Exhibit 10.9


 


THIS SECURITY AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT (i) PURSUANT TO A
REGISTRATION STATEMENT UNDER THE ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT
WITH RESPECT TO THE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION
FROM REGISTRATION UNDER THE ACT BUT ONLY UPON THE HOLDER HEREOF FIRST HAVING
OBTAINED THE WRITTEN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY
SATISFACTORY TO THE COMPANY, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH
ALL APPLICABLE PROVISIONS OF THE ACT AS WELL AS ANY APPLICABLE, “BLUE SKY” OR
SIMILAR SECURITIES LAW.


 


November       , 2005



 


AMENDED
AND RESTATED WARRANT


 


DYNTEK,
INC.


 


For
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged by DynTek, Inc., a Delaware corporation, with its principal
office at 19700 Fairchild Road, Suite 350, Irvine, California 92612 (the “Company”),
[             ]
(the “Holder”), subject to the terms and conditions of this Amended and
Restated Warrant (the “Warrant”), is hereby granted the right to purchase, at
the initial exercise price (the “Initial Exercise Price”) of $0.22 per share of
common stock, $0.0001 par value, of the Company (the “Common Stock”), at any
one 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 5
hereof.  This Warrant amends and restates
in its entirety that certain warrant (the “Original Warrant”) issued by the
Company to the Holder on October 15, 2004 in accordance with the terms and
conditions of that certain 9% Senior Subordinated Convertible Note Purchase
Agreement, dated as of October 15, 2004, between the Company, the Holder
and the other purchasers named therein (the “Purchase Agreement”).  The number of Shares that the Holder was
entitled to purchase upon exercise under the Original Warrant was [             ]
(the “Original Warrant Shares”).  The
Shares that the Holder is entitled to purchase under this Warrant, less the
Original Warrant Shares, are referred to herein as the “Additional Warrant Shares.”



 


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


 





















 


1.             Exercise of Warrant.


 


(a)           The purchase rights represented by
this Warrant are exercisable at the option of the Holder hereof, in whole or in
part, at one or more times during any period in which this Warrant may be
exercised as set forth above.  The Holder
shall not be deemed to have exercised its purchase rights hereunder until the
Company receives written notice of the Holder’s intent to exercise its purchase
rights hereunder.  The written notice
shall be in the form of the Subscription Form attached hereto and made a
part hereof.  Less than all of the Shares
may be purchased under this Warrant.  In
lieu of exercising this Warrant by the payment of cash, the Holder may elect to
receive, without the payment by the Holder of any additional consideration,
shares equal to the value of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with notice of such election, in which event the Company shall issue
to the holder hereof a number of shares of Common Stock computed using the
following 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 of
shares represented by “X” in the forgoing formula pursuant to such exercise,
the Company shall also reduce the number of Shares covered by this Warrant by
the number of shares represented by “Y” in the foregoing formula.  


 


As used herein, the term “Market Price” shall mean the
average of the closing price of the Company’s Common Stock on any national
securities exchange, on the Nasdaq National Market or the Nasdaq SmallCap
Market, or, if the Company’s Common Stock is not so listed on any national
securities exchange, on the Nasdaq National Market or the Nasdaq SmallCap
Market, then on the domestic over-the-counter market as reported by Bloomberg
or the National Quotation Bureau, Incorporated, or any similar successor
organization, for the ten (10) trading days prior to the date the Holder
exercises this Warrant.


 


(b)           In the event of any exercise of the
rights represented by this Warrant in accordance with and subject to the terms
and conditions hereof, (i) certificates for the Shares issuable upon
exercise of the Warrant shall be dated the date of such exercise and delivered
to the Holder hereof within a reasonable time, not exceeding two (2) trading
days after such exercise or, at the request of the Holder (provided that a
registration statement under the Securities Act providing for the resale of the
Warrant Stock is then in effect), issued and delivered to the Depository Trust
Company  account on the Holder’s behalf
via the Deposit


 


2





















 


Withdrawal Agent Commission System within a reasonable time, not
exceeding two (2) trading days after such exercise, and the Holder hereof
shall be deemed for all purposes to be the holder of the Shares issuable upon
exercise of the Warrant so purchased as of the date of such exercise.


 


(c)           Notwithstanding anything in this
Warrant to the contrary, in no event shall the Holder of this Warrant be
entitled to exercise a number of Warrants (or portions thereof) in excess of
the number of Warrants (or portions thereof) upon exercise of which the sum of (i) the
number of shares of Common Stock beneficially owned by the Holder and its
affiliates (other than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unexercised Warrants and the unexercised or
unconverted portion of any other securities of the Company subject to a
limitation on conversion or exercise analogous to the limitation contained
herein) and (ii) the number of shares of Common Stock issuable upon
exercise of the Warrants (or portions thereof) with respect to which the
determination described herein is being made, would result in beneficial
ownership by the Holder and its affiliates of more than 9.9% of the outstanding
shares of Common Stock.  For purposes of
the immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934,
as amended, and Regulations 13D G thereunder, except as otherwise provided in
clause (i) hereof.  Notwithstanding
anything in this Warrant to the contrary, the restrictions on exercise of this
Warrant set forth in this paragraph shall not be amended without (i) the
written consent of the Holder and the Company and (ii) the approval of the
holders of a majority of the Common Stock present, or represented by proxy, and
voting at any meeting called to vote on the amendment of such restriction.


