As filed with the Securities and Exchange Commission Via EDGAR
Registration No. _______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1993
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 registration
registered registered offering price per unit(1) aggregate offering price fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par 1,314,560 $6.00 $11,292,781 $2,082.26
par value
=======================================================================================================================
</TABLE>
(1) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating
the registration fee.
<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.
1,314,560 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 April 10, 2000 the last reported closing price
of the Company's Common Stock on the NASDAQ National Market System was $5.9375.
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 April 11, 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
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<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, 1999, 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.
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<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. 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, 1999, 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.
4.4 Form of Director Option Award Agreement.
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
this Registration Statement)
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
II-2
<PAGE>
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 Mt. Arlington, New Jersey, on the 11th day of April, 2000.
EP MEDSYSTEMS, INC.
By: /s/ Joseph M. Turner
---------------------------------
Joseph M. Turner
Chief Financial Officer and
Secretary
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
Joseph M. Turner his true and lawful attorney-in-fact, to sign and file on his
behalf individually and in each such capacity stated below any and all
amendments (including post-effective amendments) to this Registration Statement,
as fully as such person could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the dates indicated:
Signature Date
--------- ----
/s/ David A. Jenkins April 11, 2000
--------------------------------------------
David A. Jenkins, Chairman, President and
Chief Executive Officer
(Principal Executive Officer)
/s/ Joseph M. Turner April 11, 2000
--------------------------------------------
Joseph M. Turner, Chief Financial Officer
and Secretary (Principal Accounting Officer)
/s/ David W. Mortara, Ph.D. April 11,2000
--------------------------------------------
David W. Mortara, Ph.D.
Director
/s/ Darryl D. Fry April 12, 2000
--------------------------------------------
Darryl D. Fry
Director
/s/ John E. Underwood April 11, 2000
--------------------------------------------
John E. Underwood
Director
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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
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 No 1 and 2 thereto)
4.3 Form of Long Term Incentive Plan Award Agreement.
4.4 Form of Director Option Plan Award Agreement.
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
this Registration Statement)
EXHIBIT 4.3
EP MEDSYSTEMS, Inc.
Form of 1995 Long Term Incentive Plan Award Agreement
EP MedSystems
100 Stierli Court
Suite 107
Mt. Arlington, NJ 07856
Tel: 973-398-2800
Fax: 973-398-8636
[FORM OF INCENTIVE STOCK OPTION AWARD]
[Recipient]
Re: Incentive Stock Option
Dear [ Recipient]
This letter confirms that you have been granted an incentive stock option
representing an aggregate of [insert quantity] shares of common stock of EP
MedSystems, Inc. (the "Company") dated as of [insert date of grant], pursuant to
the Amended 1995 Long Term Incentive Plan (the "Plan"). A copy of the Plan is
attached and made a part hereof. This option is subject to the terms of such
Plan, and the terms of the Plan shall control in the event of any conflict with
this letter.
You may exercise purchase rights for [insert quantity] shares under this option
[insert vesting schedule]. The exercise price for the shares covered by this
option is [insert exercise price] per share and the exercise period for this
option is [insert exercise term] from the date of grant.
NEITHER THE OPTION GRANTED HEREUNDER, NOR THE SHARES OF COMMON STOCK TO BE
ISSUED UPON EXERCISE OF SUCH OPTION, HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR STATE SECURITIES LAWS AND MAY NEITHER BE REOFFERED
OR SOLD UNLESS REGISTERED OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. THE CERTIFICATES FOR SHARES OF COMMON STOCK TO BE ISSUED UPON
EXERCISE OF THIS OPTION WILL BE APPROPRIATELY DESIGNATED WITH A RESTRICTIVE
LEGEND SIMILAR TO THAT SET FORTH ABOVE.
Sincerely,
David A. Jenkins,
President
Accepted and agreed to:
- -----------------------
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS AND
UNTIL THEY ARE FIRST REGISTERED UNDER SUCH ACT AND ALL RULES AND REGULATIONS
RELATING TO THE SALE, TRANSFER OR OTHER DISPOSITION THEREUNDER HAVE BEEN
COMPLIED WITH OR UNLESS AND UNTIL COUNSEL SATISFACTORY TO THE COMPANY EFFECT
THAT SUCH REGISTRATION IS NOT REQUIRED.
EP MEDSYSTEMS, INC.
A NEW JERSEY CORPORATION
STOCK OPTION
OPTION TO PURCHASE SHARES OF THE COMMON STOCK AS HEREIN DESCRIBED
DATED AS OF _______, 2000
This certifies that, for value received
NAME: _______________
ADDRESS:___________________________
(herein called "optionholder"), is entitled to purchase from EP MEDSYSTEMS, INC.
(herein called the "Company"), having its principal place of business at 100
Stierli Court, Mount Arlington, New Jersey 07856, at the price of [insert
exercise price] per share, [insert quantity] shares of the common stock of the
Company.
