Exhibit 10.8
CITADEL SECURITY SOFTWARE INC.
AMENDMENT TO AGREEMENT WITH XXX XXXXXXXX
This agreement (this "Agreement") is made and entered into as of November
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3, 2006, by and between Citadel Security Software Inc., a Delaware corporation
("Citadel"), and Xxx X. Xxxxxxxx ("Xxxxxxxx").
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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");
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WHEREAS, each of Citadel and Xxxxxxxx desire that, contingent upon the
occurrence of the Closing, Citadel issue to Xxxxxxxx 100,000 shares of its
common stock in exchange for the termination of all outstanding obligations of
Citadel under any agreements, plan or arrangements with Xxxxxxxx to make a bonus
payment to Xxxxxxxx in connection with his option to purchase 100,000 shares of
Citadel's common stock dated July 20, 2005 ("Stock Option Agreement");
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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. Stock Options.
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(a) Xxxxxxxx hereby represents and warrants that, currently, he
is entitled to receive 100,000 shares of Citadel's common stock upon
exercise of his rights under the Stock Option Agreement. Xxxxxxxx
hereby agrees that he shall not exercise any of his rights to acquire
shares of the common stock of Citadel pursuant to the Stock Option
Agreement unless and until the Asset Purchase Agreement is terminated.
This agreement shall not affect the other option agreements between
Citadel and Xxxxxxxx.
(b) Provided the Closing occurs and effective as of the Closing:
(i) the Stock Option Agreement will terminate and be of no further
force or effect, and (ii) effective on the earlier of (x) the date
requested by Xxxxxxxx after the Closing and (y) the date that is
immediately before the record date established for Citadel's first
distribution to common stockholders of the proceeds of the Asset
Purchase Agreement (which is contemplated to occur shortly after the
expiration of the 30-day indemnification period set forth in the Asset
Purchase Agreement), Citadel shall issue to Xxxxxxxx 100,000 shares of
its common stock, and Citadel shall not be required to make any bonus
payment to Xxxxxxxx in the amount of the exercise price of the Stock
Option Agreement.
2. Effect of this Agreement.
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(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) If the Asset Purchase Agreement is terminated in accordance
with its terms or otherwise, this Agreement shall terminate in its
entirety.
3. Other Provisions.
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(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.
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(b) All notices and statements with respect to this Agreement
shall be made or delivered as set forth in the Stock Option Agreement.
(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]
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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/ Xxx Xxxxxxxx
Xxx Xxxxxxxx
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