**Exhibit 10.9**

 

**THIS SECURITY AND THE SECURITIES ISSUABLE UPONEXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED (THE “ACT”), AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT (i) PURSUANT TO AREGISTRATION STATEMENT UNDER THE ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENTWITH RESPECT TO THE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTIONFROM REGISTRATION UNDER THE ACT BUT ONLY UPON THE HOLDER HEREOF FIRST HAVINGOBTAINED THE WRITTEN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLYSATISFACTORY TO THE COMPANY, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITHALL APPLICABLE PROVISIONS OF THE ACT AS WELL AS ANY APPLICABLE, “BLUE SKY” ORSIMILAR SECURITIES LAW.**

** **

November       , 2005

 

**AMENDEDAND RESTATED WARRANT**

** **

**DYNTEK,INC.**

** **

Forgood and valuable consideration the receipt and sufficiency of which is herebyacknowledged by DynTek, Inc., a Delaware corporation, with its principaloffice at 19700 Fairchild Road, Suite 350, Irvine, California 92612 (the “Company”),[             ](the “Holder”), subject to the terms and conditions of this Amended andRestated Warrant (the “Warrant”), is hereby granted the right to purchase, atthe initial exercise price (the “Initial Exercise Price”) of $0.22 per share ofcommon stock, $0.0001 par value, of the Company (the “Common Stock”), at anyone or more times after the date hereof until 5:00 p.m. on October 15,2009, in the aggregate, [             ]shares of Common Stock (the “Shares”) subject to adjustment as provided in Section 5hereof.  This Warrant amends and restatesin its entirety that certain warrant (the “Original Warrant”) issued by theCompany to the Holder on October 15, 2004 in accordance with the terms andconditions of that certain 9% Senior Subordinated Convertible Note PurchaseAgreement, dated as of October 15, 2004, between the Company, the Holderand the other purchasers named therein (the “Purchase Agreement”).  The number of Shares that the Holder wasentitled to purchase upon exercise under the Original Warrant was [             ](the “Original Warrant Shares”).  TheShares that the Holder is entitled to purchase under this Warrant, less theOriginal Warrant Shares, are referred to herein as the “Additional Warrant Shares.”

 

This Warrant initially isexercisable at the Initial Exercise Price payable in cash (except as providedbelow), by wire transfer of immediately available funds or other form ofpayment satisfactory to the Company, subject to adjustment as provided in Section 5hereof.

 

----

 

# 1.             **Exercise of Warrant**.

#  

## (a)           The purchase rights represented bythis Warrant are exercisable at the option of the Holder hereof, in whole or inpart, at one or more times during any period in which this Warrant may beexercised as set forth above.  The Holdershall not be deemed to have exercised its purchase rights hereunder until theCompany receives written notice of the Holder’s intent to exercise its purchaserights hereunder.  The written noticeshall be in the form of the Subscription Form attached hereto and made apart hereof.  Less than all of the Sharesmay be purchased under this Warrant.  Inlieu of exercising this Warrant by the payment of cash, the Holder may elect toreceive, without the payment by the Holder of any additional consideration,shares equal to the value of this Warrant (or the portion thereof beingcanceled) by surrender of this Warrant at the principal office of the Companytogether with notice of such election, in which event the Company shall issueto the holder hereof a number of shares of Common Stock computed using thefollowing formula:

 
|                        | Y (A - B) |   |
|-----------------------------|-----------|--------|
| X =     | A         |   |

 

Where

 
| X — | The number of  shares of Common Stock to be issued to the Holder pursuant to this net  exercise;              |
|----------|---------------------------------------------------------------------------------------------------------------|
|     |                                                                                                          |   |
| Y — | The  number of shares of Common Stock in respect of which the exercise election is  made;                     |
|     |                                                                                                          |
| A — | The Market Price  of one share of the Company’s Common Stock at the time the exercise election  is made; |
|     |                                                                                                          |
| B — | The Exercise  Price (as adjusted to the date of net exercise).                                                |

 

# In addition to issuing to the Holder the number ofshares represented by “X” in the forgoing formula pursuant to such exercise,the Company shall also reduce the number of Shares covered by this Warrant bythe number of shares represented by “Y” in the foregoing formula.  

