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EXHIBIT 4.4
PURCHASE AGREEMENT
THIS AGREEMENT is made as of the ____ day of November, 1999,
by and among Digene Corporation (the "Company"), a corporation organized under
the laws of the State of Delaware, with its principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, certain stockholders of the Company who
are listed on Exhibit A hereto (each, a "Selling Stockholder" and collectively,
the "Selling Stockholders") and the purchaser whose name and address is set
forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company, the Selling Stockholders and the Purchaser agree as
follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the
terms and conditions of this Agreement, the Company has authorized the sale of
up to 900,000 shares (the "Company Shares") of common stock, par value $0.01 per
share (the "Common Stock"), of the Company and the Selling Stockholders propose
to sell an aggregate of up to 600,000 shares (the "Selling Stockholder Shares"
and together with the Company Shares, the "Shares") of Common Stock. The
aggregate number of Selling Stockholder Shares to be sold by each Selling
Stockholder is set forth on Exhibit A hereto.
SECTION 2. Agreement to Sell and Purchase the Shares. At the
Closing (as defined in Section 3), (i) the Company will sell to the Purchaser,
and the Purchaser will buy from the Company, upon the terms and conditions
hereinafter set forth, the number of Shares (at the purchase price) equal to the
total number of Shares shown below to be purchased by the Purchaser, multiplied
by a fraction, the numerator of which is the number of Company Shares to be sold
by the Company pursuant to the Agreements (as defined below) and the denominator
of which is the total number of Shares to be sold pursuant to the Agreements and
(ii) each Selling Stockholder will sell to the Purchaser, and the Purchaser will
buy from each Selling Stockholder, upon the terms and conditions hereinafter set
forth, the number of Shares (at the purchase price) equal to the total number of
Shares shown below to be purchased by the Purchaser, multiplied by a fraction,
the numerator of which is the number of Selling Stockholder Shares to be sold by
the relevant Selling Stockholder pursuant to the Agreements and the denominator
of which is the total number of Shares to be sold pursuant to the Agreements:
Purchase Price Per
Number of Shares to Be Share In Aggregate Purchase
Purchased Dollars Price in Dollars
---------------------- ------------------ ------------------
The Company and the Selling Stockholders propose to enter into
this same form of purchase agreement with certain other investors (the "Other
Purchasers") and expect to
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complete sales of the Shares to them. The Purchaser and the Other Purchasers are
hereinafter sometimes collectively referred to as the "Purchasers," and this
Agreement and the agreements executed by the Other Purchasers are hereinafter
sometimes collectively referred to as the "Agreements." The term "Placement
Agent" shall mean the Prudential Vector Healthcare Group, a unit of Prudential
Securities Incorporated.
SECTION 3. Delivery of the Shares at the Closing. The
completion of the purchase and sale of the Shares (the "Closing") shall occur as
soon as practicable and as agreed by the parties hereto following notification
by the Securities and Exchange Commission (the "Commission") to the Company of
the Commission's willingness to declare effective the registration statement to
be filed by the Company pursuant to Section 8.1 hereof (the "Registration
Statement") at a place and time (the "Closing Date") to be agreed upon by the
Company, the Selling Stockholders and the Placement Agent and of which the
Purchasers will be notified by facsimile transmission or otherwise.
Each Selling Stockholder specifically agrees that its
obligations hereunder shall not be terminated, except as otherwise provided
herein, by any act of such Selling Stockholder, operation of law or otherwise,
whether by death or incapacity of such Selling Stockholder, if an individual, or
by the occurrence of any other event. If any Selling Stockholder, if an
individual, should die or become incapacitated, or if any other such event
should occur before the delivery of such Selling Stockholder's Shares hereunder,
certificates representing such Selling Stockholder's Shares shall be delivered
pursuant to the terms and conditions of this Agreement as if such death,
incapacity or other event had not occurred. Each Selling Stockholder
specifically agrees to provide to the Company on the date of the execution of
the Agreements, an irrevocable blank stock power and/or instructions to the
Company's transfer agent with respect to the exercise of options to purchase
shares of Common Stock, as applicable, to effect the agreement as set forth in
this Section 3.
At the Closing, the Company and the Selling Stockholders shall
deliver to the Purchaser one or more stock certificates registered in the name
of the Purchaser, or in such nominee name(s) as designated by the Purchaser in
writing, representing the number of Shares set forth in Section 2 above. The
name(s) in which the stock certificates are to be registered are set forth in
the Stock Certificate Questionnaire attached hereto as part of Appendix I. The
Company's obligation to complete the purchase and sale of the Shares and deliver
such stock certificate(s) to the Purchaser at the Closing shall be subject to
the following conditions, any one or more of which may be waived by the Company:
(a) receipt by the Company of same-day funds in the full amount of the purchase
price for the Company Shares being purchased hereunder; (b) completion of the
purchases and sales under the Agreements with all of the Other Purchasers; and
(c) the accuracy of the representations and warranties made by the Purchasers
and the fulfillment of those undertakings of the Purchasers to be fulfilled
prior to the Closing. The Selling Stockholders' obligation to complete the
purchase and sale of the Selling Stockholders Shares and deliver such stock
certificate(s) to the Purchaser at the Closing shall be subject to the following
conditions, any one or more of which may be waived by the Selling Stockholders:
(a) receipt by the Selling Stockholders of same-day funds in the full amount of
the purchase price for the Selling Stockholders Shares being purchased
hereunder; (b) completion of
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the purchases and sales under the Agreements with all of the Other Purchasers;
and (c) the accuracy of the representations and warranties made by the
Purchasers and the fulfillment of those undertakings of the Purchasers to be
fulfilled prior to the Closing. The Purchaser's obligation to accept delivery of
such stock certificate(s) and to pay for the Shares evidenced thereby shall be
subject to the following conditions: (a) the Commission has notified the Company
of the Commission's willingness to declare the Registration Statement effective
on or prior to the 60th day after the date such Registration Statement was filed
by the Company; and (b) the accuracy in all material respects of the
representations and warranties made by the Company and the Selling Stockholders
herein and the fulfillment in all material respects of those undertakings of the
Company and the Selling Stockholders to be fulfilled prior to the Closing. The
Purchaser's obligations hereunder are expressly not conditioned on the purchase
by any or all of the Other Purchasers of the Shares that they have agreed to
purchase from the Company and the Selling Stockholders.
