**EXHIBIT 10.6**

 

**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:

 

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Exercisable to Purchase

 

____% of the Shares of Common Stock of theCompanyOutstanding as of the Exercise

 

 

of

 

 

**DYNTEK,INC.**

 

 

Void after December __, 2016

 

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This is to certify that,in exchange for the Warrantholder’s commitment to purchase one or more of theCompany’s Senior Secured Promissory Notes, due March __, 2010, in theoriginal aggregate principal amount of $_________, and for other good andvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, and subject to the terms and conditions set forth below, theWarrantholder is entitled to purchase, and the Company promises and agrees tosell and issue to the Warrantholder, at any time on or after March __,2006 (the “Effective Date”), pursuant to Section 2 hereof, up to thatnumber of shares of Common Stock of the Company equal to ____% of the shares ofcapital stock of the Company outstanding at the time of exercise, calculated ona fully diluted basis.

 

This Warrant certificateis issued subject to the following terms and conditions:

 

# 1.             Definitionsof Certain Terms.  Except as may beotherwise clearly required by the context, the following terms have thefollowing meanings:

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## (a)           “AdjustmentThreshold” will be $0.001 per share subject to adjustment from time to timepursuant to Section 3(c) of this Agreement.

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## (b)           “CommonStock” means the common stock, $0.0001 par value, of the Company.

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

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## (d)           “EffectiveDate” has the meaning set forth in the preamble to this Agreement.

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## (e)           “ExercisePeriod” means the period of time commencing on the Effective Date andending at 5 p.m. Pacific Time on December __, 2016.

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## (f)            “ExercisePrice” means the price at which the Warrantholder may purchase one Shareupon exercise of Warrants as determined from time to time pursuant to theprovisions hereof.  The Exercise Price willbe $0.001 per Share.

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## (g)           “NotePurchase Agreement” means that certain Note Purchase Agreement, dated as ofthe Effective Date, by and among, the Company, the initial Warrantholder, SACCPartners, L.P. and Trust A-4 - Lloyd I. Miller.

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## (h)           “SecuritiesAct” means the Securities Act of 1933, as amended.

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## (i)            “SecuritiesExchange Act” means the Securities Exchange Act of 1934, as amended.

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## (j)            “Share”or “Shares” refers to one or more shares of Common Stock issuable onexercise of the Warrant.

 

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## (k)           “Warrant”means the warrant evidenced by this certificate or any certificate obtainedupon transfer or partial exercise of the Warrant evidenced by any suchcertificate.

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## (l)            “Warrants”means all warrants issued pursuant to the Note Purchase Agreement by and amongthe Warrantholders and the Company.

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## (m)          “Warrantholder”means a record holder of the Warrant or Shares. The initial Warrantholder is set forth on the cover page of thisWarrant.

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# 2.             Exerciseof Warrants.  All or any part of theWarrant may be exercised during the Exercise Period by surrendering theWarrant, together with appropriate instructions, duly executed by theWarrantholder or by its duly authorized attorney, and delivery of payment infull by the Warrantholder, in lawful money of the United States, of theExercise Price payable with respect to the Shares being purchased at the officeof the Company, 19700 Fairchild Road, Suite 230, Irvine, California 92612,Attention: Chief Financial Officer, or at such other office or agency as theCompany may designate.  The date on whichsuch instructions and the Exercise Price are received by the Company shall bethe date of exercise.  Upon receipt ofnotice of exercise and the Exercise Price, the Company shall immediatelyinstruct its transfer agent to prepare certificates for the Shares to be receivedby the Warrantholder and shall use commercially reasonable efforts to causesuch certificates to be prepared and delivered to the Warrantholder inaccordance with the Warrantholder’s instructions within three business daysafter the date of exercise.  If theWarrantholder shall provide the Company with an opinion of counsel to theeffect that the legend set forth on the face of this Warrant is not required,such certificates shall not bear a legend with respect to the Securities Act.

