EX-4.4 Form of Registration Rights Agreement






Exhibit 4.4




[FORM OF REGISTRATION RIGHTS AGREEMENT]




     REGISTRATION RIGHTS AGREEMENT (this “Agreement”), made as of May 22, 2008, between
Liberator Medical Holdings, Inc., a Nevada corporation (the “Company”), and the investors
listed on the Schedule of Purchasers attached hereto (each, a “Purchaser” and collectively,
the “Purchasers”).



WITNESSETH




     WHEREAS, pursuant to the Securities Purchase Agreement, dated as of May 22, 2008, among the
Company, as issuer, Liberator Medical Supply, Inc., a Florida corporation, as guarantor, and the
Purchasers (the “Purchase Agreement”), the Purchasers have agreed to purchase from the
Company $3,500,000 in aggregate principal amount of the Company’s 3% Senior Convertible Notes due
2010 (the “Notes”), and have issued Warrants (the “Warrants” and, together with the
Notes, the “Securities”) to purchase up to an additional 4,375,000 aggregate shares of the
Company’s common stock, par value $0.001 per share;



     WHEREAS, the Securities will be convertible into or exercisable for (all references in this
Agreement to conversion, or corresponding or derivative words such as conversion rights,
convertibility, etc., shall mean, with respect to the Warrants, exercise and its corresponding or
derivative equivalents) fully paid, non-assessable shares of common stock, par value $0.001 per
share, of the Company (the “Conversion Shares”), on the terms and subject to the conditions
set forth in the Purchase Agreement; and



     WHEREAS, to induce the Purchasers to purchase the Securities, the Company has agreed to
provide the registration rights set forth in this Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:



     1. Definitions. As used in this Agreement, the following capitalized terms are defined
as follows:



          “Affiliate”: As such term is defined in Rule 405 under the Securities Act.




          “Agreement”: This Registration Rights Agreement, as amended, modified or otherwise
supplemented from time to time in accordance with the terms hereof.




          “Blue Sky Application”: As defined in Section 6(a)(i) hereof.




          “Broker-Dealer”: Any broker or dealer registered under the Exchange Act.




          “Business Day”: A day other than a Saturday or Sunday or any day on which banking
institutions in New York City are authorized or obligated by law or executive order to close.




 









 








          “Closing Date”: The date of this Agreement.




          “Commission”: U.S. Securities and Exchange Commission.




          “Company”: As defined in the preamble hereto.




          “Conversion Shares”: As defined in the preamble hereto.




          “Effectiveness Period”: As defined in Section 2(a)(iv) hereof.




          “Effectiveness Target Date”: As defined in Section 2(a)(iii) hereof.




          “Exchange Act”: Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder.




          “Holder”: A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.




          “Indemnified Holder”: As defined in Section 6(a) hereof.




          “Interest Payment Date”: As defined in the Purchase Agreement.




          “Liquidated Damages”: As defined in Section 3(a) hereof.




          “Liquidated Damages Payment Date”: Each Interest Payment Date.




          “Notes”: As defined in the preamble hereto.




          “Person”: An individual, partnership, corporation, unincorporated organization,
limited liability company, trust, joint venture or a government or agency or political subdivision
thereof.




          “Prospectus”: The prospectus included in a Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such Prospectus.




          “Purchase Agreement”: As defined in the preamble hereto.




          “Purchaser”: As defined in the preamble hereto.




          “Purchasers”: As defined in the preamble hereto.




          “Record Holder”: With respect to any Liquidated Damages Payment Date, each Person who
is a Holder of Transfer Restricted Securities on the record date with respect to the Interest
Payment Date on which such Liquidated Damages Payment Date shall occur.




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          “Registration Default”: As defined in Section 3(a) hereof.




          “Sale Notice”: As defined in Section 4(d) hereof.




          “Securities”: As defined in the preamble hereto.




          “Securities Act”: Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder.




          “Shelf Filing Deadline”: As defined in Section 2(a)(i).




          “Shelf Registration Statement”: As defined in Section 2(a)(i) hereof.




          “Suspension Notice”: As defined in Section 4(c) hereof.




          “Suspension Period”: As defined in Section 4(b)(i) hereof.




          “Trading Market” means, initially, Pink OTC Markets Inc., the over-the-counter market
on which the Company’s common stock is traded as of the date of this Agreement, and hereafter,
means any over-the-counter market and stock exchange that the Common Stock is then listed or traded
on.




