As filed with the Securities and Exchange Commission Via EDGAR on June 29, 2000
Registration No. 333-34656
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EP MEDSYSTEMS, INC.
(Exact name of registrant as specified in its charter)
New Jersey 22-3212190
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Stierli Court, Mount Arlington, New Jersey 07856 (973) 398-2800
(Address including zip code and telephone number, including area code of
Registrant's Principal Executive Offices)
EP MEDSYSTEMS, INC.
1995 LONG TERM INCENTIVE PLAN
1995 DIRECTOR OPTION PLAN
(Full title of the plan)
Stanley U. North III, Esq.
Sills Cummis Radin Tischman Epstein & Gross, P.A.
One Riverfront Plaza
Newark, New Jersey 07102
(973) 643-7000
(Name, address including zip code and telephone number, including
area code, of agent for service)
Calculation Of Registration Fee
<TABLE>
<CAPTION>
========================================================================================================================
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price per unit(1) aggregate offering price registration fee
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par 1,724,560 $5.5625 $9,592,965 $2,532.52
par value
========================================================================================================================
</TABLE>
(1) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating
the registration fee consisting of $2,082.26 paid upon initial filing and
payments of $291.06 and $159.20 paid prior to filing Post Effective
Amendment No. 1.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 and Form S-3. The Form S-8 portion of this Registration
Statement will be used for offers of Common Stock of the Registrant pursuant to
the Registrant's 1995 Long Term Incentive Plan (the "Incentive Plan"), the 1995
Director Option Plan (the "Director Plan") and certain other stand alone
non-qualified stock options issued to directors, scientific committee members
and key employees. The Prospectus filed as part of this Registration Statement
has been prepared in accordance with the requirements of Part I of Form S-3 and
will be used for reofferings or resales of Common Stock to be acquired by the
class of persons named therein pursuant to the Incentive Plan or the Director
Plan. A cross reference sheet is provided for such prospectus.
<PAGE>
EP MEDSYSTEMS, INC.
-----------------
Cross-Reference Sheet
Pursuant to Item 501(b) of Regulation S-K
Form S-3 Item and Heading Location in Prospectus
------------------------- ----------------------
I. Forepart of Registration Statement and Front Cover Page
Outside Front Cover Page of Prospectus
II. Inside Front and Outside Back Cover Pages Inside Front Cover Page
of Prospectus
III. Summary Information, Risk Factors and The Company
Ratio of Earnings to Fixed Charges
IV. Use of Proceeds Not applicable
V. Determination of Offering Price Not applicable
VI. Dilution Not applicable
VII. Selling Security Holders Selling Shareholders
VIII. Plan of Distribution Plan of Distribution
IX. Description of Securities to be Registered Not applicable
X. Interests of Named Experts and Counsel Legal Matters; Experts
XI. Material Changes Not applicable
XII. Incorporation of Certain Information by Incorporation of Certain
Reference Documents by Reference
XIII. Disclosure of Commission Position on Indemnification
Indemnification for Securities Act
Liabilities
<PAGE>
PROSPECTUS
EP MEDSYSTEMS, INC.
1,724,560 Shares of Common Stock
(no par value, $.001 stated value per share)
This Prospectus relates to the offer and sale of shares of Common Stock of
EP MEDSYSTEMS, INC.(the "Company"), no par value, $.001 stated per share (the
"Common Stock"), which may be offered hereby from time to time by any and/or all
of the selling shareholders as described herein (the "Selling Shareholders") for
their own benefit. The Company will receive no part of the proceeds of sales
made hereunder. All expenses of registration incurred in connection with this
offering are being borne by the Company, but all selling and other expenses
incurred by the Selling Shareholders will be borne by such Selling Shareholders.
None of the shares offered pursuant to this Prospectus have been registered
prior to the filing of the Registration Statement of which this Prospectus is a
part.
All or a portion of the shares of Common Stock offered hereby may be
offered for sale, from time to time, on the National Association of Securities
Dealers Automated Quotation (NASDAQ) national market system, or otherwise, at
prices and terms then obtainable. All brokers' commissions, concessions or
discounts will be paid by the Selling Shareholders.
