EXHIBIT 99.03
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as February 28,
2003, by and between Cepheid, a California corporation (the "Company"), and the
investor named on the signature page hereof (the "Investor").
WITNESSETH
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") the Registration Statement (as defined below)
relating to the offer and sale from time to time of the Company's securities,
including shares of its common stock, no par value ("Common Stock");
WHEREAS, the Company is offering for sale shares of its Common Stock
(the "Offered Shares") pursuant to the Registration Statement; and
WHEREAS, the Investor desires to purchase from the Company shares of
Common Stock on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the recitals (which are deemed to
be a part of this Agreement), mutual covenants, representations, warranties and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. As used herein, the following terms have the meanings
indicated:
"Person" shall mean any individual, partnership, limited liability
company, joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Prospectus" shall mean the final base prospectus dated May 29, 2002
forming a part of the Registration Statement. References herein to the
term "Prospectus" as of any date shall mean such prospectus, as
amended or supplemented to such date, including by the Prospectus
Supplement (as defined below), and including all documents
incorporated by reference therein as of such date.
"Prospectus Supplement" shall mean the supplement to the Prospectus
relating to the sale of the Offered Shares to be delivered to the
undersigned on or prior to the Closing (as defined below).
"Registration Statement" shall mean the registration statement on Form
S-3 (File No. 333-75596), including a prospectus, relating to the
offer and sale of certain of the Company's securities, including its
Common Stock, which was declared effective by the Commission on May
29, 2002. References herein to the term "Registration Statement" as of
any date shall mean such registration statement, as amended or
supplemented to such date, including all documents incorporated by
reference therein as of such date.
2. Purchase of Common Stock. Subject and pursuant to the terms and
conditions set forth in this Agreement, the Company agrees that it
will issue and sell to the Investor and the Investor agrees that it
will purchase from the Company the number of Offered Shares set forth
on Schedule I attached hereto (the "Investor Shares") at the price per
share of Common Stock (the "Per Share Purchase Price") set forth on
Schedule I hereto. The aggregate purchase price for the Investor
Shares (the "Aggregate Purchase Price") is set forth on Schedule I
hereto. The closing of the purchase and sale of the Investor Shares
will be on the date set forth on Schedule I hereto, or such other date
as the parties may agree upon in writing (the "Closing").
1
3. Deliveries at Closing.
(a) Deliveries by the Investor. At the Closing, the Investor shall
deliver to the Company same-day funds through the DTC system in
the full amount of the purchase price for the Shares being
purchased hereunder against delivery by the Company through the
DTC system of the Investor Shares (Delivery Versus Payment).
(b) Deliveries by the Company. At the Closing, the Company shall
deliver to the Investor the Investor Shares through The
Depository Trust Company DWAC system to the account that the
Investor has specified in writing to the Company.
4. Representations, Warranties, Covenants and Agreements.
(a) Investor Representations, Warranties and Covenants. The Investor
represents, warrants and agrees as follows:
(1) The Investor has received and reviewed copies of the
Registration Statement and the Prospectus, including
all documents incorporated by reference therein and
amendments thereto, and understands that no Person
has been authorized to give any information or to
make any representations that were not contained in
the Registration Statement and the Prospectus, and
the Investor has not relied on any such other
information or representations in making a decision
to purchase the Investor Shares. The Investor hereby
consents to receiving delivery of the Registration
Statement and the Prospectus, including all documents
incorporated by reference therein and amendments
thereto, by electronic mail. The Investor understands
that an investment in the Company involves a high
degree of risk for the reasons, among others, set
forth under the caption "RISK FACTORS" in the
Prospectus and the documents incorporated by
reference in the Prospectus and the Prospectus
Supplement.
(2) The Investor acknowledges that it has sole
responsibility for its own due diligence
investigation and its own investment decision, and
that in connection with its investigation of the
accuracy of the information contained or incorporated
by reference in the Registration Statement and the
Prospectus and its investment decision, the Investor
has not relied: on any representation or information
not set forth in this Agreement or contained or
incorporated by reference in the Registration
Statement or the Prospectus; on the selling agent
(EHS Securities, LLC) or any Person affiliated with
the selling agent; or on the fact that any other
Person has decided to invest in the Offered Shares.
(3) The execution and delivery of this Agreement by the
Investor and the performance of this Agreement and
the consummation by the Investor of the transactions
contemplated hereby have been duly authorized by all
necessary (corporate, in the case of a corporation)
action of the Investor, and this Agreement, when duly
executed and delivered by the Investor, will
constitute a valid and legally binding instrument,
enforceable in accordance with its terms against the
Investor, 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).
2
(4) No state, federal or foreign regulatory approvals,
permits, licenses or consents or other contractual or
legal obligations are required for the Investor to
enter into this Agreement or purchase the Investor
Shares.
(b) Company Representations, Warranties and Covenants. The Company
hereby represents, warrants and agrees as follows:
(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 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 (as defined below) taken as a whole
(a "Material Adverse Effect"); and each of the
Subsidiaries 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. Except for its ownership of
(i) all the outstanding capital stock of Cepheid,
S.A., a French societe anonyme, and Cepheid Canadian
Corporation, a California corporation, and (ii) 50%
of the outstanding capital stock of Xxxxxx Corp., a
corporation incorporated under the laws of the
Province of Nova Scotia (such entities, collectively,
the "Subsidiaries"), the Company does not presently
own or control, directly or indirectly, any equity
interest in any other corporation, partnership,
trust, joint venture, association or other entity.
None of the Subsidiaries is a "Significant
Subsidiary" of the Company, as such term is defined
in Regulation S-X.
