Exhibit 10.1
JUNIOR SECURED CONVERTIBLE NOTE PURCHASE AGREEMENT
between
DYNTEK, INC.
and
TRUST A-4 - LLOYD I. MILLER
Dated as of April 13, 2007
INDEX TO SCHEDULES
SCHEDULE I
Schedule for Notices and Payment
SCHEDULE II
Disclosure Schedules
SCHEDULE III
Use of Proceeds
INDEX TO EXHIBITS
EXHIBIT A
Form of Junior Secured Convertible Promissory Note
EXHIBIT B
Form of Security and Pledge Agreement
THIS JUNIOR SECURED CONVERTIBLE NOTE PURCHASE AGREEMENT (as the same may be
amended, modified, supplemented or restated from time to time in accordance
herewith, the "Agreement") is dated as of April 13, 2007, by and between DynTek,
Inc., a Delaware corporation (the "Company"), and Trust A-4 - Lloyd I. Miller
(the "Purchaser").
WHEREAS, the Company wishes to issue and sell to the Purchaser up to an
aggregate of $5,000,000 in principal amount of a junior secured convertible
promissory note; and
WHEREAS, the Purchaser desires to purchase such note on the terms and subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF NOTE AND TERMS OF NOTE
SECTION 1.01.
PURCHASE AND SALE OF NOTE.
THE COMPANY AGREES TO ISSUE
AND SELL TO THE PURCHASER, AND, SUBJECT TO AND IN RELIANCE UPON THE
REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS OF THIS AGREEMENT, THE
PURCHASER AGREES TO PURCHASE, THE COMPANY'S JUNIOR SECURED CONVERTIBLE
PROMISSORY NOTE (THE "NOTE", WHICH TERM WILL ALSO INCLUDE ANY NOTES DELIVERED IN
EXCHANGE OR REPLACEMENT THEREFOR), DUE APRIL 13, 2012 (THE "NOTE MATURITY
DATE"), IN THE ORIGINAL AGGREGATE PRINCIPAL AMOUNT OF $5,000,000.00.
THE NOTE
WILL BE SUBSTANTIALLY IN THE FORM SET FORTH IN EXHIBIT A HERETO.
THE CLOSING OF
SUCH PURCHASE AND SALE (THE "CLOSING") WILL BE HELD AT THE OFFICE OF STRADLING
YOCCA CARLSON & RAUTH, P.C., 660 NEWPORT CENTER DRIVE, NEWPORT BEACH, SUITE
1600, CA 92660, ON APRIL 13, 2007 (THE "CLOSING DATE") AT 10:00 A.M., PACIFIC
TIME, OR AT SUCH OTHER TIME AND PLACE AS THE COMPANY AND THE PURCHASER MUTUALLY
AGREE UPON.
AT THE CLOSING, THE COMPANY WILL ISSUE AND DELIVER TO THE PURCHASER
ONE NOTE PAYABLE TO THE ORDER OF THE PURCHASER, IN THE PRINCIPAL AMOUNT OF
$5,000,000.00, AGAINST DELIVERY TO THE COMPANY OF CASH IN THE AGGREGATE AMOUNT
OF $5,000,000, LESS THE PURCHASER'S REASONABLE ESTIMATED EXPENSES TO BE PAID BY
THE COMPANY PURSUANT TO SECTION 7.01, WHICH SHALL BE PAYABLE TO THE COMPANY BY
CHECK, WIRE TRANSFER, OR DELIVERY OR TRANSFERENCE OF SUCH SUM TO THE COMPANY BY
ANY COMBINATION OF SUCH METHODS OF PAYMENT.
SECTION 1.02.
PAYMENTS AND ENDORSEMENTS.
PAYMENTS OF PRINCIPAL AND
INTEREST ON THE NOTE WILL BE MADE DIRECTLY BY (I) CHECK DULY MAILED OR DELIVERED
TO THE PURCHASER OR, IN THE EVENT OF A SUBSEQUENT TRANSFER OR EXCHANGE OF THE
NOTE PURSUANT TO SECTION 1.08 HEREOF, TO THE THEN REGISTERED HOLDER OF THE NOTE
(IN EITHER CASE, THE "HOLDER") AT THE ADDRESS REFERRED TO IN SCHEDULE I OR IN