          “Transfer Restricted Securities” Each Security and each Conversion Share issued upon
conversion of the Securities until the earliest to occur of:




          (i) the date on which such Security or such Conversion Share issued upon conversion has been
effectively registered under the Securities Act and disposed of in accordance with a registration
statement (including, in the case of Conversion Shares, the Shelf Registration Statement);




          (ii) the date on which such Security or such Conversion Share (A) has been sold or transferred
pursuant to Rule 144 under the Securities Act such that the purchaser or transferee of such
Security or Conversion Share is not subject to the volume limitations thereof (or of any other
similar provision then in force), or (B) may be sold or transferred pursuant to Rule 144 under the
Securities Act without regard to the volume limitations thereof (or of any other similar provision
then in force);




          (iii) the date upon which such Conversion Share has been sold on the Trading Market; and




          (iv) the date on which such Note or such Conversion Share issued upon conversion ceases to be
outstanding (whether as a result of redemption, repurchase and cancellation, conversion or
otherwise).




          “Underwritten Registration or Underwritten Offering”: A registration in which




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Conversion Shares are sold to an underwriter for reoffering to the public.




          “Warrants”: As defined in the preamble hereto.




     2. Shelf Registration. The Company shall:



          (i) not later than July 30, 2008 (the “Shelf Filing Deadline”), cause to be filed a
registration statement on an appropriate form pursuant to Rule 415 (or any successor rule) under
the Securities Act (together with any amendments thereto, and including any documents incorporated
by reference therein if permitted by such form, the “Shelf Registration Statement”), which
Shelf Registration Statement shall provide for resales of all Conversion Shares held by the
Purchasers, as well as additional shares of Common Stock issuable by the Company pursuant to the
Purchase Agreement (for purposes of this Agreement, the term “Conversion Shares” shall be
deemed to include such additional issuable shares of Common Stock);




          (ii) use its commercially reasonable efforts to cause the Shelf Registration Statement to be
filed in advance of the Shelf Filing Deadline;




          (iii) use its commercially reasonable efforts to cause the Shelf Registration Statement to be
declared effective by the Commission as promptly as is practicable after the date it is first filed
with the Commission, but in no event later than 60 days
(90 days if reviewed by the SEC) after the Shelf Filing Deadline (the “Effectiveness Target Date”); and




          (iv) use its commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions of Section 4(b)
hereof to the extent necessary to ensure that: (A) it is available for resales by the Purchasers
and (B) conforms with the requirements of this Agreement and the Securities Act, in each case, for
a period (the “Effectiveness Period”) that will terminate upon the earliest of (x) when all
of the Transfer Restricted Securities may be sold or transferred pursuant to Rule 144 under the
Securities Act (or any other similar provision then in force) within a three-month period, (y) when
all Conversion Shares registered under the Shelf Registration Statement have been sold in
accordance with it or otherwise cease to be Transfer Restricted Securities in accordance with this
Agreement and (z) when all Transfer Restricted Securities have ceased to be outstanding (whether as
a result of redemption, repurchase and cancellation, conversion or otherwise).




     3. Liquidated Damages.



          (a) The Company and the Purchasers agree that the Purchasers will suffer damages if the
Company fails to fulfill its obligations under Section 2 hereof and that it would not be feasible
to ascertain the extent of such damages with precision. Accordingly, if:




               (i) except as provided in Section 4(b)(i) hereof, the Shelf Registration Statement is not
filed with the Commission prior to or on the Shelf Filing Deadline; or



               (ii) except as provided in Section 4(b)(i) hereof, the Shelf Registration Statement has not
been declared effective by the Commission prior to or on the Effectiveness



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Target Date;



(each such event referred to in foregoing clauses (i) through (iv), a “Registration
Default”), the Company hereby agrees to pay liquidated damages (“Liquidated Damages”)
with respect to the Securities that are Transfer Restricted Securities from and including the day
following the Registration Default to but excluding the day on which the Registration Default has
been cured, accruing during the period during which a Registration Default shall have occurred and
be continuing, at the rate of 1.0% of the principal amount of the Notes per month, provided that in
no event shall Liquidated Damages accrue at a rate per year exceeding 6.0% of the principal amount
of such Notes.



No Liquidated Damages shall be payable on any Securities that have been converted into Conversion
Shares or that are not Transfer Restricted Securities. Following the cure of all Registration
Defaults relating to any Securities, the accrual of Liquidated Damages with respect to such
Securities shall cease.




