EXHIBIT 4.29
LAURUS MASTER FUND, LTD.
000 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX 00000
November 25, 2003
EP MedSystems, Inc.
Xxxxxx Run Executive Park
575 Route 00 Xxxxx - Xxxx. X
Xxxx Xxxxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxxx
RE: AMENDMENT OF THE AUGUST 28, 2003 REGISTRATION RIGHTS AGREEMENT
Dear Xxxxxxxx:
When countersigned by you below, this letter will (i) clarify our
mutual intent with respect to the Warrant, including Section 2(b) thereof,
issued by EP MedSystems, Inc. (the "Company") to Laurus Master Fund Ltd.
("Laurus") on August 28, 2003 (the "Warrant") and the Registration Rights
Agreement made and entered into as of August 28, 2003, by and between the
Company and Laurus (the "RRA"), and (ii) confirm the terms and conditions upon
which the Company and Laurus have agreed to amend the RRA and any other
applicable provision of any Ancillary Agreement. All capitalized terms used but
not defined in this letter agreement shall have the meanings given to such terms
in the RRA.
In general, we note that the requirement that the Company file a
Registration Statement by the Filing Date and to register the shares of its
Common Stock by the Effectiveness Date, as set forth in Section 2 of the RRA,
and thus, the liquidated damage payment required to be made for failure to do
so, was intended to include only the shares of Common Stock issuable upon
conversion of the Notes (the "Notes Conversion Shares"), and was not intended to
include the shares of Common Stock issuable upon exercise of the Warrant (the
"Warrant Shares"). For purposes of those requirements, the term Registrable
Securities was to include only the Notes Conversion Shares, and the agreement of
the Company to register the Warrant Shares was intended to be an agreement with
Laurus for the Company to use only its best efforts to do so.
Laurus and the Company each acknowledge that their mutual intent is
evidenced by the facts that (i) Laurus sought a liquidated damage payment based
on the principal amount of the Notes, with no reference to the value of the
Warrant or the number of shares issuable upon exercise of the Warrant, and (ii)
Laurus was relying on the "cashless exercise" feature in Section 2(b) of the
Warrant in the event the Company did not register the shares of its Common Stock
which would be received by Laurus upon exercise of the Warrant.
Therefore, the Company and Laurus hereby agree as follows:
1. AMENDMENT TO THE RRA. Pursuant to and in accordance with Section 8(f) of
the RRA, the Company and Laurus hereby agree that:
a. Section 2(a) of the RRA is amended so that the sentence, "The
Company shall use its reasonable commercial efforts to cause
each Registration Statement to be declared effective under
the Securities Act as promptly as possible after filing
thereof, but in any event no later than the Effectiveness
Date, and shall keep each Registration Statement continuously
effective under the Securities Act until the date which is the
earlier date of when (i) all Registrable Securities have
been sold or (ii) all Registrable Securities may be sold
immediately without registration under the Securities Act
and without volume restrictions pursuant to Rule 144(k), as
determined by the counsel to the Company pursuant to a
written opinion letter to such effect, addressed and
acceptable to the Company's transfer agent and the
affected Holders (the "Effectiveness Period")", does not
apply to all Registrable Securities, but only to the Notes
Conversion Shares, and for those purposes, the definition of
Registrable Securities shall be deemed to exclude the Warrant
Shares. With respect to the Warrant Shares, the Company
agrees only to use its best efforts to cause a Registration
Statement with respect thereto to be filed and to be declared
effective under the Securities Act as promptly as possible after
filing thereof; and
b. Section 2(b) of the RRA is amended so that the Events listed in
clauses (i), (ii), (iii) and (iv) thereof do not include
Registration Statements relating to all Registrable Securities,
but only to the Notes Conversion Shares, and no liquidated
damage penalty shall be payable by the Company with respect to
the Warrant Shares in the event any "Event" occurs.
2. THE RRA. This letter agreement is being executed in connection with the
RRA, the terms of which are incorporated herein by reference. Except as
may be specifically modified herein, the terms of the RRA shall remain
valid and in full force and effect. In the event of an express and
specific conflict between the terms of the RRA and the terms of this
letter agreement, the terms of this letter agreement shall govern.
3. DEFINITION OF RRA IN ANCILLARY AGREEMENTS. Any references to the
RRA in the Ancillary Agreements shall be deemed to include the RRA, as
amended by this letter agreement, and any and all further modifications
or amendments thereto.
4. GOVERNING LAW. This letter agreement shall be governed by and
construed under the laws of the State of New York, without regard to
principles of conflicts of laws thereof.
5. HOLDER OF REGISTRABLE SECURITIES. Laurus represents that, as of the date
hereof, Laurus is the sole record and beneficial holder of all
outstanding Registrable Securities.
6. CONSISTENT CHANGES. The Ancillary Agreements are hereby amended
wherever necessary to reflect the changes described herein.
7. COUNTERPARTS. This letter agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Please confirm your agreement with and acceptance of the amendment to
the RRA in accordance with the terms of this letter agreement by signing this
letter in the space below and returning it to me by facsimile and regular mail
at your first convenience.
Sincerely,
LAURUS MASTER FUND, LTD.
/s/ Xxxxxx Grin
--------------------
Name: Xxxxxx Grin
Title: Director
AGREED AND ACCEPTED:
EP MEDSYSTEMS, INC.
/s/ Xxxxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxxx
Title: President and Chief Executive Officer
