EXHIBIT 10.9


 


THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE  NOT BEEN
REGISTERED 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 A
REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION.


 


 


PURCHASE WARRANT


 


Issued to:


 






 


Exercisable to Purchase


 


_______________ Shares of Common Stock


 


 


of


 


 


DYNTEK,
INC.


 


 


Void after March____, 2011


 

















 


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


 


This
Warrant 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, the
following terms have the following meanings:


 


(a)           “Additional Shares of Common Stock”
shall mean all shares of Common Stock, convertible securities, rights or
options issued or deemed to be issued by the Company, whether or not
subsequently reacquired or retired by the Company, other than Excluded
Securities (as defined in Section 3(c)).


 


(b)           “Closing Date” has the meaning set
forth in the Securities Purchase Agreement.


 


(c)           “Common Shares” means the shares
of Common Stock sold by the Company pursuant to the Securities Purchase
Agreement.


 


(d)           “Common Stock” means the common
stock, $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, with
respect to Additional Shares of Common Stock, the quotient determined by
dividing 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) of
this Warrant, into the Aggregate Consideration Received, or deemed to have been
received, by the Company under Section 3(c) of this Warrant, for the
issue or sale, or deemed issue or sale, of such Additional Shares of Common
Stock.


 


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


 


(i)            “Exercise Price” means the price
at which the Warrantholder may purchase one Share upon exercise of Warrants as
determined from time to time pursuant to the provisions hereof.  The initial Exercise Price is $0.02 per
Share.


 


(j)            “Mandatory Exercise Notice” means
the notice delivered by the Company to the Warrantholder advising the
Warrantholder that the weighted average closing sale price of the Company’s
Common Stock, as reported by the Over the Counter Bulletin Board or such other
securities exchange or system on which the Company’s Common Stock is then
listed, is equal to or greater than 150% of the Exercise Price (as adjusted for
splits, 


 


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reverse splits, stock
dividends, share combinations and the like) for thirty (30) consecutive trading
days.


 


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


 


(l)            “Securities Exchange Act” means
the 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 the
Investors referenced therein.


 


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


 


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


 


(p)           “Warrants” means the warrants
issued pursuant to the Securities Purchase Agreement.


 


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


 


2.             Exercise of Warrants.


 


(a)           All or any part of the Warrant may be
exercised during the Exercise Period by surrendering the Warrant, together with
appropriate instructions, duly executed by the Warrantholder or by its duly
authorized attorney, and delivery of payment in full by the Warrantholder, in lawful
money of the United States, of the Exercise Price payable with respect to the
Shares 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 may
designate.  The date on which such
instructions and the Exercise Price are received by the Company shall be the
date of exercise.  Upon receipt of notice
of exercise and the Exercise Price, the Company shall immediately instruct its
transfer agent to prepare certificates for the Shares to be received by the
Warrantholder and shall use commercially reasonable efforts to cause such
certificates to be prepared and delivered to the Warrantholder in accordance
with the Warrantholder’s instructions within three business days after the date
of exercise.  If the Warrantholder shall
provide the Company with an opinion of counsel to the effect 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.


 


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


 


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


 


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


 


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


 


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


 


(b)           In case of any change in the Common Stock
through merger, consolidation, reclassification, reorganization, partial or
complete liquidation, purchase of substantially all the assets of the Company,
or other change in the capital structure of the Company, then, as a condition
of such change, lawful and adequate provision will be made so that the holder
of this Warrant will have the right thereafter to receive upon the exercise of
the Warrant the kind and amount of shares of stock or other securities or
property to which he would have been entitled if, immediately prior to such
event, he had held the number of Shares obtainable upon the exercise of the
Warrant.  In any such case, appropriate
adjustment will be made in the application of the provisions set forth herein
with respect to the rights and interest thereafter of the Warrantholder, to the
end that the provisions set forth herein will thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the exercise of the Warrant.  The Company will not permit any change in its
capital structure to occur unless the issuer of the shares of stock or other
securities 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)           If at any time after the Date of Issuance
the Company issues, or is deemed by the provisions of this Section 3(c) to
have issued, or sold, Additional Shares of Common Stock, other than in
connection with a dividend, combination, reclassification, liquidation or
distribution described in Section 3(b) above, at a price below the
Exercise 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 shall
be reduced as of the opening of business on the date immediately following such
issue 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 purchase
Common Stock or securities convertible into Common Stock shall be deemed to be
the sale or issuance of shares of Common Stock (in which event the subsequent
exercise thereof shall not be deemed to be a separate sale or issuance for
purposes of this Section 3(c)), and the consideration therefor shall
consist of the consideration received by the Company upon issuance of such
rights, warrants, options or convertible securities plus any consideration to
be 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 Common
Stock shall be computed as follows:


