**Exhibit 10.3**

 

**NOTE PURCHASE AGREEMENT**

 

**between**

 

**DYNTEK, INC.**

 

**and**

 

**THE PURCHASERS NAMED IN SCHEDULE I**

 

**Dated as of October 26, 2005**

 

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| **INDEX TO SCHEDULES** |
|------------------------|
|                   |
| SCHEDULE I        |   | Schedule of Purchasers |
| SCHEDULE II       |   | Disclosure Schedule |
|                   |
| **INDEX TO EXHIBITS**  |
|                   |
| EXHIBIT A         |   | Form of Note |
| EXHIBIT B         |   | Form of Stock Purchase Warrant |
| EXHIBIT C         |   | Form of Security and Pledge Agreement |
|                        |  |  |  |  |

 

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**NOTEPURCHASE AGREEMENT**,dated as of October 26, 2005, between DynTek, Inc., a Delawarecorporation (the “Company”), and the purchasers named in the attached Schedule I(individually a “Purchaser” and collectively the “Purchasers”).

 

**WHEREAS**, the Company wishes to issue and sell tothe Purchasers up to an aggregate of $2,500,000 in principal amount of itspromissory notes, together with stock purchase warrants exercisable for sharesof capital stock of the Company; and

 

**WHEREAS**, the Purchasers, severally, wish topurchase the notes and warrants on the terms and subject to the conditions setforth in this Agreement;

 

**NOW,THEREFORE**, inconsideration of the premises and the mutual covenants contained in thisAgreement, the parties agree as follows:

 

# **ARTICLE I**

# ** **

# **PURCHASE, SALE OF NOTES AND TERMS OF NOTES ANDWARRANTS**

# ** **

## **SECTION 1.01.    The Notes**. The Company has authorized the issuance and sale to the Purchasers, inthe respective amounts set forth in the Schedule of Purchasers attachedhereto, of the Company’s Secured Promissory Notes, due December 31, 2006,in the original aggregate principal amount of up to $2,500,000.  The Notes shall be substantially in the formset forth in Exhibit A hereto and are herein referred toindividually as a “Note” and collectively as the “Notes,” which terms shallalso include any notes delivered in exchange or replacement therefor.

##  

## **SECTION 1.02.    The Warrants**. The Company, in return for the commitment of the Purchasers to purchasethe Notes, has also authorized the issuance to the Purchasers of the Company’sStock Purchase Warrants (the “Warrants”) for the purchase (subject toadjustment as provided in the Warrants) of 1,000,000 shares of the Company’scommon stock (“Common Stock”) as set forth in the Warrants.  The Warrants shall be substantially in theform set forth in Exhibit B hereto and are herein referred toindividually as a “Warrant” and collectively as the “Warrants”, which termsshall also include any warrants delivered in exchange or replacement therefor.

##  

## **SECTION 1.03.    Purchase and Sale of Notes**. The Company agrees to issue and sell to the Purchasers, and, subject toand in reliance upon the representations, warranties, terms and conditions ofthis Agreement, the Purchasers, severally and not jointly, agree to purchase,the Notes set forth opposite their respective names in the Schedule ofPurchasers attached as Schedule I for the aggregate purchase priceset forth therein.  The closing of suchpurchase and sale (the “Closing”) shall be held at the office of [           ],on October 26, 2005 at 10:00 A.M., Los Angeles time, or on such otherdate and at such time as may be mutually agreed upon.  At the Closing, the Company will issue anddeliver to each Purchaser one Note, payable to the order of such Purchaser, inthe principal amount set forth opposite such Purchaser’s name in the Schedule ofPurchasers attached as Schedule I, and one Warrant, registered in thename of such Purchaser, exercisable for shares of Common Stock as providedtherein, against (i) delivery to the Company of a check payable to theorder of the Company, in the amount set forth opposite

 

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## the name of such Purchaser under the heading “Aggregate Purchase Pricefor Notes and Warrants” on Schedule I, (ii) transference of such sumto the account of the Company by wire transfer, or (iii) delivery ortransference of such sum to the Company by any combination of such methods ofpayment.

##  

## **SECTION 1.04.    Payments and Endorsements**. Payments of principal and interest on the Notes shall be made directlyby check duly mailed or delivered to the Purchasers at their addresses referredto in the Schedule of Purchasers attached as Schedule I ormade to the account of the Purchaser by wire transfer referred to in the Schedule ofPurchasers attached as Schedule I or indicated in any noticedelivered by a Purchaser to the Company, without any presentment or notation ofpayment, except that prior to any transfer of any Note, the holder of recordshall endorse on such Note a record of the date to which interest has been paidand all payments made on account of principal of such Note.

##  

## **SECTION 1.05.    Redemptions of Notes**.

##  

### **(a)           RequiredRedemptions**.  On the earlier of: (i) the statedmaturity date of the Notes, (ii) the accelerated maturity date of theNotes upon any Event of Default, or (iii) the closing of a rights offeringin an aggregate amount of approximately $15,000,000 (the “Rights Offering”),the Company will pay the principal amount of the Notes then outstandingtogether with all accrued and unpaid interest then due thereon. Additionally,the Company shall use all of the proceeds of any other sale of the Company’scapital stock to pay a portion or all of the principal amount of the Notes thenoutstanding together with all accrued and unpaid interest then due thereon.

###  

### **(b)           OptionalRedemptions**.  The Notes may be voluntarily prepaid, withoutany penalty or premium, at any time.

###  

### **(c)           ProRata Redemptions**.  Each redemption of Notes shall be made to theholders of the Notes in the same ratio as the total principal amount of Notesthen held by such holder bears to the aggregate principal amount of the Notesthen outstanding.

###  

## **SECTION 1.06.    Payment on Non-Business Days**. Whenever any payment to be made shall be due on a Saturday, Sunday or apublic holiday under the laws of the State of California, such payment may bemade on the next succeeding business day, and such extension of time shall insuch case be included in the computation of payment of interest due.

