EXCHANGE AND SETTLEMENT AGREEMENT
This Exchange and Settlement Agreement (this "Agreement"), is dated as
of April 29, 2005 (the "Execution Date"), by and between XBridge Software, Inc.,
a Delaware corporation (the "Company"), CNH Holding Company, a Nevada
corporation and the corporate parent of the Company ("CNH"), and Derek Downs
("Mr. Downs"):
BACKGROUND:
A. The Company has entered into an Agreement and Plan of Merger dated
as of April 29, 2005, by and among the Company, CNH, XBR Acquisition, Inc., a
Delaware corporation ("XBRA"), and certain of the Company's former stockholders
(the "Merger Agreement"), pursuant to which the Company will be merged with and
into XBRA and will survive the merger as a wholly owned subsidiary of CNH (the
"Merger").
B. The Company currently owes Mr. Downs $5,748.51 for unreimbursed
expenses incurred by Mr. Downs on behalf of the Company (the "Obligations").
E. As a condition to the Merger, CNH requires Mr. Downs to exchange the
Obligation for 2,067 shares (the "Shares") of CNH's common stock, $.001 par
value per share (the "Common Stock"), which exchange is based upon a price per
share of approximately $2.78, which amount represents the average of the closing
prices of a share of Common Stock for the ten trading days immediately prior to
the Execution Date.
AGREEMENTS:
In consideration of the premises and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, the
Company and Ms. Garr hereby agree as follows:
1. Cancellation of the Obligations; Purchase of the Shares. Subject to the
consummation of the Merger,
(a) the Obligations shall be deemed to be cancelled as of the Execution Date;
(b) the Company will be deemed to have received the dollar amount of the
Obligations as the purchase price for the Shares to be received by Mr. Downs in
accordance with this Agreement; and
(c) CNH will issue to the Mr. Downs the Shares.
2. Release. Subject to the fulfillment of the parties obligations under Section
1 above, Mr. Downs on behalf of himself and his heirs, agents, successors, legal
representatives, attorneys and assigns (collectively, the "Releasors"), hereby
release, acquit and forever discharge the Company and CNH and their respective
directors, partners, officers, employees, agents, successors, legal
representatives, attorneys and assigns (collectively, the "Releasees") from, and
extinguishes, any and all claims, demands, debts, damages, costs, losses,
expenses, commissions, actions, causes of action, rights, liabilities,
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obligations and choses in action of whatever nature or type, whether known or
unknown, which any of the Releasors have, ever had or may have, or which have
been, or could have been, or in the future otherwise might have been asserted
against Releasees arising out of or in connection with the Obligations.
3. Effectiveness. This Agreement shall terminate and shall be null and void AB
INITIO if the Merger is not consummated on or before May 31, 2005.
4. Headings. Section headings in this Agreement are for convenience of reference
only, and shall not govern the interpretation of any of the provisions of this
Agreement.
5. Entire Agreement. This Agreement embodies the entire agreement and
understanding among the Company, CNH and Mr. Downs and supersedes all prior
agreements and understandings among the Company, CNH and Mr. Downs relating to
the subject matter thereof.
6. Amendment. No amendment or modification to this Agreement shall be effective,
unless in writing and signed by all the parties to this Agreement.
7. Severability. Any provision in this Agreement that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining
provisions in that jurisdiction or the operation, enforceability, or validity of
that provision in any other jurisdiction, and to this end the provisions of this
Agreement are declared to be severable.
8. Choice Of Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CHOICE OF LAWS PROVISIONS.
9. Venue. THE EXCLUSIVE JURISDICTION FOR ANY CLAIM OR CONTROVERSY ARISING OUT OF
OR RELATING TO THIS AGREEMENT SHALL BE IN THE STATE AND FEDERAL COURTS LOCATED
IN DALLAS COUNTY, TEXAS AND EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
10. Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CNH HOLDINGS COMPANY
By:____/s/___________________________
Name: Derek Downs
Title: President
Address: 17304 Preston Road, Suite 975
Dallas, Texas 75252
Telephone: 972-381-4699
Fax: 972-381-4635
XBRIDGE SOFTWARE, INC.
By:____/s/___________________________
Name: Cindy Garr
Title: President
Address: 17304 Preston Road, Suite 975
Dallas, Texas 75252
Telephone: 972-381-4699
Fax: 972-381-4635
/s/
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Derek Downs
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