SECTION 4. Representations, Warranties and Covenants of the
Company. The Company hereby represents and warrants to, and covenants with, the
Purchaser as follows:
4.1 Organization and Qualification. The Company and its
subsidiary, Digene Europe, Inc. ("Digene Europe"), is each a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Digene B.V. and Viropath B.V. is each a limited liability company with
limited liability registered at Amsterdam, The Netherlands, and is duly
organized, validly existing and in good standing under the laws of The
Netherlands. Digene do Brasil Ltda., a subsidiary of the Company ("Digene
Brasil"), is a limited liability company duly organized under the laws of
Brazil, and is validly existing under the laws of Brazil. The Company has no
Subsidiaries (as defined in the Rules and Regulations (as defined in Section 4.5
hereof)) other than Digene Europe, Digene B.V., Viropath B.V. and Digene Brasil
(collectively, the "Subsidiaries"). The Company and each of the Subsidiaries is
qualified to do business as a foreign corporation or limited liability company,
as applicable, in each jurisdiction in which qualification is required, except
where the failure to so qualify would not individually or in the aggregate have
a material adverse effect on the condition (financial or otherwise), properties,
business, prospects or results of operations of the Company and the Subsidiaries
(a "Material Adverse Effect").
4.2 Authorized Capital Stock. Except as disclosed in the
Confidential Private Placement Memorandum dated October 11, 1999 prepared by the
Company (including all Exhibits (except Exhibit E), supplements and amendments
thereto, the "Private Placement Memorandum"), the Company had authorized and
outstanding capital stock as set forth under the heading "Capitalization" in the
Private Placement Memorandum as of the date set forth therein; the issued and
outstanding shares of Common Stock have been duly authorized and validly issued,
are fully paid and nonassessable, have been issued in compliance with all
federal and state securities laws, were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase securities,
and conform in all material respects to the description thereof contained in the
Private Placement Memorandum. Except as disclosed in the Private Placement
Memorandum, and except for options to purchase shares of Common Stock granted
since June 30, 1999, the Company does not have outstanding any options or
warrants to
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purchase, or any preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock or any shares of
capital stock of any Subsidiary and there is no commitment, plan or arrangement
to issue, any securities or obligations convertible into any shares of capital
stock of the Company or the Subsidiaries or any such options, rights convertible
securities or obligations. The description of the Company's capital stock, stock
bonus and other stock plans or arrangements and the options or other rights
granted and exercised thereunder, contained or incorporated by reference in the
Private Placement Memorandum accurately and fairly presents the information with
respect to such capital stock, plans, arrangements, options and rights. All
issued shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and are, except
for Digene Brasil, owned by the Company free and clear of any and all security
interests, liens, encumbrances, equities or claims. The Company owns sixty
percent (60%) of the outstanding capital stock of Digene Brasil and all such
shares are owned by the Company free and clear of any and all security
interests, liens, encumbrances, equities or claims.
4.3 Issuance, Sale and Delivery of the Shares. The Company
Shares have been duly authorized and, when issued, delivered and paid for in the
manner set forth in the Agreements, will be duly authorized, validly issued,
fully paid and nonassesable, and will conform in all material respects to the
description thereof set forth in the Private Placement Memorandum. The Selling
Stockholder Shares to be issued upon the exercise of outstanding stock options
(the "Options") have been duly authorized, and when issued, delivered and paid
for in accordance with the provisions of the applicable stock option grant, will
be duly authorized, validly issued, fully paid and nonassesable, and will
conform in all material respects to the description thereof set forth in the
Private Placement Memorandum. No preemptive rights or other rights to subscribe
for or purchase exist with respect to the issuance and sale of the Company
Shares by the Company pursuant to this Agreement. No stockholder of the Company
has any right (which has not been waived or has not expired by reason of lapse
of time following notification of the Company's intent to file the Registration
Statement) to request pursuant to an agreement with the Company or require the
Company to register the sale of any shares owned by such stockholder under the
Securities Act of 1933, as amended (the "Securities Act"), in the Registration
Statement. No further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and sale of the
Company Shares to be sold by the Company as contemplated herein, or for the
issuance and sale of the Selling Stockholder Shares.
4.4 Due Execution, Delivery and Performance of the Agreements.
The Company has full legal right, corporate power and authority to enter into
the Agreements and perform the transactions contemplated hereby and thereby. The
Agreements have been duly authorized, executed and delivered by the Company. The
execution, delivery and performance of the Agreements by the Company and the
consummation of the transactions herein and therein contemplated do not and will
not (a) violate any provision of the organizational documents of the Company or
any of the Subsidiaries; (b) result in the creation of any lien, charge,
security interest or encumbrance upon any assets or property of the Company or
any of the Subsidiaries pursuant to the terms or provisions of any agreement,
mortgage, deed of trust, lease, franchise, license,
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indenture, permit or other instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries or
any of their respective assets or properties may be bound or affected; or (c)
conflict with, result in the breach or violation of, or constitute, either by
itself or upon notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries or any of their respective
assets or properties may be bound or affected or, to the Company's knowledge,
any statute or any authorization, judgment, decree, order, rule or regulation of
any court or any regulatory body, administrative agency or other governmental
body applicable to the Company or any of the Subsidiaries or any of their
respective assets or properties, except, in the case of clause (c), for such
conflicts, breaches, violations or defaults which individually or in the
aggregate would not have a Material Adverse Effect. No consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body is required for the execution, delivery and
performance of the Agreements or the consummation of the transactions
contemplated hereby or thereby, except for compliance with the Blue Sky laws,
federal securities laws and the rules and regulations of The Nasdaq Stock
Market, Inc. applicable to the offering of the Shares. Upon their execution and
delivery, and assuming the valid execution thereof by the Selling Stockholders
and the respective Purchasers, the Agreements will constitute legal, valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except as the
indemnification agreements of the Company in Section 8.3 hereof may be legally
unenforceable.