##  

## **SECTION 1.07.    Registration of Notes, etc**. The Company shall maintain at its principal office a register of theNotes and shall record therein the names and addresses of the registeredholders of the Notes, the address to which notices are to be sent and theaddress to which payments are to be made as designated by the registered holderif other than the address of the holder, and the particulars of all transfers,exchanges and replacements of Notes.  Notransfer of a Note shall be valid unless made on such register for theregistered holder or his executors or administrators or his or their dulyappointed attorney, upon surrender therefor for exchange as hereinafterprovided, accompanied by an instrument in writing, in form and executionreasonably satisfactory to the Company. Each Note issued hereunder, whether originally or upon transfer,

 

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## exchange or replacement of a Note or Notes, shall be registered on thedate of execution thereof by the Company and shall be dated the date to whichinterest has been paid on such Notes or Note. The registered holder of a Note shall be that person in whose name theNote has been so registered by the Company. A registered holder shall be deemed the owner of a Note for all purposesof this Agreement and, subject to the provisions hereof, shall be entitled tothe principal and interest evidenced by such Note free from all equities orrights of setoff or counterclaim between the Company and the transferor of suchregistered holder or any previous registered holder of such Note.

##  

## **SECTION 1.08.    Transfer and Exchange of Notes**. The registered holder of any Note or Notes may, prior to maturity orprepayment thereof, surrender such Note or Notes at the principal office of theCompany for transfer or exchange; *provided,however*, the registered holder of any Note or Notes shall nottransfer any such Note (a) to any person or entity which is not an “accreditedinvestor” within the meaning of Rule 501 under the Securities Act of 1933,as amended (the “Securities Act”) or (b) so long as no Event of Defaulthas occurred, without the consent of the Company, which consent shall not beunreasonably withheld.  Within areasonable time after notice to the Company from a registered holder of itsintention to make such exchange and without expense (other than transfer taxes,if any) to such registered holder, subject to the Company’s consent if such consentis required by this Section 1.08, the Company shall issue in exchangetherefor another Note or Notes, in such denominations as requested by theregistered holder, for the same aggregate principal amount as the unpaidprincipal amount of the Note or Notes so surrendered and having the samematurity and rate of interest, containing the same provisions and subject tothe same terms and conditions as the Note or Notes so surrendered.  Each new Note shall be made payable to suchperson or persons, or registered assigns, as the registered holder of suchsurrendered Note or Notes may designate, and such transfer or exchange shall bemade in such a manner that no gain or loss of principal or interest shallresult therefrom.

##  

## **SECTION 1.09.    Replacement of Notes**. Upon receipt of evidence satisfactory to the Company of the loss, theft,destruction or mutilation of any Note and, if requested in the case of any suchloss, theft or destruction, upon delivery of an indemnity bond or otheragreement or security reasonably satisfactory to the Company, or, in the caseof any such mutilation, upon surrender and cancellation of such Note, theCompany will issue a new Note, of like tenor and amount and dated the date towhich interest has been paid, in lieu of such lost, stolen, destroyed ormutilated Note; provided, however, if any Note of which aPurchaser whose name is set forth in the Schedule of Purchasers attachedas Schedule I, its nominee, or any of its partners is theregistered holder is lost, stolen or destroyed, the affidavit of the President,Treasurer or any Assistant Treasurer or any other authorized representative ofthe registered holder setting forth the circumstances with respect to suchloss, theft or destruction shall be accepted as satisfactory evidence thereof,and no indemnification bond or other security shall be required as a conditionto the execution and delivery by the Company of a new Note in replacement ofsuch lost, stolen or destroyed Note other than the registered holder’s writtenagreement to indemnify the Company.

##  

## **SECTION 1.10.    Events of Default**. If any of the following events (“Events of Default”) shall occur and becontinuing:

 

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### **(a)          **The Company shall fail to pay anyinstallment of principal of, or interest due on, any of the Notes within five (5) daysof when due; or

###  

### **(b)          **Any material representation or warrantymade by the Company in this Agreement or the Security and Pledge Agreement (ashereinafter defined), or by the Company (or any officers of the Company) in anycertificate, instrument or written statement contemplated by or made ordelivered pursuant to or in connection with this Agreement or the Security andPledge Agreement shall prove to have been incorrect when made in any materialrespect; or

###  

### **(c)          **The Company shall fail to perform orobserve any other material term, covenant or agreement contained in thisAgreement, the Security and Pledge Agreement, the Notes, the Warrants, or anyagreement executed and delivered by the Company in connection with thisAgreement or the Security and Pledge Agreement on its part to be performed orobserved and any such failure remains unremedied for ten (10) businessdays after written notice thereof shall have been given to the Company by anyregistered holder of the Notes; or

###  

### **(d)          **The Company shall fail to pay anyindebtedness in excess of an aggregate of $100,000 for borrowed money (otherthan as evidenced by the Notes) owing by the Company, or any interest orpremium thereon, when due (or, if permitted by the terms of the relevantdocument, within any applicable grace period), whether such indebtedness shallbecome due by scheduled maturity, by required prepayment, by acceleration, bydemand or otherwise, or shall fail to perform any term, covenant or agreementon its part to be performed under any agreement or instrument evidencing orsecuring or relating to any indebtedness in excess of an aggregate of $100,000owing by the Company when required to be performed (or, if permitted by theterms of the relevant document, within any applicable grace period), if theeffect of such failure to pay or perform is to accelerate, or to permit theholder or holders of such indebtedness, or the trustee or trustees under anysuch agreement or instrument to accelerate, the maturity of such indebtedness,unless such failure to pay or perform shall be waived by the holder or holdersof such indebtedness or such trustee or trustees; or

###  

### **(e)          **The Company shall be involved infinancial difficulties as evidenced (i) by its admitting in writing itsinability to pay its debts generally as they become due; (ii) by itscommencement of a voluntary case under Title 11 of the United States Code asfrom time to time in effect, or by its authorizing, by appropriate proceedingsof its Board of Directors or other governing body, the commencement of such avoluntary case which is not dismissed within sixty (60) days; (iii) by itsfiling an answer or other pleading admitting or failing to deny the materialallegations of a petition filed against it commencing an involuntary case undersaid Title 11, or seeking, consenting to or acquiescing in the relief thereinprovided, or by its failing to controvert timely the material allegations ofany such petition; (iv) by the entry of an order for relief in anyinvoluntary case commenced under said Title 11; (v) by its seeking reliefas a debtor under any applicable law, other than said Title 11, of anyjurisdiction relating to the liquidation or reorganization of debtors or to themodification or alteration of the rights of creditors, or by its consenting toor acquiescing in such relief; (vi) by the entry of an order by a court ofcompetent jurisdiction (a) finding it to be bankrupt or insolvent, (b) orderingor approving its liquidation, reorganization or any modification or alterationof the rights of its creditors, or (c) assuming custody of, or appointinga receiver or other custodian for, all or a substantial part of its property;

 

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### or (vii) byits making an assignment for the benefit of, or entering into a compositionwith, its creditors, or appointing or consenting to the appointment of areceiver or other custodian for all or a substantial part of its property; or

###  

### **(f)           **Any judgment, writ, warrant of attachmentor execution or similar process shall be issued or levied against a substantialpart of the property of the Company and such judgment, writ, or similar processshall not be released, vacated or fully bonded within sixty (60) days after itsissue or levy;

###  

then,and in any such event, any holder of any Note may, by notice to the Company,declare the entire unpaid principal amount of the Notes, all interest accruedand unpaid thereon and all other amounts payable under this Agreement to be forthwithdue and payable, whereupon the Notes, all such accrued interest and all suchamounts shall become and be forthwith due and payable (unless there shall haveoccurred an Event of Default under subsection 1.10(e) in which caseall such amounts shall automatically become due and payable), withoutpresentment, demand, protest or further notice of any kind, all of which arehereby expressly waived by the Company.

 

# **ARTICLE II**

# ** **

# **REPRESENTATIONS AND WARRANTIES OF THE COMPANY**

# ** **

TheCompany represents and warrants to the Purchasers that, as of the Closing andexcept as set forth in the Disclosure Schedule attached as Schedule II(which Disclosure Schedule makes explicit reference to the particularrepresentation or warranty as to which exception is taken, which in each caseshall constitute the sole representation and warranty as to which suchexception shall apply):

 

## **SECTION 2.01.    Organization, Qualifications andCorporate Power**.

##  

### **(a)          **The Company is a corporation dulyincorporated, validly existing and in good standing under the laws of the Stateof Delaware and is duly licensed or qualified to transact business as a foreigncorporation and is in good standing in each jurisdiction in which the nature ofthe business transacted by it or the character of the properties owned orleased by it requires such licensing or qualification, except where the failureto be so licensed or qualified does not have a material adverse effect on theCompany’s business or financial condition. The Company has the corporate power and authority to own and hold itsproperties and to carry on its business as now conducted and as proposed to beconducted, to execute, deliver and perform this Agreement and the Security andPledge Agreement, to issue, sell and deliver the Notes and Warrants and toissue and deliver the shares of Common Stock issuable upon exercise of theWarrants (the “Warrant Shares”).

###  

### **(b)          **The Company has no subsidiaries, otherthan as set forth on Schedule II. The Company does not (i) ownof record or beneficially, directly or indirectly, (A) any shares ofcapital stock or securities convertible into capital stock of any othercorporation or (B) any participating interest in any partnership, jointventure or other non-corporate business enterprise or (ii) control,directly or indirectly, any other entity, other than as set forth on Schedule II.

 

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## **SECTION 2.02.    Authorization of Agreements, Etc**.

##  

### **(a)          **The execution and delivery by the Companyof this Agreement and the Security and Pledge Agreement, the performance by theCompany of its obligations hereunder and thereunder, the issuance, sale anddelivery of the Notes and Warrants have been duly authorized by all requisitecorporate action and will not (i) violate any provision of law, any orderof any court or other agency of government, (ii) violate the Certificateof Incorporation or the By-laws of the Company, as amended, (iii) violateany provision of any indenture, agreement or other instrument to which theCompany or any of its properties or assets is bound, (iv) conflict with,result in a breach of or constitute (with due notice or lapse of time or both)a default under any such indenture, agreement or other instrument, or (v) resultin the creation or imposition of any lien, charge, restriction, claim orencumbrance of any nature whatsoever upon any of the properties or assets ofthe Company, except in the case of clauses (i), (iii), (iv) and (v), aswould not have a material adverse effect on the Company.

###  

### **(b)          **The Notes and Warrants have been dulyauthorized and, when issued in accordance with this Agreement, will be free andclear of all liens, charges, restrictions, claims and encumbrances imposed byor through the Company.  The shares ofCommon Stock issuable upon exercise of the Warrants will be duly reserved forissuance upon exercise of the Warrants and, when so issued, will be dulyauthorized, validly issued, fully paid and nonassessable shares of CommonStock, and will be free and clear of all liens, charges, restrictions, claimsand encumbrances imposed by or through the Company, except for transferrestrictions imposed by applicable securities laws.  Except as set forth on Schedule II,neither the issuance, sale or delivery of the Notes and Warrants nor theissuance or delivery of the Warrant Shares is subject to any preemptive rightof shareholders of the Company or to any right of first refusal or other rightin favor of any person.

 

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## **SECTION 2.03.    Validity**. This Agreement, the Security and Pledge Agreement, the Notes and theWarrants have been duly executed and delivered by the Company and constitutethe legal, valid and binding obligations of the Company, enforceable inaccordance with their terms.

##  

## **SECTION 2.04.    Authorized Capital Stock**. The authorized capital stock of the Company consists of 150,000,000shares of Common Stock, $.0001 par value per share, and 10,000,000 shares ofpreferred stock, $.0001 par value per share (“Preferred Stock”).  As of October 24, 2005, 81,164,636shares of Common Stock and no shares of Preferred Stock, were validly issuedand outstanding, fully paid and nonassessable. Except as disclosed in SEC Reports (as defined below), there are nooptions, warrants and convertible securities of the Company, and any otherrights to acquire securities of the Company. All outstanding securities of the Company are validly issued, fully paidand nonassessable.  No stockholder of theCompany is entitled to any preemptive rights with respect to the purchase of orsale of any securities of any securities by the Company.

##  

## **SECTION 2.05.    SEC Filings, Other Filings and RegulatoryCompliance**.  Since January 1, 2002, the Company hastimely made all filings required to be made by it under the Securities ExchangeAct of 1934, as amended (the “Exchange Act”). The Company has delivered or made accessible to the Investors true,accurate and complete copies of (a) the Company’s Annual Report on Form 10-Kfor the fiscal year ended June 30, 2005, (b) the Company’s QuarterlyReport on Form 10-Q for the fiscal quarter ended September 30, 2005, (c) theCompany’s definitive proxy statement dated April 26, 2005 relating to itsAnnual Meeting of Stockholders, and (d) all the Company’s Current Reportson Form 8-K filed since July 1, 2005 (the “SEC Reports”).  The SEC Reports when filed, complied in allmaterial respects with all applicable requirements of the Exchange Act and theSarbanes-Oxley Act of 2002, if and to the extent applicable, and the rules andregulations of the Securities and Exchange Commission (the “SEC”) thereunderapplicable to the SEC Reports.  None ofthe SEC Reports, at the time of filing, contained any untrue statement of amaterial fact or omitted to state a material fact required to be stated thereinor necessary in order to make the statements therein not misleading in light ofthe circumstances in which they were made. The Company has taken, or will have taken prior to the Closing, allnecessary actions to maintain eligibility of its Common Stock for trading on,OCT Bulletin Board under all currently effective inclusion requirements.  Each balance sheet included in the SECReports (including any related notes and schedules) fairly presents in allmaterial respects the consolidated financial position of the Company as of itsdate, and each of the other financial statements included in the SEC Reports(including any related notes and schedules) fairly presents in all materialrespect the consolidated results of operations of the Company for the periods oras of the dates therein set forth in accordance with generally acceptedaccounting principles (“GAAP”) consistently applied during the periods or as aresult of year end adjustments and except as otherwise stated therein).  Such financial statements included in the SECReports were, at the time they were filed, consistent with the books andrecords of the Company in all material respects and complied as to form in allmaterial respects with then applicable accounting requirements and with the rules andregulations of the SEC with respect thereto. The Company keeps accounting records in which all material assets andliabilities, and all material transactions, including off-balance sheettransactions, of the Company are recorded in accordance with GAAP.

 

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## **SECTION 2.06.    Governmental Approvals**. Subject to the accuracy of the representations and warranties of thePurchasers set forth in Article III, no registration or filing with, orconsent or approval of or other action by, any federal, state or othergovernmental agency or instrumentality is or will be necessary for the validexecution, delivery and performance by the Company of this Agreement, theissuance, sale and delivery of the Notes or Warrants or, upon exercise thereof,the issuance and delivery of the Warrant Shares, other than filings pursuant tostate securities laws (all of which filings have been made by the Company,other than those which are required or permitted to be made after the Closing andwhich will be duly made on a timely basis) in connection with the sale of theNotes and Warrants.

##  

## **SECTION 2.07.    Offering of the Notes and Warrants**. Neither the Company nor any person authorized or employed by the Companyas agent, broker, dealer or otherwise in connection with the offering or saleof the Notes and Warrants or any security of the Company similar to the Notesand Warrants has offered the Notes and Warrants or any such similar securityfor sale to, or solicited any offer to buy the Notes and Warrants or any suchsimilar security from, or otherwise approached or negotiated with respectthereto with, any person or persons, and neither the Company nor any personacting on its behalf has taken or will take any other action (including,without limitation, any offer, issuance or sale of any security of the Companyunder circumstances which might require the integration of offers or sales ofsuch security with the offer and sale of the Notes and Warrants under theSecurities Act or the rules and regulations of the SEC thereunder), ineither case so as to subject the offering, issuance or sale of the Notes andWarrants to the registration provisions of the Securities Act.

##  

## **SECTION 2.08.    Material Changes**. Except as set forth in Schedule II attached hereto, since June 30,2005, there has not been (i) any direct or indirect redemption, purchaseor other acquisition by the Company of any shares of Common Stock; (ii) anydeclaration, setting aside or payment of any dividend or other distribution bythe Company with respect to Common Stock; (iii) any material liabilities(absolute, accrued or contingent) incurred or assumed by the Company, otherthan current liabilities incurred in the ordinary course of business,liabilities under contracts entered into in the ordinary course of business,purchase price payment obligations incurred in connection with the acquisitionof Red Rock Communications Solutions, Inc. and Integration Technologies, Inc.and liabilities not required to be reflected on the Company’s financialstatements pursuant to GAAP; (iv) any mortgage, pledge, security interest,encumbrance, lien or charge of any kind (including any conditional sale orother title retention agreement, any lease in the nature thereof, and thefiling of or agreement to give any financing statement under the UniformCommercial Code or comparable law of any jurisdiction in connection with suchmortgage, pledge, security interest, encumbrance, lien or charge) (each, a “Lien”)or adverse claim on any of the Company’s properties or assets, except for Liensfor taxes not yet due and payable, interest of lessors under operating capitalleases, purchase money liens, amounts deposited for security for surety bonds,Liens incurred in the ordinary course of business or Liens that are notmaterial in amount to the Company and its subsidiaries.

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## **SECTION 2.09.    Litigation**. Except as disclosed in the Schedule II attached hereto,there is no action, suit, proceeding or investigation pending or, to theCompany’s knowledge, currently threatened against the Company or any of itssubsidiaries that questions the validity of this Agreement or the right of theCompany to enter into it, or to consummate the transactions

 

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## contemplated hereby, or that could reasonably be expected to result,either individually or in the aggregate, in a material adverse effect on theCompany.  The foregoing includes, withoutlimitation, actions pending or, to the Company’s knowledge, threatenedinvolving the prior employment of any of the Company’s employees or their usein connection with the Company’s business of any information or techniquesallegedly proprietary to any of their former employers.  Neither the Company nor any of itssubsidiaries is a party to or subject to the provisions of any order, writ,injunction, judgment or decree of any court or governmental authority.  Except as disclosed in Schedule IIattached hereto, there is no action, suit, proceeding or investigation by theCompany or any of its Subsidiaries currently pending or which the Company orany of its subsidiaries currently intends to initiate, which could reasonablybe expected to have a material adverse effect.

##  

## **SECTION 2.10.    Ownership of Property; Liens**. The Company and each of its subsidiaries has good and marketable titlein fee simple, or a valid leasehold interest in, all of its real property; andgood title to, or a valid leasehold interest in, all of its other property, andnone such property is subject to any Lien except as set forth on Schedule IIattached hereto.

##  

## **SECTION 2.11.    Intellectual Property Rights**. To the best of its knowledge, the Company owns or possesses the licensesor rights to use all patents, patent applications, patent rights, inventions,know-how, trade secrets, trademarks, trademark applications, service marks,service names, trade names and copyrights necessary to enable it to conduct itsbusiness as now operated (the “Intellectual Property”).  Except as set forth in Schedule IIattached hereto, there are no material outstanding options, licenses oragreements relating to the Intellectual Property, nor is the Company bound byor a party to any material options, licenses or agreements relating to thepatents, patent applications, patent rights, inventions, know-how, tradesecrets, trademarks, trademark applications, service marks, service names,trade names or copyrights of any other person or entity.  Except as set forth in Schedule IIattached hereto, there is no claim or action or proceeding pending or, to theCompany’s knowledge, threatened that challenges the right of the Company withrespect to any Intellectual Property. Except as set forth in Schedule II attached hereto, to theknowledge of the Company, the Company’s Intellectual Property does not infringeany intellectual property rights of any other person which, if the subject ofan unfavorable decision, ruling or finding would have a material adverseeffect.

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## **SECTION 2.12.    Insurance**. The Company is insured by insurers of recognized financialresponsibility against such losses and risks and in such amounts as managementof the Company believes to be prudent and customary in the businesses in whichthe Company is engaged.

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## **SECTION 2.13.    Brokers**. The Company has no contract, arrangement or understanding with anybroker, finder or similar agent with respect to the transactions contemplatedby this Agreement.

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## **SECTION 2.14.    Non-Operational Subsidiaries**. Neither BugSolver.Com, Inc., TekInsight e-Government Services, Inc.nor TekInsight Research, Inc. operates any business nor does any suchentity own any assets.

 

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## **SECTION 2.15.    Federal Reserve Regulations**. The Company is not engaged in the business of extending credit for thepurpose of purchasing or carrying margin securities (within the meaning ofRegulation G of the Board of Governors of the Federal Reserve System), and nopart of the proceeds of the Notes or Warrants will be used to purchase or carryany margin security or to extend credit to others for the purpose of purchasingor carrying any margin security or in any other manner which would involve aviolation of any of the regulations of the Board of Governors of the FederalReserve System.

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## **SECTION 2.16.    Representations Complete**. The representations and warranties made by the Company in thisAgreement, the statements made in any certificates furnished by the Companypursuant to this Agreement, and the statements made by the Company in anydocuments mailed, delivered or furnished to the Purchasers in connection withthis Agreement, taken as a whole, do not contain and will not contain, as oftheir respective dates and as of the Closing Date, to state any material factnecessary in order to make the statements contained herein or therein, in thelight of the circumstances under which they were made, not misleading.

##  

# **ARTICLE III**

# ** **

# **REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS**

# ** **

EachPurchaser severally represents and warrants to the Company that:

 

### **(a)          **it is an “accredited investor” within themeaning of Rule 501 under the Securities Act and was not organized for thespecific purpose of acquiring the Notes or Warrants;

###  

### **(b)          **it has sufficient knowledge andexperience in investing in companies similar to the Company in terms of theCompany’s stage of development so as to be able to evaluate the risks andmerits of its investment in the Company and it is able financially to bear therisks thereof;

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### **(c)          **it has had an opportunity to discuss theCompany’s business, management and financial affairs with the Company’s management;

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### **(d)          **the Notes being purchased by it and theWarrants being issued to it are being acquired for its own account for thepurpose of investment and not with a view to or for sale in connection with anydistribution thereof;

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### **(e)          **it understands that (i) the Notesand Warrants and the Warrant Shares have not been registered under theSecurities Act, by reason of their issuance in a transaction exempt from theregistration requirements of the Securities Act pursuant to Section 4(2) thereofor Rule 505 or 506 promulgated under the Securities Act, (ii) theNotes and Warrants and, upon conversion thereof, the Warrant Shares must beheld indefinitely unless a subsequent disposition thereof is registered underthe Securities Act or is exempt from such registration, (iii) the Notesand Warrants and the Warrant Shares will bear a legend to such effect and (iv) theCompany will make a notation on its transfer books to such effect;

 

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### **(f)           **in the case of [              ].,all limited partnership action on the part of such Purchaser and its partnersnecessary for the performance of such Purchaser’s obligations under thisAgreement, the Security and Pledge Agreement and such Purchaser’s Warrant, andthe transactions contemplated hereby and thereby, will be taken prior to theClosing.  This Agreement, the Securityand Pledge Agreement and the Warrant, are valid, binding and enforceableobligations of Purchaser, subject to applicable bankruptcy, insolvency,reorganization or similar laws relating to or affecting the enforcement ofcreditor’s rights and to the availability of the remedy of specificperformance.  The Purchaser has allrequisite legal and limited partnership power to execute and deliver thisAgreement, the Security and Pledge Agreement and the Purchaser’s Warrant;

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### **(g)          **it understands that the Notes andWarrants and Warrant Shares are being offered and, in the case of the Notes andWarrant Shares, sold, to Purchaser in reliance upon specific exemptions from theregistration requirements of United States federal and state securities lawsand that the Company is relying upon the truth and accuracy of, and Purchaser’scompliance with, the representations, warranties, agreements, acknowledgmentsand understandings of Purchaser set forth herein in order to determine theavailability of such exemptions and the eligibility of Purchaser to acquire theNotes and Warrants and Warrant Shares;

###  

### **(h)          **The Company or its counsel have madeavailable all materials relating to the business, finances and operations ofthe Company and materials relating to the offer and sale of the Notes andWarrants and Warrant Shares which have been specifically requested by suchPurchaser.  Each Purchaser has beenafforded the opportunity to ask questions of the Company, was permitted to meetwith the Company’s officers and has received what such Purchaser believes to becomplete and satisfactory answers to any such inquiries.  Neither such inquiries nor any other duediligence investigation conducted by the Purchasers or any of their respectiverepresentations shall modify, amend or affect such Purchaser’s right to rely onthe Company’s representations and warranties contained herein.  Each Purchaser understands that suchPurchaser’s investment in the Securities involves a high degree of risk,including without limitation the risks and uncertainties disclosed in the  SEC Documents.  Each Purchaser acknowledges it has reviewedthe disclosures presented under the caption “Risk Factors” in the Company’s Form 10-Qsand Form 10-Ks;

###  

### **(i)           **it understands that no United Statesfederal or state agency or any other government or governmental agency haspassed upon or made any recommendation or endorsement of the Notes and Warrantsand Warrant Shares; and

###  

### **(j)           **it is a resident of the jurisdiction setforth under Purchaser’s name on Schedule I hereto.

 

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# **ARTICLE IV**

# ** **

# **CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS**

# ** **

Theobligation of each Purchaser to purchase and pay for the Notes and Warrantsbeing purchased by it on the Closing Date is, at its option, subject to thesatisfaction, on or before the Closing Date of the following conditions:

 

### **(a)           Securityand Pledge Agreement**.  A Security and PledgeAgreement, in the form attached as Exhibit C (the “Security andPledge Agreement”), and all related financing statements and other similarinstruments and documents, shall have been executed and delivered to thePurchasers by a duly authorized officer of the Company and a duly authorizedofficer of each of the subsidiaries of the Company party thereto.

