FIRST AMENDMENT
EXHIBIT
6
FIRST AMENDMENT
FIRST AMENDMENT, dated as of August 17, 2005 (the “Amendment”), to the Rights Agreement, dated
as of November 26, 2002 (the “Rights Agreement”), by and between SoftBrands, Inc., a Delaware
corporation (the “Company”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION (the “Rights Agent”).
WHEREAS, the Board of Directors has deemed it to be in the best interests of the Company to
amend the Rights Agreement to accommodate the purchase of shares of Series C Convertible Preferred
Stock of the Company by ABRY Partners LLC and its managed and affiliated investment vehicles; and
WHEREAS, pursuant to the terms of the Rights Agreement, the Company has delivered an officer’s
certificate to the Rights Agent which states that the proposed amendment has been approved by a
majority of the Board of Directors of the Company and is in compliance with the terms of the
section of the Rights Agreement regarding supplements and amendments.
NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter set forth,
the Company and the Rights Agent agree to amend the Rights Agreement as follows:
The definition of “Acquiring Person” contained in Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
“Acquiring Person” shall mean any Person that Beneficially Owns 10% or more of the
Voting Shares of the Company then outstanding; provided, however, that the term “Acquiring
Person” shall not include:
(i) an Exempt Person;
(ii) any Person that would not otherwise be an Acquiring Person but for a reduction
in the number of outstanding Voting Shares resulting from a stock repurchase program
or other similar plan of the Company or from a self tender offer of the Company,
which plan or tender offer commenced on or after the date hereof; provided, however,
that the term “Acquiring Person” shall include such Person described in this
subclause (ii) from and after the first date upon which (A) such Person, since the
date of the commencement of such plan or tender offer, shall have acquired
Beneficial Ownership of, in the aggregate, a number of Voting Shares of the Company
equal to 1% or more of the Voting Shares of the Company then outstanding and (B)
such Person, together with all Affiliates and Associates of such Person, shall
Beneficially Own 10% or more of the Voting Shares of the Company then outstanding;
(iii) any Person that would not otherwise be an Acquiring Person but for its
Beneficial Ownership of Rights;
(iv) any Person that becomes the Beneficial Owner of 10% or more of the outstanding
Voting Shares of the Company solely as the result of the distribution to such person
of Voting Shares pursuant to the AremisSoft Plan of Reorganization; provided,
however, that the term Acquiring Person shall include any such Person (A) who,
together with all Affiliates and Associates of such Person, becomes the Beneficial
Owner or 10% or more of the outstanding Voting Shares of the Company because of the
purchase, acquisition or transfer of the right to receive such a distribution
pursuant to the AremisSoft Plan of Reorganization after the Distribution Record Date
(as defined in the AremisSoft Plan of Reorganization), or (B) who shall have
acquired, without the prior approval of the Board of Directors of the Company,
Beneficial Ownership of additional Voting Shares after November 26, 2002, other than
as a result of such AremisSoft Plan of Reorganization equal to 1% of the then
outstanding Voting Shares of the Company and, together with all Affiliates and
Associates of such Person, shall Beneficially Own more than 10% or more of the
Voting Shares of the Company then outstanding;
(v) any transferee, assignee or purchaser from CRP of any of those certain Common
Stock Purchase Warrants dated August 18, 2004, or any replacement or substitute
warrants or any Voting Shares issued or issueable under those certain Common Stock
Purchase Warrants dated August 18, 2004, or any transferee, assignee or purchaser
from CRP of shares of Series B Convertible Preferred Stock, or of any replacement or
substitute warrants or shares of Series B Convertible Preferred Stock, each to the
extent such Person would, absent the operation of this clause (v), have become an
Acquiring Person solely because of the acquisition of warrants, Series B
Convertible Preferred Stock or Voting Shares from CRP; provided, however, that the
term “Acquiring Person” shall include such Person described in this subclause (v)
from and after the first date upon which (A) such Person, since the date of
acquisition from CRP, shall have acquired Beneficial Ownership of, in the aggregate,