4.5 Accountants; Financial Statements. Ernst & Young LLP has
expressed its opinion with respect to the consolidated financial statements to
be incorporated by reference into the Registration Statement and the Prospectus
that forms a part thereof from the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1999 and are independent accountants as required by
the Securities Act and the rules and regulations promulgated thereunder (the
"Rules and Regulations"). The Company's consolidated financial statements
(including all notes and schedules thereto) included in or incorporated by
reference into the Private Placement Memorandum present fairly the consolidated
financial position, the results of operations, the statements of cash flows and
the statements of stockholders' equity and the other information purported to be
shown therein of the Company and the Subsidiaries at the respective dates and
for the respective periods to which they apply and such financial statements
have been prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved.
4.6 No Defaults. Neither the Company nor any of the
Subsidiaries is (i) in violation or default of any provision of its certificate
of incorporation, bylaws or other organizational documents, or (ii) in breach of
or default with respect to any provision of any agreement, judgment, decree,
order, mortgage, deed of trust, lease, franchise, license, indenture, permit or
other instrument to which it is a party or by which it or any of its assets or
properties
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are bound, except for breaches and defaults which individually or in the
aggregate would not have a Material Adverse Effect; and there does not exist any
state of fact which, with notice or lapse of time or both, would constitute an
event of default on the part of the Company or any of the Subsidiaries as
defined in such documents, except such defaults which individually or in the
aggregate would not have a Material Adverse Effect.
4.7 Contracts. The contracts described in the Private
Placement Memorandum that are material to the Company and the Subsidiaries are
in full force and effect and are valid and enforceable by the Company in
accordance with the terms thereof on the date hereof; and neither the Company
nor any of the Subsidiaries, nor, to the Company's knowledge, any other party
are in breach of or default under any of such contracts, which breaches and
defaults would individually or in the aggregate have a Material Adverse Effect.
4.8 No Actions. Except as disclosed in the Private Placement
Memorandum, there are no legal or governmental actions, suits or proceedings
pending or, to the Company's knowledge, threatened to which the Company or any
of the Subsidiaries is or may be a party or of which property owned or leased by
the Company or any of the Subsidiaries is or may be the subject, or related to
environmental or discrimination matters, which actions, suits or proceedings,
individually or in the aggregate, might prevent or might reasonably be expected
to materially and adversely affect the transactions contemplated by this
Agreement or result in a Material Adverse Effect; and no labor disturbance by
the employees of the Company or any of the Subsidiaries exists or, to the
Company's knowledge, is imminent which might reasonably be expected to have a
Material Adverse Effect. Except as disclosed in the Private Placement
Memorandum, neither the Company nor any of the Subsidiaries is a party to or
subject to the provisions of any material injunction, judgment, decree or order
of any court, regulatory body administrative agency or other governmental body.
4.9 Properties. Each of the Company and the Subsidiaries has
good and marketable title to all the properties and assets reflected as owned by
them in the consolidated financial statements included in the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 1999, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except (i) those, if any,
reflected in such consolidated financial statements, or (ii) those which are not
material in amount and do not adversely affect the use made and promised to be
made of such property by the Company or the Subsidiaries. Each of the Company
and the Subsidiaries holds its leased properties under valid and binding leases,
with such exceptions as are not materially significant in relation to their
respective businesses. Except as disclosed in the Private Placement Memorandum,
each of the Company and the Subsidiaries owns or leases all such properties as
are necessary to its operations as now conducted.
4.10 No Material Change. Since June 30, 1999, except for the
incurrence by the Company of indebtedness for borrowed money in the principal
amount of $1.0 million with respect to the Company's facility in Gaithersburg,
Maryland, (i) neither the Company nor the Subsidiaries have incurred any
liabilities or obligations, indirect, or contingent, or entered into any verbal
or written agreement or other transaction which is not in the ordinary course of
business or which could reasonably be expected to result in a material reduction
in the future
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earnings of the Company or the Subsidiaries or in a Material Adverse Effect;
(ii) neither the Company nor the Subsidiaries have sustained any material loss
or interference with its businesses or properties from fire, flood, windstorm,
accident or other calamity not covered by insurance; (iii) neither the Company
nor the Subsidiaries have paid or declared any dividends or other distributions
with respect to its capital stock and neither the Company nor the Subsidiaries
is in default in the payment of principal of or interest on any outstanding debt
obligations; (iv) there has not been any change in the capital stock of the
Company other than the sale of the Company Shares hereunder and shares or
options issued pursuant to employee stock option plans approved by the Company's
Board of Directors and stockholders, or indebtedness material to the Company
(other than in the ordinary course of business); and (v) there has not been a
change that would result in a Material Adverse Effect.
4.11 Intellectual Property. Except as disclosed in the Private
Placement Memorandum: (i) the Company and the Subsidiaries own or have obtained
valid and enforceable licenses or options for the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights and trade secrets necessary for the conduct of the
Company's and the Subsidiaries' respective businesses as currently conducted and
as the Private Placement Memorandum indicates the Company and the Subsidiaries
contemplate conducting (collectively, the "Intellectual Property"); (ii) to the
Company's knowledge, there are no third parties who have any ownership rights to
any Intellectual Property that is owned by, or has been licensed to, the Company
or the Subsidiaries for the indications for the Company's products described in
the Private Placement Memorandum that would preclude the Company or the
Subsidiaries from conducting their respective businesses as currently conducted
and as the Private Placement Memorandum indicates the Company and the
Subsidiaries contemplate conducting; (iii) to the Company's knowledge, there are
currently no sales of any products that would constitute an infringement by
third parties of any Intellectual Property owned, licensed or optioned by the
Company or the Subsidiaries; (iv) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others challenging
the rights of the Company or the Subsidiaries in or to any Intellectual Property
owned, licensed or optioned by the Company or the Subsidiaries; (v) there is no
pending or, to the Company's knowledge, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any Intellectual Property
owned, licensed or optioned by the Company or the Subsidiaries; and (vi) there
is no pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others that the Company or the Subsidiaries infringe or
otherwise violate any patent, trademark, copyright, trade secret or other
proprietary right of others, except, in the case of subsections (ii), (iii),
(iv), (v) and (vi) of this Section 4.11, where any such rights, activities,
actions, suits, proceedings or claims would not individually or in the aggregate
have a Material Adverse Effect.
4.12 Compliance. Neither the Company nor any of the
Subsidiaries has been advised, and has any reason to believe, that it is not
conducting its business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting business, including,
without limitation, all applicable local, state and federal environmental laws
and regulations; except where failure to be so in compliance would not
individually or in the aggregate have a Material Adverse Effect.