###  

### **(b)           Warrants**. Warrants, in the form attached hereto as Exhibit B, in favorof each of the Purchasers, shall have been executed and delivered to thePurchasers by a duly authorized officer of the Company.

###  

### **(c)           LegalOpinion**.  The Purchasers shall have received an opinionof the Company’s counsel, dated the Closing Date, with respect to legal matterscustomary for transactions of this type, in a form reasonably acceptable to thePurchasers.

###  

### **(d)           Representationsand Warranties to be True and Correct**.  Therepresentations and warranties contained in Article II shall be true,complete and correct on and as of the Closing Date with the same effect asthough such representations and warranties had been made on and as of such date(except to the extent that the representation or warranty speaks to a specificdate), and the President and Chief Financial Officer of the Company shall havecertified to such effect to the Purchasers in writing.

###  

### **(e)           Performance**. The Company shall have performed and complied in all material respectswith all agreements contained herein required to be performed or complied withby it prior to or at the Closing Date and the President and Chief FinancialOfficer of the Company shall have certified to the Purchasers in writing tosuch effect and to the further effect that all of the conditions set forth inthis Article IV have been satisfied.

###  

### **(f)            AllProceedings to be Satisfactory**.  All corporateand other proceedings to be taken by the Company in connection with thetransactions contemplated hereby and all documents incident thereto shall besatisfactory in form and substance to the Purchasers and their counsel, and thePurchasers and their counsel shall have received all such counterpart originalsor certified or other copies of such documents as they reasonably may request.

###  

### **(g)           SupportingDocuments**.  The Purchasers and their counsel shall havereceived copies of the following documents:

###  

#### (i)            (A) the Certificate ofIncorporation of the Company, certified as of a recent date by the Secretary ofState of the State of Delaware, and (B) a certificate of said Secretarydated as of a recent date as to the due incorporation and good standing of the

 

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#### Company, the payment of all excise taxes by theCompany and listing all documents of the Company on file with said Secretary;

####  

#### (ii)           a certificate of the Secretary or anAssistant Secretary of the Company dated the Closing and certifying:  (A) that attached thereto is a true andcomplete copy of the By-laws of the Company as in effect on the date of suchcertification; (B) that attached thereto is a true and complete copy ofall resolutions adopted by the Board of Directors or the shareholders of theCompany authorizing the execution, delivery and performance of this Agreementand the Security and Pledge Agreement, the issuance, sale and delivery of theNotes and Warrants and the reservation, issuance and delivery of the WarrantShares, and that all such resolutions are in full force and effect and are allthe resolutions adopted in connection with the transactions contemplated bythis Agreement; (C) that the Certificate of Incorporation of the Companyhas not been amended since the date of the last amendment referred to in thecertificate delivered pursuant to clause (i)(B) above; and (D) to theincumbency and specimen signature of each officer of the Company executing anyof this Agreement, the Security and Pledge Agreement, the Notes and Warrantsand any certificate or instrument furnished pursuant hereto, and acertification by another officer of the Company as to the incumbency andsignature of the officer signing the certificate referred to in this clause(ii); and

####  

#### (iii)          such additional supporting documentsand other information with respect to the operations and affairs of the Companyas the Purchasers or their counsel reasonably may request.

####  

### **(h)           Preemptiveand First Refusal Rights**.  Allshareholders of the Company having any preemptive or first refusal rights withrespect to the issuance of the Notes and Warrants or the Warrant Shares shallhave irrevocably waived the same in writing or all such rights shall haveexpired.

###  

### **(i)            CommitmentFee**.  The Company shall have paid to the Purchasersthe commitment fee in the aggregate amount of $125,000.

###  

### **(j)            Feesof Purchasers’ Counsel**.  The Companyshall have paid in accordance with Section 6.01 the fees and disbursementsof each Purchasers’ counsel invoiced at the Closing.

###  

All suchdocuments shall be satisfactory in form and substance to the Purchasers andtheir counsel.

 

# **ARTICLE V**

# ** **

# **COVENANTS OF THE COMPANY**

# ** **

TheCompany agrees that, so long as any Notes are outstanding, except to the extentcompliance in any case or cases is waived in writing by the holders of at least66-2/3% of the aggregate unpaid principal amount of the Notes then outstanding:

 

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## **SECTION 5.01.    Financial Statements, Reports, Etc**. The Company shall furnish to each Purchaser:

##  

### **(a)          **within ninety (90) days after the end ofeach fiscal year of the Company a consolidated balance sheet of the Company andits subsidiaries, if any, as of the end of such fiscal year and the relatedconsolidated statements of income for the fiscal year then ended, prepared inaccordance with GAAP and certified by a firm of independent public accountantsof recognized national standing selected by the Board of Directors of theCompany;

###  

### **(b)          **within forty five (45) days after the endof each fiscal quarter in each fiscal year a consolidated balance sheet of theCompany and its subsidiaries, if any, and the related consolidated statementsof income unaudited but prepared in accordance with generally acceptedaccounting principles and certified by the Chief Financial Officer of theCompany, such consolidated balance sheet to be as of the end of such fiscalquarter and such consolidated statements of income to be for such fiscalquarter and for the period from the beginning of the fiscal year to the end ofsuch fiscal quarter;

###  

### **(c)          **promptly after the commencement thereof,notice of all actions, suits, claims, proceedings, investigations and inquiriesof the type described in Section 2.09 of this Agreement that couldmaterially adversely affect the Company or any of its subsidiaries, if any;

###  

### **(d)          **promptly upon sending, making availableor filing the same, all press releases, reports and financial statements thatthe Company sends or makes available to its stockholders or directors or fileswith the SEC; and

###  

### **(e)          **promptly, from time to time, such otherinformation regarding the business, prospects, financial condition, operations,property or affairs of the Company and its subsidiaries as such Purchaserreasonably may request.

