EX-4.14 Letter dated October 17, 2008






Exhibit 4.14




Liberator Medical Holdings, Inc.

2979 SE Gran Park Way

Stuart, Florida 34997



October 17, 2008




Millennium Partners, L.P.

c/o Millennium Management LLC

666 Fifth Avenue, 8th Floor

New York, NY 10103

Attn: Terry Feeney




Dear Mr. Feeney:




     Reference is made to the Registration Rights Agreement (the “Registration Rights
Agreement”), dated as of May 22, 2008, among Liberator Medical Holdings, Inc. (the
“Company”) and Millennium Partners, L.P. (“Millennium”). Capitalized terms used
but not defined herein shall have the meanings ascribed to them in the Registration Rights
Agreement.



     As you are aware, on July 30, 2008, the Company filed with the Securities and Exchange
Commission (the “SEC”) a registration statement on Form S-1 (File No. 333- 152652) (the
“Registration Statement”) relating to the potential resale by certain selling
securityholders of 9,100,000 shares of common stock, par value $0.001 per share, of the Company
(the “Common Stock”), which shares included: (i) 4,375,000 shares of Common Stock issuable
upon conversion of the Note held by Millennium, (ii) 4,375,000 shares of Common Stock issuable upon
exercise of the Warrant held by Millennium and (iii) 350,000 shares of Common Stock issuable upon
exercise of an outstanding warrant held by another selling securityholder named in the Registration
Statement. In response to comments provided by the staff of the SEC (the “Staff”) pursuant
to a letter, dated August 8, 2008, from the Staff to the Company, the Company intends to reduce the
total number of shares of Common Stock that it is registering for resale pursuant to the
Registration Statement from 9,100,000 shares to 4,862,252 shares, which shares shall include: (i)
487,252 shares of Common Stock issuable upon exercise of conversion of the Note held by Millennium
and (ii) 4,375,000 shares of Common Stock issuable upon exercise of the Warrant held by Millennium.
Accordingly, 3,887,748 shares of Common Stock issuable upon conversion of the Note held by
Millennium (collectively, the “Unregistered Note Shares”) are not being registered for
resale pursuant to the Registration Statement. Subject to the terms and conditions set forth
herein, the Company desires for Millennium to: (i) confirm and acknowledge that the Company shall
not be obligated to cause any of the Unregistered Note Shares to be registered under the Securities
Act unless and until all or a portion of the Unregistered Note Shares are eligible for registration
under the rules and regulations promulgated by the SEC and the Staff has allowed a registration
statement with respect to the Unregistered Note Shares to be filed with the SEC; and (ii) waive and
any all Liquidated Damages with respect to the Unregistered Note Shares.



 









 





     As you also are aware, pursuant to the Securities Purchase Agreement (the “Securities
Purchase Agreement”), being entered into among the Company, Liberator Medical Supply, Inc.,
Liberator Health and Education Services, Inc. and Millennium and the other Buyers listed on
Schedule A thereto (collectively, the “Buyers”) simultaneously with the execution and
delivery of this letter agreement, the Company is, among other things, issuing warrants to purchase
shares of Common Stock (collectively, the “Warrant Shares”) to Millennium and the other
Buyers. The Company and Millennium desire that Millennium and the other Buyers be entitled to
registration rights with respect to the Warrant Shares, subject to the terms and conditions set
forth herein.



     By signing the counterpart to this letter, Millennium, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, hereby confirms, acknowledges and
agrees that notwithstanding anything to the contrary contained in the Registration Rights
Agreement, the Purchase Agreement, the Note or any other Transaction Document (as such term is
defined in the Purchase Agreement): (a) the failure to file and/or have declared effective by the
SEC a Shelf Registration Statement covering the resale of the Unregistered Note Shares by the Shelf
Filing Deadline and/or the Effectiveness Target Date shall not constitute a breach of any provision
of any Transaction Document; and (b) Millennium shall not be entitled to any Liquidated Damages
with respect to the Unregistered Note Shares whatsoever. The Company and Millennium acknowledge
and agree that notwithstanding anything to the contrary contained in any Transaction Document, the
Company shall not be obligated to cause any of the Unregistered Note Shares to be registered under
the Securities Act, except as expressly set forth in this letter agreement.



     The Company and Millennium acknowledge and agree that until the Shelf Registration Statement
and, if prior to the expiration of the Note Share Registration Period (as defined herein), any and
all Additional Registration Statements (as defined herein) covering the resale of all of the
Unregistered Note Shares, are declared effective by the SEC, the Company shall not, without the
prior written consent of Millennium, file with the SEC any other registration statement (other than
any registration statements on Forms S-4 or S-8 or another form not available for registering the
Unregistered Note Shares for resale to the public); provided, however, that nothing
contained herein shall prohibit the Company from (i) filing with the SEC (a) any amendment to any
registration statement filed with the SEC prior to the date hereof, including, without limitation,
the Shelf Registration Statement, or (b) any Additional Registration Statement, or (ii) filing with
the SEC any registration statement other than an Additional Registration Statement covering any of
its securities for sale to the public for its own account or for the account of other
securityholders as long as the Company attempts to include in such registration statement the
maximum number of Unregistered Note Shares not registered previously with the SEC that are
permitted by the SEC (any such registration statement including such Unregistered Note Shares shall
be referred to herein as an “Additional Security Registration Statement”);
provided, however, that for purposes of this clause (ii), if and to the extent the
SEC, as a result of a limitation on the maximum number of shares of Common Stock permitted to be
registered by the Staff pursuant to Rule 415 promulgated



 









 




under the Securities Act or otherwise, does not permit all or any portion of the securities
to be registered for the account of securityholders pursuant to the Additional Security
Registration Statement, the Company shall remove from the Additional Security Registration
Statement such portion of the securities to be registered for the account of securityholders;
provided, that, unless the SEC otherwise requires or Millennium otherwise agrees, any such cut-back
imposed (i) first, shall be applied to the securities held by the securityholders other than
Millennium and (ii) then, shall be applied to the Unregistered Note Shares not registered
previously with the SEC; provided, further, however, that for purposes of
this clause (ii), if and to the extent the SEC does not permit all or any portion of the
Unregistered Note Shares not registered previously with the SEC to be included in such Additional
Security Registration Statement, the Company shall not be prohibited from filing such Additional
Security Registration Statement with the SEC.