The Selling Shareholders and any broker executing selling orders on behalf
of the Selling Shareholders may be deemed to be an "underwriter" within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), in
which event commissions received by such broker may be deemed to be underwriting
commissions under the Securities Act.
The Common Stock of the Company is listed on the NASDAQ National Market
System under the symbol EPMD. On June 27, 2000 the last reported closing price
of the Company's Common Stock on the NASDAQ National Market System was $5.5625.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
No 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 representation should not be relied upon as having
been authorized by the Company. This prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any security in any jurisdiction in
which, or to any person to whom such offer or solicitation would be unlawful.
Neither the delivery of this Prospectus nor any distribution of the securities
made under this Prospectus shall under any circumstances create any implication
that there has been no change in the affairs of the Company or in any other
information contained herein since the date of the Prospectus.
The date of this Prospectus is June 29, 2000.
<PAGE>
TABLE OF CONTENTS
PAGE
----
Available Information......................................................... 3
Incorporation of Certain Documents By Reference............................... 3
The Company................................................................... 4
Selling Shareholders.......................................................... 4
Plan of Distribution.......................................................... 5
Legal Matters................................................................. 5
Experts....................................................................... 5
Indemnification............................................................... 6
-2-
<PAGE>
AVAILABLE INFORMATION
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
Securities and Exchange Commission (the "SEC"). Such reports, proxy statements
and other such information filed by the Company with the SEC can be inspected
and copied at the public reference facilities maintained by the SEC at 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the regional offices of the SEC,
located at 75 Park Place, 14th Floor, New York, New York 10007. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549, or from the
SEC's website at http://www.sec.gov.
In addition, the Company's Common Stock is listed on the NASDAQ National
Market System and similar information concerning the Company can be inspected
and copied at the National Association of Securities Dealers offices at its
Corporate Financing Department, Executive Office, 1735 K Street, N.W.,
Washington, D.C.
This Prospectus does not contain all of the information set forth in the
Registration Statement of which this Prospectus is a part and which the Company
has filed with the SEC. For further information with respect to the Company and
the securities offered hereby, reference is made to the Registration Statement,
including the exhibits filed as a part thereof, copies of which may be inspected
at or obtained at prescribed rates from the Public Reference Section of the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the SEC are incorporated
hereby by reference:
A. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999 filed pursuant to Section 13(a) of the Exchange
Act.
B. The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2000, filed pursuant to Section 13(a) of the Exchange Act.
C. The Company's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 1999, filed pursuant to Section 13(a) of the Exchange Act.
D. The Company's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1999, filed pursuant to Section 13(a) of the Exchange
Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the filing of a post-effective amendment which indicates that all such
securities offered hereby have been sold or which deregisters all securities
then remaining to be sold shall be deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
-3-
<PAGE>
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus is delivered, upon written or oral request of
such person, a copy of any and all of the information that has been incorporated
by reference (other than the exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents). Requests should be
directed to EP MEDSYSTEMS, Inc., 100 Stierli Court, Mount Arlington, New Jersey
07856, attn. Joseph M. Turner.
THE COMPANY
The Corporation was incorporated in the state of New Jersey in 1993. The
executive offices of EP MEDSYSTEMS, Inc. are at 100 Stierli Court, Mount
Arlington, New Jersey 07856, and its telephone number is (973) 398-2800.
SELLING SHAREHOLDERS
The shares of Common Stock covered by this Prospectus are being registered
for reoffers and resales by Selling Shareholders of the Company who may acquire
such shares granted pursuant to the terms of the Company's 1995 Long Term
Incentive Plan (the "Incentive Plan"), 1995 Director Option Plan (the "Director
Plan") and certain other stand alone Non-Qualified Stock Options issued to
Directors, Scientific Committee members and key employees. The Selling
Shareholders include John Barbaro and Dr. Eckhard Alt. These persons will be
named by a post-effective amendment hereto or by a prospectus supplement filed
pursuant to Rule 424(c) under the Securities Act.