###  

Notwithstandingthis Section 5.01, so long as the Company is required to make filingspursuant to the Exchange Act and makes such filings in a timely manner, theCompany shall be deemed to have furnished to the Purchasers the financialstatements and other reports required by this Section 5.01.

 

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## **SECTION 5.02.    Corporate Existence; Maintenance ofBusiness**.  The Company shall, and shall cause each ofits subsidiaries to, preserve and maintain its existence.  The Company shall, and shall cause each ofits subsidiaries to, preserve and keep in force and effect all licenses,permits, franchises, approvals, patents, trademarks, trade names, trade styles,copyrights, and other proprietary rights necessary to the conduct of itsbusiness where the failure to do so could reasonably be expected to have amaterial adverse effect.

##  

## **SECTION 5.03.    Properties, Insurance**. The Company shall maintain as to its properties and business, withfinancially sound and reputable insurers, insurance against such casualties andcontingencies and of such types and in such amounts as is customary forcompanies similarly situated, which insurance shall be deemed by the Company tobe sufficient.

##  

## **SECTION 5.04.    Use of Proceeds**. The Company shall use the proceeds from the sale of the Notes andWarrants solely for working capital and general corporate purposes, includingthe payment of accounts payable.

##  

## **SECTION 5.05.    Compliance with Laws**. The Company shall comply with all applicable laws, rules, regulationsand orders, noncompliance with which could materially adversely affect itsbusiness or condition, financial or otherwise.

##  

## **SECTION 5.06.    Keeping of Records and Books of Account**. The Company shall keep adequate records and books of account, in whichcomplete entries will be made in accordance with generally accepted accountingprinciples consistently applied, reflecting all financial transactions of theCompany, and in which, for each fiscal year, all proper reserves fordepreciation, depletion, obsolescence, amortization, taxes, bad debts and otherpurposes in connection with its business shall be made.

##  

## **SECTION 5.07.    Dividends and Certain Other RestrictedPayments**.  The Company shall not, nor shall it permitany of its subsidiaries to, (a) declare or pay any dividends on or makeany other distributions in respect of any class or series of its capital stockor other equity interests or (b) directly or indirectly purchase, redeem,or otherwise acquire or retire any of its capital stock or other equityinterests or any warrants, options, or similar instruments to acquire the same.

##  

## **SECTION 5.08.    Material Contracts**. The Company shall not, nor shall it permit any of its subsidiaries to,enter into any contract, agreement or business arrangement which requiresannual expenditures of $2,500,000 or more, or which is not cancelable on noticeof 60 days or less.

##  

## **SECTION 5.09.    Capital Expenditures**. The Company shall not, nor shall it permit any of its subsidiaries to,incur any Capital Expenditures other than in the ordinary course consistentwith past practice.  For purposes of thisAgreement, “Capital Expenditures” means, with respect to any person or entityfor any period, the aggregate amount of all expenditures (whether paid in cashor accrued as a liability) by such person or entity during that period for theacquisition or leasing (pursuant to a capital lease) of fixed or capital assetsor additions to property, plant, or equipment (including replacements,capitalized repairs, and improvements) 

 

15

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## which should be capitalized on the balance sheet of such person orentity in accordance with GAAP.

##  

## **SECTION 5.10.    Mergers, Consolidations and Sales**. The Company shall not, nor shall it permit any of its subsidiaries to,be a party to any merger or consolidation, or sell, transfer, lease orotherwise dispose of all or any substantial part of its assets.

##  

## **SECTION 5.11.    Acquisitions**. The Company shall not, nor shall itpermit any of its subsidiaries to, directly or indirectly, acquire all or anysubstantial part of the assets or business of any other entity or divisionthereof.

##  

## **SECTION 5.12.    Prepayment of Indebtedness**. The Company shall not, nor shall itpermit any of its subsidiaries, to prepay any indebtedness for borrowed money.

##  

## **SECTION 5.13.    Issuance of Shares**. The Company shall not, nor shall it permit any of its subsidiaries,assign, sell or transfer, any shares of capital stock or other equity interestsof the Company or such subsidiary; *provided,however*, that the foregoing shall not operate to prevent (a) Lienson the capital stock or other equity interests of subsidiaries of the Companygranted to the Administrative Agent pursuant to the Security and PledgeAgreement, or (b) the issuance, sale, and transfer to any person of anyshares of common stock of the Company in connection with the Rights Offering.

##  

## **SECTION 5.14.    Executive and Officer Compensation**. The Company shall not, nor shall it permit any of its subsidiaries to,grant any increase in the compensation of officers or executive employees(excluding any such increase required under a currently effective employmentagreement by and between such officer or executive employee and the Company).

##  

## **SECTION 5.15.    Change in the Nature of Business**. The Company shall not, nor shall it permit any of its subsidiaries to,engage in any business or activity other than the general nature of thebusiness engaged in by it as of the Closing Date or discontinue its engagementin any business or activity engaged in by it as of the Closing Date.

##  

## **SECTION 5.16.    Compliance with Security and PledgeAgreement**.  The Company shall comply at all times withall of the terms and conditions of the Security and Pledge Agreement.

##  

# **ARTICLE VI**

# ** **

# **MISCELLANEOUS**

# ** **

## **SECTION 6.01.    Expenses**. Each party hereto will pay its own expenses in connection with thetransactions contemplated hereby, whether or not such transactions shall beconsummated; provided, however, that the Company shall pay the reasonable feesand disbursements of each of the Purchasers’ special counsel, [                        ],in connection with such transactions, upon delivery of a reasonably itemizedinvoice setting forth the services performed by such special counsel inconnection with such transactions.

 

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## **SECTION 6.02.    Survival of Agreements**. All covenants, agreements, representations and warranties made in thisAgreement, the Security and Pledge Agreement or any certificate or instrumentdelivered to the Purchasers pursuant to or in connection with this Agreement orthe Security and Pledge Agreement shall survive the execution and delivery ofthis Agreement or the Security and Pledge Agreement, the issuance, sale anddelivery of the Notes and Warrants, and the issuance and delivery of theWarrant Shares, and with respect to the Notes, until the repayment of the Notesin full and, with respect to the Warrants, until the exercise of the Warrantsin full.

