EXHIBIT 10.2


 


THE SECURITIES REPRESENTED BY
THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. ANY TRANSFER OF SUCH
SECURITIES WILL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT AND AS
REQUIRED BY BLUE SKY LAWS IS IN EFFECT AS TO SUCH TRANSFER OR IN THE OPINION OF
COUNSEL SATISFACTORY TO THE BORROWER SUCH REGISTRATION IS UNNECESSARY IN ORDER
FOR SUCH TRANSFER TO COMPLY WITH THE ACT AND BLUE SKY LAWS.


 


DynTek, Inc.


 


Secured Promissory Note


 


Note No.     


	
  $ _________

  	
  March ______, 2006

  



 


FOR VALUE RECEIVED,
subject to the terms and conditions of this Note (the “Note”), DynTek, Inc.,
a Delaware corporation with its principal offices located at 19700 Fairchild
Road, Suite 230, Irvine, California (the “Borrower”), hereby
promises to pay to the order of ______ (the “Holder”) with its principal
office located at 11100 Santa Monica Blvd., Suite 800, Los Angeles,
California 90025, the principal sum of ______________________________________ ($          ),
in lawful money of the United States and in immediately available funds, on March
  , 2010 or, if such day is not a regular business day, on the next
business day thereafter, with all accrued but unpaid interest (as provided
below) to such date (the “Maturity Date”). Subject to the terms and
conditions of this Note (including without limitation Section 5(f)), the
Borrower also promises to pay to the Holder interest accrued on the outstanding
unpaid principal amount hereof until such principal amount is paid at the rate
of eight percent (8%) per annum, compounding quarterly, from the date hereof. The
said interest shall become due quarterly in arrears and shall be payable on the
last day of each fiscal quarter (each, an “Interest Payment Date”) in respect
of the immediately preceding completed fiscal quarter. The first Interest
Payment Date will be June __, 2006. At the Borrower’s sole option, all
interest payments due and payable through March 31, 2009 may be paid
in kind at the rate of _____________ percent (__%) per annum, compounding
quarterly, in which case the accrued interest will be added to the principal
amount of the Note on the applicable Interest Payment Date, and interest will
accrue on the aggregate principal amount. Principal will be amortized over
three years and payable, as set forth on Schedule A, in equal monthly
installments on the last day of each month beginning on March __, 2009,
with the balance to be paid in full on the Maturity Date. All interest payments
due and payable after March __, 2009 must be paid in cash.


 


This Note is one of the
Notes issued pursuant to that certain Note Purchase


 

















 


Agreement dated March 8,
2006 among the Borrower and the purchasers named therein (the “Note Purchase
Agreement”) and shall be entitled to the benefits thereof. This Note is
secured by a security interest in all of the assets of Borrower as described
more fully in that certain Security and Pledge Agreement (the “Security
Agreement”) executed by Borrower and the holders thereto and dated as of
the date hereof.


 


1.                                       Definitions.
Unless the context otherwise requires, the following terms shall have the
following respective meanings:


 


“Borrower” has the
meaning ascribed to such term in the first paragraph of this Note.


 


“Event of Default”
has the meaning ascribed to such term in Section 4(a) of this Note.


 


“Holder” has the
meaning ascribed to such term in the first paragraph of this Note.


 


“Maturity Date” has
the meaning ascribed to such term in the first paragraph of this Note.


 


“Note” has the
meaning ascribed to such term in the first paragraph of this instrument.


 


“Note Purchase
Agreement” has the meaning ascribed to such term in the second paragraph of
this Note.


 


“Security Agreement”
has the meaning ascribed to such term in the second paragraph of this Note.


 


2.                                       Accounting
Terms. All accounting terms not specifically defined in this Note shall be
construed in accordance with United States generally accepted accounting
principles and, if applicable, consistent with those applied in the preparation
of the financial statements of the Borrower.


 


3.                                       Prepayment.
The Note may be paid prior to the Maturity Date only as provided in Section 1.06
the Note Purchase Agreement, which section is incorporated herein by
reference.


