EXHIBIT 99.02
SELLING AGENT AGREEMENT
THIS SELLING AGENT AGREEMENT (the "Agreement") is entered into as of
this 15th day of July, 2002 by and between Cepheid, a California corporation
(the "Company"), and Xxxxxxx Xxxxx & Company, L.L.C. (the "Selling Agent").
RECITALS
WHEREAS, the Selling Agent is a broker-dealer registered with the
Securities and Exchange Commission and a member of the National Association of
Securities Dealers, Inc.
WHEREAS, the Company, pursuant to an engagement letter dated June 24,
2002 (the "Engagement Letter"), has retained the Selling Agent as its exclusive
selling agent to provide assistance with the solicitation of purchasers of
common stock of the Company ("Common Stock") in a registered public offering and
the Company and the Selling Agent wish to set forth the terms and conditions
upon which such services will be provided.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties, each intending to be legally
bound, hereby agree as follows:
1. Appointment of Selling Agent.
The Company hereby appoints the Selling Agent, and, on the basis of the
Company's representations, warranties and covenants contained herein and subject
to the terms and conditions set forth herein, the Selling Agent hereby accepts
such appointment, as the exclusive agent of the Company for the purpose of using
its reasonable best efforts to solicit offers to purchase shares of Common Stock
(the "Shares") having an aggregate public offering price of up to $12,500,000 in
a public offering (the "Offering") pursuant to the Company's Registration
Statement on Form S-3 (File No. 333-75596) (as declared effective by the
Securities and Exchange Commission (the "Commission") on May 29, 2002 and
including all information incorporated by reference therein, the "Registration
Statement"). The Selling Agent shall communicate to the Company each reasonable
offer or indication of interest received by it to purchase Shares. The Company
shall have the sole right to accept offers to purchase the Shares and may reject
any such offer in whole or in part. The Selling Agent shall have the right to
reject, in its discretion reasonably exercised, any offer received by it to
purchase the Shares, in whole or in part, and any such rejection shall not be
deemed a breach of its agreements contained herein. In soliciting offers to
purchase the Shares hereunder, the Selling Agent is acting solely as agent for
the Company, and not as principal. The Selling Agent shall have no liability to
the Company in the event any purchase of Shares by a purchaser whose offer to
purchase Shares has been solicited by the Selling Agent and accepted by the
Company is not consummated for any reason. Under no circumstances will the
Selling Agent be obligated to purchase any Shares for its own account.
2. Representations and Warranties. The Company hereby represents, warrants
and agrees as follows:
(a) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of California, with power and authority (corporate and other)
to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, except for such jurisdictions
wherein the failure to be so qualified and in good standing
would not individually or in the aggregate have a material
adverse effect on the business results of operations or
financial condition of the Company and its subsidiaries taken
as a whole (a "Material Adverse Effect"); and each subsidiary
of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except for
such jurisdictions wherein the failure to be so qualified and
in good standing would not individually or in the aggregate
have a Material Adverse Effect. The term "Prospectus" as used
herein shall mean the prospectus forming a part of the
Registration Statement in the form first filed pursuant to
Rule 424(b) under the Securities Act, as amended (the
"Securities Act"), as such prospectus is supplemented at the
relevant time, including by the final prospectus supplement
relating to the Offering (the "Prospectus Supplement") that
the Company will file with the Commission pursuant to Rule
424(b) under the Securities Act, and including all information
incorporated by reference therein.
(b) The execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by
all necessary corporate action of the Company and the
Agreement has been duly executed and delivered by the Company;
and this Agreement, when duly executed and delivered by the
Selling Agent, will constitute a valid and legally binding
instrument of the Company enforceable in accordance with its
terms, except as enforcement hereof may be limited by the
effect of any applicable bankruptcy, insolvency,
reorganization or similar laws or court decisions affecting
enforcement of creditors' rights generally and except as
enforcement hereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(c) The Shares have been duly authorized by the Company, and when
issued and delivered by the Company against payment therefore
as contemplated hereby, the Shares will be validly issued,
fully paid and nonassessable, and will conform to the
description of the Common Stock contained in the Prospectus.
