14
As filed with the Securities and Exchange Commission on May 15, 1998
Registration No. 333-51301
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EP MedSystems, Inc.
(Exact name of registrant as specified in its charter)
New Jersey 5047 22-3212190
- ---------- ------------ ----------------
(State of (Primary SIC (I.R.S. Employer
incorporation Code Number) Identification
Number)
100 Stierli Court
Mount Arlington, NJ 07856
(973) 398-2800
(Address and telephone number of registrant's principal executive offices)
James J. Caruso, Chief Financial Officer
EP MedSystems, Inc.
100 Stierli Court
Mount Arlington, NJ 07856
Telephone (973) 398-2800
(Name, address and telephone number of agent for service)
Copies to:
Dean M. Schwartz, Esquire
Stradley, Ronon, Stevens & Young, LLP
2600 One Commerce Square
Philadelphia, PA 19103
Telephone (215) 564-8000
Approximate date of commencement of proposed sale to
the public: From time to time after the effective date of
this Registration Statement.
If the only securities being registered on this Form
are being offered pursuant to dividend or interest
reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act of 1933, as amended,
other than securities offered only in connection with
dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities
Act, please check the following box and list the Securities
Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, please
check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its
effective date until the registrant shall file a further
amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933, as amended,
or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 15, 1998
PROSPECTUS
EP MEDSYSTEMS, INC.
2,250,000 Shares of Common Stock
This Prospectus relates to 2,250,000 shares of common stock,
no par value, stated value $.001 per share ("Common Stock"),
of EP MedSystems, Inc., a New Jersey corporation (the
"Company"), which may be offered from time to time by
certain security holders of the Company (the "Selling
Security Holders"), or by their pledgees, donees,
transferees or other successors in interest, to or through
underwriters or directly to other purchasers or through
brokers or agents in one or more transactions at varying
prices determined at the time of sale or at fixed or
negotiated prices. See "Plan of Distribution."
The Company will not receive any of the proceeds from the
sale of the 2,250,000 shares of Common Stock (the "Shares")
offered hereby by the Selling Security Holders. The
expenses of the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"),
and the registration or qualification of the Shares under
any applicable state securities laws will be paid by the
Company. The aggregate proceeds to the Selling Security
Holders will be the offering price of the Shares sold, less
applicable agents' commissions and underwriting discounts,
if any.
All of the Shares were "restricted securities" under the
Securities Act prior to their registration hereunder. The
Company sold all of the Shares to the Selling Security
Holders in a private transaction on April 9, 1998. The
shares of Common Stock sold in such transaction constitute
the Shares being registered hereunder.
The Common Stock is traded on the Nasdaq National Market
("Nasdaq") under the symbol "EPMD." On April 28, 1998, the
last reported sale price of the Common Stock was $2.8125 per
share.
The securities offered hereby involve a high degree of risk.
See "Risk Factors."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION, OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Proceeds to
Underwriting Proceeds Selling
Price to Discounts and to Security
Public (1) Commissions (2) Company (3) Holders (4)
--------- --------------- ----------- -----------
Per Share $2.8125 -- -- $2.8125
Total $6,328,125 -- -- $6,328,125
1. Represents the last reported sale price per share of
Common Stock on Nasdaq on April 28, 1998.
2. Cannot be estimated at this time.
3. The Company will pay estimated expenses of $46,000 in
connection with the offering of the Shares by the Selling
Security Holders.
4. Before applicable underwriting discounts or
commissions, which cannot be estimated at this time.
The date of this Prospectus is May , 1998
<PAGE>
No dealer, salesperson or other person has been authorized
to give any information or to make any representations other
than those contained in this Prospectus and, if given or
made, such information or representations must not be relied
upon as having been authorized by the Company. Neither the
delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any indication that
there has been no change in the affairs of the Company since
the date hereof or that the information contained herein is
correct as of any date subsequent to the date hereof. This
Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities offered
hereby by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to
anyone to whom it is unlawful to make such offer or
solicitation.