 


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


 


3.             Restriction on Transfer; Investment
Representations; Registration Rights.


 


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


 


(b)           Registration Rights.  The Holder shall have such rights to request
the Company to register all or any of (i) the Original Warrant Shares
issuable upon exercise of this Warrant as set forth in the Registration Rights
Agreement, 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 this
Warrant as set forth in the Amendment No. 1 to Registration Rights
Agreement, dated the date hereof, by and among the Company, Holder and other
purchasers named in Schedule 1 thereto.


 


4.             Price.


 


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


 


(b)           Purchase Price.  The term “Purchase Price” herein shall mean
the 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 the
Purchase Price thereof shall be appropriately adjusted by the Company in
accordance herewith.


 


(a)           Adjustment to Purchase Price and
Number of Shares.  In case, prior to
the expiration of this Warrant by exercise or by its terms, the Company shall
issue any shares of its Common Stock as a stock dividend or subdivide the
number of outstanding shares of its Common Stock into a greater number of
shares, then in either of such cases, the then applicable purchase price per
share of the shares of Common Stock purchasable pursuant to this Warrant in
effect at the time of such action shall be proportionately reduced and the number
of shares at that time purchasable pursuant to this Warrant shall be
proportionately increased; and conversely, in the event the Company shall
contract the number of outstanding shares of Common Stock by combining such
shares into a smaller number of shares, then, in such case, the then applicable
purchase price per share of the shares of Common Stock purchasable pursuant to
this Warrant in effect at the time of such action shall be proportionately
increased and the number or shares of Common Stock purchasable pursuant to this
Warrant 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, at
substantially the same time, offer to its stockholders a right to purchase new
Common Stock from the proceeds of such dividend or for an amount substantially
equal to the dividend, all Common Stock so issued shall, for the purpose of
this Warrant, be deemed to have been issued as a stock dividend.  Any dividend paid or distributed upon the
Common Stock shall be treated as a dividend paid in Common Stock to the extent
that shares of Common Stock are issuable upon conversion thereof.


 


(b)           Purchase Price Reset Provision.  In the event that prior to the expiration of
this Warrant the Company sells publicly or privately (i) shares of its
Common Stock, (ii) securities convertible into shares of its Common Stock,
or (iii) options or warrants to purchase shares of its Common Stock or
securities convertible into shares of its Common Stock at a sale, conversion or
exercise price per share (the “Issue Price”), as the case may be, less than the
Purchase Price then in effect, the Purchase Price shall be reset to the Issue
Price and the number of shares purchasable pursuant to this Warrant shall be
increased 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 outstanding
options, warrants or convertible securities, or (y) any Common Stock options or
warrants issuable pursuant to an existing employee stock option plan or other
existing compensation arrangement or any underlying Common Stock issued on the
exercise thereof, but not pursuant to any amendment relating thereto to the
extent such amendment increases the number of shares issuable under such plan
or arrangement.  The Issue Price shall be
calculated taking into account the amount paid for the issuance of such Common
Stock, 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 this
Warrant by exercise or by its terms, the Company shall be recapitalized by
reclassifying its outstanding Common Stock, (other than a change in par value
to no par value), or the Company or a successor corporation shall consolidate
or merge with or convey all or substantially all of its or of any successor
corporation’s property and assets to any other corporation or corporations (any
such other corporations being included within the meaning of the term “successor
corporation” hereinbefore used in the event of any consolidation or merger of
any such other corporation with, or the sale of all or substantially all of the
property of any such other corporation to, another corporation or
corporations), then, as a condition of such recapitalization, consolidation,
merger or conveyance, lawful and adequate provision shall be made whereby the
Holder of this Warrant shall thereafter have the right to purchase, upon the
basis and on the terms and conditions specified in this Warrant, in lieu of the
shares of Common Stock of the Company theretofore purchasable upon the exercise
of this Warrant, such shares of stock, securities or assets of the other
corporation as to which the Holder of this Warrant would have been entitled had
this Warrant been exercised immediately prior to such recapitalization, consolidation,
merger or conveyance; and in any such event, the rights of the Warrant Holder
to any adjustment in the number of shares of Common Stock purchasable upon the
exercise of this Warrant, as hereinbefore provided, shall continue and be
preserved in respect of any stock which the Holder becomes entitled to
purchase.  The Company will not effect
any such consolidation, merger or sale or conveyance unless prior to the
consummation thereof, the successor or acquiring entity (if other than the
Company) 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 the
Company are entitled to receive as a result of such consolidation, merger or
sale or conveyance assumes by written instrument the obligations under this Section 5(c) and
the obligations to deliver to the holder of this Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, the
holder may be entitled to acquire.