As used in this option, the following terms have the meanings indicated:
A. Act means the Securities Act of 1933, as amended.
B. Common Stock means the equity securities of the Company known as
common stock, of which 25,000,000 shares have been authorized.
C. Option price means the price of [insert exercise price] per share.
1. Exercise of Option. The optionholder may exercise purchase rights for [insert
quantity] shares of the Company's common stock at the accumulating rate of
[insert vesting schedule], beginning on the first day of [insert date vesting
commences], and accruing at the rate of [insert quantity] shares per month on
the first day of each successive month for [insert vesting term] months
thereafter; provided, however, that in the event optionholder ceases to be a
director of the Company prior to [five years from commencement], the
optionholder shall forfeit his right to earn monthly options for the period
commencing with the date on which he ceased to be a director and ending on [five
years from commencement]. In no event shall the optionholder exercise any
purchase rights later than [insert termination date], at 5:00 p.m. Eastern Time
(the
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<PAGE>
"expiration date"). The Company agrees that the optionholder shall be deemed the
record owner of such shares as of the close of business on the date on which
this option shall have been presented and payment has been made for such shares
as aforesaid. Certificates for the shares of stock so purchased shall be
delivered to the optionholder within a reasonable time, not exceeding thirty
(30) days, after the rights represented by this option have been duly exercised.
This option on all accrued shares may be exercised in whole or in part, at the
discretion of the optionholder.
2. Adjustments. In case, prior to the expiration of this Option by exercise or
by its terms, the Company shall issue any shares of its common stock as a stock
dividend or subdivide the number of outstanding shares of its common stock into
a greater number of shares, then in either of such cases, the then applicable
purchase price per share of the shares of common stock purchasable pursuant to
this Option in effect at the time of such action shall be proportionately
reduced and the number of shares at that time purchasable pursuant to this
Option shall be proportionately increased; and conversely, in the event the
Company shall contract the number of outstanding shares of common stock by
combining such shares into a smaller number of shares, then, in such case, the
then applicable purchase per share of the shares of common stock purchasable
pursuant to this Option in effect at the time of such action shall be
proportionately increased and the number of shares of common stock at that time
purchasable pursuant to this Option shall be proportionately decreased. If the
Company shall, at any time, during the life of this Option, declare a dividend
payable in cash on its common stock and shall at substantially the same time
offer of its stockholders a right to purchase new common stock from the proceeds
of such dividend or for an amount substantially equal to the dividend, all
common stock so issued shall, for the purpose of this Option, be deemed to have
been issued as stock dividend. Any dividend paid or distributed upon the common
stock in stock of any other class of securities convertible into shares of
common stock shall be treated as a dividend paid in common stock to the extent
that shares of common stock are issuable upon conversion thereof.
3. Exchange, Division or Combination. Subject to the provisions hereinafter set
forth, this option is exchangeable at the option of the optionholder at the
principal office of the Company for other options of different denominations
entitling the optionholder to purchase the aggregate number of shares of common
stock as are purchasable hereunder; and this option may be divided or combined
with other options which carry the same rights. In either case, any alterations
will be made upon presentation at the principal office of the Company, of the
options, together with a written notice, signed by the optionholder, of its
authorized representative, specifying the names and denominations in which any
new options are to be issued, and the payment of any transfer tax due in
connection therewith.
4. Option Price. A share of common stock may be purchased pursuant to this
option, at the option price of [inset option price] per share.
5. Certain Covenants of the Company. The Company agrees and covenants that:
A. During the period within which the rights represented by this option
may be exercised, the Company shall at all times reserve and keep available,
free from preemptive rights out of the aggregate of its authorized but unissued
common stock, for the purpose of enabling it
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<PAGE>
to satisfy any obligation to issue shares of common stock, upon the exercise of
this option, the number of shares of common stock deliverable upon the exercise
of this option. If at any time the number of shares of authorized common stock
shall not be sufficient to effect the exercise of this option, the Company will
take such corporate action as may be necessary to increase its authorized but
unissued common stock to such number of shares as shall be sufficient for such
purpose; and the Company shall have analogous obligation with respect to any
other securities or property issuable upon the exercise of this option;
B. All common stock which may be issued upon the exercise of the rights
represented by this option will upon issuance be validly issued, fully paid,
non-assessable, and free from all taxes, liens, and charges with respect to the
issuance thereof; and
C. All original issue taxes payable in respect of the issuance of shares
upon the exercise of the rights represented by this option shall be borne by the
Company, but in no event shall the Company be responsible or liable for income
taxes or transfer taxes upon the transfer of any option; and
D. The Company will not, by amendment of its articles of incorporation, or
through reorganization, consolidation, merger, dissolution, issuance of capital
stock, or sale of treasury stock (otherwise than upon exercise of this option)
or sale of assets, or by any other voluntary act or deed, avoid or seek to avoid
the performance of observance of any of the covenants, stipulations, or
conditions in this option to be observed or performed by the Company, but will
at all times in good faith assist, insofar as it is able, in carrying out all of
the provisions of this option.