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(d) The execution and delivery of this Agreement, the consummation
by the Company of the transactions herein contemplated and the
compliance by the Company with the terms hereof do not and
will not violate the Articles of Incorporation (as amended to
date) of the Company or the By-Laws (as amended to date) of
the Company, or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of their properties or
assets are subject, or any applicable statute or any order,
judgment, decree, rule or regulation of any court or
governmental or regulatory agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their
properties or assets, except where such breach, violation,
default or the failure to be in compliance would not
individually or in the aggregate have a Material Adverse
Effect or adversely affect the ability of the Company to
consummate the transactions contemplated hereby; and no
consent, approval, authorization, order, registration, filing
or qualification of or with any such court or governmental or
regulatory agency or body is required for the valid
authorization, execution, delivery and performance by the
Company of this Agreement, the issuance of the Shares or the
consummation by the Company of the other transactions
contemplated by this Agreement, except for such consents,
approvals, authorizations, registrations or qualifications as
may be required under Federal or state securities or "blue
sky" laws or in connection with the listing of the Shares on
the Nasdaq National Market.
(e) The Company meets the requirements for the use of Form S-3
under the Securities Act for the primary issuance of
securities. The Registration Statement has been declared
effective by the Commission and at the time it became
effective, and as of the date hereof, the Registration
Statement complied and complies with Rule 415 under the
Securities Act. No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding
for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission. On the effective date
of the Registration Statement, the Registration Statement and
the Prospectus fully conformed, and at the Closing Date, the
Registration Statement and the Prospectus will fully conform,
in all material respects with the applicable provisions of the
Securities Act and the applicable rules and regulations of the
Commission thereunder; on the effective date of the
Registration Statement, the Registration Statement did not,
and at the Closing Date, the Registration Statement will not,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; on the effective date of the Registration
Statement, the Prospectus did not, and on the date the
Prospectus Supplement is filed with the Commission pursuant to
Rule 424(b) under the Securities Act and the Closing Date, the
Prospectus will not, contain an untrue statement of a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and when filed with the Commission, the documents
incorporated by reference in the Registration Statement and
the Prospectus, taken as a whole, fully
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conformed or will fully conform in all material respects with
the applicable provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the applicable
rules and regulations of the Commission thereunder.
(f) The consolidated financial statements and financial schedules
of the Company included or incorporated by reference in the
Registration Statement and the Prospectus have been prepared
in conformity with generally accepted accounting principles
(except, with respect to the unaudited consolidated financial
statements, for the footnotes and subject to customary audit
adjustments) applied on a consistent basis, are consistent in
all material respects with the books and records of the
Company, and accurately present in all material respects the
consolidated financial position, results of operations and
cash flow of the Company and its subsidiaries as of and for
the periods covered thereby.
(g) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as disclosed in or
contemplated by the Prospectus; and, since the respective
dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material
change in the capital stock or long-term debt of the Company
or any of its subsidiaries, the Company and its subsidiaries
have not incurred any material liabilities or obligations,
direct or contingent, nor entered into any material
transactions not in the ordinary course of business and there
has not been any material adverse change in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as
disclosed or incorporated by reference in or contemplated by
the Prospectus.
(h) Other than as set forth or incorporated by reference in the
Prospectus, there are no legal, governmental or regulatory
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any material property of
the Company or any of its subsidiaries is the subject which,
taking into account the likelihood of the outcome, the damages
or other relief sought and other relevant factors, would
individually or in the aggregate reasonably be expected to
have a Material Adverse Effect or adversely affect the ability
of the Company to consummate the transactions contemplated
hereby; to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental or
regulatory authorities or threatened by others.
(i) There are no holders of securities of the Company having
preemptive rights to purchase Common Stock. There are no
holders of securities of the Company having rights to
registration thereof whose securities have not been previously
registered or who have not waived such rights with respect to
the registration of the Company's securities on the
Registration Statement.
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(j) The Company has not taken and will not take, directly or
indirectly, any action designed to, or which has constituted,
or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(k) The Company together with its subsidiaries owns and possesses
all right, title and interest in and to, or has duly licensed
from third parties, all patents, patent rights, trade secrets,
inventions, know-how, trademarks, trade names, copyrights,
service marks and other proprietary rights ("Intellectual
Property") material to the business of the Company and each of
its subsidiaries taken as a whole. Neither the Company nor any
of its subsidiaries has received any notice of infringement,
misappropriation or conflict from any third party as to such
that has not been resolved or disposed of and to the Company's
knowledge, neither the Company nor any of its subsidiaries has
infringed, misappropriated or otherwise conflicted with
Intellectual Property of any third parties, which
infringement, misappropriation or conflict would individually
or in the aggregate have a Material Adverse Effect.
