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EXHIBIT 5
[HELLER EHRMAN WHITE & MCAULIFFE LLP LETTERHEAD]
July 18, 2000
Cepheid
1190 Borregas Avenue
Sunnyvale, California 94089-1302
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Cepheid, a California corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") which the Company proposes to file with the Securities
and Exchange Commission on or about July 17, 2000, for the purpose of
registering under the Securities Act of 1933, as amended, 3,200,000 shares of
its Common Stock (the "Shares"). Of the Shares, 1,800,000 are issuable under the
Company's 1997 Stock Option Plan, 200,000 are issuable under the Company's 2000
Employee Stock Purchase Plan, and 200,000 are issuable under the Company's 2000
Nonemployee Directors Stock Option Plan (collectively, the "Plans").
In connection with this opinion, we have assumed the authenticity of all
records, documents and instruments submitted to us as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity to
the originals of all records, documents and instruments submitted to us as
copies. We have based our opinion upon our review of the following records,
documents and instruments:
(a) The Fifth Amended and Restated Articles of Incorporation of the
Company, as amended to date, certified by the Secretary of State
of the State of California as of June 21, 2000 and certified to
us by an officer of the Company as being complete and in full
force and effect as of the date of this opinion;
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Heller Ehrman White & McAuliffe LLP Cepheid
July 18, 2000
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(b) The Bylaws of the Company, as amended to date, certified to us
by an officer of the Company as being complete and in full force
and effect as of the date of this opinion;
(c) A Certificate of an officer of the Company (i) attaching records
certified to us as constituting all records of proceedings and
actions of the Board of Directors and stockholders of the
Company relating to the adoption and approval of the Plans, and
(ii) certifying as to certain factual matters;
(d) The transfer agent of the Company, as to the number of shares of
common stock of the Company outstanding as of July 18, 2000; and
(e) The Plans.
This opinion is limited to the federal laws of the United States of
America and the California Corporations Code. We disclaim any opinion as to any
other statute, rule, regulation, ordinance, order or other promulgation of any
other jurisdiction or any regional or local governmental body or as to any
related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law as
we have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered, issued and sold, (ii) the Shares
to be sold are issued in accordance with the terms of the Plans, (iii) the
Company receives the full consideration for the Shares as stated in the Plans,
and (iv) all applicable securities laws are complied with, it is our opinion
that the Shares covered by the Registration Statement, when issued and sold by
the Company, after payment therefore in the manner provided in the applicable
Plan and the Registration Statement, will be legally issued, fully paid and
nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm, corporation
or other entity for any purpose, without our prior written consent. We disclaim
any obligation to advise you of any change of law that occurs, or any facts of
which we may become aware, after the date of this opinion.
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Heller Ehrman White & McAuliffe LLP Cepheid
July 18, 2000
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe
