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Exhibit 10.8
THIRD WAIVER OF RIGHTS AGREEMENT
This Third Waiver of Rights
Agreement (the “ Agreement
”) is made and entered into on June ___, 2008 (the
“ Effective
Date ”), by and between Pediatric
Prosthetics, Inc. , an Idaho corporation (“
Pediatric
”) and AJW
Partners, Inc., AJW Partners, LLC, AJW Offshore, Ltd., AJW
Qualified Partners, LLC and New Millennium Capital Partners,
II, LLC (collectively the “ Purchasers
”), each individually a “ Party
” and collectively the “ Parties
.”
W
I
T
N
E
S
S
E
T
H
:
WHEREAS ,
pursuant to a Securities Purchase Agreement entered into with
the Purchasers on May 30, 2006 (the “ Closing
” and the “ Purchase
Agreement ”), Pediatric agreed to sell the
Purchasers an aggregate of $1,500,000 in three tranches of
Callable Secured Convertible Notes (the “ Notes
”), all of which have been sold to
date. Additionally, pursuant to the Purchase
Agreement and in connection with the sale of the Notes,
Pediatric granted 50,000,000 Warrants to purchase shares of
Pediatric’s common stock at $0.10 per share to the
Purchasers (the “ Warrants
” or “ Warrant
Agreements ”);
WHEREAS , the Parties have previously entered into a Waiver
of Rights Agreement dated October 25, 2006 (the “
Waiver Agreement ”) and a Second Waiver of Rights
Agreement on or around April 17, 2007 (the “ Second
Waiver Agreement ”), to amend certain of the documents
entered into by the Parties at the Closing, including the Rights
Agreement, which Waiver Agreement and Second Waiver Agreement shall
not be affected by the terms and conditions of this
Agreement;
WHEREAS , Pediatric and one of the Purchasers, New
Millennium Capital Partners, II, LLC (“ New
Millennium ”), desire to enter into a Securities
Purchase Agreement, pursuant to which New Millennium will purchase
$150,000 in Notes (the “ New
Notes ”) and be granted 20,000,000 warrants by
Pediatric (the “ New
Warrants ”) to purchase shares of common stock at an
exercise price of $0.001 per share (the “ New
Funding ”);
WHEREAS ,
pursuant to Section 1.6(d) of the Notes, in the event
Pediatric issues or sells any shares of common stock or
grants any convertible securities for consideration per share
less than the Notes, such Note conversion price will reset to
such lower value (the “ Note
Anti-Dilution Right ”);
WHEREAS ,
pursuant to Section 4(a) of the Warrants, in the event
Pediatric issues or sells any shares of common stock or
grants any convertible securities for consideration per share
less than the Warrants, such Warrant exercise price will
reset to such lower value (the “ Warrant
Anti-Dilution Right ”); and
WHEREAS , the
Purchasers desire to waive any and all anti-dilution rights
and other rights provided pursuant to the Purchase Agreement
or related agreements, and/or any rights associated with the
Notes or Warrants in order to encourage Pediatric to enter
into the New Funding, pursuant to and in connection with the
terms of this Agreement.
NOW, THEREFORE ,
in consideration for the promises and pledges contained below
and other good and valuable consideration, which
consideration Pediatric and the
Purchasers
acknowledge receipt of, and the premises and the mutual
covenants, agreements, and considerations herein contained,
the Parties hereto agree as follows:
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