-4-
<PAGE>
PLAN OF DISTRIBUTION
Any shares of Common Stock sold pursuant to this Prospectus will be sold
by the Selling Shareholders for their own accounts and they will receive all
proceeds from any such sales. The Company will receive none of the proceeds from
the sale of shares which may be offered hereby. The Selling Shareholders have
not advised the Company of any specific plans for the distribution of the shares
of Common Stock covered by this Prospectus, but, if and when shares are sold, it
is anticipated that the shares will be sold from time to time primarily in
transactions on the NASDAQ National Market System at the market price then
prevailing, although sales may also be made in negotiated transactions or
otherwise, at prices related to such prevailing market price or otherwise. If
shares of Common Stock are sold through brokers, the Selling Shareholders may
pay customary brokerage commissions and charges. The Selling Shareholders may
effect such transactions by selling shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholders and/or the purchasers
of shares for whom such broker-dealers may act as agent or to whom they may sell
as principal, or both (which compensation as to a particular broker-dealer might
be in excess of customary commissions). The Selling Shareholders and any
broker-dealers that act in connection with the sale of the shares hereunder
might be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and any profit on the
resale of shares as principal might be deemed to be underwriting discounts and
commissions under the Securities Act.
There can be no assurances that the Selling Shareholders will sell any or
all of the shares of Common Stock offered hereunder.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Sills Cummis Radin Tischman Epstein & Gross, P.A.,
Newark, New Jersey.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10 KSB of EP Med Systems, Inc. for the year ended
December 31, 1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants given on the authority of
said firm as experts in auditing and accounting.
-5-
<PAGE>
INDEMNIFICATION
The Company's Certificate of Incorporation and Bylaws provide that the
Company shall, to the fullest extent permitted by the New Jersey Business
Corporation Act, as it is now or hereafter may be in effect, indemnify a
director, officer or other agent of the Company against his liabilities in
connection with any proceeding by or in the right of the Company to procure a
judgment in its favor which involves such person by reason of his being or
having been such officer, director or other agent; provided, however, that no
indemnification shall be made to or on behalf of the Company if a judgment or
other final adjudication adverse to such person establishes that his acts or
omissions (a) were in breach of his loyalty to the Company or its shareholders,
(b) were not in good faith or involved a knowing violation of law or (c)
resulted in receipt by such person of an improper personal benefit.
The Company currently maintains policies of insurance under which the
directors and officers of the Company are insured, within the limits and subject
to the limitations of the policies, against certain expenses in connection with
the defense of actions, suits or proceedings, and certain liabilities which
might be imposed as a result of such actions, suits or proceedings, to which
they are parties by reason of being or having been such directors and/or
officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed 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.
-6-
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Documents Incorporated By Reference
EP MEDSYSTEMS, Inc. (the "Company") hereby incorporates by reference into
this Registration Statement the following documents which have been filed by the
Company with the Securities and Exchange Commission (the "SEC"):
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1999, filed pursuant to Section 13(a) of the of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 2000, filed pursuant to Section 13(a) of the Exchange Act.
(c) The Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1999, filed pursuant to Section 13(a) of the Exchange Act.
(d) The Company's Quarterly Report on Form 10-QSB for the quarter
ended September 30, 1999, filed pursuant to Section 13(a) of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation and Bylaws provide that the
Company shall, to the fullest extent permitted by the New Jersey Business
Corporation Act, as it is now or hereafter may be in effect, indemnify a
director, officer or other agent of the Company against his liabilities in
connection with any proceeding by or in the right of the Company to procure a
judgment in its favor which involves such person by reason of his being or
having been such officer, director or other agent; provided, however, that no
indemnification shall be made to or on behalf of the Company if a judgment or
other final adjudication adverse to such person establishes that his acts or
omissions (a) were in breach of his loyalty to the Company or its shareholders,
(b) were not in good faith or involved a knowing violation of law or (c)
resulted in receipt by such person of an improper personal benefit.