(l) The conduct of the business of the Company and each of its
subsidiaries is in compliance in all respects with applicable
federal, state, local and foreign laws and regulations, except
where the failure to be in compliance would not individually
or in the aggregate have a Material Adverse Effect.
(m) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment
company" as defined in Section 3(a) of the Investment Company
Act of 1940, as amended.
3. Covenants of the Company. The Company covenants and agrees that:
(a) The Company will advise the Selling Agent promptly of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any
notification of the suspension of qualification of the Shares
for sale in any jurisdiction or the initiation or threatening
of any proceedings for that purpose, and will also advise the
Selling Agent promptly of any request of the Commission for
amendment or supplement of the Registration Statement or the
Prospectus or for additional information.
(b) The Company will give the Selling Agent notice of its
intention to file or prepare any post-effective amendment to
the Registration Statement or any amendment or supplement to
the Prospectus and will furnish the Selling Agent with copies
of any such amendment or supplement a reasonable amount of
time prior to such proposed filing or use, as the case may be,
and will not file any such amendment or supplement to which
the Selling Agent or its counsel shall reasonably object.
(c) The Company will (i) provide the Selling Agent and its
counsel, without charge, with copies of the Prospectus, in
such numbers as the Selling Agent and its
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counsel may reasonably request, (ii) file with the Commission
the Prospectus and Prospectus Supplement in accordance with
Rule 424(b) of the Securities Act and (iii) deliver the
Prospectus and Prospectus Supplement to purchasers of the
Shares in accordance with, and at such time as is required by,
the federal securities laws. The Company will also deliver to
the Selling Agent such number of copies of the Stock Purchase
Agreement (as defined below) as the Selling Agent may
reasonably request.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act any event
occurs as a result of which the Prospectus, including any
amendments or supplements, would include an untrue statement
of a material fact, or omit to state any material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, or if it is necessary at any
time to amend the Prospectus, including any amendments or
supplements thereto, to comply with the Securities Act, the
Company promptly will advise the Selling Agent thereof and
subject to Section 3(b), will promptly prepare and file with
the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect
such compliance;
(e) The Company will cooperate with the Selling Agent in
qualifying or registering the Shares for sale under the blue
sky laws of such jurisdictions as the Selling Agent
designates, and will continue such qualifications in effect so
long as reasonably required for the distribution of the
Shares; provided, however, that the Company shall not be
required to qualify as a foreign corporation or to file a
general consent to service of process in any such jurisdiction
where it is not currently qualified or where it would be
subject to taxation as a foreign corporation.
(f) The Company will use the net proceeds received by it from the
sale of the Shares in the manner specified in the Prospectus
under the caption "Use of Proceeds."
(g) The Company will file with the Nasdaq National Market a
Notification of Listing of Additional Shares with respect to
the Shares within the time period required by the rules of the
Nasdaq National Market.
(h) The Company agrees not to sell, contract to sell, transfer or
otherwise dispose of any Common Stock or securities
convertible into, or exercisable or exchangeable for, Common
Stock (except for grants of options or stock awards under its
current stock option plans and Common Stock issued pursuant to
currently outstanding options, warrants or convertible
securities or pursuant to the Company's current employee stock
purchase plan) for a period of 90 days after the date that the
Prospectus Supplement is filed with the Commission without the
prior written consent of Xxxxxxx Xxxxx & Company, L.L.C. The
Company will use reasonable best efforts to cause each of its
officers and directors to enter into similar agreements with
the Selling Agent.
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4. Closing. The terms and conditions, including the purchase price and
number of Shares, upon which the Shares will be sold will be set forth
in stock purchase agreements between the Company and the purchasers of
the Shares, substantially in the form of Appendix A attached hereto
(the "Stock Purchase Agreements"). The closing of the purchase and sale
of the Shares shall be on such date set forth in the Stock Purchase
Agreement (the "Closing Date") and, along with the obligations of the
Selling Agent to solicit offers to purchase the Shares pursuant to
Section 1, shall be subject to the accuracy of the representations and
warranties of the Company contained herein as of the date hereof and as
of the Closing Date, the performance and observance by the Company of
all its covenants and agreements contained herein and the following
conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or shall be pending or, to the knowledge of the
Company or the Selling Agent, shall be contemplated by the
Commission.
