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EXHIBIT 5.1
[HELLER EHRMAN WHITE & MCAULIFFE LLP LETTERHEAD]
June 8, 2000
Main (650) 234-7000
Fax (650) 234-4299
22660.0024
Cepheid
1190 Borregas Avenue
Sunnyvale, California 94089-1302
RE: REGISTRATION STATEMENT ON FORM S-1
Ladies and Gentlemen:
We have acted as counsel to Cepheid, a California corporation (the
"Company"), in connection with the Registration Statement on Form S-1
(Registration No. 333-34340) filed with the Securities and Exchange Commission
on April 7, 2000 (as may be further amended or supplemented, the "Registration
Statement") for the purpose of registering under the Securities Act of 1933, as
amended, 5,750,000 shares of its authorized but unissued Common Stock, no par
value (the "Shares"). The Shares, which include up to 750,000 shares of the
Company's Common Stock issuable pursuant to an over-allotment option granted to
the underwriters, are to be sold pursuant to an Underwriting Agreement (the
"Underwriting Agreement") among the Company and UBS Warburg LLC, Prudential
Securities Incorporated and Invemed Associates, Inc., as representatives of the
several underwriters named in Schedule A to the Underwriting Agreement.
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.
In rendering our opinion, we have examined the following records, documents
and instruments:
(a) The Amended and Restated Articles of Incorporation of the Company,
filed as an exhibit to the Registration Statement and to be filed with
the California Secretary of State in connection with the sale of the
Shares, and certified to us by an officer of the Company as being the
form to be filed with the California Secretary of State in connection
with the sale of the Shares;
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Cepheid
June 8, 2000
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(b) The Bylaws of the Company 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, including any committee thereof, and
shareholders of the Company relating to the Shares, and the
Registration Statement, and (ii) certifying as to certain factual
matters;
(d) The Registration Statement; and
(e) A draft of the Underwriting Agreement to be filed as Exhibit 1.1 to
the Registration Statement.
This opinion is limited to the federal law of the United States of America
and the General Corporation Law of the State of California, and we disclaim any
opinion as to the laws of any other jurisdiction. We further 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. Our opinion to the effect that all issued and outstanding Shares are fully
paid and nonassessable is based on the certification obtained from the Company
identified in item (c) above to the effect that the consideration of such Shares
recited in the Board of Directors' resolutions for such Shares has been
received.
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 and sold, (ii) the Underwriting
Agreement signed by the parties thereto conforms in all material respects to the
draft to be filed as Exhibit 1.1 to the Registration Statement, (iii) the
currently unissued Shares to be sold by the Company are issued, delivered and
paid for in accordance with the terms of the Underwriting Agreement and (iv)
appropriate certificates evidencing the Shares will be executed and delivered by
the Company, it is our opinion that, when issued by the Company, the currently
unissued Shares covered by the Registration Statement will be legally issued,
fully paid and nonassessable.
This opinion is rendered to you in connection with the Registration
Statement. This opinion may not be relied upon by you for any other 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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Cepheid
June 8, 2000
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Registration Statement.
Very truly yours,
/s/ HELLER EHRMAN WHITE & MCAULIFFE LLP