TABLE OF CONTENTS
Page
Available Information 1
Incorporation of Certain Documents by Reference 2
Forward Looking Statements 2
Risk Factors 3
The Company 3
Use of Proceeds 3
Selling Security Holders 4
Plan of Distribution 5
Legal Matters 6
Experts 6
AVAILABLE INFORMATION
The Company has filed with the U.S. Securities and Exchange
Commission (the "Commission") a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities
Act with respect to the Shares of Common Stock offered by
this Prospectus. This Prospectus, filed as part of the
Registration Statement, does not contain all of the
information set forth in the Registration Statement and the
exhibits and schedules thereto, certain portions of which
have been omitted in accordance with the Commission's rules
and regulations. For further information with respect to
the Company and the Shares offered hereby, reference is made
to the Registration Statement and to the exhibits and
schedules filed therewith. The statements in this
Prospectus are qualified in their entirety by reference to
the contents of any agreement or other document incorporated
herein by reference, a copy of which is filed as an exhibit
to either the Registration Statement or other filings by the
Company with the Commission. A copy of the Registration
Statement may be inspected without charge at the
Commission's principal offices, and copies of all or any
part of the Registration Statement may be obtained from such
office upon payment of the fees prescribed by the
Commission.
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith, files reports,
proxy statements and other information with the Commission.
Such reports, proxy statements and other information filed
by the Company may be inspected and copied (at prescribed
rates) at the public reference facilities maintained by the
Commission in Washington, D.C. (450 Fifth Street, N.W., Room
1024, Judiciary Plaza, Washington, D.C. 20549) and at the
Commission's Regional Offices in New York (7 World Trade
Center, 13th Floor, New York, New York 10048) and Chicago
(Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661). The Company is an electronic
filer and the Commission maintains a web site that contains
reports, proxy and information statements and other
information regarding registrants that file electronically
with the Commission. The address of the web site is
"http://www.sec.gov." The Company's reports, proxy
statements and other information may also be inspected at
the offices of the National Association of Securities
Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the
Company are incorporated by reference into this Prospectus:
(1) The Company's Annual Report on Form 10-KSB for the year
ended December 31, 1997;
(2) The Company's Quarterly Report on Form 10-QSB for the
quarter ended March 31, 1998;
(3) The Company's Current Report on Form 8-K dated April
14, 1998;
(4) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed April 19,
1996; and
All documents filed with the Commission by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Shares shall
be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the respective dates
of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by
reference herein shall be deemed modified, superseded or
replaced for purposes of this Prospectus to the extent that
a statement contained herein or in any subsequently filed
document that also is or is deemed to be incorporated by
reference herein modifies, supersedes or replaces such
statement. Any statement so modified, superseded or
replaced shall not be deemed, except as so modified,
superseded or replaced, to constitute a part of this
Prospectus.
The Company will provide without charge to each person,
including any beneficial owner of Common Stock, to whom a
copy of this Prospectus is delivered, upon such person's
written or oral request, a copy of any and all of the
documents incorporated by reference herein (other than
exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the information
that this Prospectus incorporates). Requests should be
directed to EP MedSystems, Inc. 100 Stierli Court, Mount
Arlington, NJ 07856, Attention: Corporate Secretary,
telephone: (973) 398-2800.
FORWARD-LOOKING STATEMENTS
In addition to historical information, this Prospectus
contains forward-looking statements relating to such matters
as anticipated financial and operational performance,
business prospects, technological developments, results of
clinical trials, new products, research and development
activities and similar matters. The Private Securities
Litigation Reform Act of 1995 provides a safe harbor for
forward-looking statements. The Company notes that a
variety of factors could cause the Company's actual results
and experience to differ materially from the anticipated
results or other expectations expressed in the Company's
forward-looking statements. When used in this Prospectus,
the words or phrases "believes," "anticipates," "expects,"
"intends," "will likely result," "estimates," "projects" or
similar expressions are intended to identify such forward-
looking statements, but are not the exclusive means of
identifying such statements. Such forward-looking
statements are only predictions, and the actual events or
results may differ materially from the results discussed in
the forward-looking statements. Factors that could cause or
contribute to such differences include, but are not limited
to, those matters discussed herein in the section entitled
"Risk Factors."