(b) The Prospectus Supplement containing the information
concerning the public offering price of the Shares and
price-related information shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the
prescribed period and delivered to purchasers of the Shares in
accordance with, and at such time as is required by, the
federal securities laws.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly
the business or properties of the Company or its subsidiaries,
whether or not arising in the ordinary course of business,
which, in the judgment of the Selling Agent, makes it
impractical or inadvisable to proceed with the public offering
or sale of the Shares as contemplated hereby.
(d) There shall have been furnished to the Selling on the Closing
Date:
(i) An opinion of Fenwick & West LLP, counsel for the
Company, addressed to the Selling Agent and dated the
Closing Date, to the effect that:
(1) the Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of California
with corporate power and authority to own its
properties and conduct its business as described in
the Prospectus; and, to such counsel's knowledge, the
Company is not required to be qualified to do
business as a foreign corporation under the
corporation law of any jurisdiction, except where the
failure to so qualify would individually or in the
aggregate not have a Material Adverse Effect;
(2) an opinion to the same general effect as
clause (1) in respect of each significant subsidiary
of the Company, as such term is defined in Regulation
S-X (each, a "Subsidiary");
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(3) all of the issued and outstanding
capital stock of each Subsidiary has been duly
authorized, validly issued and is fully paid and
nonassessable, and, except as disclosed in the
Registration Statement or Prospectus, to such
counsel's knowledge, the Company owns directly or
indirectly 100 percent of the outstanding capital
stock of each Subsidiary;
(4) the authorized capital stock of the
Company conforms as to legal matters in all material
respects to the description thereof incorporated by
reference in the Prospectus;
(5) based solely on a letter from the Staff
of the Commission dated May 29, 2002 and on the oral
advice to such counsel from the Staff of the
Commission, the Registration Statement has become
effective under the 1933 Act, and, to the knowledge
of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the
Securities Act, and the Registration Statement and
the Prospectus (in each case, except for the
financial statements and other financial data
included or incorporated by reference therein as to
which such counsel expresses no opinion) comply as to
form in all material respects with the requirements
of the Securities Act; the descriptions of statutes,
legal and governmental proceedings and contracts and
other documents in: (i) the Registration Statement
and the Prospectus under the captions "Risks Related
to Our Business," "Legal Ownership of Securities" and
"Plan of Distribution," (ii) the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 2001 under the captions "Business -
Collaborations," "Business - Intellectual Property"
and "Business - Risk Factors," and (iii) such other
items that may appear on any Form 8-K filed by the
Company from the date hereof up to and through the
Closing Date are accurate and fairly present the
information required to be shown with respect to such
statutes, legal and governmental proceedings and
contracts and other documents; and such counsel does
not know of any legal or governmental proceedings
required to be described in the Registration
Statement or Prospectus which are not described as
required, nor of any contracts or documents of a
character required to be described in the
Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement which are
not described and filed, as required;
(6) the Shares have been duly authorized
and, when issued and delivered against payment
therefore in accordance with the terms of the Stock
Purchase Agreements, will be validly issued, fully
paid and nonassessable;
(7) this Agreement and the Stock Purchase
Agreements and the performance of the Company's
obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and this
Agreement
8
and the Stock Purchase Agreements have been duly
executed and delivered by and on behalf of the
Company, and are legal, valid and binding agreements
of the Company, except as enforceability of the same
may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
affecting creditors' rights and by the exercise of
judicial discretion in accordance with general
principles applicable to equitable and similar
remedies and except as to those provisions relating
to indemnities for liabilities arising under the
Securities Act as to which no opinion need be
expressed; and no approval, authorization or consent
of any public board, agency, or instrumentality of
the United States or of the State of California is
necessary in connection with the issue or sale of the
Shares by the Company pursuant to this Agreement and
the Stock Purchase Agreements (other than under
applicable blue sky laws);
(8) the execution and performance of this
Agreement and the Stock Purchase Agreements does not
violate any of the provisions of, or result in a
default under, any agreement, franchise, license,
indenture, mortgage, deed of trust, or other
instrument of the Company or any of its subsidiaries
or by which the property of any of them is bound that
(a) has been listed as an exhibit to the Registration
Statement or any Exchange Act document or report
incorporated by reference therein or (b) is listed on
Attachment C to such opinion, in each case where such
violation or default would be material to the Company
and its subsidiaries taken as a whole; or violate any
of the provisions of the charter or bylaws of the
Company or, so far as is known to such counsel,
violate any statute, order, rule or regulation of any
United States federal or California or Illinois state
regulatory or governmental body having jurisdiction
over the Company or any of its subsidiaries;
(9) all documents incorporated by reference
in the Prospectus, when they were filed with the
Commission, complied as to form in all material
respects with the requirements of the Exchange Act;
In addition, such counsel shall confirm that during
the course of the preparation of the Registration
Statement and the Prospectus, it participated in
conferences with officers and other representatives
of the Company, Selling Agent's counsel (with respect
to the Prospectus) and the independent public
accountants of the Company, at which conferences the
contents of the Registration Statement and the
Prospectus and other related matters were discussed.
