**EXHIBIT 10.9**

 

**THE SECURITIES REPRESENTED BY THISCERTIFICATE HAVE****NOT BEENREGISTERED UNDER THE SECURITIES ACT OF 1933****OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT PURSUANT TO AREGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION.**

 

 

PURCHASE WARRANT

 

Issued to:

 

----

 

Exercisable to Purchase

 

_______________ Shares of Common Stock

 

 

of

 

 

**DYNTEK,INC.**

 

 

Void after March____, 2011

 

----

 

Thisis to certify that, for the value described herein and subject to the terms andconditions set forth below, the Warrantholder is entitled to purchase, and theCompany promises and agrees to sell and issue to the Warrantholder, at any timeduring the Exercise Period (as defined in Section 1 hereof), pursuant to Section 2hereof, up to ________ shares of the Company’s Common Stock at the ExercisePrice.

 

ThisWarrant certificate is issued subject to the following terms and conditions:

 

# 1.             Definitions of Certain Terms. Except as may be otherwise clearly required by the context, thefollowing terms have the following meanings:

#  

## (a)           “Additional Shares of Common Stock”shall mean all shares of Common Stock, convertible securities, rights oroptions issued or deemed to be issued by the Company, whether or notsubsequently reacquired or retired by the Company, other than ExcludedSecurities (as defined in Section 3(c)).

##  

## (b)           “Closing Date” has the meaning setforth in the Securities Purchase Agreement.

##  

## (c)           “Common Shares” means the sharesof Common Stock sold by the Company pursuant to the Securities PurchaseAgreement.

##  

## (d)           “Common Stock” means the commonstock, $0.0001 par value, of the Company.

##  

## (e)           “Company” means DynTek, Inc.,a Delaware corporation.

##  

## (f)            “Date of Issuance” means March____,2006.

##  

## (g)           “Effective Price” means, withrespect to Additional Shares of Common Stock, the quotient determined bydividing the total number of Additional Shares of Common Stock issued or sold,or deemed to have been issued or sold, by the Company under Section 3(c) ofthis Warrant, into the Aggregate Consideration Received, or deemed to have beenreceived, by the Company under Section 3(c) of this Warrant, for theissue or sale, or deemed issue or sale, of such Additional Shares of CommonStock.

##  

## (h)           “Exercise Period” means the periodof time commencing on February___, 2006 and ending at 5 p.m. Pacific Timeon March____, 2011

##  

## (i)            “Exercise Price” means the priceat which the Warrantholder may purchase one Share upon exercise of Warrants asdetermined from time to time pursuant to the provisions hereof.  The initial Exercise Price is $0.02 perShare.

##  

## (j)            “Mandatory Exercise Notice” meansthe notice delivered by the Company to the Warrantholder advising theWarrantholder that the weighted average closing sale price of the Company’sCommon Stock, as reported by the Over the Counter Bulletin Board or such othersecurities exchange or system on which the Company’s Common Stock is thenlisted, is equal to or greater than 150% of the Exercise Price (as adjusted forsplits, 

 

2

----

 

## reverse splits, stockdividends, share combinations and the like) for thirty (30) consecutive tradingdays.

##  

## (k)           “Securities Act” means theSecurities Act of 1933, as amended.

##  

## (l)            “Securities Exchange Act” meansthe Securities Exchange Act of 1934, as amended.

##  

## (m)          “Securities Purchase Agreement”means the Securities Purchase Agreement dated as of March    , 2006 among the Company and theInvestors referenced therein.

##  

## (n)           “Share” or “Shares” refersto one or more shares of Common Stock issuable on exercise of the Warrant.

##  

## (o)           “Warrant” means the warrantevidenced by this certificate or any certificate obtained upon transfer orpartial exercise of the Warrant evidenced by any such certificate.

##  

## (p)           “Warrants” means the warrantsissued pursuant to the Securities Purchase Agreement.

##  

## (q)           “Warrantholder” means a recordholder of the Warrant or Shares.  Theinitial Warrantholder is set forth on the cover page of this Warrant.