The Company currently maintains policies of insurance under which the
directors and officers of the Company are insured, within the limits and subject
to the limitations of the policies, against certain
II-1
<PAGE>
expenses in connection with the defense of actions, suits or proceedings, and
certain liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors and/or officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed 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.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
4.1 EP MedSystems, Inc. 1995 Long Term Incentive Plan
(incorporated by reference to Exhibit 10.9 of the Company's
Registration Statement on Form SB-2 and Amendments 1 and 2
thereto as amended by the First Amendment (incorporated by
reference to the Company's Schedule 14A filed September 30,
1997) and as amended by the Second Amendment (incorporated by
reference to the Company's Schedule 14A filed October 14,
1999)
4.2 EP MedSystems, Inc. 1995 Director Option Plan (incorporated by
reference to Exhibit 10.8 of the Company's Registration
Statement on Form SB-2 and Amendments Nol 1 and 2 thereto)
4.3 Form of Long Term Incentive Plan Award Agreement (incorporated
by reference to Exhibit 4.3 of the Company's initial Schedule
S-8 filed April 13, 2000).
4.4 Form of Director Option Award Agreement (incorporated by
reference to Exhibit 4.4 of the Company's initial Schedule S-8
filed April 13, 2000) ..
5.1 Opinion of Sills Cummis Radin Tischman Epstein & Gross, P.A.
as to Legality
23.1 Consent of Sills Cummis Radin Tischman Epstein & Gross, P.A.
(included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (included in the signature pages of the
initial Registration Statement)
II-2
<PAGE>
Item 9. Undertakings
The undersigned Registrant hereby undertakes to file, during any period in
which offers or sales are being made, post-effective amendments to this
Registration Statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1993, as amended (the "Securities Act"); (ii)
to reflect in the prospectus any facts or events arising after the effective
date of this Registration Statement (or the most recent post-effective amendment
hereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement; and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; provided, however, that (i) and
(ii) above shall not apply if the information required to be included in a
post-effective amendment is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each such post-effective
amendment, and each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to 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.
The undersigned Registrant hereby undertakes to remove from registration
by means of a post- effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Mount Arlington, New Jersey, on June 29, 2000.
EP MEDSYSTEMS, INC.
By: /s/ Joseph M. Turner
---------------------------
Joseph M. Turner
Chief Financial Officer and
Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post - Effective Amendment No. 1 to the Registration Statement has been
signed by the following persons in their capacities and as of the dates
indicated:
Signature Date
--------- ----
/s/ *
-----------------------------------
David A. Jenkins, Chairman, President and
Chief Executive Officer
(Principal Executive Officer)
/s/ Joseph M. Turner June 29, 2000
-----------------------------------
Joseph M. Turner, Chief Financial Officer
and Secretary (Principal Accounting Officer)
/s/ *
-----------------------------------
David W. Mortara, Ph.D.
Director
/s/ *
-----------------------------------
Darryl D. Fry
Director
/s/ *
-----------------------------------
John E. Underwood
Director
* By: /s/ Joseph M. Turner
------------------------------
Joseph M. Turner, Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. CAPTION
------- -------
4.1 EP MEDSYSTEMS, Inc. 1995 Long Term Incentive Plan (incorporated by
reference to Exhibit 10.9 of the Company's Registration Statement
on Form SB-2 and Amendment 1 and 2 thereto) as amended by the First
Amendment (incorporated by reference to the Company's Schedule 14A
filed September 30, 1997) and as amended by the Second Amendment
(incorporated by reference to the Company's Schedule 14A filed
October 14, 1999)
4.2 EP MedSystems, Inc. 1995 Director Option Plan (incorporated by
reference to Exhibit 10.8 of the Company's Registration Statement
on Form SB-2 and Amendments Nol 1 and 2 thereto)
4.3 Form of Long Term Incentive Plan Award Agreement (incorporated by
reference to Exhibit 4.3 of the Company's initial Schedule S-8
filed April 13, 2000).
4.4 Form of Director Option Plan Award Agreement (incorporated by
reference to Exhibit 4.4 of the Company's initial Schedule S-8
filed April 13, 2000).
5.1 Opinion of Sills Cummis Radin Tischman Epstein & Gross, P.A. as to
Legality
23.1 Consent of Sills Cummis Radin Tischman Epstein & Gross, P.A.
(included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (included in the signature pages of the initial
Registration Statement)