#  

# As used herein, the term “Market Price” shall mean theaverage of the closing price of the Company’s Common Stock on any nationalsecurities exchange, on the Nasdaq National Market or the Nasdaq SmallCapMarket, or, if the Company’s Common Stock is not so listed on any nationalsecurities exchange, on the Nasdaq National Market or the Nasdaq SmallCapMarket, then on the domestic over-the-counter market as reported by Bloombergor the National Quotation Bureau, Incorporated, or any similar successororganization, for the ten (10) trading days prior to the date the Holderexercises this Warrant.

#  

## (b)           In the event of any exercise of therights represented by this Warrant in accordance with and subject to the termsand conditions hereof, (i) certificates for the Shares issuable uponexercise of the Warrant shall be dated the date of such exercise and deliveredto the Holder hereof within a reasonable time, not exceeding two (2) tradingdays after such exercise or, at the request of the Holder (provided that aregistration statement under the Securities Act providing for the resale of theWarrant Stock is then in effect), issued and delivered to the Depository TrustCompany  account on the Holder’s behalfvia the Deposit

 

2

----

 

## Withdrawal Agent Commission System within a reasonable time, notexceeding two (2) trading days after such exercise, and the Holder hereofshall be deemed for all purposes to be the holder of the Shares issuable uponexercise of the Warrant so purchased as of the date of such exercise.

##  

## (c)           Notwithstanding anything in thisWarrant to the contrary, in no event shall the Holder of this Warrant beentitled to exercise a number of Warrants (or portions thereof) in excess ofthe number of Warrants (or portions thereof) upon exercise of which the sum of (i) thenumber of shares of Common Stock beneficially owned by the Holder and itsaffiliates (other than shares of Common Stock which may be deemed beneficiallyowned through the ownership of the unexercised Warrants and the unexercised orunconverted portion of any other securities of the Company subject to alimitation on conversion or exercise analogous to the limitation containedherein) and (ii) the number of shares of Common Stock issuable uponexercise of the Warrants (or portions thereof) with respect to which thedetermination described herein is being made, would result in beneficialownership by the Holder and its affiliates of more than 9.9% of the outstandingshares of Common Stock.  For purposes ofthe immediately preceding sentence, beneficial ownership shall be determined inaccordance with Section 13(d) of the Securities Exchange Act of 1934,as amended, and Regulations 13D G thereunder, except as otherwise provided inclause (i) hereof.  Notwithstandinganything in this Warrant to the contrary, the restrictions on exercise of thisWarrant set forth in this paragraph shall not be amended without (i) thewritten consent of the Holder and the Company and (ii) the approval of theholders of a majority of the Common Stock present, or represented by proxy, andvoting at any meeting called to vote on the amendment of such restriction.

##  

# 2.             **Issuance of Certificates**.  Upon the exercise of this Warrant, theissuance of certificates for Shares underlying this Warrant shall be madeforthwith (and in any event within three days) after the Company’s receipt of (i) writtennotice hereunder as specified in Section 1 above) and/or (ii) fundsin respect of the Purchase Price (as defined in Section 4(b) hereof)pursuant to Section 4 hereof for the shares so exercised and suchcertificates shall be issued in the name of the Holder hereof.

#  

# 3.             **Restriction on Transfer; InvestmentRepresentations; Registration Rights**.

#  

## (a)           Restriction on Transfer.  The Holder acknowledges that neither thisWarrant nor any Shares issuable upon exercise hereof have been registered underthe Securities Act of 1933, as amended (the “Act”), and neither may be sold ortransferred in whole or in part unless the Holder shall have first given priorwritten notice to the Company describing such sale or transfer and furnished tothe Company an opinion of counsel reasonably satisfactory to the Company, tothe effect that the proposed sale or transfer may be made without registrationunder the Act; provided, however, that the foregoing shall notapply if there is in effect a registration statement with respect to thisWarrant or the Shares issuable upon exercise hereof, as the case may be, at thetime of the proposed sale or transfer. If that is not the case, then upon exercise, in part or in whole, ofthis Warrant, each certificate issued representing the Shares underlying thisWarrant shall bear a legend to the foregoing effect. 

##  

## (b)           Registration Rights.  The Holder shall have such rights to requestthe Company to register all or any of (i) the Original Warrant Sharesissuable upon exercise of this Warrant as set forth in the Registration RightsAgreement, dated as of October 15, 2004, by and among the

 

3

----

 

## Company, Holder and other purchasers named in Schedule 1 thereto,and (ii) the Additional Warrant Shares issuable upon exercise of thisWarrant as set forth in the Amendment No. 1 to Registration RightsAgreement, dated the date hereof, by and among the Company, Holder and otherpurchasers named in Schedule 1 thereto.

