10.1 Amendment to Agreement with Xxxxx Xxxxxxxx, between Xxxxx Xxxxxxxx and
Citadel Security Software Inc., dated as of December 2, 2006.
CITADEL SECURITY SOFTWARE INC.
AMENDMENT TO AGREEMENTS WITH XXXXX XXXXXXXX
This agreement (this "Agreement") is made and entered into as of December
2, 2006, by and between Citadel Security Software Inc., a Delaware corporation
("Citadel"), and Xxxxx Xxxxxxxx ("Xxxxxxxx").
WHEREAS, Citadel, and certain of its subsidiaries, have entered into an
Asset Purchase Agreement, dated as of October 2, 2006, with McAfee, Inc. and
McAfee Security LLC (the "Asset Purchase Agreement");
WHEREAS, under: (a) that certain Change of Control Agreement, dated as of
December 23, 2005, between Citadel and Xxxxxxxx and (b) that certain Offer
Letter, dated as of June 17, 2005 between Citadel and Xxxxxxxx (collectively,
the "Employment Agreements"), Xxxxxxxx is entitled to receive certain payments
in connection with the closing of the transactions contemplated by the Asset
Purchase Agreement (the "Closing"); and
WHEREAS, each of Citadel and Xxxxxxxx desire to amend each of the
Employment Agreements (and any similar agreements or arrangements) to provide
that, contingent upon the occurrence of the Closing, Xxxxxxxx will receive only
the payments specified in this Agreement in connection with the Closing;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Citadel and Xxxxxxxx
hereby agree as follows:
1. Amendment of Employment Arrangements. Notwithstanding any terms contained
therein to the contrary, each of the Employment Arrangements (as defined below)
are hereby amended to provide that, upon the Closing, provided Xxxxxxxx remains
an employee of Citadel as of the Closing and does not accept an offer of
employment from McAfee, Inc. at, as of, or in connection with the Closing,
Xxxxxxxx shall be entitled to receive from Citadel, a single payment, in a lump
sum, of $182,901 (which amount will not be grossed-up) to be promptly paid to
Xxxxxxxx by Citadel upon the earlier to occur of: (i) the written request of
Xxxxxxxx and (ii) the one month anniversary of the date on which the Closing
occurs. Except as set forth herein, effective on the Closing, Xxxxxxxx agrees
that he will not be entitled to any additional benefits or payments under the
Employment Arrangements; provided however, that Xxxxxxxx shall remain entitled
to any payments or benefits under the Employment Arrangements that are not
directly related to the proposed Closing (e.g., accrued bonuses, vacation pay,
expense reimbursements, etc.). For purposes of this Agreement, "Employment
Arrangements" shall mean each of the Employment Agreements along with any other
agreements or arrangements between Citadel and Xxxxxxxx regarding employment,
bonuses, severance, payments made upon a change of control of Citadel, tax
gross-ups, benefits or similar agreements or arrangements, but shall not include
any agreements, plan or arrangements with Xxxxxxxx to issue stock to Xxxxxxxx
upon the exercise of an option.
2. Effect of this Agreement.
(a) Nothing contained in this Agreement shall be deemed to limit
Xxxxxxxx'x rights in his capacity as a current stockholder of Citadel
including his right to receive distributions on his shares of Citadel's
common stock following the Closing.
(b) Except as expressly provided herein, this Agreement shall not
be deemed to further modify or terminate any Employment Arrangement.
(c) If the Asset Purchase Agreement is terminated in accordance
with its terms or otherwise, this Agreement shall terminate in its
entirety.
3. Other Provisions.
(a) This Agreement shall inure to the benefit of and be binding upon
(i) Citadel and its successors and assigns and (ii) Xxxxxxxx and his
heirs and legal representatives.
(b) All notices and statements with respect to this Agreement shall be
made or delivered as set forth in that certain Offer Letter, dated as
of June 17, 2005 between Citadel and Xxxxxxxx.
(c) This Agreement sets forth the entire present agreement of the
parties concerning the subjects covered herein; there are no promises,
understandings, representations, or warranties of any kind concerning those
subjects except as expressly set forth in this Agreement.
(d) Any modification to this Agreement must be in writing and
signed by all parties; any attempt to modify this Agreement, orally or
in writing, not executed by all parties will be void.
(e) If any provision of this Agreement, or its application to
anyone or under any circumstances, is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity and unenforceability
will not affect any other provision or application of this Agreement which
can be given effect without the invalid or unenforceable provision or
application and will not invalidate or render unenforceable such provision
or application in any other jurisdiction.
(f) This Agreement will be governed and interpreted under the laws of
the United States of America and of the State of Texas as applied to
contracts made and carried out entirely in Texas by residents of that
state.
(g) No failure on the part of any party to enforce any provisions of
this Agreement will act as a waiver of the right to enforce that
provision.
(h) Section headings are for convenience only and shall not define or
limit the provisions of this Agreement
(i) This Agreement may be executed in several counterparts, each of
which is an original. A copy of this Agreement manually signed by one
party and transmitted to the other party by FAX or in image form via email
shall be deemed to have been executed and delivered by the signing party as
though an original. A photocopy of this Agreement shall be effective as an
original for all purposes.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
CITADEL SECURITY SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: CEO
/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