The Company cautions readers to review the cautionary
statements set forth in this Prospectus and in the Company's
other reports filed with the Securities and Exchange
Commission and cautions that other factors may prove to be
important in affecting the Company's business and results of
operations. Readers are cautioned not to place undue
reliance on these forward-looking statements, which speak
only as of the date of this report. The Company undertakes
no obligation to publicly revise these forward-looking
statements to reflect events or circumstances that arise
after the date of this report.
<PAGE>
RISK FACTORS
An investment in the Company's Common Stock is speculative
in nature, involves a high degree of risk and should only be
made by an investor who can afford the loss of his entire
investment. Prospective purchasers should carefully consider
the risk factors contained in the section titled "Factors
That May Impact Future Operations" in the Company's Annual
Report on Form 10-KSB and other periodic reports filed under
the Exchange Act, as well as the other information set forth
in this Prospectus, before purchasing the Shares offered
hereby. Such risk factors could cause the Company's actual
results to differ materially from those expressed in the
Company's forward-looking statements in this Prospectus or
have a material adverse effect upon the Company's business,
results of operations, prospects and financial condition.
THE COMPANY
EP MedSystems, Inc. designs, manufactures and markets a
broad-based line of products for the cardiac
electrophysiology ("EP") market for the purpose of
diagnosing, monitoring, managing and treating irregular
heartbeats known as arrhythmias. This product line includes
the EP WorkMate, a computerized monitoring and analysis
workstation (the "EP WorkMate"), the EP-3 computerized
electrophysiology stimulator (the "EP-3 Stimulator" or "EP-
3") and the PaceBase/TeleTrace III receiver, an integrated
ECG monitoring device and computerized transmission system
for automation of pacemaker and arrhythmia follow-up testing
and data archiving. The Company's product line also
includes diagnostic electrophysiology catheters, temporary
pacing catheters and related disposable supplies.
The Company has also developed a new product for internal
cardioversion of atrial fibrillation known as the ALERT
System (the "ALERT System"), which uses a patented electrode
catheter to deliver measured, variable, low energy
electrical impulses directly to the inside of the heart in
order to convert atrial fibrillation to a normal heart
rhythm. As of April 28, 1998, the ALERT System is
undergoing clinical trials in the United States.
The Company was incorporated in New Jersey in January, 1993.
The Company's principal offices are located at 100 Stierli
Court, Mount Arlington, NJ 07856, and its telephone number
is 973-398-2800.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the
sale of the Shares by the Selling Security Holders. The net
proceeds from the sale of the Shares will be received by the
Selling Security Holders.
<PAGE>
SELLING SECURITY HOLDERS
The following table sets forth information as of April 17,
1998 with respect to each of the Selling Security Holders,
including their respective names, record holdings of shares
of the Company's Common Stock owned before the offering of
the Shares, the number of shares of Common Stock being
offered for each of their respective accounts and the number
of shares of Common Stock to be owned of record by each of
them immediately following the sale of the shares.
Shares of Shares of Common
Common Common Stock to
Name of Stock Owned Stock Being be Owned
Selling Security Before Offered After the
Holder Offering (1) (2) Offering
- ---------------------- ----------- ----------- ---------
SC Fundamental Value
Fund, LP (3) 376,800 339,500 37,300
10 East 50th Street
New York, NY 10022
SC Fundamental Value
BVI, Ltd. (3) 373,200 335,500 37,700
c/o SC BVI Partners
10 East 50th Street
New York, NY 10022
H & Q Life Sciences
Investors (3) (4) 430,000 430,000 0
50 Rowes Wharf
Boston, MA 02110-6679
H & Q Healthcare
Investors (3) (4) 645,000 645,000 0
50 Rowes Wharf
Boston, MA 02110-6679
Special Situations
Fund III LP (3) 411,000 375,000 36,000
153 East 53rd Street
New York, NY 10022
Special Situations
Cayman Fund (3) 137,000 125,000 12,000
153 East 53rd Street
New York, NY 10022
(1) Assumes the sale of all the Shares offered by each of
the Selling Security Holders.
(2) On April 9, 1998, the Selling Security Holders
purchased 2,250,000 Shares of Common Stock in a private
placement of such securities conducted by the Company. The
aggregate offering proceeds from the sale of the Shares was
$5,062,500, based on a per share price of $2.25. The Company
intends to use the proceeds of the private placement for
working capital and general corporate purposes.