##  

# 4.             **Price**.

#  

## (a)           Initial and Adjusted PurchasePrice.  The initial Purchase Priceshall be equal to the Initial Exercise Price. The adjusted Purchase Price shall be the price that shall result fromtime to time from any and all adjustments of the initial purchase price inaccordance with the provisions of Section 5 hereof.

##  

## (b)           Purchase Price.  The term “Purchase Price” herein shall meanthe initial Purchase Price or the adjusted Purchase Price, as the case may be.

##  

# 5.             **Adjustments of Purchase Price and Number of Shares**.  The Shares subject to this Warrant and thePurchase Price thereof shall be appropriately adjusted by the Company inaccordance herewith.

#  

## (a)           Adjustment to Purchase Price andNumber of Shares.  In case, prior tothe expiration of this Warrant by exercise or by its terms, the Company shallissue any shares of its Common Stock as a stock dividend or subdivide thenumber of outstanding shares of its Common Stock into a greater number ofshares, then in either of such cases, the then applicable purchase price pershare of the shares of Common Stock purchasable pursuant to this Warrant ineffect at the time of such action shall be proportionately reduced and the numberof shares at that time purchasable pursuant to this Warrant shall beproportionately increased; and conversely, in the event the Company shallcontract the number of outstanding shares of Common Stock by combining suchshares into a smaller number of shares, then, in such case, the then applicablepurchase price per share of the shares of Common Stock purchasable pursuant tothis Warrant in effect at the time of such action shall be proportionatelyincreased and the number or shares of Common Stock purchasable pursuant to thisWarrant shall be proportionately decreased. If the Company shall, at any time during the term of this Warrant,declare a dividend payable in cash on its Common Stock and shall, atsubstantially the same time, offer to its stockholders a right to purchase newCommon Stock from the proceeds of such dividend or for an amount substantiallyequal to the dividend, all Common Stock so issued shall, for the purpose ofthis Warrant, be deemed to have been issued as a stock dividend.  Any dividend paid or distributed upon theCommon Stock shall be treated as a dividend paid in Common Stock to the extentthat shares of Common Stock are issuable upon conversion thereof.

##  

## (b)           Purchase Price Reset Provision.  In the event that prior to the expiration ofthis Warrant the Company sells publicly or privately (i) shares of itsCommon Stock, (ii) securities convertible into shares of its Common Stock,or (iii) options or warrants to purchase shares of its Common Stock orsecurities convertible into shares of its Common Stock at a sale, conversion orexercise price per share (the “Issue Price”), as the case may be, less than thePurchase Price then in effect, the Purchase Price shall be reset to the IssuePrice and the number of shares purchasable pursuant to this Warrant shall beincreased pro rata to the percentage reduction in the Purchase Price, provided,however, that the reset provision shall not apply to (x) any shares

 

4

----

 

## issued upon exercise or conversion of any currently outstandingoptions, warrants or convertible securities, or (y) any Common Stock options orwarrants issuable pursuant to an existing employee stock option plan or otherexisting compensation arrangement or any underlying Common Stock issued on theexercise thereof, but not pursuant to any amendment relating thereto to theextent such amendment increases the number of shares issuable under such planor arrangement.  The Issue Price shall becalculated taking into account the amount paid for the issuance of such CommonStock, option or warrant or convertible security and the amount, if any,payable upon the exercise or conversion thereof.

##  

## (c)           Recapitalization.  In case, prior to the expiration of thisWarrant by exercise or by its terms, the Company shall be recapitalized byreclassifying its outstanding Common Stock, (other than a change in par valueto no par value), or the Company or a successor corporation shall consolidateor merge with or convey all or substantially all of its or of any successorcorporation’s property and assets to any other corporation or corporations (anysuch other corporations being included within the meaning of the term “successorcorporation” hereinbefore used in the event of any consolidation or merger ofany such other corporation with, or the sale of all or substantially all of theproperty of any such other corporation to, another corporation orcorporations), then, as a condition of such recapitalization, consolidation,merger or conveyance, lawful and adequate provision shall be made whereby theHolder of this Warrant shall thereafter have the right to purchase, upon thebasis and on the terms and conditions specified in this Warrant, in lieu of theshares of Common Stock of the Company theretofore purchasable upon the exerciseof this Warrant, such shares of stock, securities or assets of the othercorporation as to which the Holder of this Warrant would have been entitled hadthis Warrant been exercised immediately prior to such recapitalization, consolidation,merger or conveyance; and in any such event, the rights of the Warrant Holderto any adjustment in the number of shares of Common Stock purchasable upon theexercise of this Warrant, as hereinbefore provided, shall continue and bepreserved in respect of any stock which the Holder becomes entitled topurchase.  The Company will not effectany such consolidation, merger or sale or conveyance unless prior to theconsummation thereof, the successor or acquiring entity (if other than theCompany) and, if an entity different from the successor or acquiring entity,the entity whose capital stock or assets the holders of the Common Stock of theCompany are entitled to receive as a result of such consolidation, merger orsale or conveyance assumes by written instrument the obligations under this Section 5(c) andthe obligations to deliver to the holder of this Warrant such shares of stock,securities or assets as, in accordance with the foregoing provisions, theholder may be entitled to acquire.