(2) 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
Investor, 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).
(3) The Investor Shares have been duly authorized by the
Company, and when issued and delivered by the Company
against payment therefor as contemplated hereby, the
Investor Shares will be validly issued, fully paid
and nonassessable,
3
and will conform to the description of the Common
Stock contained in the Prospectus.
(4) 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 issue of the Investor 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 Offered
Shares on the Nasdaq National Market.
(5) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended
(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 date of the Closing, 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 date
of the Closing, 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 date of the Closing, 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 conformed or will
fully conform in all material respects
4
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.
(6) 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.
(7) 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, including without
limitation 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.
(8) 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.
(9) 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. To the
Company's knowledge, there are no pending or
threatened claims that the Company has infringed,
misappropriated or otherwise conflicted with the
Intellectual Property of any third parties, which
5
infringement, misappropriation or conflict would
individually or in the aggregate have a Material
Adverse Effect. To the Company's knowledge, there are
no pending or threatened claims that the Company has
infringed, misappropriated or otherwise conflicted
with the Intellectual Property of any third parties,
which infringement, misappropriation or conflict
would individually or in the aggregate have a
Material Adverse Effect.
(10) 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.
(11) 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.
(12) The Investor shall have no obligation with respect to
any fees incurred by the Company or any other Person
(other than the Investor, if the Investor has agreed
in writing to pay such fees) or with respect to any
claims made by or on behalf of other Persons for fees
or commissions payable by the Company to any broker,
financial advisor or consultant, finder, selling
agent, investment banker, bank or other Person, that
may be due in connection with the transactions
contemplated by this Agreement. The Company shall
indemnify and hold harmless the Investor, its
employees, officers, directors, trustees, partners,
or any affiliate of the Investor, from and against
any losses, claims, damages, costs (including the
costs of preparation and reasonable attorney's fees)
and expenses suffered in respect of such claimed or
existing fees incurred by the Company or any other
Person (other than the Investor, if the Investor has
agreed in writing to pay such fees), as such fees and
expenses are incurred.
(13) Neither the Company nor to the Company's knowledge,
any other Person acting on its behalf has provided
the Investor or its agents or counsel with any
information that the Company believes constitutes
material, non-public information.
5. Conditions. The obligation of the Investor to purchase and acquire the
Investor Shares hereunder shall be subject to the condition that all
representations and warranties and other statements of the Company
shall be true and correct as of and on each of the date of this
Agreement and the date of the Closing, the condition that the Company
shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus Supplement shall have been filed with the
Commission pursuant to Rule 424(b) under the Securities Act
within the applicable time period prescribed for such filing, no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission, and the Company shall have
delivered the Prospectus Supplement to the Investor in accordance
with the federal securities laws.
(b) The Company shall have secured the listing of the Offered Shares
on the Nasdaq National Market (subject to official notice of
issuance).
6
(c) The Company shall have performed all of its obligations set forth
in the Selling Agent Agreement, dated as of the date hereof, by
and between the Company and EHS Securities LLC, required to be
performed by the Company thereunder on or prior to the Closing.
6. Miscellaneous.
(a) Fees and Expenses. Each of the parties hereto shall be
responsible for their own expenses incurred in connection with
the transactions contemplated hereby.
(b) Binding Agreement; Assignment. This Agreement shall be binding
upon, and shall inure solely to the benefit of, each of the
parties hereto, and each of their respective heirs, executors,
administrators, successors and permitted assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. The Investor may not assign any of its rights or
obligations hereunder to any other person or entity without the
prior written consent of the Company.
(c) Entire Agreement. This Agreement, including Schedule I hereto,
constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and may be amended only by
written execution by both parties. Upon execution by the Company
and the Investor, this Agreement shall be binding on both parties
hereto.
(d) Consent To Jurisdiction. THIS AGREEMENT SHALL BE ENFORCED,
GOVERNED AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ITS
CONFLICTS OF LAWS PRINCIPLES. FURTHERMORE, THE INVESTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF CALIFORNIA AND THE UNITED STATES OF AMERICA FOR THE
DISTRICT OF CALIFORNIA IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
(e) Notices. All notices, requests, consents and other communication
hereunder shall be in writing, shall be mailed by first class
registered or certified mail, or nationally recognized overnight
express courier postage prepaid, and shall be deemed given when
so mailed and shall be delivered as addressed as follows:
if to the Company, to:
Cepheid
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
with a copy mailed to:
Xxxx Xxxxx, Esq.
Fenwick & West LLP
Embarcadero Center West
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
or to such other person at such other place as the Company shall
designate to the Investor in writing; and if to the Investor, at
its address as set forth at the end of this Agreement,
7
or at such other address or addresses as may have been furnished
to the Company in writing.
(f) Counterparts. This Agreement maybe executed in any number of
counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one in the same
agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Cepheid
By:______________________________
Name:
Title:
Accepted and agreed to as of the date
first above written:
_____________________________________________
Name of Investor (Print)
By:__________________________________________
Name:
Title
Address:__________________________________
__________________________________
Telephone:___________________________________
Facsimile:___________________________________
Nominee (name in which Investor Shares are
to be registered, if different than name of
Investor)____________________________________
Address of Nominee:
_____________________________________________
_____________________________________________
Taxpayer ID. Number:
(if acquired in the name of a nominee, the
taxpayer ID. number of such nominee)
DTC account number:
9
SCHEDULE I
TO
STOCK PURCHASE AGREEMENT
Name of Investor:
Number of Offered Shares to be Purchased by Investor:
Per Share Purchase Price:
Aggregate Purchase Price:
Date of Closing:
10