6. Voting and Other Rights. Until exercised, this option shall not entitle the
optionholder to any voting or other rights as a shareholder of the Company.
7. Certain Restrictions or Transferability. This option shall not be sold or
transferred by the optionholder.
8. Loss, Theft, Destruction or Mutilation. If this option is lost, stolen,
mutilated, or destroyed, the Company shall, upon such terms as the Company shall
reasonably impose, including a requirement that the optionholder obtain a bond,
issue a new requirement that the optionholder obtain a bond, issue a new option
of like denomination, tenor, and date. Any such new option shall constitute an
original contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated, or destroyed option shall be at any time enforceable by
anyone.
9. Substituted Options. Any option issued pursuant to the provisions of the
proceeding section, or upon exchange, division, or partial exercise of this
option or combination thereof with another option or options shall set forth
each provision set forth in this agreement, as each such provision is set forth
herein, and shall be duly executed on behalf of the Company by an authorized
officer.
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<PAGE>
10. Effect of Surrender. Upon surrender o f this option for exchange, or upon
the exercise hereof, this option shall be cancelled by the Company and shall not
be reissued by the Company, except as otherwise provided for herein. Any new
option certificates shall be issued promptly but no later than seven days after
receipt of the old option certificates.
11. Persons Bound. This option shall inure to the benefit of and be binding upon
the optionholder, the Company, and the Company's successors and assigns.
12. Notices. All notices required hereunder shall be in writing and shall be
deemed given when telegraphed, delivered personally, telefaxed, or within two
days after mailing when mailed by certified or registered mail to the Company or
optionholder, at the address of such party as hereinafter set forth, or amended
by written notice from either the Company or the optionholder.
To the Company:
To the optionholder:
13. Governing Law. The validity, interpretation, and performance of this option
and the terms and provisions hereof shall be governed by the laws of the State
of New Jersey.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS OPTION TO BE DULY EXECUTED
EFFECTIVE AS OF __________________, BY ITS PRESIDENT.
EP MEDSYSTEMS, INC.
By ______________________________
ATTEST
_________________________________
Secretary
Accepted by
_________________________________
Optionholder
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<PAGE>
PURCHASE FORM
TO BE EXECUTED
UPON EXERCISE OF OPTION
The undersigned hereby exercises the right to purchase shares of common stock
evidenced by the within option according to the terms and conditions thereof,
and herewith makes payment of the purchase price in full, for _____ shares. The
undersigned requests that the certificate(s) shall be issued in the name set
forth below.
- ------------------------------ ------------------------------------
Signature Date
Name: --------------------------------------------------------------------------
Address: -----------------------------------------------------------------------
- --------------------------------------------------------------------------------
Tax Identification Number: -----------------------------------------------------
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EXHIBIT 5.1
Opinion of Sills Cummis Radin Tischman Epstein & Gross, P.A. as to Legality
<PAGE>
Exhibit 5.1
April 10, 2000
EP MedSystems, Inc.
100 Stierli Court
Mount Arlington, New Jersey 07856
Gentlemen:
We serve as your general outside counsel and are familiar with the
Certificate of Incorporation, Bylaws and corporate proceedings generally of EP
MEDSYSTEMS, Inc. (the "Company"). We have reviewed the corporate records as to
the establishment of the Company's 1995 Long Term Incentive Plan, the 1995
Director Option Plan and certain other stand alone non-qualified stock options,
which together call for the issuance of up to 1,314,560 shares of Common Stock
to optionees upon their exercise of options that may be granted to them. Based
upon such examination and considerations, we are of the opinion:
1. That the Company is a duly organized and validly existing corporation
under the laws of the State of New Jersey; and
2. That the Company has taken all necessary and required corporate actions
in connection with the proposed issuance of 1,314,560 shares of Common Stock
and that Common Stock, when issued and delivered, will be validly issued, fully
paid and non-assessable shares of Common Stock of the Company.
This letter is furnished by us solely for your benefit in connection with
the transactions referred to in the Registration Statement and may not be
circulated to, or relied upon by, any other person. We hereby consent to be
named in the Registration Statement and the Prospectus which constitutes a part
thereof as the attorneys who have passed upon legal matters in connection with
the issuance of the aforesaid Common Stock and to the filing of this opinion as
an exhibit to the Registration Statement.
Yours truly,
SILLS CUMMIS RADIN TISCHMAN
EPSTEIN & GROSS, P.A.
EXHIBIT 23.2
Consent of PricewaterhouseCoopers LLP
<PAGE>
Exhibit 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 16, 2000 relating to the
financial statements, which appear in the EP MedSystems, Inc. Annual Report on
Form 10-KSB for the year ended December 31, 1999. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
April 10, 2000
PRICEWATERHOUSECOOPERS, LLP
