Exhibit 4.21
SECOND AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT (the "Amendment"),
dated as of August 9, 2002, by and between EP MEDSYSTEMS, INC., a New Jersey
corporation (the "Company"), and FUSION CAPITAL FUND II, LLC (the "Buyer").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings given them in the Common Stock Purchase Agreement.
WHEREAS, the parties hereto are parties to a Common Stock Purchase
Agreement dated as of June 11, 2001 (as amended by a First Amendment to Common
Stock Purchase Agreement dated as of June 27, 2002, the "Common Stock Purchase
Agreement");
WHEREAS, pursuant to the Common Stock Purchase Agreement, the Buyer has
agreed to purchase, and the Company has agreed to sell up to $10,000,000 of the
Common Stock all in accordance with the terms and conditions of the Common Stock
Purchase Agreement;
WHEREAS, the parties desire to amend certain provisions of the Common Stock
Purchase Agreement as provided herein;
NOW, THEREFORE, in consideration of the agreements, covenants and
considerations contained herein, the parties hereto agree as follows:
1. Amendments.
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(a) Section 1(d)(iii) of the Common Stock Purchase Agreement is hereby
amended and restated in its entirety as follows:
"(iii) Purchase Price Floor. The Company shall not effect any sales
under this Agreement and the Buyer shall not have the right to
purchase shares of Common Stock under this Agreement on any trading
day where the Purchase Price for any purchase of Purchase Shares would
be less than the Floor Price. "Floor Price" means $1.00 per share;
provided, however, that the Floor Price shall be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction."
(b) The term "Transaction Documents" shall be deemed to include this
Amendment for all purposes under the Common Stock Purchase Agreement.
2. Effect of Amendment/Incorporation of Certain Provisions. Except as
amended as set forth above, the Common Stock Purchase Agreement shall continue
in full force and effect. The provisions set forth in Section 11 of the Common
Stock Purchase Agreement are hereby incorporated by reference into this
Amendment.
IN WITNESS WHEREOF, the Buyer and the Company have caused this Second
Amendment to Common Stock Purchase Agreement to be duly executed as of the date
first written above.
THE COMPANY:
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EP MEDSYSTEMS, INC.
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: President and Chief Operating Officer
BUYER:
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FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS, LLC
BY: SGM HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
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