          (b) Any amounts of Liquidated Damages due pursuant to clause (a) of this Section 3 will be
payable in shares of the Company’s Common Stock, semi-annually in arrears on each Liquidated
Damages Payment Date, commencing with the first such date occurring after any such Liquidated
Damages commences to accrue, to the Purchasers. The Company agrees to deliver all notices,
certificates and other documents contemplated by the Purchase Agreement in connection with the
payment of Liquidated Damages.



All obligations of the Company set forth in this Section 3 that are outstanding with respect to any
Security that is a Transfer Restricted Security at the time such Security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with respect to such
Security shall have been satisfied in full; provided, however, that Liquidated
Damages shall cease to accrue on the day such Security ceases to be a Transfer Restricted Security.



The Liquidated Damages set forth above shall be the exclusive remedy available to the Purchasers
for such Registration Default.




     4. Registration Procedures.



          (a) In connection with the Shelf Registration Statement, the Company shall comply with all the
provisions of Section 4(b) hereof and shall use its commercially reasonable best efforts to effect
such registration to permit the sale of the Conversion Shares being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto, shall prepare and file
with the Commission a Shelf Registration Statement relating to the registration on any appropriate
form under the Securities Act.




          (b) In connection with the Shelf Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Conversion Shares, the Company shall:




               (i) Subject to any notice by the Company in accordance with this Section 4(b) of the existence
of any fact or event of the kind described in Section 4(b)(iii)(D),



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use its commercially reasonable best efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of any event that would cause the
Shelf Registration Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not be effective and usable for the resale of Conversion Shares
during the Effectiveness Period, the Company shall file promptly an appropriate amendment to the
Shelf Registration Statement, a supplement to the Prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either clause (A) or (B), use its
commercially reasonable best efforts to cause any such amendment to be declared effective and the
Shelf Registration Statement and the related Prospectus to become usable for their intended
purposes as soon as practicable thereafter. Notwithstanding anything to the contrary contained
herein, the Company may delay the filing or declaration of effectiveness, and/or suspend the
effectiveness, of the Shelf Registration Statement by written notice to the Purchasers for a period
(each such period, a “Suspension Period”) not to exceed an aggregate of 30 days in any
90-day period, and not to exceed an aggregate of 60 days in any 360-day period, if:



                    (x) an event occurs and is continuing as a result of which the Shelf Registration Statement
would, in the Company’s reasonable judgment, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading; and



                    (y) the Company reasonably determines that the disclosure of such event at such time would be
seriously detrimental to the Company or its business;


provided, that in the event the disclosure relates to a previously undisclosed proposed or
pending material business transaction, the disclosure of which would impede the Company’s ability
to consummate such transaction, the Company may extend a Suspension Period from 30 days to 45 days
during any 90-day period




               (ii) Notify the Purchasers in writing of the effectiveness of the Shelf Registration Statement
and prepare and file with the Commission such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; cause the Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities
Act in a timely manner; and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the sellers thereof set
forth in the Shelf Registration Statement or supplement to the Prospectus.



               (iii) Advise the underwriter(s), if any, and the Purchasers promptly (but in any event within
two Business Days) and, if requested by such Persons, to confirm such advice in writing:



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                    (A) when the Prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to the Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective,



                    (B) of any request by the Commission for amendments to the Shelf Registration Statement or
amendments or supplements to the Prospectus or for additional information relating thereto,



                    (C) of the issuance by the Commission of any stop order suspending the effectiveness of the
Shelf Registration Statement under the Securities Act or of the suspension by any state securities
commission of the qualification of the Conversion Shares for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding purposes,



                    (D) of a pending proceeding against the Company under Section 8A of the Securities Act in
connection with the offering of the Securities and the Conversion Shares, or



                    (E) of the existence of any fact or the happening of any event, during the Effectiveness
Period, that makes any statement of a material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein,
untrue, or that requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements therein not misleading. The Purchasers
by accepting the same, agree to hold any communication from the Company pursuant to this Section
4(b)(iii) in confidence.


If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf
Registration Statement, or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from qualification of the Conversion
Shares under state securities or “blue sky” laws, the Company shall use its commercially reasonable
best efforts to obtain the withdrawal or lifting of such order at the earliest possible time and
will provide to the Purchasers prompt notice of the withdrawal of any such order.