Although such counsel shall not pass upon and shall
not assume responsibility for, nor has it verified,
the accuracy, completeness or fairness of the
statements contained in the Registration Statement or
the Prospectus, such counsel will confirm that
nothing has come to its attention that causes it to
believe that, as of its effective date, the
Registration Statement (other than financial
statements and any financial data and schedules
included therein, as to each of which such counsel
expresses no belief) contained an untrue statement of
a material
9
fact or omitted to state a material fact necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus (other than financial statements and any financial
data and schedules included therein, as to each of which such
counsel expresses no belief) contained an untrue statement of
a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading or that, as of the
date of such counsel's opinion, either the Registration
Statement or the Prospectus (other than financial statements
and any financial data and schedules included therein, as to
each of which such counsel expresses no belief) contains an
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made (in the
case of the Prospectus), not misleading.
(ii) An opinion of Xxxxxxxx and Xxxxxxxx and Crew, special
counsel to the Company with respect to Intellectual
Property, addressed to the Selling Agent and dated
the Closing Date, to the effect that:
(1) To the best of such counsel's knowledge,
except as described in the Prospectus, (A) the
Company has valid license rights or clear title to
the Intellectual Property referenced in the
Prospectus, and there are no rights of third parties
to any such Intellectual Property; (B) there is no
infringement or other violation by third parties of
any of the Intellectual Property of the Company
referenced in the Prospectus; (C) the Company has not
received notice of any claim of infringement of any
patents held by third parties; (D) there is no
pending or threatened action, suit, proceeding or
claim by governmental authorities or others that the
Company is infringing a patent; and (E) there is no
pending or threatened legal or administrative
proceeding relating to patents and patent
applications of the Company, other than proceedings
initiated by the Company before the United Sates
Patent and Trademark office and the patent offices of
certain foreign jurisdictions which are in the
ordinary course of prosecution;
(2) to the best of such counsel's knowledge,
the patent applications of the Company presently on
file disclose patentable subject matter, and such
counsel is not aware of any inventorship challenges,
any interference which has been declared or provoked,
or any other material fact with respect to the patent
applications of the Company presently on file that
(A) would preclude the issuance of patents with
respect to such applications, or (B) would lead such
counsel to conclude that such patents, when issued,
would not be valid and enforceable in accordance with
applicable regulations; and
(3) the statements in the Registration
Statement and the Prospectus referencing Intellectual
Property matters, insofar as such statements
constitute summaries of legal matters, contracts,
agreements,
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documents or proceedings referred to therein, or
refer to statements of law or legal conclusions, are
in all material respects accurate and complete
statements or summaries of the matters therein set
forth. Nothing has come to such counsel's attention
that causes them to believe that such above described
portions of the Registration Statement, at the time
such Registration Statement became effective or as of
the Closing Date, contained or contains an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or that such above described portions of
the Prospectus, at the date of the Prospectus or as
of the Closing Date contained or contains an untrue
statement of material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
(iii) A certificate of the chief executive officer and the
principal financial officer of the Company, dated the
Closing Date, to the effect that:
(1) the representations and warranties of
the Company set forth in Section 2 of this Agreement
are true and correct in all material respects as of
the date of this Agreement and as of the Closing
Date, and the Company has complied with all the
agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to such
Closing Date; and
(2) the Commission has not issued an order
preventing or suspending the use of the Registration
Statement or the Prospectus; no stop order suspending
the effectiveness of the Registration Statement has
been issued; and to the knowledge of the respective
signers, no proceedings for that purpose have been
instituted or are pending or contemplated under the
Securities Act.