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Iffewer than all the Shares purchasable under the Warrant are purchased, theCompany will, upon such partial exercise, execute and deliver to theWarrantholder a new Warrant certificate (dated the date hereof), in form andtenor similar to this Warrant certificate, evidencing that portion of theWarrant not exercised.  The Shares to beobtained on exercise of the Warrant will be deemed to have been issued, and anyperson exercising the Warrants will be deemed to have become a holder of recordof those Shares, as of the date of the payment of the Exercise Price.

 

# 3.             Adjustmentsin Certain Events.  The number,class, and price of the Shares for which this Warrant is exercisable aresubject to adjustment from time to time upon the happening of certain events asfollows:

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## (a)           Notwithstandingthe fact that the Company may divide its Common Stock into a greater number ofshares, pay a dividend on its Common Stock or combine its Common Stock into asmaller number of shares, in no event shall the Exercise Price be increased asa result of such action with respect to the Common Stock of the Company.

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## (b)           Incase of any change in the Common Stock through merger, consolidation,reclassification, reorganization, partial or complete liquidation, purchase ofsubstantially all the assets of the Company, or other change in the capitalstructure of the Company, then, as a condition of such change, lawful andadequate provision will be made

 

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## 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.

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## (c)           Subsequentto the effective date, if the Company shall sell or issue shares of CommonStock (other than Excluded Stock, as defined hereinafter for a considerationper share less than the Adjustment Threshold, then, upon such sale or issuance,the Exercise Price shall be adjusted so that the Exercise Price shall equal theprice determined by dividing the aggregate amount of consideration, if any,received, or to be received, by the Company upon such issuance or sale by thenumber of shares sold, issued or issuable. Upon any adjustment of the Exercise Price pursuant to this Section 3(c),the adjusted Exercise Price shall be the Adjustment Threshold with respect tofuture issuances by the Company after any such adjustment.

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### (i)            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:

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#### (A)          insofar as it consists of cash, atthe aggregate amount of cash received by the Company before deducting anyreasonable discounts, commissions or other expenses allowed, paid or incurredby the Company for any underwriting or otherwise in connection with suchissuance;

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#### (B)           insofar as it consists of propertyother than cash, at the fair market value thereof at the time of such issue, asdetermined in good faith by the Company’s Board of Directors; and

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

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### (ii)           For purposes of this Section 3(c),“Excluded Stock” 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 Effective Date, (B) 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; provided that the numberof shares issued or issuable to officers and directors of the Company who arereporting persons under

 

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### Section 16of the Securities Exchange Act under this subsection and after theEffective Date shall not exceed the number of shares equal to five percent (5%)of the fully diluted outstanding shares of Common Stock of the Company,calculated using the treasury stock method immediately prior to the issuance ofsuch shares of Common Stock, in the aggregate, subject to adjustment forsubdivisions and combinations and net of any repurchases of such shares orcancellations or expirations of rights to purchase.

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### (iii)          In the event of any change in the ExercisePrice as a result of the issuance of such rights, warrants or options or suchconvertible securities, the Exercise Price shall be recomputed to reflect suchchange, but no further adjustment shall be made for the actual issuance ofCommon Stock or any payment of such consideration upon the exercise of any suchrights, warrants or options or the conversion of such securities.

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### (iv)          Upon the expiration of any suchrights, warrants or options or the termination of any such rights orconvertible securities, the Exercise Price, to the extent in any way affectedby or computed using such rights, warrants or options or convertiblesecurities, shall be recomputed to reflect the issuance of only the number ofshares of Common Stock actually issued upon the exercise of such rights,warrants or options or upon the conversion of such securities.

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## (d)           Forpurposes of this Section 3, the sale or issuance by the Company of rights,warrants or options to purchase Common Stock or securities convertible intoCommon Stock shall be deemed to be the sale or issuance of shares of CommonStock (in which event the subsequent exercise thereof shall not be deemed to bea separate sale or issuance for purposes of this Section 3), and theconsideration therefor shall consist of the consideration received by theCompany upon issuance of such rights, warrants, options or convertiblesecurities plus any consideration to be received upon the exercise orconversion thereof.

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## (e)           Whenany adjustment is required to be made in the number of Shares or othersecurities or property purchasable upon exercise of the Warrant, the Companywill promptly determine the new number of such Shares or other securities orproperty purchasable upon exercise of the Warrant and (i) prepare andretain on file a statement describing in reasonable detail the method used inarriving at the new number of such Shares or other securities or propertypurchasable upon exercise of the Warrant and (ii) cause a copy of suchstatement to be mailed to the Warrantholder within thirty (30) days after thedate of the event giving rise to the adjustment.

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## (f)            Nofractional shares of Common Stock or other securities will be issued inconnection with the exercise of the Warrant, but the Company will pay, in lieuof fractional shares, a cash payment therefor on the basis of the mean betweenthe bid and asked prices of the Common Stock in the over-the-counter market orthe closing price on a national securities exchange or Nasdaq on the dayimmediately prior to exercise.

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## (g)           Ifsecurities of the Company or securities of any subsidiary of the Company aredistributed pro rata to holders of Common Stock, such number of such 

 

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## securities will bedistributed to the Warrantholder or his assignee upon exercise of this Warrantas the Warrantholder or assignee would have been entitled to if the portion ofthe Warrant evidenced by this Warrant certificate had been exercised prior tothe record date for such distribution. The provisions with respect to adjustment of the Common Stock providedin this Section 3 will also apply to the securities to which theWarrantholder or his assignee is entitled under this subsection 3(g).

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## (h)           Inthe event (i) the Company establishes a record date to determine theholders of any class of securities who are entitled to receive any dividend orother distribution or (ii) there occurs any change in the Common Stockthrough merger, consolidation, reclassification, reorganization, partial orcomplete liquidation, purchase of substantially all of the assets of theCompany or other change in the capital structure of the Company, the Companyshall give to the holder hereof a notice specifying (a) the date of suchrecord date for the purpose of such dividend or distribution and a descriptionof such dividend or distribution, (b) the date on which any such merger,consolidation, reclassification, reorganization, sale, liquidation or otherchange in the capital structure of the Company is expected to become effective,and (c) the time, if any, that is to be fixed, as to when the holders ofrecord of Common Stock (or other securities) shall be entitled to exchangetheir shares of Common Stock (or other securities) for securities or otherproperty deliverable upon such merger, consolidation, reclassification,reorganization, sale, liquidation or other change in the capital structure ofthe Company.  Such written notice shallbe given to the holder of this Warrant at least ten (10) days prior to thedate specified in such notice on which any such action is to be taken.

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# 4.             Registration.  Warrantholder shall have the registrationrights as set forth in the Note Purchase Agreement pursuant to Article VI,which is hereby incorporated by reference.

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# 5.             Reservationof Shares.  The Company agrees thatthe number of shares of Common Stock or other securities sufficient to providefor the exercise of the Warrant upon the basis set forth above will at alltimes during the term of the Warrant be reserved for exercise.  If at any time the Company does not have asufficient number of shares of Common Stock or other securities authorized toprovide for the exercise of the Warrant, the Company shall take such actions asmay be reasonably necessary to increase the number of authorized shares of CommonStock or other securities to provide for exercise of the Warrant.

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# 6.             Validityof Shares.  All Shares or othersecurities delivered upon the exercise of the Warrant will be duly and validlyissued in accordance with their terms, and, in the case of capital stock, will,when issued and delivered in accordance with their terms against paymenttherefor as provided in the Warrant, be fully paid and nonassessable, and theCompany will pay all documentary and transfer taxes, if any, in respect of theoriginal issuance thereof upon exercise of the Warrant.

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# 7.             Transfer.This Warrant may be freely sold, transferred, assigned or hypothecated by theWarrantholder.  The Warrant may bedivided or combined, upon request to the Company by the Warrantholder, into a certificateor certificates evidencing the same aggregate number of Warrants.

 

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# 8.             VotingRights.  Pursuant to the terms of Section 5.18of the Note Purchase Agreement, the Company will use its reasonable bestefforts to obtain stockholder approval of an amendment to its Certificate ofIncorporation pursuant to Section 221 of the Delaware General CorporationLaw to provide that the Warrentholders may vote the Shares issuable uponexercise of the Warrants prior to such exercise and issuance as though theWarrants had been exercised and the Shares issued.

