Exhibit 10.1


 


SEPARATION AND GENERAL RELEASE AGREEMENT


 


This Separation and General Release Agreement is made
and entered into by and between DynTek, Inc., a Delaware corporation (the “Company”),
and Robert I. Webber, an individual (“Executive”), as of the date set forth
below (the “Effective Date”).


 


RECITALS


 


WHEREAS, Executive has served as the Chief Financial
Officer of the Company since July 2004, a member of the Company’s Board of
Directors (the “Board”) since September 2004, and the President of the Company
since June 2005;


 


WHEREAS, Executive has resigned his Board position
with the Company effective as of March 8, 2006 (the “Board Resignation
Date”) and desires to resign his employment with the Company effective as of March 31,
2006 (the “Employment Resignation Date”);


 


WHEREAS, Executive and the Company are parties to an
Employment Agreement dated as of August 1, 2005 (the “Employment Agreement”),
which the parties intend to terminate as of the Employment Resignation Date;
and


 


NOW, THEREFORE, in consideration of the premises and
the mutual covenants and agreements set forth herein, Executive and the
Company, intending to be legally bound, hereby agree as follows:


 


1.                                       Resignation
and Termination of Employment Agreement. Beginning on the Employment Resignation
Date, the Company and Executive hereby agree to terminate the Employment
Agreement and the Employment Agreement shall be of no further force and effect
as of such date. In addition, effective on the Employment Resignation Date,
Executive hereby resigns his positions as President and Chief Financial
Officer, and shall no longer be employed by the Company. The parties agree that
termination of the Employment Agreement is by mutual consent and that Executive
shall not be entitled to receive any benefits or compensation pursuant to the
termination provisions, or any other provisions, under the Employment Agreement
after the Employment Resignation Date, except as specifically identified in
this Agreement. Each of the parties agrees to use reasonable efforts up to the Employment
Resignation Date to transfer the positions of President and Chief Financial
Officer to a successor(s) without disruption to the operations of the Company’s
business. The foregoing shall not operate to preclude Executive from spending a
reasonable amount of time between the Effective Date and the Employment
Resignation Date seeking out employment opportunities or finalizing plans for
subsequent employment.


 


2.                                       Compensation.
In reliance upon Executive’s promises, representations and releases in this
Agreement, the Company shall pay Executive the following compensation.


 


(a)                                  Salary.
The Company shall pay Executive his base salary as of the Effective Date, less
legally required withholdings, on regularly scheduled paydays, up to and including
the Employment Resignation Date. After the Employment Resignation Date,
Executive shall not be entitled to any salary continuation payments.


 

















 


(b)                                 Insurance
Benefits. After the Employment Resignation Date, the Company shall continue
to pay the premiums for medical and other insurance benefits currently in place
for the Executive, including continued health insurance coverage for Executive
and his currently insured dependents through the Execu-care program or
otherwise (provided that Executive makes a timely election to continue such
coverage under COBRA) until the earlier of 1) December 31, 2006, or 2) such
time as Executive’s coverage for medical and insurance benefits at a subsequent
employer become fully effective as to Executive and his currently insured
dependents.


 


(c)                                  Company
Equity. On the Employment Resignation Date, the Company shall issue to
Executive 2,500,000 shares of the Company’s Common Stock, subject to the representations
set forth in Section 3. The Common Stock will be issued as a private
placement pursuant to an exemption from registration under federal or state
securities laws, and will be deemed restricted securities subject to
restrictions on transfer pursuant to applicable federal and state securities
laws.


 


(d)                                 Additional
Payment. In lieu of additional amounts under the Employment Agreement, the
Company shall pay Executive $60,000, less required withholdings, in a single
lump-sum payment on the Employment Resignation Date.


 


(e)                                  Accrued
Vacation. On the Employment Resignation Date, the Company shall pay
Executive for all accrued vacation days, which calculation shall be determined
by the policies the Company has in place for such payments as of the Effective
Date.


