Exhibit 10.10


 


AMENDMENT
NO. 1 TO


REGISTRATION
RIGHTS AGREEMENT


 


This AMENDMENT NO. 1 TO REGISTRATION RIGHTS
AGREEMENT (the “Amendment”) is entered into as of November       ,
2005 (the “Amendment Date”), by and among DynTek, Inc., a Delaware
corporation (the “Company”) and the investors set forth on Schedule 1 hereto
(the “Amending Purchasers”).  Capitalized
terms used herein but not otherwise defined herein shall have the meaning
ascribed to such terms in the Registration Rights Agreement (as defined in the
Recitals below).


 


RECITALS


 


A.            WHEREAS,
the Company entered into that certain Registration Rights Agreement dated as of
October 15, 2004, by and among the Company and the purchasers set forth on
Schedule 1 thereto (the “Original Purchasers”) (the “Agreement”);


 


B.            WHEREAS,
Section 10 of the Registration Rights Agreement permits the amendment of
such Agreement upon the consent in writing by the Company and each Original Purchaser;


 


C.            WHEREAS,
to induce the Amending Purchasers to amend their certain 9% Senior Subordinated
Convertible Notes, each dated as of October 15, 2004, sold and issued to
the respective Amending Purchasers thereof (each an “Original Note” and
collectively, the “Original Notes”), the Company has agreed, contemporaneously
with the issuance to each such Amending Purchaser of that certain Amended and
Restated 9% Senior Subordinated Convertible Note, each dated as of an even date
herewith (each an “Amended Note” and collectively, the “Amended Notes”), to
provide to the Amending Purchasers certain registration rights, with respect to
the Additional Note Shares (as defined in the Amended Notes), under the
Securities Act of 1933, as amended (the “Securities Act”), and applicable state
securities laws;


 


D.            WHEREAS,
to further induce the Amending Purchasers to enter into the Amended Notes, the
Company has agreed to amend and restate those certain Warrants, each dated as
of October 15, 2004, sold and issued to each respective Amending Purchaser
thereof (each an “Original Warrant” and collectively, the “Original Warrants”)
to reduce the exercise price and increase the number of shares exercisable
thereunder (each an “Amended Warrant” and collectively, the “Amended Warrants”);


 


E.             WHEREAS,
in connection with the issuance of the Amended Warrants, the Company has agreed
to provide to the Amending Purchasers certain registration rights, with respect
to the Additional Warrant Shares (as defined in the Amended Warrants), under
the Securities Act, and applicable state securities laws;


 


F.             WHEREAS,
the Amending Purchasers and the Company desire to further amend the
Registration Rights Agreement as more particularly set forth in this Amendment
to provide for the rights of registration with respect to the Additional Note
Shares and Additional Warrant Shares, respectively.


 





















 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
mutual covenants hereinafter set forth and for good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereby agree as follows:


 


1.              Definitions.


 


(a)          “Additional
Registrable Securities” means (i) the Additional Note Shares and
Additional Warrant Shares; (ii) securities issued or issuable upon any
stock split, stock dividend, recapitalization or similar event with respect to
such shares; and (iii) any other security issued as a dividend or other
distribution with respect to, in exchange for, or in replacement of, the
securities referred to in the preceding clauses (i) and (ii).


 


(b)          “Holder
or Holders” means a holder or holders of Registrable Securities and/or Additional
Registrable Securities.


 


(c)          “Additional
Registration Statement” means a registration statement or registration
statements of the Company filed under the Securities Act covering Additional
Registrable Securities.


 


(c)          The
definitions of Registration Statement, Registrable Securities, Purchaser and
Notes in the Agreement are, for purposes of Sections 4 through 12 of the
Agreement, hereby amended to include the Additional Registration Statement, Additional
Registrable Securities, the Amending Purchasers and the Amended Notes,
respectively.


 


2.              Piggyback Registration.


 


(a)            If the Company proposes to register
(including for this purpose a registration effected by the Company for
stockholders other than the Holders) any of its stock under the Securities Act
in connection with the public offering of such securities solely for cash
(other than a registration relating solely to the sale of securities to participants
in a Company stock plan, a transaction covered by Rule 145 under the
Securities Act or a registration relating solely to employee benefit plans),
the Company shall, at such time, promptly give each Holder written notice of
such registration.  Upon the written
request of each Holder given within ten (10) business days after mailing
of such notice by the Company in accordance with Section 12 of the
Agreement, the Company shall, subject to the provisions of Section 2(b) herein,
use its best efforts to cause to be registered under the Securities Act all of
the Additional Registrable Securities that each such Holder has requested to be
registered.


