EXHIBIT 99.03
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of August 1,
2002, 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
dated July 31, 2002 relating to the sale of the Offered Shares.
"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
1
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").
3. Deliveries at Closing.
(a) Deliveries by the Investor. At the Closing, the Investor shall
deliver to the Company the following:
(1) the Aggregate Purchase Price by wire transfer of
immediately available funds to an account designated
by the Company as set forth on Schedule I hereto,
which funds will be delivered to the Company in
consideration of the Investor Shares issued at the
Closing.
(b) Deliveries by the Company. At the Closing, the Company shall
deliver to the Investor the following:
(1) the Investor Shares through The Depository Trust
Company DWAC system to the account that the Investor
has specified in writing to the Company; and
(2) the Prospectus Supplement and the Prospectus.
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, the Prospectus and the Prospectus
Supplement, 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
Prospectus Supplement 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, the
Prospectus and the Prospectus Supplement and its
investment decision, the Investor has not relied on
any representation or information not set forth in
this Agreement, the Registration Statement, the
Prospectus or the Prospectus Supplement, on the
selling agent (Xxxxxxx Xxxxx & Company, L.L.C.) 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
2
(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).
(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 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.
(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 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
5
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).
(c) The Company shall have performed all of its obligations set
forth in the Selling Agent Agreement, dated as of July 15,
2002, by and among the Company and Xxxxxxx Xxxxx & Company,
L.L.C., required to be performed by the Company thereunder
on or prior to the Closing.
6
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, 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
7
to be an original and all of which taken together shall
constitute one in the same agreement.
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:
WIRE INSTRUCTIONS
Aggregate Purchase Price to be wired to:
10