(iv) At the time Stock Purchase Agreements are executed
and also on the Closing Date, there shall be
delivered to the Selling Agent a letter addressed to
the Selling Agent, from Ernst & Young LLP,
independent accountants, the first letter to be dated
the date of the Stock Purchase Agreements and the
second letter to be dated the Closing Date, each in
the form heretofore approved by Xxxxxx Xxxxxx Xxxxx
Xxxxxxxx, counsel for the Selling Agent.
(v) Such further certificates and documents as the
Selling Agent may reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory
to the Selling Agent and to Xxxxxx Xxxxxx Xxxxx Xxxxxxxx, counsel for
the Selling Agent, which approval shall not be unreasonably withheld.
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5. Compensation.
In consideration of the Selling Agent's execution of this Agreement and
for the performance of its services hereunder, the Selling Agent shall receive
from the Company, on the Closing Date in immediately available funds, a fee in
an amount equal to 6.0% of the aggregate public offering price of the Shares
issued and sold on the Closing Date.
6. Payment of Expenses.
Whether or not the transactions contemplated hereunder are consummated
or this Agreement becomes effective as to all of its provisions or is
terminated, the Company agrees to pay (i) all costs, fees and expenses incurred
in connection with the performance of the Company's obligations hereunder,
including without limiting the generality of the foregoing, all fees and
expenses of legal counsel for the Company and of the Company's independent
accountants, all costs and expenses incurred in connection with the preparation,
printing, filing and distribution of each preliminary prospectus and the
Prospectus, this Agreement and the Stock Purchase Agreements and (ii) all fees
and expenses of the Company's transfer agent, printing of the certificates for
the Shares and all transfer taxes, if any, with respect to the sale and delivery
of the Shares. The Company will reimburse the Selling Agent for reasonable
out-of-pocket expenses (including reasonable fees and expenses of its counsel
and any other independent experts retained by the Selling Agent at the Company's
request and pre-approved by Company in writing) reasonably incurred by it in
connection with its engagement hereunder, up to a limit of $50,000. Expenses in
excess of $50,000 will be subject to the prior written approval of the Company.
Such reimbursement will be payable promptly upon submission by the Selling Agent
of statements to the Company.
7. Indemnification.
(a) The Company hereby agrees to indemnify and hold harmless the
Selling Agent and each of the Other Indemnified Parties (as
defined below) to the fullest extent permitted by law, from
and against any and all losses, claims, damages, obligations,
penalties, judgments, awards, costs, disbursements and
liabilities (including amounts paid in settlement)
(collectively, "Losses") and expenses (including, without
limitation, all reasonable fees and expenses of the Selling
Agent's and each of the Other Indemnified Parties' counsel and
all of the Selling Agent's and each of the Other Indemnified
Parties' reasonable travel and other out-of-pocket expenses
incurred at the Company's request or otherwise incurred in
connection with the investigation of any pending or threatened
claims or the preparation for, the defense of, or the
furnishing of evidence in, any pending or threatened
litigation, investigation or proceedings, whether or not the
Selling Agent or any Other Indemnified Party is a party
thereto) (collectively, "Expenses") based upon, arising out of
or in any way relating to (a) oral or written information
(including information contained in or omitted from the
Registration Statement or the Prospectus) provided by the
Company to the Selling Agent or any party to the transactions
contemplated hereby, (b) action taken or omitted to be taken
by the Company or action taken or omitted to be taken by the
Selling Agent at the request of the Company or with the
Company's consent, (c) the
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transactions contemplated hereby or (d) the Selling Agent's
engagement hereunder; provided that the Company will have no
obligation to indemnify and hold harmless the Selling Agent or
any of the Other Indemnified Parties pursuant to this Section
7(a) in respect of any Losses or Expenses which are finally
judicially determined to have resulted primarily and directly
from the gross negligence or bad faith of the Selling Agent in
fulfilling its duties hereunder. The Company also agrees that
neither the Selling Agent nor any of the Other Indemnified
Parties shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to the Company for or in
connection with such engagement, except for any Losses or
Expenses which are finally judicially determined to have
resulted primarily from the Selling Agent's gross negligence
or bad faith in fulfilling its duties hereunder, and the
Selling Agent shall promptly refund any Losses or Expenses
previously paid by the Company in the event of such final
judicial determination. Expenses will be reimbursed or
advanced when and as incurred promptly upon submission by the
Selling Agent of statements to the Company. The Other
Indemnified Parties will mean and include (i) the Selling
Agent's affiliates, (ii) the respective members, principals,
partners, directors, officers, agents and employees of and
counsel to the Selling Agent and its affiliates, (iii) each
other person, if any, controlling the Selling Agent or any of
its affiliates and (iv) the successors, assigns, heirs and
personal representatives of any of the foregoing.
(b) Promptly after receipt by the Selling Agent or Other
Indemnified Party of service of any complaint or the
commencement of any action or proceeding with respect to which
indemnification is being sought hereunder, the Selling Agent
or such Other Indemnified Party will notify the Company in
writing of such complaint or the commencement of such action
or proceeding, but failure to so notify the Company will
relieve the Company from the obligation to indemnify the
Selling Agent or such Other Indemnified Party only if and only
to the extent that such failure results in the forfeiture by
the Company of substantial rights and defenses, and will not
in any event relieve the Company from any other obligation or
liability that the Company may have to the Selling Agent or
any Other Indemnified Party otherwise than in accordance with
the provisions hereof. If the Company so elects or is
requested by the Selling Agent or such Other Indemnified
Party, the Company will assume the defense of such action or
proceeding, including the employment of counsel reasonably
satisfactory to the Selling Agent or such Other Indemnified
Party and the payment of the fees and expenses of such
counsel. In the event, however, the Selling Agent or such
Other Indemnified Party reasonably determines that having
common counsel would present such counsel with a conflict of
interest or if the defendants in or targets of any such action
or proceeding include both the Selling Agent or Other
Indemnified Party and the Company and the Selling Agent or
such Other Indemnified Party reasonably concludes that there
may be legal defenses available to it or Other Indemnified
Parties that are different from or in addition to those
available to the Company, or if the Company fails to assume
the defense of the action or proceeding or to employ counsel
reasonably satisfactory to the Selling Agent or such Other
Indemnified Party in a timely manner, then the Selling Agent
or such
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Other Indemnified Party may employ separate counsel to
represent or defend it in any such action or proceeding and
the Company will pay the reasonable and customary fees and
disbursements of such separate counsel (in addition to local
counsel, as needed) for the Selling Agent and such Other
Indemnified Parties in any jurisdiction in any single action
or proceeding. The Selling Agent and the Other Indemnified
Parties agree to utilize the same counsel unless it or they
reasonably conclude that the use of the same counsel would
create a disadvantage for the Selling Agent or the Other
Indemnified Parties. In any action or proceeding the defense
of which the Company assumes, the Selling Agent and the Other
Indemnified Party will have the right to participate in such
litigation and to retain its own counsel at, except in
accordance with the immediately preceding sentence, the
Selling Agent's or such Other Indemnified Parties' own
expense. The Company will be liable for any settlement of any
claim against the Selling Agent made with the Company's
written consent, which consent will not be unreasonably
withheld.
(c) If, for any reason, the foregoing indemnification is
unavailable to the Selling Agent or any of the Other
Indemnified Parties or is insufficient to hold them harmless
in respect of any Losses or Expenses, then the Company will
contribute to the amount paid or payable by the Selling Agent
or any of the Other Indemnified Parties as a result of such
Losses and Expenses in such proportion as is appropriate to
reflect the relative benefits (or anticipated benefits) to the
Company and its stockholders on the one hand and the Selling
Agent and the Other Indemnified Parties on the other hand from
the transactions contemplated hereby, or if such allocation is
not permitted by applicable law, then in such proportion as is
appropriate to reflect not only the relative benefits received
by the Company and its stockholders on the one hand and the
Selling Agent and the Other Indemnified Parties on the other
hand, but also the relative fault of the Company, its
directors, officers, employees, agents and advisers (other
than the Selling Agent) on the one hand and the Selling Agent
and the Other Indemnified Parties on the other hand, as well
as any other relevant equitable considerations. The relative
benefits received (or anticipated to be received) by the
Company and its stockholders on the one hand and by the
Selling Agent and the Other Indemnified Parties on the other
hand will be deemed to be in the same proportion as the
aggregate public offering price of the Shares in the Offering
bears to the total fees paid to the Selling Agent hereunder.