 


(b)            For purposes of this Section 2,
if the registration of which the Company gives notice is for a registered
public offering involving an underwriting, the Company shall so advise the
Holder as a part of the written notice given pursuant to Section 2(a) above.  In such event, the right of the Holder to
registration pursuant to this Section 2 shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of Holder’s
Additional Registrable Securities in such underwriting to the extent provided
herein.  The Holder proposing to
distribute its securities through such underwriting shall (together with the Company
and the other Holders of securities of


 


2





















 


the Company
with registration rights to participate therein distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected by the
Company.   Notwithstanding any other provision
of this Section 2, if the representative of the underwriters advises the Company
in writing that marketing factors require a limitation on the number of shares
to be underwritten, the representative may (subject to the limitations set
forth below) exclude all Additional Registrable Securities from, or limit the
number of Additional Registrable Securities to be included in, the registration
and underwriting.  The Company shall so
advise all holders of securities requesting registration, and the number of
shares of securities that are entitled to be included in the registration and
underwriting shall be allocated first to the Company for securities being sold
for its own account and thereafter to the Holders of Additional Registrable
Securities, pro rata in accordance with the number of Additional Registrable
Securities beneficially owned by each such Holder.  If any Holder does not agree to the terms of
any such underwriting, such Holder shall be excluded therefrom by written
notice from the Company or the underwriter. 
Any Additional Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.


 


3.              Mandatory
Registration.


 


(a)           If at anytime on or
after December 15, 2005, any Additional Registrable Securities shall not
have been registered by the Company pursuant to Section 2 hereof, then the
Holders of at least a majority of the Additional Registrable Securities
(assuming conversion of the Amended Notes and exercise of the Amended Warrants)
shall have the right by delivery of notice to the Company, to request that the
Company effect a registration on Form S-3 covering the resale of all of
the Additional Registrable Securities, in an amount sufficient to cover the
resale of all the Additional Registrable Securities, issuable upon conversion
of the Amended Notes and exercise of the Amended Warrants.  The date on which the Company receives such
notice is referred to herein as the “Demand Date.”  In the event that Form S-3 is
unavailable and/or inappropriate for such a registration of all the Additional Registrable
Securities, the Company shall use such other form or forms as are available and
appropriate for such a registration.  The
Company shall use its commercially reasonable efforts to cause such Additional Registration
Statement to be filed under the Securities Act as promptly as practicable after
receipt of notice of such demand, but in any event prior to 30 days following
the Demand Date and to cause such Additional Registration Statement to be
declared effective under the Securities Act as promptly as practicable, but in
any event prior to 90 days following the Demand Date (the “Demand Effective
Date”); provided that, if (1) the Additional Registration Statement
is not declared effective by the Demand Effective Date, (2) the Additional
Registration Statement required to be filed by the Company pursuant to this Section 3
shall cease to be available for use by any Holder of the Amended Note which is
named therein as a selling stockholder for any reason (including, without
limitation, by reason of a stop order, a material misstatement or omission in
such Additional Registration Statement or the information contained in such Additional
Registration Statement having become outdated), or (3) the Company fails,
refuses or is otherwise unable timely to issue, the Note Shares and/or Warrant
Shares upon conversion of the Amended Notes or upon exercise of the Amended
Warrants in accordance with the terms of thereof, respectively, or stock certificates
therefor, then the Company shall pay to each Purchaser an amount equal to one
percent (1%) per 30-day period of the purchase price paid for the Amended Notes
purchased by such Amending Purchaser.  Thereafter,
for every 30 days that pass during which any of the events described in clauses
(1), (2) and (3) above occurs and is continuing (the “Blackout Period”),
the Company shall pay to each Amending Purchaser an additional amount equal to
one percent (1%) of the purchase price paid for the Amended Notes purchased by
such Amending Purchaser.  Each such
payment shall be due within five days of the end of each calendar month of the


 


3





















 


Blackout
Period until the termination of the Blackout Period and within five (5) days
after such termination.  Such payments
shall be in partial compensation to the Amending Purchaser, and shall not
constitute the Purchaser’s exclusive remedy for such events. The Blackout
Period shall terminate upon (x) the effectiveness of the Additional Registration
Statement in the case of clauses (1) and (2) above, and (z) delivery
of such shares or certificates in the case of clause (3) above.


 


(b)           The Company shall
use its best efforts to keep each Additional Registration Statement effective
(pursuant to Rule 415, if available) at all times until such date as is
the earlier of (i) the date on which all of the Additional Registrable
Securities have been sold and (ii) the date on which the Additional Registrable
Securities (in the opinion of counsel to each Purchaser and reasonably
acceptable to legal counsel for the Company) may be immediately sold without
restriction (including without limitation as to volume restrictions by each
holder thereof) without registration under the Securities Act (the “New
Registration Period”).


 


(c)           If the Additional
Registrable Securities are registered for sale under the Securities Act, the
Amending Purchasers shall cease any distribution of such shares under the Additional
Registration Statement not more than once in any 12-month period, for up to 30
days, upon the request of the Company if: (x) such distribution would require
the public disclosure of material non-public information concerning any
transaction or negotiations involving the Company or any of its affiliates
that, in the good faith judgment of the Company’s Board of Directors, would
materially interfere with such transaction or negotiations, (y) such
distribution would otherwise require premature disclosure of information that,
in the good faith judgment of the Company’s Board of Directors, would adversely
affect or otherwise be detrimental to the Company or (z) the Company proposes
to file a registration statement under the Securities Act for the offering and
sale of securities for its own account in an underwritten offering and the
managing underwriter therefor shall advise the Company in writing that in its
opinion the continued distribution of the Additional Registrable Securities
would adversely affect the offering of the securities proposed to be registered
for the account of the Company.  The
Company shall promptly notify each Amending Purchaser at such time as (i) such
transactions or negotiations have been otherwise publicly disclosed or
terminated, or (ii) such non-public information has been publicly
disclosed or counsel to the Company has determined that such disclosure is not
required due to subsequent events.


 


(d)           The Company shall
permit a single firm of counsel designated by the Amending Purchasers to review
such Additional Registration Statement with respect to the Additional
Registrable Securities only, and all amendments and supplements thereto
(collectively, the “Registration Documents”) a reasonable period of time prior
to their filing with the SEC, and not file (or send) any Registration Documents
in a form to which such counsel reasonably and promptly objects.  The sections of such Additional Registration
Statement covering information with respect to the Amending Purchasers, the
Amending Purchaser’s beneficial ownership of securities of the Company or the
Amending Purchasers intended method of disposition of Additional Registrable
Securities shall conform to the information provided to the Company by each of
the Amending Purchasers.


 


4.              Obligations of
the Company.  In connection with the
registration of the Additional Registrable Securities, the Company shall do
each of the following:


 


(a)            Prepare and file
with the SEC the Additional Registration Statement required by Sections 3 of
this Amendment, as applicable, and such amendments (including post-effective
amendments) and supplements to the Additional Registration Statement and the
prospectus used in


 


4





















 


connection
with the Additional Registration Statement, as may be necessary to keep the Additional
Registration Statement effective at all times during the New Registration
Period, and, during the New Registration Period, to comply with the provisions
of the Securities Act with respect to the disposition of all of the Additional Registrable
Securities until such time as all of such Additional Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in the Additional Registration Statement;


 


(b)            The Company shall
promptly furnish, after such Additional Registration Statement required by
Sections 3 of this Amendment are prepared, filed with the SEC, publicly
disseminated and distributed and received by the Company, to each Amending
Purchaser and its legal counsel, a copy, by facsimile or email or otherwise, of
any such Additional Registration Statement, each preliminary prospectus, each
final prospectus, and all amendments and supplements thereto and such other
documents as each Amending Purchaser may reasonably request in order to
facilitate the disposition of its Additional Registrable Securities;


 


(c)            Use commercially
reasonable efforts to (i) register and qualify the Additional Registrable
Securities covered by the Additional Registration Statement under such other
securities or blue sky laws, if applicable, of such jurisdictions as the
Purchaser may reasonably request, (ii) prepare and file in those
jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof at all times during the New Registration
Period, (iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the New
Registration Period and (iv) take all other actions necessary or advisable
to qualify the Additional Registrable Securities for sale in such
jurisdictions, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subsection (d) be
obligated to be so qualified, or to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction;


 


(d)            List such
securities on The Nasdaq National Market, or, if the Company’s securities are
not then listed on such market, then on the OTC Electronic Bulletin Board (the “OTC
BB”), and all the other national securities exchanges on which any securities
of the Company are then listed, and file any filings required by The Nasdaq
National Market or OTC BB, as applicable, or such other securities exchanges;


 


(e)            Notify by facsimile
or email each Amending Purchaser (i) when or if the prospectus or any
prospectus supplement or post-effective amendment has been filed with the SEC,
and, with respect to any Additional Registration Statement or any
post-effective amendment, when the same has been declared effective by the SEC,
(ii) of any request by the SEC for amendments or supplements to the Additional
Registration Statement or the prospectus or for additional information, (iii) of
the issuance by the SEC of any stop order suspending the effectiveness of such Additional
Registration Statement or the initiation of any proceedings for that purpose, (iv) of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the Additional Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (v) of the happening of any event as a result of which the
prospectus included in such Additional Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;


 


5





















 


(f)             If any fact
contemplated by clause (v) of paragraph (e), above, shall exist, promptly
prepare a supplement or post-effective amendment to such Additional Registration
Statement or the related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchaser of the Additional Registrable Securities, the prospectus will
not contain an untrue statement of material fact or omit to state any material
fact necessary to make the statements therein not misleading;


 


(g)            If the Company has
consented to an underwritten offering and such offering is underwritten, at the
request of any Amending Purchaser, to furnish on the effective date of the
applicable Additional Registration Statement and on the date that Additional
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration: (i) an opinion dated such date of counsel representing
the Company for the purposes of such registration, addressed to the underwriters
and to such Amending Purchaser, stating that such Additional Registration Statement
has become effective under the Securities Act and that (A) to the best
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act and (B) the Additional Registration
Statement, the related prospectus and each amendment or supplement thereof
comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements or other financial data contained therein) and (ii) a
letter dated such date from the Company’s independent public accountants
addressed to the underwriters and to such Amending Purchaser, stating that they
are independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the Company
included in the Additional Registration Statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days prior to
the date of such letter) with respect to such registration as such underwriters
may reasonably request;


 


(h)            Cooperate with the
Amending Purchasers to facilitate the timely preparation and delivery of
certificates for the Additional Registrable Securities to be offered pursuant
to the Additional Registration Statement and to enable such certificates for
the Additional Registrable Securities to be in such denominations or amounts,
as the case may be, as the Amending Purchaser may reasonably request, and
registered in such names as the Amending Purchasers may request; and, within
three business days after a Additional Registration Statement which includes
Additional Registrable Securities is ordered effective by the SEC, the Company
shall deliver, and shall cause legal counsel selected by the Company to
deliver, to the transfer agent for the Additional Registrable Securities (with
copies to each Amending Purchaser) an appropriate instruction and opinion of
such counsel, satisfactory to the Company, and the Amending Purchaser and its
legal counsel;


 


(i)             Enter into
customary agreements (including, in the case of an underwritten offering,
underwriting agreements in customary form, and including provisions with
respect to indemnification and contribution in customary form and consistent
with the provisions relating to indemnification and contribution contained
herein) and take all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Additional Registrable
Securities and in connection therewith:


 


6





















 


(i) make such representations and warranties to each Amending Purchaser
and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in similar underwritten offerings;


 


(ii) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with any Amending
Purchaser and such representative of such Amending Purchaser as such Amending
Purchaser shall select relating to the registration and providing for, among
other things, the appointment of such representative as agent for such Amending
Purchaser for the purpose of soliciting purchases of Additional Registrable
Securities, which agreement shall be customary in form, substance and scope and
shall contain customary representations, warranties and covenants; and


 


(iii) deliver such customary documents and certificates as may be
reasonably requested by any Amending Purchaser whose Additional Registrable
Securities are being sold or by the managing underwriters, if any.


 


(j)             The Company shall
hold in confidence and not make any disclosure of information concerning any Amending
Purchaser provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws and/or
the requests of any self-regulatory organizations, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or omission in
any Additional Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other order from a court or
governmental body of competent jurisdiction, or (iv) such information has
been made generally available to the public other than by disclosure in
violation of this or any other agreement.  The Company agrees that it shall, upon
learning that disclosure of such information concerning any Amending Purchaser
is sought in or by a court or governmental body of competent jurisdiction, give
prompt notice to such Purchaser prior to making such disclosure, and allow such
Amending Purchaser, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.


 


5.              The terms and
provisions of this Amendment are binding only on the Amending Purchasers, and,
except as specifically amended pursuant to the terms hereof, the terms and
provisions of the Registration Rights Agreement shall remain in full force and
effect.


 


6.              This Amendment may
be executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts together shall constitute
one instrument.


 


7





















 


IN WITNESS
WHEREOF, the undersigned have executed this Amendment No. 1 to Registration
Rights Agreement as of the date first written above.


 


	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  DynTek, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMENDING PURCHASERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  [                      ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its: