INDEMNITY AND CONTRIBUTION
AGREEMENT
This Indemnity and
Contribution Agreement (this “Agreement”), dated
November 15, 2005, is by and between Digene Corporation, a
Delaware corporation (the “Company”) and Armonk
Partners, a Connecticut partnership (the “Selling
Stockholder”).
WHEREAS ,
pursuant to an Underwriting Agreement, dated as of the date hereof
(the “Underwriting Agreement”), among the Company, the
Selling Stockholder and J.P. Morgan Securities Inc., as
representative of the several underwriters identified therein (the
“Underwriters”), the Company proposes to issue and sell
to the Underwriters an aggregate of 2,000,000 shares and, at the
option of the Underwriters, up to an additional 300,000 shares, of
Common Stock, par value $0.01 per share, of the Company (the
“Stock”) and the Selling Stockholder proposes to sell
to the Underwriters an aggregate of 1,000,000 shares of Stock and,
at the option of the Underwriters, up to an additional 150,000
shares of Stock.
WHEREAS ,
under the Underwriting Agreement each of the Company and the
Selling Stockholder makes certain representations and warranties to
the Underwriters with respect to information about the Company and
the Selling Stockholder, as the case may be, for use in the
Registration Statement, Prospectus or Preliminary Prospectus, and
provides the Underwriters with certain indemnification and
contribution protections.
WHEREAS ,
the Company and the Selling Stockholder desire to provide that the
indemnification and contribution provisions contained in this
Agreement will control as between the Company and the Selling
Stockholder in the event that the Underwriters seek indemnification
and/or contribution from the Company and/or the Selling Stockholder
under the Underwriting Agreement.
NOW,
THEREFORE , the parties hereby, intending to be legally bound,
agree as follows:
1.
Defined Terms . Capitalized terms used in this Agreement
without definition shall have the meanings set forth in the
Underwriting Agreement.
2.
Representations and Warranties .
(a)
Representations and Warranties Made by the Selling
Stockholder. Notwithstanding the representations and warranties
made by the Selling Stockholder to the Underwriters in paragraph
4(e) of the Underwriting Agreement, the Company hereby agrees to
indemnify and hold harmless each of the Selling Stockholder and its
partners and their respective successors, heirs and assigns, from
and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any
claim asserted, as such fees and expenses are incurred) (the
“Liabilities”), joint and several, that arise out of,
or are based upon, any claims for indemnification by an Indemnified
Person from the Selling Stockholder under paragraph 8(b) of the
Underwriting Agreement, except to the extent that the
representations and warranties in paragraph 4(e) of the
Underwriting Agreement relate to any statements in or omissions
from the
Registration
Statement, the Prospectus or any Preliminary Prospectus that are
based on written information furnished to the Company by the
Selling Stockholder specifically for use therein, it being
understood and agreed that all such information is described in
Exhibit A attached hereto.
(b)
Representations and Warranties Made by the Company .
Notwithstanding the representations and warranties made by the
Company to the Underwriters in paragraph 3(b) of the Underwriting
Agreement, the Selling Stockholder hereby agrees to indemnify and
hold harmless each of the Company, its affiliates, directors,
officers and employees and their respective successors, heirs and
assigns, from and against any and all Liabilities, joint and
several, that arise out of, or are based upon, any claims for
indemnification by an Indemnified Person from the Company under
paragraph 8(a) of the Underwriting Agreement to the extent that the
representations and warranties in paragraph 3(b) of the
Underwriting Agreement relate to any statements in or omissions
from the Registration Statement, the Prospectus or any Preliminary
Prospectus that are based on written information furnished to the
Company by the Selling Stockholder specifically for use therein, it
being understood and agreed that all such information is described
in Exhibit A attached hereto.
3.
Indemnification and Contribution .
(a)
Indemnification of the Selling Stockholder by the Company.
Notwithstanding the indemnification provided by the Selling
Stockholder to the Underwriters in paragraph 8(b) of the
Underwriting Agreement, the Company hereby agrees to indemnify and
hold harmless each of the Selling Stockholder and its partners and
their respective successors, heirs and assigns, from and against
any and all Liabilities, joint and several, to any Indemnified
Person under paragraph 8(b) of the Underwriting Agreement to the
extent that the Liabilities arise out of, or are based upon any
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