               (iv) Furnish to the Purchasers and to each of the underwriter(s), if any, and their respective
counsel, if any, before filing with the Commission, a copy of the Shelf Registration Statement and
copies of any Prospectus included therein or any amendments or supplements to the Shelf
Registration Statement or Prospectus (other than documents incorporated by reference after the
initial filing of the Shelf Registration Statement), which documents will be subject to the review
of the Purchasers, underwriter(s) and counsel for a period of at least five Business Days, and the
Company will not file the Shelf Registration Statement or Prospectus or any amendment or supplement
to the Shelf Registration Statement or Prospectus (other than documents incorporated by reference)
to which the Purchasers of Conversion Shares covered by the Shelf Registration Statement or the
Purchasers, underwriter(s), if any, shall reasonably object within five Business Days after the
receipt thereof. The Company shall also furnish to each of the underwriter(s), if any, and their
respective



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counsel, if any, before filing with the Commission, if reasonably practicable, or otherwise
promptly after filing with the Commission, copies of any amendments to the Shelf Registration
Statement or supplements to the Prospectus (other than documents incorporated by reference after
the initial filing of the Shelf Registration Statement), and make the Company’s representatives
available for discussion of such amendments or supplements and make such changes in such amendments
or supplements prior to the filing thereof, if reasonably practicable, or prepare and file further
amendments or supplements, as the Purchasers, underwriter(s), if any, or their respective counsel,
if any, may reasonably request subject to the provisos contained in the last sentence of Section
2(b) hereof. An objection by a Purchaser or an underwriter or by counsel to a Purchaser or an
underwriter shall be deemed to be a reasonable objection to such filing if the Shelf Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, would
contain a material misstatement or omission.



               (v) Make available at reasonable times for inspection by one or more representatives of a
Purchaser, any underwriter participating in any distribution pursuant to the Shelf Registration
Statement, and any attorney or accountant retained by a Purchaser or any of the underwriter(s), all
financial and other records, pertinent corporate documents and properties of the Company as shall
be reasonably necessary to enable them to exercise any applicable due diligence responsibilities,
and cause the Company’s officers, directors, managers, employees and independent accountants to
supply all information reasonably requested by any such representative or representatives of a
Purchaser, underwriter, attorney or accountant in connection with the Shelf Registration Statement
after the filing thereof and before its effectiveness, provided, however, that any
information designated by the Company as confidential at the time of delivery of such information
shall be kept confidential by the recipient thereof; and provided, further, that in
no event shall the Company be required to furnish any material nonpublic information pursuant to
this subsection (v).



               (vi) If requested by a Purchaser or the underwriter(s), if any, promptly incorporate in the
Shelf Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as a Purchaser and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation: (A) information relating to the “Plan of
Distribution” of the Conversion Shares, (B) information with respect to the number of Conversion
Shares being sold, (C) the purchase price being paid therefor and (D) any other terms of the
offering of the Conversion Shares to be sold in such offering; provided, however,
that with respect to any information requested for inclusion by a Purchaser, this clause (vi) shall
apply only to such information that relates to the Conversion Shares to be sold by a Purchaser; and
make all required filings of such prospectus supplement or post-effective amendment as soon as
reasonably practicable after the Company is notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment.



               (vii) Furnish to the Purchasers and each of the underwriter(s), if any, without charge, at
least one copy of the Shelf Registration Statement, as first filed with the Commission, and of each
amendment thereto (and any documents incorporated by reference therein or exhibits thereto (or
exhibits incorporated in such exhibits by reference) as such Person may request).



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               (viii) Deliver to the Purchasers and each of the underwriter(s), if any, without charge, as
many copies of the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or event of the kind described in
Section 4(b)(iii)(D), the Company hereby consents to the use of the Prospectus and any amendment or
supplement thereto by the Purchasers and each of the underwriter(s), if any, in connection with the
offering and the sale of the Conversion Shares covered by the Prospectus or any amendment or
supplement thereto.



               (ix) If an underwriting agreement is entered into in connection with the registration, the
Company shall:



                    (A) upon request, furnish to the Purchasers and each underwriter, in such substance and scope
as they may reasonably request and as are customarily made by issuers to underwriters in primary
underwritten offerings for selling security holders, upon the date of closing of any sale of
Conversion Shares in an Underwritten Registration:



                         (1) opinions, each dated the date of such closing, of counsel to the Company covering such of
the matters as are customarily covered in legal opinions to underwriters in connection with
underwritten offerings of securities; and



                         (2) customary comfort letters, dated the date of such closing, from the Company’s independent
accountants, in the customary form and covering matters of the type customarily covered in comfort
letters to underwriters in connection with primary underwritten offerings of securities;



                    (B) set forth in full in the underwriting agreement, if any, indemnification provisions and
procedures which provide rights no less protective than those set forth in Section 6 hereof with
respect to all parties to be indemnified; and



                    (C) deliver such other documents and certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Purchasers pursuant to this
clause (ix).