##  

# 2.             Exercise of Warrants.

#  

## (a)           All or any part of the Warrant may beexercised during the Exercise Period by surrendering the Warrant, together withappropriate instructions, duly executed by the Warrantholder or by its dulyauthorized attorney, and delivery of payment in full by the Warrantholder, in lawfulmoney of the United States, of the Exercise Price payable with respect to theShares being purchased at the office of the Company, 19700 Fairchild Road, Suite 230,Irvine, California  92612, Attention:Chief Financial Officer, or at such other office or agency as the Company maydesignate.  The date on which suchinstructions and the Exercise Price are received by the Company shall be thedate of exercise.  Upon receipt of noticeof exercise and the Exercise Price, the Company shall immediately instruct itstransfer agent to prepare certificates for the Shares to be received by theWarrantholder and shall use commercially reasonable efforts to cause suchcertificates to be prepared and delivered to the Warrantholder in accordancewith the Warrantholder’s instructions within three business days after the dateof exercise.  If the Warrantholder shallprovide the Company with an opinion of counsel to the effect that the legendset forth on the face of this Warrant is not required, such certificates shallnot bear a legend with respect to the Securities Act.

##  

## (b)           If at any time after the secondanniversary of the Date of Issuance the weighted average closing sale price ofthe Company’s Common Stock, as reported by the Over the Counter Bulletin Boardor such other securities exchange or system on which the Company’s Common Stockis then listed, is equal to or greater than 150% of the Exercise 

 

3

----

 

## Price (as adjustedfor splits, reverse splits, stock dividends, share combinations and the like)for thirty (30) consecutive trading days, the Company may deliver to theWarrantholder, within the thirty (30) days following such period, a MandatoryExercise Notice, together with a computation demonstrating the basis for suchMandatory Exercise Notice.  In suchevent, the Warrantholder agrees to exercise this Warrant in full with respectto all of the shares of Common Stock covered by this Warrant within ten (10) daysfollowing receipt of such Mandatory Exercise Notice from the Company.  To the extent that this Warrant is not soexercised, it shall expire and be of no further force or effect.

##  

## (c)           If fewer than all the Shares purchasableunder the Warrant are purchased, the Company will, upon such partial exercise,execute and deliver to the Warrantholder a new Warrant certificate (dated thedate hereof), in form and tenor similar to this Warrant certificate, evidencingthat portion of the Warrant not exercised. The Shares to be obtained on exercise of the Warrant will be deemed tohave been issued, and any person exercising the Warrants will be deemed to havebecome a holder of record of those Shares, as of the date of the payment of theExercise Price.

##  

# 3.             Adjustments in Certain Events. The number, class, and price of the Shares for which this Warrant isexercisable are subject to adjustment from time to time upon the happening ofcertain events as follows:

#  

## (a)           If the outstanding shares of the Company’sCommon Stock are divided into a greater number of shares or a dividend in stockis paid on the Common Stock, the number of Shares for which the Warrant is thenexercisable will be proportionately increased and the Exercise Price will beproportionately reduced; and, conversely, if the outstanding shares of CommonStock are combined into a smaller number of shares of Common Stock, the numberof Shares for which the Warrant is then exercisable will be proportionatelyreduced and the Exercise Price will be proportionately increased.  The increases and reductions provided for inthis subsection 3(a) will be made with the intent and, as nearly aspracticable, the effect that neither the percentage of the total equity of theCompany obtainable on exercise of the Warrants nor the price payable for suchpercentage upon such exercise will be affected by any event described in thissubsection 3(a).

##  

## (b)           In case of any change in the Common Stockthrough merger, consolidation, reclassification, reorganization, partial orcomplete liquidation, purchase of substantially all the assets of the Company,or other change in the capital structure of the Company, then, as a conditionof such change, lawful and adequate provision will be made so that the holderof this Warrant will have the right thereafter to receive upon the exercise ofthe Warrant the kind and amount of shares of stock or other securities orproperty to which he would have been entitled if, immediately prior to suchevent, he had held the number of Shares obtainable upon the exercise of theWarrant.  In any such case, appropriateadjustment will be made in the application of the provisions set forth hereinwith respect to the rights and interest thereafter of the Warrantholder, to theend that the provisions set forth herein will thereafter be applicable, asnearly as reasonably may be, in relation to any shares of stock or otherproperty thereafter deliverable upon the exercise of the Warrant.  The Company will not permit any change in itscapital structure to occur unless the issuer of the shares of stock or othersecurities to be received by the holder of this Warrant, if not the Company,agrees to be bound by and comply with the provisions of this Warrant.