 


(A)          insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Company before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by the Company for any underwriting or otherwise in connection with
such issuance;


 


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


 


(C)           in the event that it consists of
consideration covering both cash and property, be the proportion of such
consideration 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), “Excluded
Securities” shall mean (A) all shares issuable upon the exercise or
conversion of currently outstanding warrants, options, other rights to purchase
Common Stock and convertible securities outstanding as of the Closing Date, (B) the
warrant (the “Lenders’ Warrant”) issued pursuant to the Amended and Restated
Note 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 per
share, (C) all shares issued upon exercise of the Lenders’ Warrant, (D) all
shares issued or issuable pursuant to any incentive plan or arrangement
approved by the Board of Directors for the benefit of the Company’s employees,
officers, directors or consultants or others with important business
relationships with the Company, (E) all shares issued or issuable as a
dividend or other distribution or pursuant to any event for which an adjustment
is made pursuant to Section 3(a) for subdivisions or combinations of
the Company’s capital stock and pursuant to Section 3(b) for any
reclassification, exchange or 


 


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substitution of the
Company’s capital stock, (F) all shares issued or issuable pursuant to the
acquisition of another corporation by the Company by merger, purchase of
substantially all of the assets or other reorganization or to a joint venture
agreement, (G) all shares issued or issuable to banks, equipment lessors
or other financial institutions pursuant to a debt financing or commercial
leasing transaction, other than a convertible debt financing; provided that no
party receiving such shares is an affiliate or immediate family, as defined in
Item 404 of Regulation S-K promulgated under the Securities Act, of an
affiliate of the Company and the Board of Directors shall have reasonably
determined in good faith that the terms of the issuance are arms-length, and (H) all
shares issued or issuable in connection with strategic partnerships or to
others with important business relationships with the Company; provided that no
party receiving such shares is an affiliate or immediate family, as defined in
Item 404 of Regulation S-K promulgated under the Securities Act, of an
affiliate of the Company and the Board of Directors shall have reasonably
determined in good faith that the terms of the issuance are arms-length.


 


(iv)          In the event of any change in the
Exercise Price as a result of the issuance of such rights, warrants or options
or such convertible securities, the Exercise Price shall be recomputed to
reflect such change, but no further adjustment shall be made for the actual
issuance of Common Stock or any payment of such consideration upon the exercise
of 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 convertible
securities, the Exercise Price, to the extent in any way affected by or
computed using such rights, warrants or options or convertible securities,
shall be recomputed to reflect the issuance of only the number of shares of
Common Stock actually issued upon the exercise of such rights, warrants or
options or upon the conversion of such securities.


 


(d)           When any adjustment is required to be
made in the number of Shares or other securities or property purchasable upon
exercise of the Warrant, the Company will promptly determine the new number of
such Shares or other securities or property purchasable upon exercise of the
Warrant and (i) prepare and retain on file a statement describing in
reasonable detail the method used in arriving at the new number of such Shares
or other securities or property purchasable upon exercise of the Warrant and (ii) cause
a 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 or
other 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 therefor
on the basis of the mean between the bid and asked prices of the Common Stock
in the over-the-counter market or the closing price on a national securities
exchange or Nasdaq on the day immediately prior to exercise.


 


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


 


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such
distribution.  The provisions with
respect to adjustment of the Common Stock provided in this Section 3 will
also apply to the securities to which the Warrantholder or his assignee is
entitled under this subsection 3(f).


