Exhibit 10.5
CITADEL SECURITY SOFTWARE INC.
AMENDMENT TO AGREEMENTS WITH XXXXXX XXXXXXXX
This agreement (this "Agreement") is made and entered into as of November
---------
3, 2006, by and between Citadel Security Software Inc., a Delaware corporation
("Citadel"), and Xxxxxx 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 February 9, 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 $183,169 (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.
1
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 February 9, 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]
2
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/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
3
