party, unless such settlement
includes an unconditional release of such Indemnitees from all liabilities that
are the subject matter of such proceeding.
Subject to the foregoing, all fees
and expenses (including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend any such proceeding in a
manner inconsistent with this Article VIII) of the Indemnitees shall be paid to
the Indemnitees as
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incurred, within ten (10) business days of written notice thereof to the
Company, which notice shall be delivered no more frequently than on a monthly
basis; provided, that the Indemnitees shall reimburse the Company for any and
all such fees and expenses to the extent it is finally judicially determined
that such Indemnitees are not entitled to indemnification hereunder.
ARTICLE IX
DEFINITIONS
9.1
"CLOSING" MEANS THE CLOSING OF THE PURCHASE AND SALE OF THE
SECURITIES UNDER THIS AGREEMENT.
9.2
"CLOSING DATE" HAS THE MEANING SET FORTH IN SECTION 1.3.
9.3
"COMMON SHARES" HAS THE MEANING SET FORTH IN THE RECITALS.
9.4
"COMMON STOCK" MEANS THE COMMON STOCK, PAR VALUE $.0001 PER SHARE,
OF THE COMPANY.
9.5
"COMPANY" MEANS DYNTEK, INC.
9.6
"ENVIRONMENTAL LAWS" HAS THE MEANING SET FORTH IN SECTION 3.11.
9.7
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
9.8
"EXERCISE PRICE" MEANS $0.66 PER SHARE.
9.9
"INDEMNIFIED LIABILITIES" HAS THE MEANING SET FORTH IN ARTICLE
VIII.
9.10
"INDEMNITEES" HAS THE MEANING SET FORTH IN ARTICLE VIII.
9.11
"INTELLECTUAL PROPERTY" HAS THE MEANING SET FORTH IN SECTION 3.9.
9.12
"INVESTORS" MEANS THE INVESTORS WHOSE NAMES ARE SET FORTH ON THE
SIGNATURE PAGES OF THIS AGREEMENT, AND THEIR PERMITTED TRANSFEREES.
9.13
"LIEN" MEANS ANY MORTGAGE, PLEDGE, SECURITY INTEREST, ENCUMBRANCE,
LIEN OR CHARGE OF ANY KIND (INCLUDING ANY CONDITIONAL SALE OR OTHER TITLE
RETENTION AGREEMENT, ANY LEASE IN THE NATURE THEREOF, AND THE FILING OF OR
AGREEMENT TO GIVE ANY FINANCING STATEMENT UNDER THE UNIFORM COMMERCIAL CODE OR
COMPARABLE LAW OF ANY JURISDICTION IN CONNECTION WITH SUCH MORTGAGE, PLEDGE,
SECURITY INTEREST, ENCUMBRANCE, LIEN OR CHARGE).
9.14
"MATERIAL ADVERSE EFFECT" MEANS A MATERIAL ADVERSE EFFECT ON (A)
THE BUSINESS, OPERATIONS, PROSPECTS, ASSETS, LIABILITIES, RIGHTS, OBLIGATIONS OR
FINANCIAL CONDITION OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE, OR
(B) THE ABILITY OF THE COMPANY TO PERFORM ITS OBLIGATIONS PURSUANT TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR UNDER THE AGREEMENTS OR
INSTRUMENTS TO BE ENTERED INTO OR FILED IN CONNECTION HEREWITH, INCLUDING THE
REGISTRATION RIGHTS AGREEMENT AND THE WARRANTS.
WITHOUT LIMITATION, THE
MATERIAL BREACH OF A CONTRACT INVOLVING MORE THAN $1,000,000, THE IMPOSITION OF
A GOVERNMENT PENALTY OF $250,000 OR MORE, OR THE ACCELERATION OF INDEBTEDNESS OF
$500,000 OR MORE SHALL BE DEEMED A MATERIAL ADVERSE EFFECT.
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9.15
"PREFERRED STOCK" HAS THE MEANING SET FORTH IN SECTION 3.3.
9.16
"PURCHASE PRICE" HAS THE MEANING SET FORTH IN THE RECITALS.
9.17
"REGISTRATION RIGHTS AGREEMENT" MEANS THE REGISTRATION RIGHTS
AGREEMENT, DATED AS OF THE DATE OF THIS AGREEMENT AND AMONG THE PARTIES TO THIS
AGREEMENT, IN THE FORM