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4.13 Taxes. Each of the Company and the Subsidiaries has filed
all necessary federal, state, local and foreign income and franchise tax returns
and has paid or accrued all taxes shown as due thereon, and neither the Company
nor any of the Subsidiaries has knowledge of a tax deficiency which has been or
might be asserted or threatened against it which could have a Material Adverse
Effect.
4.14 Transfer Taxes. On the Closing Date, all stock transfers
or other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Shares to be sold to the Purchaser
hereunder will be, or will have been, fully paid or provided for by the Company
and all laws imposing such taxes will be or will have been fully complied with.
4.15 Insurance. Each of the Company and the Subsidiaries
maintains insurance of the type and in the amount that the Company reasonably
believes is prudent and customary in the businesses in which the Company and the
Subsidiaries are engaged, all of which insurance is in full force and effect.
4.16 Contributions. Neither the Company at any time since its
incorporation nor the Subsidiaries at any time since they were acquired or
formed by the Company have, directly or indirectly, (i) made any unlawful
contribution to any candidate for public office, or failed to disclose fully any
contribution in violation of law, or (ii) made any payment to any federal or
state governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or permitted by the
laws of the United States or any jurisdiction thereof.
4.17 Year 2000 Compliance. The Company has reviewed its
operations to evaluate the extent to which the business or operations of the
Company and the Subsidiaries will be affected by the Year 2000 Problem (as
defined below). As a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem will have a Material
Adverse Effect. The "Year 2000 Problem" as used herein means any significant
risk that computer hardware or software used by the Company or any Subsidiary in
the receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of mechanical or
electrical systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000.
4.18 Stabilization. The Company has not taken and will not
take, directly or indirectly, any action designed to cause or result in, or
which constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to facilitate the
sale or resale of the Shares.
4.19 Investment Company. The Company is not an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for an investment company, within the meaning of the Investment Company Act of
1940, as amended.
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4.20 Offering Materials. The Company has not distributed and
will not distribute prior to the Closing Date any offering material in
connection with the offering and sale of the Shares other than the Private
Placement Memorandum or any amendment or supplement thereto. The Company has not
in the past nor will it hereafter take any action independent of the Placement
Agent to sell, offer for sale or solicit offers to buy any securities of the
Company which would bring the offer, issuance or sale of the Shares, as
contemplated by this Agreement, within the provisions of Section 5 of the
Securities Act.
4.21 Related Party Transactions. No transaction has occurred
between or among the Company, any of the Subsidiaries and their affiliates,
officers or directors or any affiliate or affiliates of any such officer or
director that is required to be described under applicable securities laws and
is not described in the Private Placement Memorandum or any document
incorporated by reference therein.
4.22 Books and Records. The books, records and accounts of the
Company and the Subsidiaries accurately and fairly reflect, in reasonable
detail, the transactions in, and dispositions of, the assets of, and the results
of operations of, the Company and the Subsidiaries. The Company maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
4.23 Additional Information. The Company represents and
warrants that the information contained in the following documents, which the
Placement Agent has furnished to the Purchaser does not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the case of
clauses (a), (b), (c), (e) and (f), in the light of the circumstance under which
they were made, not misleading, and, in the case of clause (d), not misleading,
as of their respective final dates:
(a) the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1999;
(b) the Company's Proxy Statement for the 1999 Annual Meeting
of Stockholders;
(c) the Company's 1999 Annual Report to Stockholders;
(d) the Registration Statement;
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(e) the Private Placement Memorandum, including all exhibits
thereto (other than the Appendices); and
(f) all other documents, if any, filed by the Company with
the Securities and Exchange Commission since June 30,
1999 pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act").
4.24 Legal Opinions. Prior to and as a condition to the Closing, (i)
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel to the Company and the Selling
Stockholders, will deliver its legal opinion to the Purchasers in substantially
the form set forth on Exhibit B hereto, (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, Golden
& ▇▇▇▇▇▇▇, special counsel to the Company, will deliver their legal opinions to
the Purchasers as to certain intellectual property matters in form and substance
reasonably satisfactory to the Placement Agent and its counsel, (iii) Brazilian
counsel to the Company will deliver its legal opinion to the Purchasers as to
certain matters relating to Digene Brasil in form and substance reasonably
satisfactory to the Placement Agent and its counsel and (iv) Netherlands counsel
to the Company will deliver its legal opinion to the Purchasers as to certain
matters relating to Digene B.V. and Viropath B.V. in form and substance
reasonably satisfactory to the Placement Agent and its counsel. Each such
opinion shall also state that the Placement Agent may rely thereon as though it
were addressed directly to the Placement Agent.
4.25 Certificate. At the Closing, the Company will deliver to
the Purchasers a certificate executed by the Chairman of the Board or President
and the chief financial or accounting officer of the Company, dated the Closing
Date, in form and substance reasonably satisfactory to the Purchasers, to the
effect that the representations and warranties of the Company set forth in this
Section 4 are true and correct in all material respects as of the date of this
Agreement and as of the Closing Date, and that the Company has complied with all
the agreements and satisfied all the conditions herein on its part to be
performed or satisfied on or prior to such Closing Date.
SECTION 5. Representations, Warranties and Covenants of the
Selling Stockholders. Each of the Selling Stockholders, severally and not
jointly, represents, warrants and covenants to the Company and to the Purchaser
that:
5.1 Organization and Qualification. If organized as a
partnership, such Selling Stockholder is, and at the Closing Date will be, duly
formed under the laws of the jurisdiction of its organization.
5.2 Due Execution and Delivery. Such Selling Stockholder has
full power and authority to enter into the Agreements and to carry out all the
terms and provisions hereof and thereof to be carried out by it. All
authorizations and consents necessary for the execution and delivery by such
Selling Stockholder of the Agreements have been given. The Agreements have been
duly authorized, executed and delivered by or on behalf of such Selling
Stockholder and, assuming the valid execution thereof by the Company and the
respective Purchasers, the
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Agreements will constitute legal, valid and binding obligations of such Selling
Stockholder, enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Selling
Stockholders in Section 8.3 hereof may be legally unenforceable.