               (x) Before any public offering of Conversion Shares, use its commercially reasonable best
efforts to register or qualify the Conversion Shares under the securities or Blue Sky laws of such
jurisdictions in the United States as the Purchasers or underwriter(s), if any, may reasonably
request and do any and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Conversion Shares covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required (A) to register or
qualify as a foreign corporation or a dealer of securities where it is not now so qualified or to
take any action that would subject it to the service of process in any jurisdiction where it is not
now so subject or (B) to subject itself to taxation in any such jurisdiction if it is not now so
subject.



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               (xi) Cooperate with the Purchasers and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Conversion Shares to be sold and not bearing
any restrictive legends (unless required by applicable securities laws) and enable such Conversion
Shares to be in such denominations and registered in such names as the Purchasers or the
underwriter(s), if any, may request at least two Business Days before any sale of Conversion
Shares.



               (xii) Use its commercially reasonable best efforts to cause the Conversion Shares covered by
the Shelf Registration Statement to be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Conversion Shares.



               (xiii) Subject to Section 4(b)(i) hereof, if any fact or event contemplated by Section
4(b)(iii)(D) hereof shall exist or have occurred, use its reasonable best efforts to prepare a
supplement or post-effective amendment to the Shelf Registration Statement or related Prospectus or
any document incorporated therein by reference or file any other required document so that, as
thereafter delivered to the purchaser of Conversion Shares, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances in which they
were made, not misleading.



               (xiv) Provide a transfer agent and registrar for all such Conversion Shares not later than the
effective date of the Shelf Registration Statement.



               (xv) Enter into such customary agreements (including underwriting agreements in customary
form) and take all such other actions as the Purchasers or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of Conversion Shares (including
effecting a stock split or combination of shares).



               (xvi) Otherwise use its commercially reasonable efforts to comply with all applicable rules
and regulations of the Commission and all reporting requirements of the Exchange Act.



               (xvii) Cause all Conversion Shares covered by the Shelf Registration Statement to be listed or
quoted, as the case may be, on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed or quoted.



               (xviii) Provide promptly to the Purchasers upon written request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act during the
Effectiveness Period.



               (xix) If reasonably requested by the underwriter(s), make appropriate officers of the Company
reasonably available to the underwriter(s) for meetings with prospective purchaser of the
Conversion Shares and prepare and present to potential investors customary “road show” or marketing
material in a manner consistent with other new issuances of other



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securities similar to the Conversion Shares.



               (xx) File each Shelf Registration Statement and Prospectus required to be filed in accordance
with this Agreement and any amendments and/or supplements thereto electronically on EDGAR.



          (c) The Purchasers agree by acquisition of a Transfer Restricted Security that, upon receipt
of any notice (a “Suspension Notice”) from the Company of the existence of any fact of the
kind described in Section 4(b)(1)(x) or Section 4(b)(iii)(D) hereof, the Purchasers will, and will
use its reasonable efforts to cause any underwriter(s) in an Underwritten Offering to, forthwith
discontinue disposition of Conversion Shares pursuant to the Shelf Registration Statement until:




                    (i) the Purchasers have received copies of the supplemented or amended Prospectus contemplated
by Section 4(b)(xiii) hereof; or



                    (ii) the Purchasers are advised in writing by the Company that the use of the Prospectus may
be resumed, and has received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus.


If so directed by the Company, the Purchasers will deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies then in the Purchasers’ possession, of the
Prospectus covering such Conversion Shares that was current at the time of receipt of such notice
of suspension.