##  

## (d)           Dissolution.  In case the Company at any time while thisWarrant shall remain unexpired and unexercised shall sell all or substantiallyall of its property or dissolve, liquidate or wind up its affairs, lawfulprovision shall be made as part of the terms of any such sale, dissolution,liquidation or winding up, so that the Holder of this Warrant may thereafterreceive upon exercise hereof in lieu of each share of Common Stock of theCompany which it would have been entitled to receive, the same kind and amountof any securities or assets as may be issuable , distributable or payable uponany such sale, dissolution, liquidation or winding up with respect to eachshare of Common Stock of the Company; provided, however, that inany case of any such sale or of dissolution, liquidation or winding up, theright to exercise this Warrant shall terminate on a date fixed by theCompany.  Such date so fixed shall be noearlier than 3 P.M. New York City Time, on the thirtieth (30th) day nextsucceeding the date on which notice of

 

5

----

 

## such termination of the right to exercise this Warrant has been givenby mail to the registered Holder of this Warrant at its address as it appearson the books of the Company.

##  

## (e)           No Fractional Shares.  Upon any exercise of this Warrant by theHolder, the Company shall not be required to deliver fractions of one share,but adjustment in the purchase price payable by the Holder shall be made inrespect of any such fraction of one share on the basis of the purchase priceper share then applicable upon exercise of this Warrant.

##  

## (f)            Notices.  In the event that, prior to the expiration ofthis Warrant by exercise or by its terms, the Company shall determine to take arecord of its stockholders for the purpose of determining stockholders entitledto receive any dividend, stock dividend, distribution or other right whether    or not it may cause any change or adjustmentin the number, amount, price or nature of the securities or assets deliverableupon the exercise of this Warrant pursuant to the foregoing provisions, theCompany shall give at least ten days’ prior written notice to the effect thatit intends to take such record to the registered Holder of this Warrant at itsaddress as it appears on the books of the Company, said notice to specify thedate as of which such record is to be taken, the purpose for which such recordis to be taken, and the effect which the action which may be taken will haveupon this Warrant.

##  

## (g)           Registered Owner.  The Company may deem and treat the registeredHolder of the Warrant at any time as the absolute owner hereof for allpurposes, and shall not be affected by any notice to the contrary.

##  

## (h)           Status.  This Warrant shall not entitle any Holderthereof to any of the rights of a stockholder, and shall not entitle any Holderthereof to any dividend declared upon the Common Stock unless the Holder shallhave exercised the within Warrant and purchased the shares of Common Stockprior to the record date fixed by the Board of Directors for the determinationof holders of Common Stock entitled to exercise any such rights or receive saiddividend.

##  

# 6.             **Replacement of Warrant**.  Upon receipt by the Company of evidencereasonably satisfactory to it of the loss, theft, destruction or mutilation ofthis Warrant, and, in case of such loss, theft, destruction or mutilation, ofindemnity or security reasonably satisfactory to it in its sole discretion, andreimbursement to the Company of all expenses incidental or relating thereto,and upon surrender and cancellation of this Warrant (unless lost, stolen ordestroyed), the Company will make and deliver a new Warrant of like tenor, inlieu of this Warrant.

#  

# 7.             **Notices to Warrant Holder**.  Except as set forth in Section 5(f) hereto,nothing contained in this Warrant shall be construed as conferring upon theHolder hereof the right to vote or to consent or to receive notice as ashareholder in respect of any meetings of shareholders for the election ofdirectors or any other matter, or as having any rights whatsoever as ashareholder of the Company.