5.3 Good Title. Such Selling Stockholder now has good, valid
and marketable title to the Selling Stockholder Shares to be sold by such
Selling Stockholder hereunder or to the Options upon exercise of which such
Selling Stockholder Shares will be issued, free and clear of all encumbrances,
and at the time of delivery of the Selling Stockholder Shares to be sold by such
Selling Stockholder hereunder will have good, valid and marketable title to such
Selling Stockholder Shares, free and clear of all encumbrances. Such Selling
Stockholder now has, and at the time of delivery of the Selling Stockholder
Shares to be sold by such Selling Stockholder hereunder will have full legal
right and power, and all authorizations and approvals required by law, to sell,
transfer and deliver the Selling Stockholder Shares to the Purchasers hereunder
and under the other Agreements and to make the representations, warranties and
agreements made by such Selling Stockholder herein and therein.
5.4. No Defaults. Neither the execution, delivery or
performance of the Agreements, nor the consummation of the transactions
contemplated therein by such Selling Stockholder conflicts or will conflict with
or results or will result in any breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any encumbrance upon, any property or assets of such Selling
Stockholder pursuant to (i) the terms of its organizational documents, if any;
(ii) the terms of any contract or other agreement to which such Selling
Stockholder is a party or by which it is bound or to which any of its assets or
properties is subject, which conflict, breach, violation or default would
adversely affect such Selling Stockholder's ability to perform its obligations
hereunder; (iii) any statute, rule or regulation of any governmental body having
jurisdiction over such Selling Stockholder or any of its activities, assets or
properties; or (iv) the terms of any judgment, decree or order of any
arbitration or governmental body having such jurisdiction.
5.5. Consents. No consent, approval, authorization or order
of, or any filing or declaration with, any governmental body is required for the
consummation by such Selling Stockholder of the transactions on its part
contemplated herein, except for compliance with the Blue Sky laws and federal
securities laws applicable to the offering of the Selling Stockholder Shares
proposed to be sold by such Selling Stockholder.
5.6. Stabilization. Such Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed to cause or result
in, or which constitutes or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares.
5.7. Material Adverse Information. The sale of the Selling
Stockholder Shares
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proposed to be sold by such Selling Stockholder is not prompted by such Selling
Stockholder's knowledge of any material adverse information concerning the
Company or the Subsidiaries which is not set forth or described in the Private
Placement Memorandum.
5.8. Material Information. On the date of the Private
Placement Memorandum, the information with respect to such Selling Stockholder
included therein did not contain any 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.
5.9. Company Representations and Warranties. Such Selling
Stockholder has no reason to believe that the representations and warranties of
the Company contained in Section 4 are not true and correct in all material
respects.
5.10 Certificate. At the Closing, such Selling Stockholder
will deliver to the Purchasers a certificate executed by such Selling
Stockholder, dated the Closing Date, in form and substance reasonably
satisfactory to the Purchasers, to the effect that the representations and
warranties of such Selling Stockholder set forth in this Section 5 are true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date, and that such Selling Stockholder has complied with all the
agreements and satisfied all the conditions herein on his or its part to be
performed or satisfied on or prior to such Closing Date.
SECTION 6. Representations, Warranties and Covenants of the
Purchaser. (a) The Purchaser represents and warrants to, and covenants with, the
Company and the Selling Stockholders as of the date of this Agreement and as of
the date of the Closing that: (i) the Purchaser is knowledgeable, sophisticated
and experienced in making, and is qualified to make, decisions with respect to
investments in shares representing an investment decision like that involved in
the purchase of the Shares, including investments in securities issued by the
Company, and has requested, received, reviewed and considered all information it
deems relevant in making an informed decision to purchase the Shares; (ii) the
Purchaser is acquiring the number of Shares set forth in Section 2 above in the
ordinary course of its business and for its own account for investment only and
with no present intention of distributing any of such Shares or any arrangement
or understanding with any other persons regarding the distribution of such
Shares (this representation and warranty not limiting the Purchaser's right to
sell pursuant to the Registration Statement or, other than with respect to any
claims arising out of a breach of this representation and warranty, the
Purchaser's right to indemnification under Section 8.3); (iii) the Purchaser
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Shares except in compliance with the Securities Act and
the Rules and Regulations; (iv) the Purchaser has completed or caused to be
completed the Registration Statement Questionnaire and the Stock Certificate
Questionnaire, both attached hereto as Appendix I, for use in preparation of the
Registration Statement, and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the effective date of the
Registration Statement; (v) the Purchaser has, in connection with its decision
to purchase the number of Shares set forth in Section 2 above, relied solely
upon the Private Placement Memorandum and the documents included therein and the
representations and warranties of the Company contained herein; and (vi) the
Purchaser is an
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"accredited investor" within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act.
(b) The Purchaser understands that the Shares are being
offered and sold to it in reliance upon specific exemptions from the
registration requirements of Securities Act, the Rules and Regulations and state
securities laws and that the Company is relying upon the truth and accuracy of,
and the Purchaser's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth herein
in order to determine the availability of such exemptions and the eligibility of
the Purchaser to acquire the Shares.
(c) The Purchaser understands that its investment in the
Shares involves a significant degree of risk and that the market price of the
Common Stock has been volatile and that no representation is being made as to
the future value of the Common Stock. The Purchaser has the knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Shares and has the ability to bear the
economic risks of an investment in the Shares.
(d) The Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed upon or
made any recommendation or endorsement of the Shares.
(e) The Purchaser understands that, until such time as the
Registration Statement has been declared effective and the certificate in the
form of Appendix II hereto has been delivered to the Company or the Shares may
be sold pursuant to Rule 144 under the Securities Act without any restriction as
to the number of securities as of a particular date that can then be immediately
sold, the Shares may bear a restrictive legend in substantially the following
form (and a stop-transfer order may be placed against transfer of the
certificates for the Shares):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities may not be sold, transferred or assigned in the
absence of an effective registration statement for the
securities under said Act, or an opinion of counsel, in form,
substance and scope reasonably acceptable to the Company, that
registration is not required under said Act or unless sold
pursuant to Rule 144 under said Act."
(f) The Purchaser's principal executive offices are in the
jurisdiction set forth immediately below the Purchaser's name on the signature
pages hereto.