          (d) If any Purchaser is identified in the Shelf Registration Statement as an “underwriter,”
then at the request of the Purchaser the Company shall furnish to such Purchaser, on the date of
the effectiveness of the Shelf Registration Statement and thereafter from time to time on such
dates as the Purchaser may reasonably request, (i) a letter, dated such date, from the Company’s
independent certified public accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten public offering,
addressed to the Purchaser, and (ii) an opinion, dated as of such date, of counsel representing the
Company for purposes of the Shelf Registration Statement, in form, scope and substance as is
customarily given in an underwritten public offering, addressed to the Purchaser. Notwithstanding
anything herein to the contrary, the Purchaser shall not be designated as an “underwriter” by the
Company in the Shelf Registration Statement without the consent of the Purchaser unless otherwise
required by law. In connection with the due diligence efforts of the Purchaser, the Company shall
make available for inspection during business hours and upon reasonable advance request by (i) the
Purchaser, (ii) counsel for the Purchaser and (iii) one firm of accountants or other agents
retained by the Purchaser (collectively, the “Inspectors”), all pertinent financial and
other records, and pertinent corporate documents and properties of the Company (collectively, the
“Records”), as shall be reasonably deemed necessary by each Inspector, and cause the
Company’s officers, directors and employees to supply all information which any Inspector may
reasonably request; provided, however, that each Inspector shall agree in writing to hold in strict
confidence and shall not make any disclosure (except to the Purchaser) or use of any Record or
other information which the Company determines in good faith to be




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confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in the Shelf
Registration Statement or is otherwise required under the Securities Act, (b) the release of such
Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government
body of competent jurisdiction, or (c) the information in such Records has been made generally
available to the public other than by disclosure in violation of this or any other agreement of
which the Inspector has knowledge. The Purchaser agrees that it shall, upon learning that
disclosure of such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and allow the Company, at
its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, the Records deemed confidential. Nothing herein (or in any other confidentiality
agreement between the Company and the Purchaser) shall be deemed to limit the Purchaser’s ability
to sell Transfer Restricted Securities in a manner that is otherwise consistent with applicable
laws and regulations.




     5. Registration Expenses.



          (a) All expenses incident to the Company’s performance of or compliance with this Agreement
shall be borne by the Company regardless of whether a Shelf Registration Statement becomes
effective, including, without limitation:




               (i) all registration and filing fees and expenses;



               (ii) all fees and expenses of compliance with federal securities and state “blue sky” or
securities laws;



               (iii) all expenses of printing (including printing of Prospectuses and certificates for
Conversion Shares to be issued upon conversion of the Securities), and delivery services;



               (iv) all fees and disbursements of counsel to the Company and, subject to Section 5(b) below,
the Purchasers;



               (v) all application and filing fees in connection with listing (or authorizing for quotation)
the Conversion Shares on a national securities exchange or automated quotation system pursuant to
the requirements hereof;



               (vi) all fees and disbursements of underwriters, including, if necessary, a “qualified
independent underwriter” within the meaning of the rules of the National Association of Securities
Dealers, Inc. (in each case excluding discounts and commissions);



               (vii) all fees and disbursements of custodians; and



               (viii) all fees and disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or incident to such
performance).



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The Company shall bear its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal, accounting or other duties), the expenses
of any annual audit or quarterly review, the expense of any liability insurance and the fees and
expenses of any Person, including special experts, retained by the Company.




          (b) In connection with the Shelf Registration Statement required by this Agreement, including
any amendment or supplement thereto, and any other documents delivered to the Purchasers, the
Company shall reimburse the Purchasers for the reasonable fees and disbursements of not more than
one counsel (including local counsel), which shall be chosen by the Purchasers. The Company shall
not be required to pay any underwriting discount, commission or similar fee related to the sale of
any securities.




     6. Indemnification and Contribution.



          (a) The Company shall indemnify and hold harmless, to the fullest extent permitted by law, the
Purchasers, the Purchasers’ officers, directors, members, agents, partners and employees and each
person, if any, who controls each Purchaser within the meaning of the Securities Act (each, an
“Indemnified Holder”), from and against any loss, claim, damage, liability or expense,
joint or several, or any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability, expense, or action relating to resales of the Conversion Shares), together with
reasonable costs and expenses (including reasonable attorney’s fees) to which any Purchaser may
become subject, insofar as any such loss, claim, damage, liability, expense or action arises out
of, or is based upon:




               (i) any untrue statement or alleged untrue statement of a material fact contained in (A) the
Shelf Registration Statement or Prospectus or any amendment or supplement thereto or (B) any blue
sky application or other document or any amendment or supplement thereto prepared or executed by
the Company (or based upon written information furnished by or on behalf of the Company expressly
for use in such blue sky application or other document or amendment on supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of the Conversion Shares under
the securities law of any state or other jurisdiction (such application or document being
hereinafter called a “Blue Sky Application”); or