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# 9.             NoRights as a Stockholder.  Except asotherwise provided herein, the Warrantholder will not, by virtue of ownershipof the Warrant, be entitled to any rights of a stockholder of the Company butwill, upon written request to the Company, be entitled to receive suchquarterly or annual reports as the Company distributes to its stockholders.

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# 10.           NoDividend.  Except to the extentcompliance is waived in writing by the Warrantholder, for as long as all or anyportion of this warrant shall remain outstanding, the Company will not, norwill it permit any of its subsidiaries to declare or pay any dividends on ormake any other distributions in respect of any class or series of its capitalstock or other equity interest.

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# 11.           Notice.  Any notices required or permitted to be givenunder the terms of this Warrant must be sent by certified or registered mail(return receipt requested) or delivered personally or by courier (including arecognized overnight delivery service) or by facsimile and will be effectivefive (5) days after being placed in the mail, if mailed by regular U.S.mail, or upon receipt, if delivered personally, by courier (including arecognized overnight delivery service) or by facsimile, in each case addressedto a party.  The addresses for suchcommunications are:

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Ifto the Company:

 

Chief Financial Officer

DynTek, Inc.

19700 Fairchild Road, Suite 230

Irvine, California 92612

Fax:     (949) 955-0086

 

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.

 

# 12.           GoverningLaw; Jurisdiction; Jury Trial Waiver. This Warrant will be governed by and interpreted in accordance with thelaws of the State of Delaware without regard to the principles of conflict oflaws.  The parties hereto hereby submitto the exclusive jurisdiction of the United States federal and state courtslocated in the County of New Castle, State of Delaware with respect to anydispute arising under this Warrant. EACH PARTY HEREBY IRREVOCABLY WAIVES ANYRIGHT THAT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THEADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH.

 

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# 13.           EntireAgreement.  This Warrant, theexhibits and schedules hereto, and the documents referred to herein, constitutethe entire agreement and understanding of the parties hereto with respect tothe subject matter hereof, and supersede all prior and contemporaneousagreements and understandings, whether oral or written, between the partieshereto with respect to the subject matter hereof.

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# 14.           Waiver;Consent.  This Warrant may not bechanged, amended, terminated, augmented, rescinded or discharged (other than byperformance), in whole or in part, except by a writing executed by the partieshereto, and no waiver of any of the provisions or conditions of this Warrant orany of the rights of a party hereto shall be effective or binding unless suchwaiver shall be in writing and signed by the party claimed to have consentedthereto.  Any amendment or waiver signedby Warrantholders holding Warrants to purchase a majority of all of the Sharesissuable upon exercise of the Warrants then outstanding shall be binding uponall Warrantholders.

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# 15.           NoImpairment.  The Company will not, byamendment of its Certificate of Incorporation, or throughreorganization, consolidation, merger, dissolution, issue or sale ofsecurities, sale of assets or any other voluntary action, avoid or seekto avoid the observance or performance of any of the terms of this Warrant, butwill at all times in good faith assist in the carrying out of all such termsand in the taking of all such action as may be necessary or appropriate inorder to protect the rights of the Warrantholder of this Warrant against dilution or other impairment.

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# 16.           Remedies.  The Company stipulates that the remedies atlaw of the Warrantholder of this Warrant in the event of any default orthreatened default by the Company in the performance of or compliance with anyof the terms of this Warrant are not adequate and may be enforced by a decreefor the specific performance of any agreement contained herein or by aninjunction against a violation of any of the terms hereof or otherwise.

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# 17.           Severability.  If one or more provisions of this Warrant areheld to be unenforceable under applicable law, such provision shall be excludedfrom this Warrant and the balance of the Warrant shall be interpreted as ifsuch provision were so excluded and the balance shall be enforceable inaccordance with its terms.

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[SIGNATURESON FOLLOWING PAGE]

 

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[SIGNATUREPAGE TO PURCHASE WARRANT]

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

 

Datedas of March __, 2006

 
| **DYNTEK, INC.**                              |
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| By:                                           |   |   |
| Its:                                          |   |   |
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| Agreed and Accepted as of March __, 2006 |
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| **[WARRANTHOLDER]**                           |
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| By:                                           |   |   |
| Its:                                          |   |   |

 

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