The relative fault of any party or other person will be
determined by reference to such party's or person's knowledge,
access to information and opportunity to prevent or correct
any misstatement, omission, misconduct or breach of duty. In
no event will the amount required to be contributed by the
Selling Agent and the Other Indemnified Parties hereunder
exceed the total amount of fees paid to the Selling Agent
hereunder. The Company and the Selling Agent agree that it
would not be just and equitable if contribution were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to above.
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(d) The reimbursement, indemnity and contribution obligations of
the Company hereunder will (i) be in addition to any liability
which the Company may otherwise have, (ii) survive the
completion or termination of the Selling Agent's engagement
hereunder and (iii) shall be binding upon any successors and
assigns of the Company.
(e) In the event that any litigation, investigation or proceeding
relating to the transaction contemplated hereunder is
commenced or threatened against the Company, the Company will
not settle any such pending or threatened litigation,
investigation or proceeding unless (i) the Selling Agent, by
name, and the Other Indemnified Parties, by description, are
included in any release or settlement agreement, whether or
not the Selling Agent and the Other Indemnified Parties are
named as defendants in such litigation or proceeding, (ii) the
Selling Agent and the Other Indemnified Parties are
unconditionally released from all claims and liabilities
asserted or which could have been asserted in such litigation,
investigation or proceeding and (iii) there is no statement in
any such release or settlement agreement as to an admission of
fault, culpability or failure to act by or on behalf of the
Selling Agent or the Other Indemnified Parties.
8. Termination.
The Selling Agent's engagement hereunder may be terminated by either
the Company or the Selling Agent at any time, with or without cause, upon
written notice to the other party; provided, however, that (a) no such
termination will affect the Selling Agent's right to expense reimbursement under
Section 6, the payment of any accrued and unpaid fees pursuant to Section 5 or
the indemnification contemplated by Section 7 and (b) if the Company consummates
an offering of (i) securities directly or indirectly from the Company within
twelve months following such termination with any party which the Selling Agent
has identified or in respect of which the Selling Agent has rendered advice
prior to such termination or (ii) shares of Common Stock directly from the
Company pursuant to the Registration Statement within twelve months following
such termination with any party with which the Company has directly or
indirectly held discussions or furnished information regarding the Company prior
to such termination, then the Selling Agent will be entitled to a
finders/financial advisory fee to be agreed upon by the parties.
9. Notices.
For the purposes of giving notices in connection with this Agreement,
notices may be given by personal delivery, facsimile or overnight courier,
effective upon receipt, to the following addresses and facsimiles for each
party:
To the Company: Cepheid
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Executive Officer
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With a copy to Fenwick & West LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
To the Selling Agent: Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Legal Department
With a copy to: Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxx
10. Miscellaneous.
(a) Entire Agreement. This Agreement, the Engagement Letter and
the Indemnification Letter Agreement dated June 24, 2002
between the parties hereto (the "Indemnification Agreement")
constitute the entire understanding between the parties
regarding the subject matter of this Agreement, and may be
altered or changed only by written agreement of the parties.
To the extent any of the provisions herein conflict with the
provisions in the Engagement Letter or the Indemnification
Agreement, the provisions herein shall govern.
(b) Assignability. Neither the Company nor the Selling Agent may
assign its rights or obligations under this Agreement without
the prior written approval of the other party. This Agreement
will be binding upon all permitted successors, assigns, or
transferees of the parties.
(c) Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations,
warranties and other statements of the Company and its
officers, set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any
investigation made by or on behalf of the Selling Agent or any
of its partners, principals, members, offices or directors or
any controlling persons be, and will survive delivery of and
payment for the Shares sold hereunder.
(d) Construction. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Illinois, without giving affect to the principals of conflicts
of laws. The Company irrevocably submits to the jurisdiction
of any court of the State of Illinois or the United States
District Court of the Northern District of the State of
Illinois for the purpose of any suit, action or other
proceeding arising out of this Agreement or the transactions
contemplated hereby,
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which is brought by or against the Company. Each of the
Company (and, to the extent permitted by law, on behalf of the
Company's equity holders and creditors) and the Selling Agent
hereby knowingly, voluntarily and irrevocably waives any right
it may have to a trial by jury in respect of any claim based
upon, arising out of or in connection with the indemnification
provisions in Section 7.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, and if so executed shall together constitute a
single instrument.
(f) Headings. The headings and captions of this Agreement are
inserted for convenience of reference only and shall not be
deemed a part hereof or used in the construction or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
CEPHEID
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXXX XXXXX & COMPANY, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Principal
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