(3) SC Fundamental Value Fund, LP and SC Fundamental Value
BVI, Ltd. share common management. H&Q Life Sciences
Investors and H&Q Healthcare Investors share common
management. The management companies of Special Situations
Fund III LP and Special Situations Cayman Fund share certain
common ownership.
(4) H&Q Life Sciences Investors and H&Q Healthcare
Investors are significant shareholders of the Company by
virtue of their holding in the aggregate greater than 10% of
the issued and outstanding common stock.
Except as described above, none of the Selling Security
Holders has held any position or office or has had any other
material relationship with the Company, or any of its
affiliates, within the past three years.
<PAGE>
PLAN OF DISTRIBUTION
All of the Shares offered hereby may be sold from time to
time by the Selling Security Holders, or by their permitted
assigns or permitted transferees. The sale of the Shares by
the Selling Security Holders may be effected from time to
time in transactions through Nasdaq, or on one or more other
securities markets and exchanges on which the Shares are
then listed, in privately negotiated transactions, through
the writing of options on the Shares, or otherwise, or
through a combination of such methods of sale, at fixed
prices that may be changed, at market prices prevailing at
the time of sale, at prices relating to such prevailing
market prices or at negotiated prices. In addition, any of
the Shares that qualify for sale pursuant to Rule 144
promulgated under the Securities Act may be sold in
transactions complying with such Rule, rather than pursuant
to this Prospectus.
The Selling Security Holders may effect the above-mentioned
transactions by selling the Shares to or through broker-
dealers, and such broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the
Selling Security Holders and/or the purchasers of the Shares
for whom such broker-dealers may act as agents or to whom
they may sell as principals, or both (which compensation as
to a particular broker-dealer may be in excess of customary
commissions). Any broker-dealer may act as a broker-dealer
on behalf of the Selling Security Holders in connection with
the offering of certain of the Shares by the Selling
Security Holders. Any broker-dealers who act in connection
with the sale of the Shares hereunder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and
profit on any resale of the Shares as principal may be
deemed to be underwriting discounts and commissions under
the Securities Act. In order to comply with the securities
laws of certain states, if applicable, the Shares will be
sold in such jurisdictions, if required, only through
registered or licensed broker-dealers. In addition, in
certain states, the Shares may not be sold unless the Shares
have been registered or qualified for sale in such state or
an exemption from registration or qualification is available
and the conditions of such exemption have been satisfied.
None of the proceeds from the sale of the Shares by the
Selling Security Holders will be received by the Company.
There can be no assurance that the Selling Security Holders
will sell any or all of the Shares offered by them
hereunder.
Under applicable rules and regulations under the Exchange
Act, any person engaged in distribution of Shares of Common
Stock offered hereby may not simultaneously engage in market
making activities for the Common Stock for a period of two
business days prior to the commencement of such
distribution. In addition, each Selling Security Holder and
any other person who participates in a distribution of the
Shares will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder,
including Rule 10b-2, 10b-6 and 10b-7, which provisions may
limit the timing of purchases and affect the marketability
of the Shares of Common Stock and the ability of any person
to engage in market making activities for the shares of
Common Stock.
The Company has the right to suspend use of this Prospectus
for a discrete period of time under certain circumstances.
At the time a particular offering of Shares is made, to the
extent required, a Prospectus Supplement will be distributed
which will set forth the number of Shares being offered and
the terms of the offering, including the purchase price or
public offering price, the name or names of any
underwriters, dealers or agents, the purchase price paid by
any underwriter for Shares purchased from the Selling
Security Holders, any discounts commissions and other items
constituting compensation from the Selling Security Holders
and any discounts, commissions or concessions allowed or
reallowed or paid to dealers.
The expenses of the registration of the Shares under the
Securities Act, and the registration or qualification of the
Shares under any applicable state securities laws will be
paid by the Company. The Company and each Selling Security
Holder have agreed to indemnify each other and certain other
persons against certain liabilities in connection with the
offering of the Shares, including liabilities under the
Securities Act.