##  

## **SECTION 6.03.    Brokerage**. Each party hereto will indemnify and hold harmless the others againstand in respect of any claim for brokerage or other commissions relative to thisAgreement or to the transactions contemplated hereby, based in any way onagreements, arrangements or understandings made or claimed to have been made bysuch party with any third party.

##  

## **SECTION 6.04.    Parties in Interest**. All representations, covenants and agreements contained in thisAgreement by or on behalf of any of the parties hereto shall bind and inure tothe benefit of the respective successors and assigns of the parties heretowhether so expressed or not.  Withoutlimiting the generality of the foregoing, all representations, covenants andagreements benefiting the Purchasers shall inure to the benefit of any and allsubsequent holders from time to time of Notes, Warrants or Warrant Shares.

##  

## **SECTION 6.05.    Notices**. All notices, requests, consents and other communications hereunder shallbe in writing and shall be delivered in person, mailed by certified orregistered mail, return receipt requested, or sent by telecopier or recognizedovernight courier service, addressed as follows:

##  

### **(a)          **if to the Company, at 19700 FairchildRoad, Suite 230, Irvine, California 92612, fax: (949) 955-0086, Attention:Chief Financial Officer, with a copy to [               ];and

###  

### **(b)          **if to any Purchaser, at the address ofsuch Purchaser set forth in Schedule I, with a copy to [               ].

###  

or,in any such case, at such other address or addresses as shall have beenfurnished in writing by such party to the others.

 

## **SECTION 6.06.    Governing Law**. This Agreement shall be governed by and construed in accordance with thesubstantive laws of the State of California without regard for conflicts oflaws or choice of laws principles.

##  

## **SECTION 6.07.    Entire Agreement**. This Agreement, including the Schedules and Exhibits hereto, along withthe Notes, the Warrants and the Security and Pledge Agreement, constitutes thesole and entire agreement of the parties with respect to the subject matterhereof.  All Schedules and Exhibitshereto are hereby incorporated herein by reference.  There are no other agreements of the partiesand no party is relying on any representations of the other not

 

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## expressly set forth herein.  AllSchedules and Exhibits hereby are hereby incorporated herein by reference.

##  

## **SECTION 6.08.    Counterparts**. This Agreement may be executed in two or more counterparts, each ofwhich shall be deemed an original, but all of which together shall constituteone and the same instrument.

##  

## **SECTION 6.09.    Amendments**. This Agreement may not be amended or modified, and no provisions hereofmay be waived, without the written consent of the Company and the holders of atleast a majority of the outstanding principal amount of the Notes and at leasta majority of the outstanding shares of capital stock of the Company issued orissuable upon exercise of the Warrants.

##  

## **SECTION 6.10.    Severability**. If any provision of this Agreement shall be declared void orunenforceable by any judicial or administrative authority, the validity of anyother provision and of the entire Agreement shall not be affected thereby.

##  

## **SECTION 6.11.    Titles and Subtitles**. The titles and subtitles used in this Agreement are for convenience onlyand are not to be considered in construing or interpreting any term orprovision of this Agreement.

##  

## **SECTION 6.12.    No Publicity**. Except as expressly provided below, no party shall make, issue orrelease any public announcement, press release, statement or acknowledgment(collectively, “Public Announcement”) of the existence of, or reveal publiclythe terms, conditions and status of, the transactions contemplated hereby,without the prior written consent of the other party as to the content and timeof release of and the media in which such Public Announcement is to be made;provided, however, that in the case of a Public Announcement which a party isrequired by law to make, issue or release, the making, issuing or releasing ofany such Public Announcement, by a party so required to do so shall notconstitute a breach if such party has given, to the extent reasonably possible,not less than two (2) business days prior notice to the other party, andhas attempted, to the extent reasonably possible, to allow the other party toreview and approve such Public Announcement; provided further, however, thatupon the Company’s making of Public Announcement regarding the existence of, orthe terms, conditions and status of, the transactions contemplated hereby,whether pursuant to the filing of a Form 8-K or otherwise, subject to theconsent of the Company, which consent may not be unreasonably withheld, thePurchasers may advertise the closing of the transactions contemplated by thisAgreement, and make appropriate announcements of the financial arrangementsentered into among the parties hereto, including, without limitation,announcements commonly known as tombstones, in such trade publications,business journals, newspapers of general circulation and to such selectedparties as the Purchasers shall deem reasonably appropriate.

##  

## **SECTION 6.13.    Usury Savings Clause**. The parties intend to comply at all times with applicable usurylaws.  If at any time such laws wouldrender usurious any amounts due under the Notes under applicable law, then itis the parties’ express intention that the Company not be required to payinterest on the Notes at a rate in excess of the maximum lawful rate, that theprovisions of this Section 6.13 shall control over all other provisions ofthis Note which may be

 

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## in apparent conflict hereunder, that such excess amount shall beimmediately credited to the principal balance of this Note (or, if this Notehas been fully paid, refunded by the Purchaser to the Company), and theprovisions hereof shall immediately reformed and the amounts thereafterdecreased, so as to comply with the then applicable usury law, but also so asto permit the recovery of the fullest amount otherwise due under the Notes.  The Company hereby represents and warrantsthat its assets are sufficient to meet the requirements for exemption from theusury laws of the State of California as provided by Section 25118 of theCalifornia Corporations Code.

 

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**INWITNESS WHEREOF**,the Company and the Purchasers have executed this Note Purchase Agreement as ofthe day and year first above written.

 
|                                                                                                                                                                     | **DYNTEK,  INC.** |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------|
|                                                                                                                                                                     |              |
|                                                                                                                                                                     |              |
|                                                                                                                                                                     | By:               |   |   |
|                                                                                                                                                                     | Name:             |   |   |
|                                                                                                                                                                     | Title:            |   |   |
|                                                                                                                                                                     |
| **PURCHASERS:**                                                                                                                                                          |              |
| ** **                                                                                                                                                               |              |
| **[                           ]** |              |
| ** **                                                                                                                                                               |              |
| ** **                                                                                                                                                               |              |
| By:                                                                                                                                                                      |              |   |   |
| Name:                                                                                                                                                                    |              |   |   |
| Title:                                                                                                                                                                   |              |   |   |
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| By:                                                                                                                                                                      |              |   |   |
| Name:                                                                                                                                                                    |              |
|                                                                                                                                                                          |                   |  |  |  |  |  |  |  |  |  |  |

 

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