 


(d)           Dissolution.  In case the Company at any time while this
Warrant shall remain unexpired and unexercised shall sell all or substantially
all of its property or dissolve, liquidate or wind up its affairs, lawful
provision 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 thereafter
receive upon exercise hereof in lieu of each share of Common Stock of the
Company which it would have been entitled to receive, the same kind and amount
of any securities or assets as may be issuable , distributable or payable upon
any such sale, dissolution, liquidation or winding up with respect to each
share of Common Stock of the Company; provided, however, that in
any case of any such sale or of dissolution, liquidation or winding up, the
right to exercise this Warrant shall terminate on a date fixed by the
Company.  Such date so fixed shall be no
earlier than 3 P.M. New York City Time, on the thirtieth (30th) day next
succeeding the date on which notice of


 


5





















 


such termination of the right to exercise this Warrant has been given
by mail to the registered Holder of this Warrant at its address as it appears
on the books of the Company.


 


(e)           No Fractional Shares.  Upon any exercise of this Warrant by the
Holder, 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 in
respect of any such fraction of one share on the basis of the purchase price
per share then applicable upon exercise of this Warrant.


 


(f)            Notices.  In the event that, prior to the expiration of
this Warrant by exercise or by its terms, the Company shall determine to take a
record of its stockholders for the purpose of determining stockholders entitled
to receive any dividend, stock dividend, distribution or other right whether    or not it may cause any change or adjustment
in the number, amount, price or nature of the securities or assets deliverable
upon the exercise of this Warrant pursuant to the foregoing provisions, the
Company shall give at least ten days’ prior written notice to the effect that
it intends to take such record to the registered Holder of this Warrant at its
address as it appears on the books of the Company, said notice to specify the
date as of which such record is to be taken, the purpose for which such record
is to be taken, and the effect which the action which may be taken will have
upon this Warrant.


 


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


 


(h)           Status.  This Warrant shall not entitle any Holder
thereof to any of the rights of a stockholder, and shall not entitle any Holder
thereof to any dividend declared upon the Common Stock unless the Holder shall
have exercised the within Warrant and purchased the shares of Common Stock
prior to the record date fixed by the Board of Directors for the determination
of holders of Common Stock entitled to exercise any such rights or receive said
dividend.


 


6.             Replacement of Warrant.  Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and, in case of such loss, theft, destruction or mutilation, of
indemnity or security reasonably satisfactory to it in its sole discretion, and
reimbursement to the Company of all expenses incidental or relating thereto,
and upon surrender and cancellation of this Warrant (unless lost, stolen or
destroyed), the Company will make and deliver a new Warrant of like tenor, in
lieu 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 the
Holder hereof the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company.


 


8.             Notices.  All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, return
receipt requested:


 


6





















 


(a)           If
to the registered Holder of this Warrant, to the address of such Holder as
shown on the books of the Company; or


 


(b)           If
to the Company, to the address set forth on the first page of this Warrant
or 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 parties
hereto and their respective heirs, executors, administrators, distributees,
permitted successors and permitted assigns. 
This Warrant may not be transferred without the prior written consent of
the Company.  Any attempted assignment in
violation of the preceding sentence shall be void and of no effect.


 


10.           Holdings.  The headings in this Warrant are inserted for
purposes of convenience only and shall have no substantive effect.


 


11.           Law Governing.  This Warrant is delivered in the State of
Delaware and shall be construed and enforced in accordance with, and governed
by, the laws of the State of Delaware, without giving effect to conflicts of
law principles. Each of the parties agrees to the jurisdiction of the federal
courts whose districts encompass any part of the City of Wilmington or the
state courts of the State of Delaware sitting in the City of Wilmington in
connection with any dispute arising under this Warrant and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based 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 in
its corporate name by, and such signature to be attested to by, a duly
authorized 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 the
Registered Holder

to Effect a Transfer of the Within Warrant)


 


FOR VALUE RECEIVED 


 


hereby sells, assigns and transfers unto 


 


	
   

  	
   

  
	
  (Name)

  
	
   

  
	
   

  	
   

  
	
  (Address)

  
	
   

  
	
   

  	
   

  



 


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


 


to transfer the said
right 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 hereby
elects to [check applicable subsection]:


 


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


 


OR


 


(b)                                 Exercise
the attached Warrant for                    
shares of Common Stock purchasable under the Warrant pursuant to the net
exercise 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)                                  Insert
here the maximum number of shares or, in the case of a partial exercise, the
portion thereof as to which the Warrant is being exercised.