               (ii) the omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall promptly reimburse each Indemnified Holder promptly
upon demand for any legal or other expenses reasonably incurred by the Purchasers in connection
with investigating or defending or preparing to defend against any such loss, claim, damage,
liability, expense or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any such loss, claim,
damage, liability, expense or action arises out of, or is based upon, (A) any untrue statement or
alleged untrue statement or omission or alleged omission made in the Shelf Registration Statement
or Prospectus or amendment or supplement thereto or Blue Sky Application or other document referred
to in Section 6(a)(i) hereof in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Purchasers



-13-









 




(or its related Indemnified Holder) specifically for use therein or (B) the failure by the
Purchasers or Indemnified Holder to deliver to any purchaser of its Conversion Shares the
Prospectus and any supplement or amendment thereto after the Company has furnished the Purchaser or
Indemnified Holder with a sufficient number of copies of the same. The foregoing indemnity
agreement is in addition to any liability that the Company may otherwise have to any Indemnified
Holder.




          (b) The Purchasers, severally, but not jointly, shall indemnify and hold harmless, to the
fullest extent permitted by law, the Company, its officers, directors, agents and employees and
each person, if any, who controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage, liability or expense, joint or several, or any action in respect
thereof, to which the Company, the Purchasers or any such officer, director, agent, employee or
controlling person may become subject, insofar as any such loss, claim, damage, liability, expense
or action arises out of, or is based upon:




               (i) any untrue statement or alleged untrue statement of any material fact furnished to the
Company by a Purchaser and contained in the Shelf Registration Statement or Prospectus or any
amendment or supplement thereto or any Blue Sky Application or other document referred to in
Section 6(a)(i) hereof; or



               (ii) the omission or the alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, but in each case only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information prepared and furnished to the Company by or on behalf of any
Purchaser (or its related Indemnified Holder) specifically for use therein, and such Purchaser
shall reimburse the Company and any such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the Company or any such officer,
employee or controlling person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability, expense or action as such expenses are incurred,
provided that the obligation to indemnify shall be limited to the net amount of proceeds receive by
such Purchaser from the sale of Conversion Shares pursuant to the Shelf Registration Statement.



          (c) Promptly after receipt by an indemnified party under this Section 6 of notice of any claim
or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve the indemnifying party from any
liability which it may have under this Section 6 except to the extent the indemifying party has
been prejudiced by such failure. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party shall not be liable




-14-









 







to the indemnified party under this Section 6 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall:




               (i) without the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed) settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding, or



               (ii) be liable for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld or delayed), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.



          (d) If the indemnification provided for in this Section 6 shall for any reason be unavailable
or insufficient to hold harmless an indemnified party under Section 6(a) or 6(b) in respect of any
loss, claim, damage, liability or expense (or action in respect thereof) referred to therein, each
indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability (or
action in respect thereof):




               (i) in such proportion as is appropriate to reflect the relative fault of the Company on
the one hand and the Purchasers on the other, or



               (ii) if the allocation provided by clause (6)(d)(i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative fault referred to in clause
6(d)(i) but also the relative benefits received by the Company from the offering and sale of the
Conversion Shares on the one hand and the Purchasers with respect to the sale by the Purchasers of
the Conversion Shares on the other in connection with the statements or omissions or alleged
statements or alleged omissions that resulted in such loss, claim, damage or liability (or action
in respect thereof), as well as any other relevant equitable considerations.


The relative benefits received by the Company on the one hand and the Purchasers on the other with
respect to such offering and such sale shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Securities purchased under the Purchase Agreement (before
deducting expenses) received by the Company, on the one hand, bear to the total proceeds received
by the Purchasers (before deducting expenses) with respect to its sale of Conversion Shares on the
other. The relative fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company on the one hand or
the Purchasers on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or


-15-









 






omission. The Company and the Purchasers agree that it would not be just and equitable if the
amount of contribution pursuant to this Section 6(d) were determined by pro rata allocation or by
any other method of allocation that does not take into account the equitable considerations
referred to in the first sentence of this paragraph (d). The amount paid or payable by an
indemnified party as a result of the loss, claim, damage, liability or expense, or action in
respect thereof, referred to above in this Section 6 shall be deemed to include, for purposes of
this Section 6 and subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of this Section 6, the
Purchasers shall not be required to contribute any amount in excess of the amount by which net
proceeds received by the Purchasers from the sale of Conversion Shares covered by the Shelf
Registration Statement exceeds the amount of any damages which the Purchasers have otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers’ obligations to contribute as provided in this Section
6(d) are several and not joint.