 


4.                                       Events
of Default.


 


(a)                                  Events
Constituting An Event of Default. Any of the events set forth in Section 1.15
of the Note Purchase Agreement, which section is incorporated herein by
reference, shall constitute an “Event of Default” under this Note.


 


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(b)                                 Consequences
of an Event of Default. Upon the occurrence of an Event of Default or at
any time thereafter, the registered holder of the Note may, by notice to the
Borrower, declare the entire unpaid principal amount of the Note, all interest
accrued and unpaid thereon and all other amounts payable under this Note to be
forthwith due and payable, whereupon the Note, all such accrued interest and
all such amounts will become and be forthwith due and payable (unless there
will have occurred an Event of Default under subsection 1.15(e) of
the Notice Purchase Agreement, in which case all such amounts will
automatically become due and payable) without offset or counterclaim of any
kind and without presentment, demand, protest or further notice of any kind, and
without regard to the running of the statute of limitations, all of which are by
this Note expressly waived by the Borrower.


 


5.                                       General
Matters.


 


(a)                                  Applicable
Law. This Note shall be governed by the internal laws (and not the law of
conflicts) of the State of California.


 


(b)                                 Fees
and Expenses. In the event that any suit or action is instituted to enforce
any provision under this Note, the prevailing party in such dispute shall be
entitled to recover from the losing party all fees, costs and expenses of
enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals. Notwithstanding the foregoing, the Borrower
agrees to pay and hold Holder harmless against liability for the payment of the
reasonable fees and expenses of Holder (including, without limitation,
attorneys’ fees and expenses and out of pocket expenses of Holder and its
representatives, including, without limitation, fees and expenses for travel,
background investigations and outside consultants) arising in connection with
any refinancing or restructuring of the credit arrangements provided under this
Note in the nature of a “work-out” or pursuant to any insolvency or bankruptcy
proceedings.


 


(c)                                  Amendment
or Waiver. Any term of this Note may be amended, and the observance of
any term of this Note may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by the written consent
of the Holder.


 


(d)                                 Headings.
The headings in this Note are for purposes of convenience of reference only,
and shall not be deemed to constitute a part of this Note.


 


(e)                                  Notices.
All notices, requests, consents and other communications required or permitted
hereunder shall be in writing (including telecopy or similar writing) and shall
be sent to the address of the party set forth in the Note Purchase Agreement. Any
notice, request, consent or other communication hereunder shall be deemed to
have been given and received on the day on which it is delivered (by any means
including personal delivery, overnight air courier, United States mail) or


 


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telecopied
(or, if such day is not a business day or if the notice, request, consent or
communication is not telecopied during business hours of the intended
recipient, at the place of receipt, on the next following business day). Any of
the parties hereto may, by notice given hereunder, designate any further or
different address and/or number to which subsequent notices or other
communications shall be sent. Unless and until such written notice is received,
the addresses and numbers as provided herein shall be deemed to continue in
effect for all purposes hereunder.


 


(f)                                    Usury
Limitation. In no event shall the amount paid or agreed to be paid to the
Holder for the use or forbearance of money to be advanced hereunder exceed the
highest lawful rate permissible under the then applicable usury laws. If it is
hereafter determined by a court of competent jurisdiction that the interest
payable hereunder is in excess of the amount which the Holder may legally
collect under the then applicable usury laws, such amount which would be
excessive interest shall be applied to the payment of the unpaid principal
balance due hereunder and not to the payment of interest or, if all principal
shall previously have been paid, promptly repaid by the Holder to the Borrower.


 


(g)                                 Severability.
Every provision of this Note is intended to be severable. If any term or
provision hereof is declared by a court of competent jurisdiction to be illegal
or invalid, such illegal or invalid term or provision shall not affect the
balance of the terms and provisions hereof, which terms and provisions shall
remain binding and enforceable.


 


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IN WITNESS WHEREOF, the
Borrower has caused this Note to be executed as of the day and year first above
written.


 


	
   

  	
  DYNTEK, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


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