a number of additional Voting Shares of the Company equal to 1% or more of the
Voting Shares of the Company then outstanding and (B) such Person, together with all
Affiliates and Associates of such Person, shall Beneficially Own 10% or more of the
Voting Shares of the Company then outstanding;
(vi) any transferee, assignee or purchaser from ABRY or CRP of any of those certain
Common Stock Purchase Warrants dated August 17, 2005, or any replacement or
substitute warrants or any Voting Shares issued or issueable under those certain
Common Stock Purchase Warrants dated August 17, 2005, or any transferee, assignee or
purchaser from ABRY or
CRP of shares of Series C Convertible Preferred Stock, or of
any replacement or substitute shares of Series C Convertible Preferred Stock or any
Voting Shares issued or issuable upon conversion of such Series C Convertible
Preferred Stock, each to the extent such Person would, absent the operation of this
clause (vi), have become an Acquiring Person solely because of the acquisition of
warrants, Series C Convertible Preferred Stock or Voting Shares from ABRY or CRP;
provided, however, that
the term “Acquiring Person” shall include such Person described in this subclause
(vi) from and after the first date upon which (A) such Person, since the date of
acquisition from ABRY or CRP shall have acquired Beneficial Ownership of, in the
aggregate, a number of additional Voting Shares of the Company equal to 1% or more
of the Voting Shares of the Company then outstanding and (B) such Person, together
with all Affiliates and Associates of such Person, shall Beneficially Own 10% or
more of the Voting Shares of the Company then outstanding; or
(vii) any Person that is the Beneficial Owner of 10% or more of the outstanding
Voting Shares of the Company solely as the result of the operation of clause (iv) of
the definition of “Beneficial Owner” if and during such period as the Board of
Directors shall have determined that the operation of such clause should be waived
in the best interests of the Company and its stockholders; provided, however, that
any determination pursuant to this clause (vii) shall have been made prior to any
change in the composition of the Board of Directors following the date that such
Person shall have become the Beneficial Owner of such Voting Shares if such change
in composition involved the election of two or more new members of the Board of
Directors.
In calculating the percentage of the outstanding Voting Shares that are Beneficially Owned
by a Person for purposes of this definition, Voting Shares that are Beneficially Owned by
such Person shall be deemed outstanding, and Voting Shares that are not Beneficially Owned
by such Person and that are subject to issuance upon the exercise or conversion of
outstanding conversion rights, exchange rights, rights, warrants or options shall not be
deemed outstanding. Any determination made by the Board of Directors of the Company as to
whether any Person is or is not an Acquiring Person shall be conclusive and binding upon all
holders of Rights.
The definition of “Exempt Person” contained in Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
“Exempt Person” shall mean (i) AremisSoft Corporation; (ii) any disbursing agent for
the shares of the Company pursuant to the AremisSoft Plan of Reorganization; (iii) any
Trustee, Lead Class Counsel or Class Representative pursuant to the AremisSoft Trust
Agreement; (iv) any other person who receives Voting Shares of the Company temporarily
pursuant to the AremisSoft Plan of
Reorganization solely to facilitate the redistribution of
such securities to their ultimate beneficial owner (but Exempt Person shall not include such
ultimate beneficial owner), (v) any wholly-owned Subsidiary of the Company, (vi) any
employee benefit plan of the Company or of a Subsidiary of the Company, (vii) any Person
holding Voting Shares for or pursuant to the terms of any such employee benefit plan, (viii)
Capital Resource Partners IV, L.P., a Delaware limited partnership, CRP Investment Partners
IV, LLC, a Delaware limited partnership, CRP Partners IV, L.L.C., Capital Resource
Management, Inc. and their respective Associates or Affiliates (collectively, “CRP”), and
(ix) ABRY Mezzanine Partners, L.P., ABRY Mezzanine Investors, L.P., ABRY Mezzanine Holdings
LLC, ABRY Investment
Partnership, L.P., ABRY Investment GP, LLC, ABRY Partners LLC and their respective
Associates and Affiliates (collectively “ABRY”).
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.
| XXXXX FARGO BANK, NATIONAL ASSOCIATION | ||||||
| By | ||||||
| Its | ||||||
| SOFTBRANDS, INC. | ||||||
| By: | ||||||
| Its | ||||||
