, the
Company is required to obtain the written consent of CRP in order to amend the
Rights Plan (as defined in the CRP Purchase Agreement);


 


WHEREAS,
pursuant to Section 8 of the Series B Warrants, the Company is
required to provide written notice to the holders of the Series B Warrants
at least 20 days prior to taking certain corporate actions; and


 


WHEREAS, CRP
is willing to provide all such consents and/or waivers which may be required
under the Series B Governing Documents in connection with the issuance of
the Series C Securities, upon the terms and subject to the conditions set
forth below.


 


NOW,
THEREFORE, the parties hereto hereby agree as follows:


 


CRP hereby
consents to the Company’s execution and delivery of the Series C Purchase
Agreement and the Related Documents (as defined in the Series C Purchase
Agreement) and the consummation of the transactions contemplated thereby and
waives the following rights and notice requirements with respect thereto under
the Series B Governing Documents:


 


1.               Series B
Warrantholder Waiver of Notice.  CRP
hereby waives the right to receive notice required by Section 8(d) of
the Series B Warrants with respect to any of the actions taken by the
Company in connection with the issuance by the Company of the Series C
Securities to the Purchasers (as defined in the Series C Purchase
Agreement).


 


2.               Amendment
to Certificate of Incorporation.  CRP
hereby consents, as required by Section 4 of the Series B
Certificate of Designations, to the filing of the Company’s Series C
Certificate of Designations which Series C Certificate of Designations,
CRP hereby acknowledges and agrees, provides for the issuance of Series C
Preferred Stock which shall be pari passu with the Series B Preferred
Stock upon any liquidation, dissolution or winding up of the Corporation.


 


3.               Waiver
of Right to Purchase New Securities. 
CRP hereby waives, or agrees that it has fulfilled through its purchase
of Series C Preferred Stock, its right to purchase New Securities under Section 3.07
of the CRP Purchase Agreement in connection with the issuance by the Company of
the Series C Securities.


 


4.               Amendment
to Rights Plan.  CRP hereby consents,
in connection with the issuance by the Company of the Series C Securities,
to the amendment to the Rights Plan as required by Section 7.02(l)
of the CRP Purchase Agreement.


 


5.               Binding
Nature and Benefit.  This Consent and
Waiver shall be binding upon and inure to the benefit of each party hereto and
their respective successors and assigns.


 


6.               Signatures.  Delivery of an executed signature page of
this Consent and Waiver (which may be by electronic facsimile transmission)
shall be effective as delivery of a manually executed counterpart hereof.


 


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7.               GOVERNING
LAW.  THIS CONSENT AND WAIVER SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


IN WITNESS
WHEREOF, the party hereto has caused this Consent and Waiver to be duly
executed and delivered by its proper and duly authorized officers as of the day
and year first above written.


 


	
   

  	
  CAPITAL
  RESOURCE PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CRP Partners
  IV, LLC, its general partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  Ammerman

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Robert
  Ammerman

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Member

  
						



 


In consideration of the foregoing waiver and consent
and all other closing fees (other than fees of counsel), the Company agrees to
pay to Capital Resource Management, Inc. a fee of $215,000 if
closing.  Such fee is in addition to the
redemption premium payable pursuant to Section 2.06(d) of the CRP
Purchase Agreement.  Further, the Company
acknowledges and agrees with CRP that Sections 7.01(j) and (k) of the CRP
Purchase Agreement shall terminate only at such time as CRP ceases to hold at
least 20% of the Warrants or underlying Warrant Shares, and the CRP Purchase
Agreement shall be deemed to be amended to so provide.


 


 


	
   

  	
  SOFTBRANDS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David G.
  Latzke

  	
   

  
	
   

  	
    David
  G. Latzke, Senior Vice President,

  
	
   

  	
    Chief
  Financial Officer and Secretary

  



 


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