<PAGE>
LEGAL MATTERS
The validity of the Shares offered hereby has been passed
upon for the Company by Stradley Ronon, Stevens & Young,
LLP, Philadelphia, PA.
EXPERTS
The consolidated financial statements of the Company
incorporated by reference in this Registration Statement
have been audited by Arthur Andersen LLP, Independent Public
Accountants, as indicated in their report with respect
thereto and are incorporated herein by reference in reliance
upon the authority of said firm as experts in giving said
report.
EP MedSystems, Inc.
2,250,000 SHARES OF
COMMON STOCK
PROSPECTUS
May , 1998
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses of the
registrant in connection with the issuance and distribution
of the Shares (all amounts are estimated except the
Commission registration fee). Selling commissions and fees
and stock transfer taxes are payable individually by the
Selling Security Holders.
Securities and Exchange Commission
registration fee $ 1,867
Blue sky filing fees and expenses 10,000
Legal fees and expenses 30,000
Accountants' fees and expenses 3,000
Cost of printing 500
Miscellaneous expenses 633
-------
Total $46,000
=======
Item 15. Indemnification of Directors and Officers
Reference is made to Section 14A:3-5 of the New Jersey
Business Corporation Act, as amended, (the "BCA") which sets
forth the extent to which a corporation may indemnify its
directors, officers and employees. More specifically, such
law empowers a corporation to indemnify a corporate agent
against his or her expenses and liabilities incurred in
connection with any proceeding (other than a derivative
lawsuit) involving the corporate agent by reason of his or her
being or having been a corporate agent if (a) the corporate
agent acted in good faith or in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation, and (b) with respect to any criminal proceeding,
the corporate agent had no reasonable cause to believe his or
her conduct was unlawful. For purposes of such law the term
"corporate agent" includes any present or former director,
officer, employee or agent of the corporation, and a person
serving as a "corporate agent" at the request of the
corporation for any other enterprise, or the legal
representative of any such director, officer, trustee,
employee or agent. For purposes of this section, "proceeding"
means any pending, threatened or completed civil, criminal,
administrative or arbitrative action, suit, or proceeding, and
any appeal therein and any inquiry or investigation which
could lead to such action, suit or proceeding.
With respect to any derivative action, the corporation is
empowered to indemnify a corporate agent against his or her
expenses (but not his or her liabilities) incurred in
connection with any proceeding involving the corporate agent
by reason of his or her being or having been a corporate agent
if the agent acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best
interests of the corporation. However, only a court can
empower a corporation to indemnify a corporate agent against
expenses with respect to any claim, issue or matter as to
which the agent was adjudged liable to the corporation.
The corporation may indemnify a corporate agent in a specific
case if a determination is made by any of the following that
the applicable standard of conduct was met: (i) the Board of
Directors, or a committee thereof, acting by a majority vote
of a quorum consisting of disinterested directors; (ii) by
independent legal counsel, if there is not a quorum of
disinterested directors or if the disinterested quorum
empowers counsel to make the determination; or (iii) by the
stockholders.
II-1
A corporate agent is entitled to mandatory indemnification to
the extent that the agent is successful on the merits or
otherwise in any proceeding, or in defense of any claim, issue
or matter in the proceeding. If a corporation fails or
refuses to indemnify a corporate agent, whether the
indemnification is permissive or mandatory, the agent may
apply to a court to grant him or her the requested
indemnification. In advance of the final disposition of a
proceeding, the Board of Directors may direct the corporation
to pay an agent's expenses if the agent agrees to repay the
expenses in the event that it is ultimately determined that he
is not entitled to indemnification.
The Company's Certificate of Incorporation and Bylaws provide
that the Company may indemnify its directors, officers,
Scientific Advisory Board members, employees and other agents
to the fullest extent permitted by New Jersey law; provided,
that such persons acted in good faith and in a manner
reasonably believed to be in the best interest of the Company
and, with respect to any criminal proceeding, had no
reasonable cause to believe such conduct was unlawful. The
Company also maintains liability insurance for its officers
and directors. There can be no assurance, however, that the
Company will be able to maintain such insurance on reasonable
terms.