 


(g)           In the event (i) the Company
establishes a record date to determine the holders of any class of securities
who are entitled to receive any dividend or other distribution or (ii) there
occurs any change in the Common Stock through merger, consolidation,
reclassification, reorganization, partial or complete liquidation, purchase of
substantially all of the assets of the Company or other change in the capital
structure of the Company, the Company shall give to the holder hereof a notice
specifying (a) the date of such record date for the purpose of such
dividend or distribution and a description of such dividend or distribution, (b) the
date on which any such merger, consolidation, reclassification, reorganization,
sale, liquidation or other change 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 of record of Common Stock (or other securities)
shall be entitled to exchange their shares of Common Stock (or other
securities) for securities or other property deliverable upon such merger,
consolidation, reclassification, reorganization, sale, liquidation or other
change in the capital structure of the Company. 
Such written notice shall be given to the holder of this Warrant at
least ten (10) days prior to the date specified in such notice on which
any such action is to be taken.


 


4.             Reservation of Shares. 
The Company agrees that the number of shares of Common Stock or other
securities sufficient to provide for the exercise of the Warrant upon the basis
set forth above will at all times during the term of the Warrant be reserved
for exercise.  If at any time the Company
does not have a sufficient number of shares of Common Stock or other securities
authorized to provide for the exercise of the Warrant, the Company shall take
such actions as may be reasonably necessary to increase the number of
authorized shares of Common Stock or other securities to provide for exercise
of the Warrant.


 


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


 


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


 


7.             No Rights as a Stockholder. 
Except as otherwise provided herein, the Warrantholder will not, by
virtue of ownership of the Warrant, be entitled to any rights of a stockholder
of the Company but will, upon written request to the Company, be entitled to
receive such quarterly or annual reports as the Company distributes to its
stockholders.


 


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8.             Notice.  Any notices
required or permitted to be given under the terms of this Warrant must be sent
by certified or registered mail (return receipt requested) or delivered
personally or by courier (including a recognized overnight delivery service) or
by facsimile and will be effective five (5) days after being placed in the
mail, 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 addresses
for such communications are:


 


If
to the Company:


 


Chief Financial Officer


DynTek, Inc.


19700 Fairchild Road, Suite 230


Irvine, California 92612


fax           (949) 271- ________


 


If
to a Warrantholder:  to the address set
forth immediately below the Warrantholder’s name on the signature pages hereto.


 


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


 


9.             Governing Law; Jurisdiction; Jury Trial
Waiver.  This Warrant will be governed by and
interpreted in accordance with the laws of the State of California without
regard to the principles of conflict of laws. 
The parties hereto hereby submit to the exclusive jurisdiction of the
United States federal and state courts located in the County of Orange, State
of California with respect to any dispute arising under this Warrant. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO, AND AGREES
NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR
IN CONNECTION HEREWITH.


 


10.           Entire Agreement. 
This Warrant, the exhibits and schedules hereto, and the documents
referred to herein, constitute the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof, and supersede all
prior and contemporaneous agreements and understandings, whether oral or
written, 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 the
provisions or conditions of this Warrant or any of the rights of a party hereto
shall be effective or binding unless such waiver shall be in writing and signed
by the party claimed to have consented thereto. 
Any amendment or waiver signed by Warrantholders holding Warrants to
purchase a majority of all of the Shares issuable upon exercise of the Warrants
then outstanding shall be binding upon all Warrantholders.


 


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


 


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or performance of
any of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the Warrantholder
of this Warrant against dilution or
other impairment.


 


13.           Remedies.  The Company
stipulates that the remedies at law of the Warrantholder of this Warrant in the
event of any default or threatened default by the Company in the performance of
or compliance with any of the terms of this Warrant are not adequate and may be
enforced by a decree for the specific performance of any agreement contained
herein or by an injunction against a violation of any of the terms hereof or
otherwise.


 


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


 


 


[SIGNATURES ON FOLLOWING
PAGE]


 


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[SIGNATURE PAGE TO
PURCHASE WARRANT]


 


IN
WITNESS WHEREOF, the parties hereto have executed this Warrant effective as of
the date set forth below.


 


Dated
as of March ____, 2006


 


	
  DYNTEK, INC.

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  



 


 


Agreed and Accepted as of March ____, 2006


 


	
  [WARRANTHOLDER]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Its: