Exhibit 10.3
CITADEL SECURITY SOFTWARE INC.
AMENDMENT TO AGREEMENTS WITH ▇▇▇▇ ▇▇▇▇▇▇▇
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 ▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇").
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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, under: (a) that certain Change of Control Agreement, dated as of
December 23, 2005, between Citadel and ▇▇▇▇▇▇▇ and (b) that certain Offer Letter
between Citadel and ▇▇▇▇▇▇▇ (collectively, the "Employment Agreements"), ▇▇▇▇▇▇▇
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is entitled to receive certain payments in connection with the closing of the
transactions contemplated by the Asset Purchase Agreement (the "Closing");
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WHEREAS, ▇▇▇▇▇▇▇ has, in connection with Citadel's entry into the Asset
Purchase Agreement, entered into an offer letter, in the form attached to the
Asset Purchase Agreement, with McAfee, Inc. regarding his employment with
McAfee, Inc. following the Closing (the "McAfee Letter"); and
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WHEREAS, each of Citadel and ▇▇▇▇▇▇▇ desire to amend each of the Employment
Agreements (and any similar agreements or arrangements) to provide that,
contingent upon the occurrence of the Closing, provided that McAfee has not
retracted or modified its offer to employ ▇▇▇▇▇▇▇ pursuant to the McAfee Letter,
▇▇▇▇▇▇▇ will not receive any payments from Citadel 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 ▇▇▇▇▇▇▇
hereby agree as follows:
1. Amendment of Employment Arrangements. Notwithstanding any terms
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contained therein to the contrary, each of the Employment Arrangements (as
defined below) are hereby amended to provide that, upon the Closing, provided
McAfee, Inc. has not retracted or modified its offer to employ ▇▇▇▇▇▇▇ pursuant
to the McAfee Letter, ▇▇▇▇▇▇▇ will not receive any payments or benefits from
Citadel in connection with or as a result of the Closing, and ▇▇▇▇▇▇▇ further
agrees that, following the Closing, he will not be entitled to any additional
benefits or payments under the Employment Arrangements; provided however, that
▇▇▇▇▇▇▇ 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
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Agreements along with any other agreements or arrangements between Citadel and
▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇ to issue stock to ▇▇▇▇▇▇▇ upon the exercise of an option.
2. Effect of this Agreement.
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(a) Nothing contained in this Agreement shall be deemed to limit
▇▇▇▇▇▇▇'▇ 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.
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(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.
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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) ▇▇▇▇▇▇▇ and
his heirs and legal representatives.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) Section headings are for convenience only and shall not
define or limit the provisions of this Agreement
(h) 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CEO
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
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