(g) The Purchaser hereby covenants with the Company not to
make any sale of the Shares under the Registration Statement without effectively
causing the prospectus delivery requirement under the Securities Act to be
satisfied, and the Purchaser acknowledges and agrees that such Shares are not
transferable on the books of the Company unless the
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certificate submitted to the transfer agent evidencing the Shares is accompanied
by a separate officer's certificate: (i) in the form of Appendix II hereto, (ii)
executed by an officer of, or other authorized person designated by, the
Purchaser, and (iii) to the effect that (A) the Shares have been sold in
accordance with the Registration Statement and (B) the requirement of delivering
a current prospectus has been satisfied. The Purchaser acknowledges that there
may occasionally be times when the Company must suspend the use of the
prospectus forming a part of the Registration Statement until such time as an
amendment to the Registration Statement has been filed by the Company and
declared effective by the Commission, or until such time as the Company has
filed an appropriate report with the Commission pursuant to the Exchange Act.
The Purchaser hereby covenants that it will not sell any Shares pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Purchaser written notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchaser written notice that the
Purchaser may thereafter effect sales pursuant to said prospectus. The Purchaser
further covenants to notify the Company promptly of the sale of all of its
Shares.
(h) The Purchaser further represents and warrants to, and
covenants with, the Company that (i) the Purchaser has full right, power,
authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
legal, valid and binding obligation of the Purchaser, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except as the
indemnification agreements of the Purchaser in Section 8.3 hereof may be legally
unenforceable.
SECTION 7. Survival of Representations, Warranties and
Agreements. Notwithstanding any investigation made by any party to this
Agreement or by the Placement Agent, all covenants, agreements, representations
and warranties made by the Company, the Selling Stockholders and the Purchaser
herein and in the certificates for the Shares delivered pursuant hereto shall
survive the execution of this Agreement, the delivery to the Purchaser of the
Shares being purchased and the payment therefor.
SECTION 8. Registration of the Shares; Compliance with the
Securities Act.
8.1 Registration Procedures and Expenses. The Company shall:
(a) as soon as practicable, prepare and file with the
Commission the Registration Statement on Form S-3
relating to the sale of the Shares by the Purchaser from
time to time on the Nasdaq National Market or the
facilities of any national securities exchange on which
the Common Stock is then traded or in privately-
negotiated transactions;
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(b) use its reasonable efforts, subject to receipt of
necessary information from the Purchasers, to cause the
Commission to notify the Company of the Commission's
willingness to declare the Registration Statement
effective within 60 days after the Registration Statement
is filed by the Company;
(c) promptly prepare and file with the Commission such
amendments and supplements to the Registration Statement
and the prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective
until the earlier of (i) two years after the effective
date of the Registration Statement or (ii) the date on
which the Shares may be resold by the Purchasers without
registration by reason of Rule 144(k) under the Securities
Act or any other rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares
registered under the Registration Statement (and to each
underwriter, if any, of such Shares) such number of copies
of prospectuses and such other documents as the Purchaser
may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Shares by
the Purchaser; provided, however, that the obligation of
the Company to deliver copies of prospectuses to the
Purchaser shall be subject to the receipt by the Company
of reasonable assurances from the Purchaser that the
Purchaser will comply with the applicable provisions of
the Securities Act and of such other securities or blue
sky laws as may be applicable in connection with any use
of such prospectuses;
(e) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Purchaser;
provided, however, that the Company shall not be required
to qualify to do business or consent to service of process
in any jurisdiction in which it is not now so qualified or
has not so consented; and
(f) bear all expenses in connection with the procedures in
paragraphs (a) through (e) of this Section 8.1 and the
registration of the Shares pursuant to the Registration
Statement, other than fees and expenses, if any, of
counsel or other advisers to the Purchaser or the Other
Purchasers and underwriting discounts, brokerage fees and
commissions incurred by the Purchaser or the Other
Purchasers, if any.
The Company understands that the Purchaser disclaims being an
underwriter, but the Purchaser being deemed an underwriter shall not relieve the
Company of any obligations it has hereunder. A draft of the proposed form of the
Registration Statement is attached to the Private Placement Memorandum as
Exhibit D and a questionnaire related thereto to be completed by the Purchaser
is attached hereto as Appendix I.
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8.2 Transfer of Shares After Registration. The Purchaser
agrees that it will not effect any disposition of the Shares or its right to
purchase the Shares that would constitute a sale within the meaning of the
Securities Act, except as contemplated in the Registration Statement referred to
in Section 8.1, and that it will promptly notify the Company of any changes in
the information set forth in the Registration Statement regarding the Purchaser
or its plan of distribution.
8.3 Indemnification. For the purpose of this Section 8.3:
(i) the term "Purchaser/Affiliate" shall mean any
affiliates of the Purchaser and any person who
controls the Purchaser or any affiliate of the
Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act; and
(ii) the term "Registration Statement" shall include any
final prospectus, exhibit, supplement or amendment
included in or relating to, and any document
incorporated by reference in, the Registration
Statement referred to in Section 8.1.
(a) The Company agrees to indemnify and hold harmless each of
the Purchasers and each Purchaser/Affiliate, against any losses, claims,
damages, liabilities or expenses, joint or several, to which such Purchasers or
such Purchaser/Affiliates may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any claims or litigation, if
such settlement is effected with the written consent of the Company), insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, including the prospectus, financial statements and
schedules, and all other documents filed as a part thereof, as amended at the
time of effectiveness of the Registration Statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules and
Regulations, or the prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, or filed as part of the
Registration Statement at the time of effectiveness if no Rule 424(b) filing is
required (the "Prospectus"), or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state in any of
them a material fact required to be stated therein or necessary to make the
statements in the Registration Statement or any amendment or supplement thereto
not misleading or in the Prospectus or any amendment or supplement thereto not
misleading in the light of the circumstances under which they were made, or
arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained in this Agreement, or
any failure of the Company to perform its obligations hereunder or under law,
and will reimburse each Purchaser and each such Purchaser/Affiliate for any
legal and other expenses as such expenses are reasonably incurred by such
Purchaser or such Purchaser/Affiliate in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the Company will not be
liable in
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any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Purchaser expressly for use therein, or (ii) the failure of such Purchaser
to comply with the covenants and agreements contained in Sections 6(b), 6(g) or
8.2 hereof respecting the sale of the Shares, or (iii) the inaccuracy of any
representations made by such Purchaser herein or (iv) any statement or omission
in any Prospectus or any amendment or supplement thereto that is corrected in
any subsequent Prospectus or any amendment or supplement thereto that was
delivered to the Purchaser prior to the pertinent sale or sales by the
Purchaser.