#  

# 8.             **Notices**.  All notices, requests, consents and othercommunications hereunder shall be in writing and shall be deemed to have beenduly made when delivered, or mailed by registered or certified mail, returnreceipt requested:

 

6

----

 

(a)           Ifto the registered Holder of this Warrant, to the address of such Holder asshown on the books of the Company; or

 

(b)           Ifto the Company, to the address set forth on the first page of this Warrantor to such other address as the Company may designate by notice to the Holder.

 

# 9.             **Successors**.  All the covenants, agreements,representations and warranties contained in this Warrant shall bind the partieshereto and their respective heirs, executors, administrators, distributees,permitted successors and permitted assigns. This Warrant may not be transferred without the prior written consent ofthe Company.  Any attempted assignment inviolation of the preceding sentence shall be void and of no effect.

#  

# 10.           **Holdings**.  The headings in this Warrant are inserted forpurposes of convenience only and shall have no substantive effect.

#  

# 11.           **Law Governing**.  This Warrant is delivered in the State ofDelaware and shall be construed and enforced in accordance with, and governedby, the laws of the State of Delaware, without giving effect to conflicts oflaw principles. Each of the parties agrees to the jurisdiction of the federalcourts whose districts encompass any part of the City of Wilmington or thestate courts of the State of Delaware sitting in the City of Wilmington inconnection with any dispute arising under this Warrant and hereby waives, tothe maximum extent permitted by law, any objection, including any objectionbased on *forum**non conveniens*,to the bringing of any such proceeding in such jurisdictions.

 

7

----

 

**IN WITNESS WHEREOF**, the Company has caused this Warrant to be signed inits corporate name by, and such signature to be attested to by, a dulyauthorized officer as of the date first above written.

 
|                                                                                                           | DYNTEK, INC. |
|----------------------------------------------------------------------------------------------------------------|--------------|
|                                                                                                           |         |
|                                                                                                           | By:          |   |   |
|                                                                                                           |         | Name: Robert  Webber |
|                                                                                                           |         | Title: | President and  Chief Financial |
|                                                                                                           |         | Officer |
|                                                                                                           |         |
| ACCEPTED AND  AGREED:                                                                                          |         |
|                                                                                                           |         |
| [                  ] |         |
|                                                                                                           |         |
| By:                                                                                                            |         |   |   |
|                                                                                                           | Name:        |   |
|                                                                                                           | Title:       |   |
|                                                                                                                |              |  |  |  |  |  |

 

8

----

 

**ASSIGNMENT**

 

(To Be Executed By theRegistered Holderto Effect a Transfer of the Within Warrant)

 

**FOR VALUE RECEIVED**

 

**hereby sells, assigns and transfers unto**

** **
|      |   |
|-----------|--------|
| (Name)    |
|      |
|      |   |
| (Address) |
|      |
|      |   |

 

the right to purchaseCommon Stock evidenced by the within Warrant, to the extent                of shares of Common Stock, and does hereby irrevocably constitute and appoint                      

 

to transfer the saidright on the books of the Company, with full power of substitution.

 
| Dated: |   | , | 20 |   | . |
|--------|--------|---|----|--------|---|

 
|   |        |
|--------|-------------|
|   | (Signature) |

 

 
| NOTICE: | The signature to  this assignment must correspond with the name as written upon the case of the  within Warrant in every particular, without alteration or enlargement, or any  change whatsoever and must be guaranteed by a bank, other than a savings bank  or trust company, having an office or correspondent in New York, or by a firm  having membership on a registered national securities exchange and an office  in New York, New York. |
|---------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

----

 

FORM OF SUBSCRIPTION

 

(To be signed only upon exercise of Warrant)

 

To DynTek, Inc.

 

The undersigned herebyelects to [check applicable subsection]:

 

(a)                                  Purchase                        (1)shares of Common Stock of DynTek, Inc. pursuant to the terms of theattached Warrant and tenders herewith payment in full for the purchase price ofthe shares being purchased, together with all applicable transfer taxes, ifany;

 

OR

 

(b)                                 Exercisethe attached Warrant for                    shares of Common Stock purchasable under the Warrant pursuant to the netexercise provisions of Section 1 of such Warrant.

 

 
| Dated: |
|--------|
|   |   |
|   |   |   |
|   | (Signature must  conform in all respects to  name of Holder as specified on the face of  the Warrants) |
|   |   |
|   |   |
|   |   |   |
|   | (Address) |

 

----

(1)                                  Inserthere the maximum number of shares or, in the case of a partial exercise, theportion thereof as to which the Warrant is being exercised.

 

----