 

4

----

 

## (c)           If at any time after the Date of Issuancethe Company issues, or is deemed by the provisions of this Section 3(c) tohave issued, or sold, Additional Shares of Common Stock, other than inconnection with a dividend, combination, reclassification, liquidation ordistribution described in Section 3(b) above, at a price below theExercise Price in effect at the time of such issuance (the “Base Share Price”),then the Exercise Price shall be reduced to equal the Base Share Price.  In each such case, the Conversion Price shallbe reduced as of the opening of business on the date immediately following suchissue or sale of Additional Shares of Common Stock.

##  

### (i)            For purposes of this Section 3(c),the sale or issuance by the Company of rights, warrants or options to purchaseCommon Stock or securities convertible into Common Stock shall be deemed to bethe sale or issuance of shares of Common Stock (in which event the subsequentexercise thereof shall not be deemed to be a separate sale or issuance forpurposes of this Section 3(c)), and the consideration therefor shallconsist of the consideration received by the Company upon issuance of suchrights, warrants, options or convertible securities plus any consideration tobe received upon the exercise or conversion thereof.

###  

### (ii)           For purposes of this Section 3(c),the consideration received by the Company for the issue of any shares of CommonStock shall be computed as follows:

###  

#### (A)          insofar as it consists of cash, becomputed at the aggregate amount of cash received by the Company beforededucting any reasonable discounts, commissions or other expenses allowed, paidor incurred by the Company for any underwriting or otherwise in connection withsuch issuance;

####  

#### (B)           insofar as it consists of property otherthan cash, be computed at the fair market value thereof at the time of suchissue, as determined in good faith by the Company’s Board of Directors; and

####  

#### (C)           in the event that it consists ofconsideration covering both cash and property, be the proportion of suchconsideration so received, computed as provided in clauses (A) and (B) above,as reasonably determined in good faith by the Company’s Board of Directors.

####  

### (iii)          For purposes of this Section 3(c), “ExcludedSecurities” shall mean (A) all shares issuable upon the exercise orconversion of currently outstanding warrants, options, other rights to purchaseCommon Stock and convertible securities outstanding as of the Closing Date, (B) thewarrant (the “Lenders’ Warrant”) issued pursuant to the Amended and RestatedNote Purchase Agreement by and between the Company and the purchasers named therein,dated as of the date hereof, which warrant has an exercise price of $0.001 pershare, (C) all shares issued upon exercise of the Lenders’ Warrant, (D) allshares issued or issuable pursuant to any incentive plan or arrangementapproved by the Board of Directors for the benefit of the Company’s employees,officers, directors or consultants or others with important businessrelationships with the Company, (E) all shares issued or issuable as adividend or other distribution or pursuant to any event for which an adjustmentis made pursuant to Section 3(a) for subdivisions or combinations ofthe Company’s capital stock and pursuant to Section 3(b) for anyreclassification, exchange or 

 

5

----

 

### substitution of theCompany’s capital stock, (F) all shares issued or issuable pursuant to theacquisition of another corporation by the Company by merger, purchase ofsubstantially all of the assets or other reorganization or to a joint ventureagreement, (G) all shares issued or issuable to banks, equipment lessorsor other financial institutions pursuant to a debt financing or commercialleasing transaction, other than a convertible debt financing; provided that noparty receiving such shares is an affiliate or immediate family, as defined inItem 404 of Regulation S-K promulgated under the Securities Act, of anaffiliate of the Company and the Board of Directors shall have reasonablydetermined in good faith that the terms of the issuance are arms-length, and (H) allshares issued or issuable in connection with strategic partnerships or toothers with important business relationships with the Company; provided that noparty receiving such shares is an affiliate or immediate family, as defined inItem 404 of Regulation S-K promulgated under the Securities Act, of anaffiliate of the Company and the Board of Directors shall have reasonablydetermined in good faith that the terms of the issuance are arms-length.

###  

### (iv)          In the event of any change in theExercise Price as a result of the issuance of such rights, warrants or optionsor such convertible securities, the Exercise Price shall be recomputed toreflect such change, but no further adjustment shall be made for the actualissuance of Common Stock or any payment of such consideration upon the exerciseof any such rights, warrants or options or the conversion of such securities.