In addition, Section 14A:2-7 of the BCA provides that a New
Jersey corporation may include within its Certificate of
Incorporation provisions eliminating or limiting the personal
liability of its directors and officers in shareholder actions
brought to obtain damages for alleged breaches of fiduciary
duties, as long as the alleged acts or omissions did not
involve a breach of a duty of loyalty to the corporation or
its shareholders, were performed in good faith, did not
involve a knowing violation of law or result in an improper
personal benefit.
The Company's Certificate of Incorporation and Bylaws provide
that a director of the Company will not be personally liable
to the Company or its shareholders for damages for breach of
any duty owed to the Company or its shareholders, except for
liabilities arising from any breach of duty based upon an act
or omission (i) in breach of the duty of loyalty to the
Company, (ii) not in good faith or involving a knowing
violation of law or (iii) resulting in receipt by such
director or officer of an improper personal benefit.
II-2
Item 16. Exhibits.
Exhibit Number Description
- ------------- -----------
4.1 Common Stock Purchase Agreement, dated April 9,
1998, among the Company and each of the Selling
Security Holders (filed as Exhibit 4.1 to the
Company's Current Report on Form 8-K dated April
14, 1998 and incorporated herein by reference).
4.2 Registration Rights Agreement, dated April 9,
1998, among the Company and each of the Selling
Security Holders (filed as Exhibit 4.2 to the
Company's Current Report on Form 8-K dated April
14, 1998 and incorporated herein by reference).
5.1 Opinion of Stradley Ronon, Stevens & Young, LLP,
regarding the legality of the Shares. (Previously
filed and incorporated herein by reference).
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Stradley Ronon, Stevens & Young, LLP
(contained in Exhibit 5.1).
II-3
<PAGE>
Item 17. Undertakings
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
a) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities
Act");
b) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement; and
c) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that the registrant
does not need to make post-effective amendments
with respect to the information set forth in
paragraphs a) and b) above if such information is
contained in periodic reports filed with the
Commission by the registrant under the Exchange
Act and such periodic reports have been
incorporated by reference in this registration
statement.
2. That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-
effective amendment any of the Securities being registered
that remain unsold after the termination of the offering.
4. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that
is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
5. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Amendment No. 1
to Registration Statement to be signed on its behalf by the
undersigned, thereto duly authorized, in the City of Mount
Arlington, State of New Jersey, on May 15, 1998.
EP MedSystems, Inc.
By: /s/ David A. Jenkins
David A. Jenkins
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Amendment No. 1 to Registration Statement
has been signed by the following persons in the capacities
and on the dates indicated.
Signature Date
---------------- -------------
/s/ David A. Jenkins May 15, 1998
David A. Jenkins, Chairman,
President and Chief Executive Officer
(Principal Executive Officer)
/s/ James J. Caruso May 15, 1998
James J. Caruso, Chief Financial
Officer and Secretary
(Principal Accounting Officer)
/s/ David W. Mortara, Ph.D. May 15, 1998
David W. Mortara, Ph.D.
Director
/s/ Lester J. Swenson May 15, 1998
Lester J. Swenson
Director
/s/ Anthony J. Varrichio May 15, 1998
Anthony J. Varrichio
Director
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Common Stock Purchase Agreement, dated April 9,
1998, between the Company and each of the Selling
Security Holders (filed as Exhibit 4.1 to the
Company's Current Report on Form 8-K dated April
14, 1998 and incorporated herein by reference).
4.2 Registration Rights Agreement, dated April 9,
1998, between the Company and each of the Selling
Security Holders (filed as Exhibit 4.2 to the
Company's Current Report on Form 8-K dated April
14, 1998 and incorporated herein by reference).
5.1 Opinion of Stradley Ronon, Stevens & Young, LLP
regarding the legality of the Shares. (Previously
filed and incorporated herein by reference).
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Stradley Ronon, Stevens & Young, LLP
(contained in Exhibit 5.1)
<PAGE>
EXHIBIT 23.1
Consent of Arthur Andersen LLP, Independent Public
Accountants
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of
our report dated March 11, 1998, included in EP MedSystems,
Inc.'s Form 10-KSB for the year ended December 31, 1997 and
to all references to our firm included or incorporated by
reference in this registration statement.
/s/ Arthur Andersen LLP
New York, New York
May 14, 1998
