10.1 Agreement between Registrant and Citadel Security Software Inc., dated as
of December 4, 2006.
AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the 4th day of December, 2006
(the "Effective Date"), by and among Citadel Security Software Inc., a Delaware
corporation (the "Company"), and CT Holdings Enterprises, Inc., a Delaware
corporation ("CT").
WHEREAS: Company and CT are parties to (i) that certain Tax Disaffiliation
Agreement (the "Tax Disaffiliation Agreement") dated as of May 17, 2002, and
(ii) that certain Transition Services Agreement (the "Transition Services
Agreement") dated as of May 17, 2002 (the Tax Disaffiliation Agreement and the
Transition Services Agreement, collectively, the "CT Agreements").
WHEREAS: In connection with, and as required by, the terms of that certain Asset
Purchase Agreement, dated as of October 2, 2006, by and among the Company,
McAfee Inc. ("McAfee") and certain other parties, as the same may be amended
from time to time (the "Purchase Agreement"), and as an inducement to McAfee to
enter into the Purchase Agreement, the Company and CT desire to (i) cancel and
terminate the CT Agreements, (ii) have each party release the other from all
outstanding liabilities to each other, and (iii) have Company assign to CT
certain causes of action and rights of Company, all effective upon the closing
(the "Closing") of the transaction contemplated by the Purchase Agreement.
WHEREAS: Section 7.18 of the Agreement and Plan of Distribution (the
"Distribution Agreement"), dated as of May 17, 2002, by and among the Company
and CT contains a prohibition against certain sales of the Company's assets, and
McAfee requires that such prohibition be waived prior to the Closing, and McAfee
additionally requires that CT waive, on behalf of itself and any subsidiaries,
current or former, any and all rights in and to any of the assets to be
transferred pursuant to the Purchase Agreement.
WHEREAS: Company and CT desire to release each other from any and all claims,
demands, causes of action, suits, damages, remedies, obligations, debts and
liabilities whatsoever, whether known or unknown, suspected or unsuspected, both
at law and in equity, which each party now has, has ever had, or may hereafter
have, against the other party arising contemporaneously with or prior to the
Closing or on account of or arising out of any matter, cause or event occurring
contemporaneously with or prior to the Closing ("Claims").
WHEREAS: Company desires to assign to CT certain rights in and to its rights and
causes of action against Company's insurance company related to prior
litigation.
NOW THEREFORE, in consideration of the above recitals and for other good and
valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereby agree as follows:
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1. Termination of CT Agreements. Contingent upon, and effective upon,
the Closing, the CT Agreements shall each be canceled and terminated, and the
terms and provisions of each shall have no further force or effect after the
Closing.
2. Releases. Contingent upon, and effective upon, the Closing, each
party hereby unconditionally and irrevocably releases and forever discharges the
other party from any and all Claims.
3. Assignment. Contingent upon, and effective upon, the Closing,
the Company hereby sells, transfers, assigns, conveys, grants and delivers to
CT, all of the Company's right, title and interest in and to all rights and
causes of action against the Company's insurance company, Mutual Marine ("MM"),
but only to the extent such rights and causes of action relate specifically to
the denial of claims or coverage by MM or any of its affiliates in connection
with the claims in the lawsuits by Xxxxxx Associates, L.P. f/k/a Roan/Xxxxxx
Associates, L.P. and f/k/a Xxxxxxx-Xxxxxx Associates, L.P.
4. Waivers. Contingent upon, and effective upon, the Closing, for
good and valuable consideration, the adequacy and receipt of which are hereby
acknowledged, CT hereby (a) consents to the Purchase Agreement and the
transactions contemplated thereby, and hereby waives any prohibition or
restriction to the same set forth in Section 7.18 of the Distribution Agreement
or otherwise, as well as any other right CT may have to prohibit or restrict in
any way the Purchase Agreement or any of the transactions contemplated thereby
and (b) on behalf of itself and any current or former subsidiaries of CT, waives
and releases any and all right, title, interest or claim it, or any of them, may
have in and to any of the assets transferred by CT to the Company pursuant to
the Distribution Agreement, including, without limitation, in and to any and all
of the assets to be transferred by the Company or its subsidiaries to McAfee or
its subsidiary pursuant to the Purchase Agreement and the transactions
contemplated thereby.
5. General Provisions.
This Agreement shall be governed by the laws of the State of Texas. This
Agreement represents the entire agreement between the parties with respect to
the subject matter hereof and may only be modified or amended in writing signed
by the parties.
Any party's failure to enforce any provision or provisions of this Agreement
shall not in any way be construed as a waiver of any such provision or
provisions, nor prevent that party thereafter from enforcing each and every
other provision of this Agreement. The rights granted to the parties herein are
cumulative and shall not constitute a waiver of any party's right to assert all
other legal remedies available to it under the circumstances.
Each of the parties hereto agrees upon request to execute any further documents
or instruments necessary or desirable to carry out the purposes or intent of
this Agreement.
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This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
Effective Date.
CITADEL SECURITY SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: CEO
CT HOLDINGS ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: CEO
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