EXHIBIT 10.5
RELEASE
This RELEASE (this "Release") is being executed and delivered by the
undersigned (the "Releasing Party"), in accordance with that certain Stock
Purchase and Settlement Agreement dated August 20, 2002 (the "Agreement").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
in order to induce DynCorp to consummate the transactions contemplated by the
Agreement, the Releasing Party hereby agrees as follows:
1. The Releasing Party acknowledges that execution and delivery of this
Release is a condition to DynCorp's obligation to perform its obligations
pursuant to the Agreement and that each of DynCorp is relying on this Release in
consummating the transactions contemplated by the Agreement.
2. The Releasing Party hereby releases and forever discharges DynCorp
,each of its affiliates, and each of its and its affiliates' stockholders,
partners, controlling persons, successors and assigns (individually, a "Released
Party" and collectively, "Released Parties") from any and all claims, demands,
proceedings, causes of action, orders, obligations, contracts, agreements, debts
and liabilities whatsoever, whether known or unknown, fixed or contingent, both
at law and in equity, which the Releasing Party now has, has ever had or may
hereafter have against the respective Released Parties arising on account of or
arising out of any matter, cause or event occurring prior to date hereof (the
"Claims"), except for any Claims arising out of, or in connection with the
Agreement and the Exhibits thereto, or the provisions of that certain Agreement
and Plan of Reorganization between the undersigned and DynCorp dated April 25,
2001 that are identified in Section 7 of the Agreement (as and to the extent
provided for in the Agreement), (after giving effect to such exceptions, the
"Released Claims").
3. The Releasing Party hereby irrevocably covenants to refrain from,
directly or indirectly, asserting any Released Claim, or commencing, instituting
or causing to be commenced, any proceeding of any kind against any Released
Party, based upon any matter purported to be released hereby.
4. Without in any way limiting any of the rights and remedies otherwise
available to any Released Party, the Releasing Party shall indemnify and hold
harmless each Released Party from and against all loss, liability, claim, damage
or expense (including reasonable costs of investigation and defense and
reasonable attorney's fees) whether or not involving third party claims, arising
directly or indirectly from or in connection with (i) the assertion by or on
behalf of the Released Party of any Released Claim or other matter purported to
be released pursuant to this Release, and (ii) the assertion by any third party
of any claim or demand against any Released Party which claim or demand arises
directly or indirectly from, or in connection with, any assertion by or on
behalf of the Releasing Party against such third party of any claims or other
matters purported to be released pursuant to this Release.
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5. This Release shall be governed by and construed in accordance with
the internal laws of the Commonwealth of Virginia applicable to agreements made
and to be performed entirely within the Commonwealth of Virginia without regard
to principles of conflicts of law. The Releasing Party irrevocably submits to
the exclusive jurisdiction of the state courts of the Commonwealth of Virginia
located in Arlington, Virginia or the United States Federal District Court
located in the Eastern District of Virginia for the purposes of any suit, action
or other proceeding arising out of this Release. The Releasing Party further
agrees that service of any process, summons, notice or document by U.S.
registered mail to the Releasing Party's address set forth in Section 11.3 of
the Agreement shall be effective service of process for any action, suit or
proceeding in the Commonwealth of Virginia with respect to any matters to which
it has submitted to jurisdiction as set forth above in the immediately preceding
sentence. The Releasing Party irrevocably and unconditionally waives the right
to trial by jury and any objection to the laying of venue of any action, suit or
proceeding arising out of this Release in any such court and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in such court has
been brought in an inconvenient forum.
6. If any term or provision specified herein is held by a court of
competent jurisdiction to be in violation of any applicable local, state or
federal ordinance, statute, law, administrative or judicial decision, or public
policy, and if such court should declare such term or provision to be illegal,
invalid, unlawful, void, voidable, or unenforceable as written, then such
provision shall be given full force and effect to the fullest possible extent
that it is legal, valid and enforceable, and the remainder of the terms and
provisions herein shall be construed as if such illegal, invalid, unlawful,
void, voidable or unenforceable term or provision was not contained herein, but
only to the extent that giving effect to such provision and the remainder of the
terms and provisions hereof shall be in accordance with the intent of the
parties as reflected in this Release.
7. This Release may not be amended or waived except in a writing signed
by the person against whose interest such amendment or waiver shall operate.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Release as of this 20th day of August, 2002.
DYNTEK, INC.
By: /s/ James Linesch
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Name: James Linesch
Title: Chief Financial Officer
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