###  

### (v)           Upon the expiration of any such rights,warrants or options or the termination of any such rights or convertiblesecurities, the Exercise Price, to the extent in any way affected by orcomputed using such rights, warrants or options or convertible securities,shall be recomputed to reflect the issuance of only the number of shares ofCommon Stock actually issued upon the exercise of such rights, warrants oroptions or upon the conversion of such securities.

###  

## (d)           When any adjustment is required to bemade in the number of Shares or other securities or property purchasable uponexercise of the Warrant, the Company will promptly determine the new number ofsuch Shares or other securities or property purchasable upon exercise of theWarrant and (i) prepare and retain on file a statement describing inreasonable detail the method used in arriving at the new number of such Sharesor other securities or property purchasable upon exercise of the Warrant and (ii) causea copy of such statement to be mailed to the Warrantholder within thirty (30)days after the date of the event giving rise to the adjustment.

##  

## (e)           No fractional shares of Common Stock orother securities will be issued in connection with the exercise of the Warrant,but the Company will pay, in lieu of fractional shares, a cash payment thereforon the basis of the mean between the bid and asked prices of the Common Stockin the over-the-counter market or the closing price on a national securitiesexchange or Nasdaq on the day immediately prior to exercise.

##  

## (f)            If securities of the Company orsecurities of any subsidiary of the Company are distributed pro rata to holdersof Common Stock, such number of such securities will be distributed to theWarrantholder or his assignee upon exercise of this Warrant as theWarrantholder or assignee would have been entitled to if the portion of theWarrant evidenced by this Warrant certificate had been exercised prior to therecord date for

 

6

----

 

## suchdistribution.  The provisions withrespect to adjustment of the Common Stock provided in this Section 3 willalso apply to the securities to which the Warrantholder or his assignee isentitled under this subsection 3(f).

##  

## (g)           In the event (i) the Companyestablishes a record date to determine the holders of any class of securitieswho are entitled to receive any dividend or other distribution or (ii) thereoccurs any change in the Common Stock through merger, consolidation,reclassification, reorganization, partial or complete liquidation, purchase ofsubstantially all of the assets of the Company or other change in the capitalstructure of the Company, the Company shall give to the holder hereof a noticespecifying (a) the date of such record date for the purpose of suchdividend or distribution and a description of such dividend or distribution, (b) thedate on which any such merger, consolidation, reclassification, reorganization,sale, liquidation or other change in the capital structure of the Company isexpected to become effective, and (c) the time, if any, that is to befixed, as to when the holders of record of Common Stock (or other securities)shall be entitled to exchange their shares of Common Stock (or othersecurities) for securities or other property deliverable upon such merger,consolidation, reclassification, reorganization, sale, liquidation or otherchange in the capital structure of the Company. Such written notice shall be given to the holder of this Warrant atleast ten (10) days prior to the date specified in such notice on whichany such action is to be taken.

##  

# 4.             Reservation of Shares. The Company agrees that the number of shares of Common Stock or othersecurities sufficient to provide for the exercise of the Warrant upon the basisset forth above will at all times during the term of the Warrant be reservedfor exercise.  If at any time the Companydoes not have a sufficient number of shares of Common Stock or other securitiesauthorized to provide for the exercise of the Warrant, the Company shall takesuch actions as may be reasonably necessary to increase the number ofauthorized shares of Common Stock or other securities to provide for exerciseof the Warrant.

#  

# 5.             Validity of Shares. All Shares or other securities delivered upon the exercise of theWarrant will be duly and validly issued in accordance with their terms, and, inthe case of capital stock, will, when issued and delivered in accordance withtheir terms against payment therefor as provided in the Warrant, be fully paidand nonassessable, and the Company will pay all documentary and transfer taxes,if any, in respect of the original issuance thereof upon exercise of theWarrant.

#  

# 6.             Restrictions on Transfer. This Warrant may not be sold,transferred, assigned or hypothecated except as permitted pursuant to Section 2.6of the Securities Purchase Agreement. The Warrant may be divided or combined, upon request to the Company bythe Warrantholder, into a certificate or certificates evidencing the sameaggregate number of Warrants.