     7. Selection of Underwriters. The Purchasers may sell such Conversion Shares in an
Underwritten Offering.



     8. Miscellaneous.



          (a) Remedies. The Company acknowledges and agrees that any failure by the Company to
comply with its obligations under Section 2 hereof may result in material irreparable injury to the
Purchasers for which there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure, the Purchasers may
obtain such relief as may be required to specifically enforce the Company’s obligations under
Section 2 hereof. The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.




          (b) Adjustments Affecting Transfer Restricted Securities. The Company shall not,
directly or indirectly, take any action with respect to the Transfer Restricted Securities as a
class that would adversely affect the ability of the Purchasers of Transfer Restricted Securities
to include Conversion Shares in a registration undertaken pursuant to this Agreement.




          (c) No Inconsistent Agreements. The Company will not, on or after the date of this
Agreement, enter into any agreement with respect to its securities that is inconsistent with the
rights granted to the Purchasers in this Agreement or otherwise conflicts with the provisions
hereof. In addition, the Company shall not grant to any of its security holders (other than the
Purchasers) the right to include any of its securities in the Shelf Registration Statement provided
for in this Agreement other than the Conversion Shares.




          (d) Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of the Purchasers.




-16-









 








          (e) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery:




	 	 	 
	If to the Company:

	 	Mark A. Libratore, President
	 

	 	Liberator Medical Holdings, Inc.
	 

	 	2979 SE Gran Park Way
	 

	 	Stuart, FL 34997
	 

	 	Tel: (772) 287-2414
	 

	 	Fax: (772) 781-3867
	 
	 	 
	Copy to:

	 	Jonathan L. Shepard, Esquire
	 

	 	Siegel, Lipman, Dunay, Shepard & Miskel, LLP
	 

	 	5355 Town Center Road, Suite 801
	 

	 	Boca Raton, FL 33486
	 

	 	Tel: (561) 368-7700
	 

	 	Fax: (561) 368-9274
	 
	 	 
	If to the Purchasers:

	 	Millennium Partners, L.P.
	 

	 	c/o Millennium Management LLC
	 

	 	666 Fifth Avenue, 8th Floor
	 

	 	New York, NY 10103
	 

	 	Attn: Terry Feeney
	 

	 	Tel: (212) 841-4100
	 

	 	Fax: (212) 841-4141;





and to the other Purchasers at their addresses set forth in the attached Schedule of Purchasers (or
at such other address any Purchaser may provide in writing to the Company).



All such notices and communications shall be deemed to have been duly given at: the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.




          (f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without limitation
subsequent Purchasers of Transfer Restricted Securities; provided, however, that
(i) this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a
Purchaser unless and to the extent such successor or assign acquired Transfer Restricted Securities
from the Purchaser and agreed in writing to be bound by the terms of this Agreement and (ii)
nothing contained herein shall be deemed to permit any assignment, transfer or other disposition of
Transfer Restricted Securities in violation of the terms of the Purchase Agreement. If any
transferee of a Purchaser shall acquire Transfer Restricted Securities, in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities shall be held




-17-









 







subject to all of the terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement.




          (g) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.




          (h) Headings. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.




          (i) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.




          (j) Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.




          (k) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.




[Signature Pages Follow.]





-18-









 








     IN WITNESS WHEREOF, the Company and each Purchaser have caused their respective signature page
to this Registration Rights Agreement to be duly executed as of the date first written above.



	 	 	 	 	 
	 	COMPANY:



LIBERATOR MEDICAL HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Mark A. Libratore 	 
	 	 	Title:  	President 	 
	 



Signature Page to Registration Rights Agreement




 









 








     IN WITNESS WHEREOF, the Company and each Purchaser have caused their respective signature page
to this Registration Rights Agreement to be duly executed as of the date first written above.



	 	 	 	 	 
	 	PURCHASER:





[PURCHASER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Registration Rights Agreement




 









 








SCHEDULE OF PURCHASERS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(1)	 	(2)	 	(3)	 	(4)	 	(5)
	 	 	 	 	 	 	Aggregate Principal	 	 	 	 
	 	 	Address and	 	Amount of Notes/	 	Number of	 	Legal Representative’s Address
	Purchaser	 	Facsimile Number	 	Purchase Price	 	Warrant Shares	 	and Facsimile Number
	 
	 
	 
	Total
	 	 	 	 	 	 	$3,500,000	 	 	 	4,375,000