 


(f)                                    Expenses.
The Company agrees to reimburse Executive within 15 days of the Employment Resignation
Date for all ordinary and necessary expenses incurred by Executive on behalf of
the Company in the normal course of performing his duties, provided that
Executive provides reasonable documentation to the Company of such expenses
consistent with the Company’s standard expense reimbursement policies.


 


3.                                       Representations
of Executive Regarding Investor Status. In consideration for Company granting
to Executive shares of the Company’s Common Stock pursuant to Section 2(c),
Executive makes the following representations:


 


(a)                                  Investment Purpose. The Company’s Common Stock is being
acquired for investment only and for the Executive’s own account and not with a
view to, or for sale in connection with, the distribution thereof, nor with any
present intention of distributing or selling any of the Company Common Stock.


 


(b)                                 Relationship; Access to Information. As a current officer and former director of
the Company, Executive has an existing business relationship with the Company. Executive
acknowledges that he has had an opportunity to discuss the Company’s business,
management and financial affairs with its management. Executive has received
and reviewed information about the Company which is pertinent to making an
informed investment decision and has had the opportunity to ask questions of,
and receive answers from, the Company and management regarding the terms and
conditions of the grant of Company Common Stock. In addition, Executive acknowledges
that he has the capacity to protect his own interests with respect to the grant
of Company Common Stock.


 


(c)                                  Reliance
on Exemptions. The Executive
understands that the Company Common Stock is being offered and sold to him in
reliance upon specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is


 


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relying upon the truth and accuracy of, and
the Executive’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Executive set forth herein in order
to determine the availability of such exemptions and the eligibility of the Executive
to acquire the Company Common Stock.


 


(d)                                 Accredited
Investor Status. The Executive is
an “accredited investor” within the meaning of SEC Rule 501 of Regulation
D, as presently in effect.


 


(e)                                  Transfer.
The Executive understands and agrees
that the Company Common Stock may not be offered or transferred in any
manner unless (a) the Company Common Stock is subsequently registered
under the Securities Act and any applicable state securities laws, (b) an
opinion of counsel reasonably satisfactory to the Company has been rendered
stating that such offer or transfer will not violate any applicable federal or
state securities laws, or (c) such sale is made in compliance with all of
the requirements of Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act.


 


(f)                                    Legends.
The Executive understands and agrees that in addition to any other restrictive
legend which may be imposed on the certificate, the certificate evidencing
the Company Common Stock will bear a legend in substantially the following form:


 


“THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT
BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS MAY BE
AUTHORIZED UNDER THE SECURITIES ACT OF 1933, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER.”


 


(g)                                 Representations.
The representations which the Executive has made herein are true and correct on
the date hereof and the Executive understands that the Company will be relying
on representations made herein in determining whether the offering is exempt
from registration under the Securities Act and under applicable state
securities laws. Should any such information change prior to the issuance of
the Company Common Stock to the Executive, the Executive agrees immediately to
provide the Company with a written notice setting forth the corrected
information.


 


4.                                       Publicity.
The parties agree, as part of the Agreement, to mutual non-disparagement
provisions. Each party agrees that it or he will not disparage or talk
negatively about the other party to anyone. Neither party shall make any public
announcement relating to the transactions contemplated by this Agreement
without the prior written consent of the other party which shall not be
unreasonably withheld; provided, however, that the Company may make such
public disclosures concerning these matters as may be required under the
applicable securities laws, including without limitation, the filing of this
Agreement as an exhibit to the Company’s filings under the Securities
Exchange Act of 1934, as amended.


 


5.                                       General
Release.


 


(a)                                  Release
by Executive. In exchange for the consideration provided to Executive as
set forth above and except for the rights granted to Executive under this
Agreement or


 


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rights as a stockholder of the Company, Executive agrees to waive and
release all claims, known and unknown, which he has or might otherwise have had
against the Company on behalf of itself and its parent, subsidiaries and
related entities and their past and present officers, directors, agents,
employees, stockholders, insurers, attorneys and successors, arising prior to
the Effective Date, including, without limitation, all claims relating in any
way to any aspect of his employment, compensation, or the cessation of his
employment with the Company, the Age Discrimination in Employment Act of 1967,
the Americans with Disabilities Act of 1990, Title VII of the Civil Rights
Act of 1964, 42 U.S.C. section 1981, the Fair Labor Standards Act, the
California Fair Employment and Housing Act, California Government Code section 12900,
et  seq., the Unruh Civil Rights Act, California Civil Code section 51,
all provisions of the California Labor Code; the Employee Retirement Income
Security Act, 29 U.S.C. section 1001, et  seq., all as
amended; any other federal, state or local law, regulation or ordinance or
public policy, contract, tort or property law theory, or any other cause of
action whatsoever that arose on or before the date Executive executes this
Agreement.


 


(b)                                 Release
by Company. The Company, on behalf of itself and its parent, subsidiaries,
and related entities and their past and present officers and directors, agrees
to waive and release all claims which it may have against Executive, whether
known or unknown, suspected or unsuspected, that arose on or before the
Effective Date, including without limitation, all claims regarding any aspect
of Executive’s employment, the cessation of his employment, any other federal,
state or local law, regulation or ordinance or public policy, contract, tort or
property law theory, or any other cause of action whatsoever.


 


(c)                                  Unknown
Claims. It is further understood and agreed that as a condition of this
Agreement, all rights under Section 1542 of the Civil Code of the State of
California are expressly waived by the Company and Executive. Such Section reads
as follows:


 


“A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the time
of executing the release, which if known by him must have materially affected
his settlement with the debtor.”


 


Notwithstanding Section 1542,
and for the purpose of implementing a full and complete release and discharge
of each party, the other party expressly acknowledges that this general release
is intended to include and does include in its effect, without limitation, all
claims which the other party does not know or suspect to exist in his or its
favor at the time of execution hereof, and that this Agreement expressly contemplates
the extinguishment of all such claims.


 


(d)                                 Discrimination.
The release in this Agreement also includes, but is not limited to, claims
arising under federal, state or local law for age, race, sex or other forms of
employment discrimination and retaliation. In accordance with the Older Workers
Benefit Protection Act, Executive hereby knowingly and voluntarily waives and
releases all rights and claims, known or unknown, arising under the Age
Discrimination in Employment Act of 1967, as amended, which he might otherwise
have had against the Company. Executive is hereby advised that he should
consult with an attorney before signing this Agreement and that he has 21 days
in which to consider and accept this Agreement by signing and returning this
Agreement to the Company. In addition, Executive has a period of seven days
following his execution of this Agreement in which he may revoke this
Agreement. If Executive does not advise the Company by a writing received by
the


 


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Company within such seven day period of his intent to revoke the
Agreement, the Agreement will become effective and enforceable.


 


6.                                       Confidential Information. Executive
shall hold all Confidential Information relating to the Company in strict
confidence and shall not use, disclose or otherwise communicate the
Confidential Information to anyone other than the Company without the prior
written consent of the Company. “Confidential Information” includes, without
limitation, financial information, trade secrets, business plans, business
methods or practices, market studies, customer lists, referral lists and other
proprietary business information of the Company. “Confidential Information”
shall not include information which is or becomes in the public domain through
no action by Executive or information which is generally disclosed by the
Company to third parties without restrictions on such third parties. Executive
shall return all Confidential Information to the Company upon the Employment Resignation
Date.


 


7.                                       Solicitation of Customers and Employees.
For a period after the Employment Resignation Date equal to one (1) year,
Executive shall not influence or attempt to influence, directly or indirectly,
any customer of the Company to divert its business away from the Company. In
connection with the foregoing, the parties acknowledge that the customer lists
of the Company and information retained by the Company regarding such customers
constitute Confidential Information and trade secrets of the Company that
provide the Company with independent economic value. In addition, for a period
after the Employment Resignation Date equal to one (1) year, Executive
shall not, directly or indirectly, solicit or encourage for hire any employee
of the Company; provided, that this restriction shall not apply to (i) general
advertisements or other general solicitations not specifically directed to
employees of the Company, (ii) employment resulting from unsolicited
contacts from employees of the Company, or (iii) employees who have been
terminated by the Company.