     The Company and Millennium further acknowledge and agree that as soon as practicable following
the Registration Triggering Event (as defined herein), the Company shall be required to file with
the SEC a registration statement (the “Initial Registration Statement”) covering such
number of Warrant Shares and Unregistered Note Shares that are permitted by the SEC;
provided, however, that if and to the extent the SEC does not permit all or any
portion of the Warrant Shares and the Unregistered Note Shares, as a result of a limitation on the
maximum number of shares of Common Stock permitted to be registered by the Staff pursuant to Rule
415 promulgated under the Securities Act or otherwise, to be registered pursuant to the Initial
Registration Statement or any Additional Registration Statement, the Company shall remove from the
Initial Registration Statement or Additional Registration Statement, as the case may be, such
portion of the Warrant Shares and Unregistered Note Shares; provided, further,
however, that unless the SEC otherwise requires or the Buyers otherwise agree in writing,
any such cut-back imposed on the holders of the Warrant Shares and Unregistered Note Shares (i)
first, shall be applied to any and all Unregistered Note Shares and (ii) then, shall be applied to
the Warrant Shares allocated on a pro rata basis among the Buyers. In the event of any such
cut-back, the Company shall file additional registration statements (each, an “Additional
Registration Statement” and together with the Initial Registration Statement, the
“Additional Registration Statements”) successively in an attempt to register on each such
Additional Registration Statement the maximum number of the remaining Warrant Shares and
Unregistered Note Shares permitted by the SEC, subject to the cut-back provisions of the
immediately preceding sentence, until (i) with respect to the registration of the Warrant Shares,
the earlier to occur of the following: (a) the Warrant Shares have ceased to be Transfer Restricted
Securities and (b) all of the Warrant Shares have been registered under the Securities Act, and
(ii) with respect to the registration of the Unregistered Note Shares, the expiration of the Note
Share Registration Period. For purposes of this letter agreement, the term “Registration
Triggering Event” shall mean the occurrence of both of the following events: (i) all or a
portion of the Warrant Shares and the Unregistered Note Shares are eligible for registration under
the rules and regulations promulgated by the SEC, including without limitation, Rule 415
promulgated under the Securities Act and (ii) the Staff has allowed a registration statement
covering the resale of such Warrant Shares and Unregistered Note Shares to be filed with the SEC;
and the term “Note Share Registration Period” shall
mean the period commencing on the date hereof and ending on the Maturity Date (as such term is
defined in the Note held by Millennium).



 









 





     The Company and Millennium hereby acknowledge and agree that the registration rights with
respect to the Conversion Shares set forth in the Registration Rights Agreement, as modified this
letter agreement, shall govern the registration rights with respect to the Warrant Shares;
provided, however, that in no event shall any Buyer be entitled to any Liquidated
Damages with respect to the Warrant Shares whatsoever.



     For purposes of the Registration Rights Agreement, the term “Shelf Registration
Statement” shall mean each of the Shelf Registration Statement, the Additional Registration
Statements and any Additional Security Registration Statement; and the term “Prospectus”
shall mean, with respect to the Shelf Registration Statement, any Additional Registration Statement
or any Additional Registration Statement, as the case may be, the prospectus included in such Shelf
Registration Statement, Additional Registration Statement or Additional Security Registration
Statement, in each case, 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. Notwithstanding the foregoing, in no event shall the Company be required,
pursuant to Section 5(b) of the Registration Rights Agreement or otherwise, to reimburse the Buyers
for the reasonable fees and disbursements of more than one counsel (including local counsel) in
connection with the Shelf Registration Statement, the Additional Registration Statements or any
Additional Security Registration Statement.



     The Registration Rights Agreement shall be deemed to be modified to the extent necessary to
give effect to this letter agreement. Except as hereby modified, the Registration Rights Agreement
and each provision thereof is hereby ratified and confirmed in every respect and shall continue in
full force and effect. If and to the extent there is any conflict between the provisions of the
Registration Rights Agreement and this letter agreement, the provisions of this letter agreement
shall govern.



     All questions concerning the construction, validity, enforcement and interpretation of this
letter agreement shall be governed by and construed and enforced in accordance with the internal
laws of the State of New York, without regard to the principles of conflicts of law thereof.



[Remainder of Page Intentionally Left Blank]




 









 








     If you are in agreement with the foregoing, kindly indicate such agreement by signing the
counterpart to this letter and returning the signed copy thereof to the Company by facsimile at
(772) 287-3280.



	 	 	 	 	 
	 	Sincerely,





LIBERATOR MEDICAL HOLDINGS, INC.

 	 
	 	By:  	/s/ Mark A. Libratore
 	 
	 	 	Name:  	Mark A. Libratore 	 
	 	 	Title:  	President 	 
	 



ACKNOWLEDGED AND AGREED TO:




MILLENNIUM PARTNERS, L.P.




By: Millennium Management LLC




	 	 	 	 	 
	 	 
	By:  	/s/ Terry Feeney
 	 
	 	 	Name:  	Terry Feeney 	 
	 	 	Title:  	Chief Operating Officer