#  

# 7.             No Rights as a Stockholder. Except as otherwise provided herein, the Warrantholder will not, byvirtue of ownership of the Warrant, be entitled to any rights of a stockholderof the Company but will, upon written request to the Company, be entitled toreceive such quarterly or annual reports as the Company distributes to itsstockholders.

 

7

----

 

# 8.             Notice.  Any noticesrequired or permitted to be given under the terms of this Warrant must be sentby certified or registered mail (return receipt requested) or deliveredpersonally or by courier (including a recognized overnight delivery service) orby facsimile and will be effective five (5) days after being placed in themail, if mailed by regular U.S. mail, or upon receipt, if delivered personally,by courier (including a recognized overnight delivery service) or by facsimile,in each case addressed to a party.  The addressesfor such communications are:

#  

Ifto the Company:

 

Chief Financial Officer

DynTek, Inc.

19700 Fairchild Road, Suite 230

Irvine, California 92612

fax           (949) 271- ________

 

Ifto a Warrantholder:  to the address setforth immediately below the Warrantholder’s name on the signature pages hereto.

 

Each party will provide written notice to the other parties of anychange in its address.

 

# 9.             Governing Law; Jurisdiction; Jury TrialWaiver.  This Warrant will be governed by andinterpreted in accordance with the laws of the State of California withoutregard to the principles of conflict of laws. The parties hereto hereby submit to the exclusive jurisdiction of theUnited States federal and state courts located in the County of Orange, Stateof California with respect to any dispute arising under this Warrant. EACHPARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO, AND AGREESNOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER ORIN CONNECTION HEREWITH.

#  

# 10.           Entire Agreement. This Warrant, the exhibits and schedules hereto, and the documentsreferred to herein, constitute the entire agreement and understanding of theparties hereto with respect to the subject matter hereof, and supersede allprior and contemporaneous agreements and understandings, whether oral orwritten, between the parties hereto with respect to the subject matter hereof.

#  

# 11.           Waiver; Consent. This Warrant may not be changed, amended, terminated, augmented,rescinded or discharged (other than by performance), in whole or in part,except by a writing executed by the parties hereto, and no waiver of any of theprovisions or conditions of this Warrant or any of the rights of a party heretoshall be effective or binding unless such waiver shall be in writing and signedby the party claimed to have consented thereto. Any amendment or waiver signed by Warrantholders holding Warrants topurchase a majority of all of the Shares issuable upon exercise of the Warrantsthen outstanding shall be binding upon all Warrantholders.

#  

# 12.           No Impairment. The Company will not, by amendment of its Certificate ofIncorporation, or through reorganization, consolidation, merger, dissolution,issue or sale of securities, sale of assets or any othervoluntary action, avoid or seek to avoid the observance

 

8

----

 

# or performance ofany of the terms of this Warrant, but will at all times in good faith assist inthe carrying out of all such terms and in the taking of all such action as maybe necessary or appropriate in order to protect the rights of the Warrantholderof this Warrant against****dilution orother impairment.

#  

# 13.           Remedies.  The Companystipulates that the remedies at law of the Warrantholder of this Warrant in theevent of any default or threatened default by the Company in the performance ofor compliance with any of the terms of this Warrant are not adequate and may beenforced by a decree for the specific performance of any agreement containedherein or by an injunction against a violation of any of the terms hereof orotherwise.

#  

# 14.           Severability. If one or more provisions of this Warrant are held to be unenforceableunder applicable law, such provision shall be excluded from this Warrant andthe balance of the Warrant shall be interpreted as if such provision were soexcluded and the balance shall be enforceable in accordance with its terms.

 

 

[SIGNATURES ON FOLLOWINGPAGE]

 

9

----

 

[SIGNATURE PAGE TOPURCHASE WARRANT]

 

INWITNESS WHEREOF, the parties hereto have executed this Warrant effective as ofthe date set forth below.

 

Datedas of March ____, 2006

 
| DYNTEK, INC. |
|--------------|
|         |
|         |
| By:          |   |   |
| Its:         |   |   |

 

 

Agreed and Accepted as of March ____, 2006

 
| [WARRANTHOLDER] |
|-----------------|
|            |
|            |
| By:             |   |   |
| Its:            |   |   |

 

----