 


8.                                       Non-Competition. For any period of
time beyond the Employment Resignation Date that Executive continues to receive
any payments or benefits under this Agreement, Executive shall not, directly or
indirectly, in any capacity:


 


(a)                                  Engage,
own or have any interest in;


 


(b)                                 Manage,
operate, join, participate in, accept employment with, render advice to, or
become interested in or be connected with;


 


(c)                                  Furnish
consultation or advice to; or


 


(d)                                 Permit his name to be used in connection
with;


 


any person or entity that
competes with the business of the Company. Notwithstanding the foregoing,
holding five percent (5%) or less of an interest in the equity, stock options
or debt of any publicly traded company shall not be considered a violation of
this Section 8.


 


9.                                       Miscellaneous Provisions.


 


(a)                                  Notices. Any notice given hereunder to the Company or to Executive shall be
deemed sufficiently given if mailed by registered or certified mail, return
receipt requested, postage prepaid, or sent by overnight delivery service, by
facsimile or by Email as follows:


 


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If to the Company:


 


DynTek, Inc.


19700 Fairchild Road, Suite 350


Irvine, CA  92612


Attention: Chief Executive
Officer


Facsimile number: (949) 271-0800


Email address: casper.zublin@dyntek.com


 


If to Executive:


 


Robert I. Webber


c/o Maui Land & Pineapple, Inc.


120 Kane Street


Kahului, Maui, Hawaii, 96733


Facsimile number: (808) 871-0953


Email address: riwebber@aol.com


 


(b)                                 Governing
Law. This Agreement is made under and shall be governed by and construed in
accordance with the laws of the State of California.


 


(c)                                  Assignment.
Neither this Agreement nor any duties or obligations under this Agreement may be
assigned by either party without the prior written consent of the other party;
provided, however, that the Company may assign this Agreement in
connection with any sale or transfer of the business to which it relates,
whether by merger, sale of assets, sale of stock or otherwise.


 


(d)                                 Attorneys’
Fees. If any action is brought to enforce or interpret the provisions of
this Agreement, the prevailing party in such action will be entitled to its
reasonable attorneys’ fees and costs incurred, in addition to any other relief
to which such party may be entitled.


 


(e)                                  Waiver
of Breach. The waiver of either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach of this Agreement.


 


(f)                                    Severability.
To the extent any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of
such provision and of this Agreement shall be unaffected and shall continue in
full force and effect. In furtherance and not in limitation of the foregoing,
should the duration or scope of any provision covered by any provision of this
Agreement be in excess of that which is valid and enforceable under applicable
law, then such provision shall be construed to cover only the maximum duration
or extent that may validly and enforceably be covered under applicable
law.


 


(g)                                 Authority.
Each of the Company and Executive warrants and represents that it or he is
authorized to execute and deliver this Agreement.


 


(h)                                 Further
Assurances. Each party agrees to execute such other and further instruments
and documents as may be necessary or proper in order to complete the
transactions contemplated by this Agreement.


 


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(i)                                     Amendments.
No amendment or modification of this Agreement shall be deemed effective unless
made in writing signed by the parties hereto.


 


(j)                                     Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


(k)                                  Integration.
Executive and the Company agree that this Agreement is the sole agreement
between them regarding the subject matter herein and embodies all terms,
promises, representations, and understanding regarding the subject matter
herein, and that no representations, inducements, or promises have been made
except as expressly stated herein.


 


(l)                                     Interpretation.
This Agreement shall not be construed against any party merely because that
party drafted or revised the provision in question, and it shall not be
construed as an admission by the Company or Executive of any improper,
wrongful, or unlawful actions, or any other wrongdoing against the other, and
each party specifically disclaims any liability to or wrongful acts against the
other.


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date and year set forth below.


 


 


	
   

  	
  DYNTEK , INC.,
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date: 03/31/06

  	
   

  
	
   

  	
  By:

  	
  \s\ Casper
  Zublin, Jr.

  	
   

  
	
   

  	
   

  	
  Casper Zublin,
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROBERT I. WEBBER

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date: 03/31/06

  	
   

  
	
   

  	
   

  	
  \s\ Robert I.
  Webber

  	
   

  
						



 


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