(b) Each Purchaser will severally, but not jointly, indemnify
and hold harmless the Company and each Selling Stockholder, each of the
Company's directors, each of the Company's officers who signed the Registration
Statement and each person, if any, who controls the Company or any Selling
Stockholder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement, any Selling Stockholder or any of their
respective controlling persons may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any claim or litigation, if
such settlement is effected with the written consent of such Purchaser) insofar
as such losses, claims, damages, liabilities or expenses (or actions in respect
thereof as contemplated below) arise out of or are based upon (i) any failure to
comply with the covenants and agreements contained in Sections 6(b), 6(g) or 8.2
hereof respecting the sale of the Shares or (ii) the inaccuracy of any
representation made by such Purchaser herein or (iii) any untrue or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements in the
Registration Statement or any amendment or supplement thereto not misleading or
in the Prospectus or any amendment or supplement thereto not misleading in the
light of the circumstances under which they were made, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser expressly for use therein, and will reimburse the Company, each of its
directors, each of its officers who signed the Registration Statement or
controlling person for any legal and other expense reasonably incurred by the
Company, each of its directors, each of its officers who signed the Registration
Statement or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action.
(c) Each Selling Stockholder will severally indemnify and hold
harmless each Purchaser, each Purchaser/Affiliate, the Company, each of its
directors and each of its officers who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act,
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against any losses, claims, damages, liabilities or expenses to which the
Company, each of its directors, each of its officers who signed the Registration
Statement or controlling person may become subject, under the Securities Act,
the Exchange Act, or any other federal or state statutory law or regulation, or
at common law or otherwise (including the settlement of any claim or litigation,
if such settlement is effected with the written consent of such Selling
Stockholder) insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof as contemplated below) arise out of, or are based
upon (i) any failure to comply with the covenants and agreements of such Selling
Stockholder contained in the Agreements or (ii) the inaccuracy of any
representation made by such Selling Stockholder in the Agreements or (iii) any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements in the Registration Statement or any amendment or supplement thereto
not misleading or in the Prospectus or any amendment or supplement thereto not
misleading in the light of the circumstances under which they were made, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use therein.
(d) Promptly after receipt by an indemnified party under this
Section 8.3 of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 8.3 promptly notify the indemnifying party
in writing thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section 8.3 or to the extent it is not prejudiced as a result of such failure.
In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in, and, to the extent
that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and, based upon
the advice of such indemnified party's counsel, the indemnified party shall have
reasonably concluded that there may be a conflict of interest between the
positions of the indemnifying party and the indemnified party in conducting the
defense of any such action or that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8.3 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed such counsel in connection with the assumption of legal defenses in
accordance with the proviso
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to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
representing the indemnified parties who are parties to such action, plus local
counsel, if appropriate) or (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
action, in each of which cases the reasonable fees and expenses of counsel shall
be at the expense of the indemnifying party.
(e) If the indemnification provided for in this Section 8.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or(c) of this Section 8.3 in respect to any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of any losses, claims, damages, liabilities or expenses referred to
herein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, each Selling Stockholder and the Purchaser from the
placement of the Common Stock contemplated by this Agreement or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but the relative fault of the Company, each
Selling Stockholder and the Purchaser in connection with the statements or
omissions or inaccuracies in the representations and warranties in this
Agreement that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and each Selling Stockholder, respectively, on
the one hand and each Purchaser on the other shall be deemed to be in the same
proportion as the amount paid by such Purchaser to the Company and each Selling
Stockholder, respectively, pursuant to this Agreement for the Shares purchased
by such Purchaser that were sold pursuant to the Registration Statement bears to
the difference (the "Difference") between the amount such Purchaser paid for the
Shares that were sold pursuant to the Registration Statement and the amount
received by such Purchaser from such sale. The relative fault of the Company and
each Selling Stockholder, respectively, on the one hand and each Purchaser on
the other shall be determined by reference to, among other things, whether the
untrue or alleged statement of a material fact or the omission or alleged
omission to state a material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the Company,
by such Selling Stockholder or by such Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in paragraph (d) of this
Section 8.3, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
provisions set forth in paragraph (d) of this Section 8.3 with respect to the
notice of the threat or commencement of any action shall apply if a claim for
contribution is to be made under this paragraph (e); provided, however, that no
additional notice shall be required with respect to any threat or action for
which notice has been given under paragraph (d) for purposes of indemnification.
The Company, the Selling Stockholders and each Purchaser agree that it would not
be just and equitable if contribution pursuant to this Section 8.3 were
determined solely by pro rata allocation (even if the Purchaser were treated as
one entity for such purpose) or
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by any other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding the provisions of
this Section 8.3, no Purchaser shall be required to contribute any amount in
excess of the amount by which the Difference exceeds the amount of any damages
that such Purchaser has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. Notwithstanding the
provisions of this Section 8.3, no Selling Stockholder shall be required to
contribute any amount in excess of the gross proceeds received by such Selling
Stockholder for the sales of Selling Stockholder Shares under the Agreements. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Purchasers'
obligations to contribute pursuant to this Section 8.3 are several and not
joint.
8.4 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 6 or this Section 8 upon the transferability of the
Shares shall cease and terminate as to any particular number of the Shares upon
the passage of two years from the effective date of the Registration Statement
covering such Shares or at such time as an opinion of counsel satisfactory in
form and substance to the Company shall have been rendered to the effect that
such conditions are not necessary in order to comply with the Securities Act.
8.5 Information Available. So long as the Registration
Statement is effective covering the resale of Shares owned by the Purchaser, the
Company will furnish to the Purchaser:
(a) as soon as practicable after available (but in the case of
the Company's Annual Report to Stockholders, within 120
days after the end of each fiscal year of the Company),
one copy of (i) its Annual Report to Stockholders (which
Annual Report shall contain financial statements audited
in accordance with generally accepted accounting
principles by a national firm of independent public
accountants), (ii) upon the request of the Purchaser, its
Annual Report on Form 10-K, (iii) upon the request of the
Purchaser, its Quarterly Reports on Form 10-Q, (iv) upon
the request of the Purchaser, its Current Reports on Form
8-K, and (v) a full copy of the particular Registration
Statement covering the Shares (the foregoing, in each
case, excluding exhibits);
(b) upon the request of the Purchaser, all exhibits excluded
by the parenthetical to subparagraph (a)(v) of this
Section 8.5; and
(c) upon the request of the Purchaser, a reasonable number of
copies of the prospectuses to supply to any other party
requiring such prospectuses;
and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Registration Statement
covering the Shares and will otherwise cooperate with any Purchaser conducting
an investigation for the purpose of reducing or eliminating such
-20-
21
Purchaser's exposure to liability under the Securities Act, including the
reasonable production of information at the Company's headquarters, subject to
appropriate confidentiality limitations.
SECTION 9. Broker's Fee. The Purchaser acknowledges that the
Company and the Selling Stockholders intend to pay to the Placement Agent a fee
in respect of the sale of the Shares to the Purchaser. Each of the parties
hereto hereby represents that, on the basis of any actions and agreements by it,
there are no other brokers or finders entitled to compensation in connection
with the sale of the Shares to the Purchaser.
SECTION 10. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) if to the Company, to:
before January 1, 2000 after January 1, 2000
---------------------- ---------------------
Digene Corporation Digene Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: 800-DIGENE-1
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person at such other place as the
Company shall designate to the Purchaser in writing; and
(b) if to the Purchaser, 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.
(c) if to the Selling Stockholders, at the addresses set forth
in Exhibit A hereto.
-21-
22
SECTION 11. Changes. This Agreement may not be modified or
amended except pursuant to an instrument in writing signed by the Company and
the Purchaser.
SECTION 12. Headings. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
SECTION 13. Severability. In case any provision contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York and the
federal law of the United States of America.
SECTION 15. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one instrument, and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
SECTION 16. Entire Agreement. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, none of the Company, the Selling
Stockholders or the Purchaser makes any representation, warranty, covenant or
undertaking with respect to such matters.
SECTION 17. Third Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
-22-
23
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
DIGENE CORPORATION
By:
-------------------------------
Name:
Title:
SELLING STOCKHOLDERS:
ARMONK PARTNERS
By:
-------------------------------
Name:
Title:
VALLEY PARTNERS
By:
-------------------------------
Name:
Title:
----------------------------------
▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-23-
24
Print or Type:
Name of Purchaser
(Individual or Institution):
---------------------------------
Name of Individual representing
Purchaser (if an Institution):
---------------------------------
Title of Individual representing
Purchaser (if an Institution):
---------------------------------
Signature by:
Individual Purchaser or Individual
representing Purchaser:
---------------------------------
Address:
---------------------------------
Telephone:
---------------------------------
Facsimile:
---------------------------------
-24-
25
SUMMARY INSTRUCTION SHEET FOR PURCHASER
(to be read in conjunction with the entire
Purchase Agreement which follows)
A. Complete the following items on BOTH Purchase Agreements:
1. Page 24 - Signature:
(i) Name of Purchaser (Individual or Institution)
(ii) Name of Individual representing Purchaser (if an
Institution)
(iii) Title of Individual representing Purchaser (if an
Institution)
(iv) Signature of Individual Purchaser or Individual
representing Purchaser
2. Appendix I - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire.
Appendix I - Registration Statement Questionnaire:
Provide the information requested by the Registration
Statement Questionnaire.
3. Return BOTH properly completed and signed Purchase Agreements
including the properly completed Appendix I to:
Prudential Vector Healthcare Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Deutsch
B. Instructions regarding the transfer of funds for the purchase of Shares
will be sent by facsimile to the Purchaser by the Placement Agent at a
later date.
C. Upon the resale of the Shares by the Purchasers after the Registration
Statement covering the Shares is effective, as described in the
Purchase Agreement, the Purchaser:
(i) must deliver a current prospectus of the Company to
the buyer (prospectuses must be obtained from the
Company at the Purchaser's request); and
(ii) must send a letter in the form of Appendix II to the
Company so that the Shares may be properly
transferred.
26
Appendix I
(one of two)
DIGENE CORPORATION
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of this Agreement,
please provide us with the following information:
1. The exact name that your Shares are to be
registered in (this is the name that will appear
on your stock certificate(s)). You may use a
nominee name if appropriate:
----------------------
2. The relationship between the Purchaser of the
Shares and the Registered Holder listed
in response to item 1 above:
----------------------
3. The mailing address of the Registered Holder
listed in response to item 1 above:
----------------------
----------------------
----------------------
----------------------
4. The Social Security Number or Tax
Identification Number of the Registered
Holder listed in response to item 1 above:
----------------------
27
Appendix I
(two of two)
DIGENE CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration
Statement, please provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the
Registration Statement, please state your or your organization's name exactly as
it should appear in the Registration Statement:
2. Please provide the number of shares that you or your
organization will own immediately after Closing, including those Shares
purchased by you or your organization pursuant to this Agreement and those
shares purchased by you or your organization through other transactions:
3. Have you or your organization had any position, office or
other material relationship within the past three years with the Company or its
affiliates?
Yes No
----- -----
If yes, please indicate the nature of any such relationships
below:
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
28
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [an officer of, or other person duly author-
ized by] _____________________________________________________________
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of the shares
evidenced by the attached certificate, and as such, sold such shares on ________
[date]
in accordance with
Registration Statement number ________________________________________
[fill in the number of or otherwise
________________________________ and the requirement of delivering a
identify Registration Statement]
current prospectus by the Company has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser
(Individual or
Institution):
----------------------
Name of Individual
representing
Purchaser (if an
Institution)
----------------------
Title of Individual
representing
Purchaser (if an
Institution):
----------------------
Signature by:
Individual Purchaser
or Individual
representing Purchaser:
--------------------
29
EXHIBIT A
SELLING STOCKHOLDERS
Name of Aggregate Number of
Selling Stockholder Address for Notices Shares to be Sold
------------------- ------------------- -------------------
Armonk Partners ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇,▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Valley Partners ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇,▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 88,000
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 88,000
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 51,000
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Total 600,000