EXHIBIT 2
WAIVER OF CONTRACTUAL RESTRICTIONS
This Waiver (this "WAIVER") is entered into on February 6, 2001 by and
between La Jolla Pharmaceutical Company ("LJP") and Xxxxxx Laboratories
("ABBOTT").
RECITALS
WHEREAS, LJP and Abbott entered into that certain Stock Purchase Agreement,
dated December 23, 1996 (the "AGREEMENT");
WHEREAS, Abbott acquired certain shares of common stock of LJP (the
"SHARES") under the Agreement;
WHEREAS, Abbott desires to sell the Shares from time to time without the
restrictions currently imposed by the Agreement; and
WHEREAS, Abbott and LJP mutually desire to terminate certain rights that
each has under the Agreement.
NOW, THEREFORE, in consideration of the representations, warranties and
covenants herein contained, the parties hereto hereby agree as follows:
AGREEMENT
1. WAIVER OF LJP. LJP hereby fully, finally and irrevocably waives the
following:
(a) the restrictions on transfer contained in Section 5(b) of the
Agreement;
(b) its right of first refusal contained in Section 5(c) of the
Agreement; and
(c) Xxxxxx'x obligation to cause certain subsequent purchasers of the
Shares to be bound by the terms of the Agreement contained in Section 5(e) of
the Agreement.
2. RELIANCE BY ABBOTT. LJP agrees that Abbott may rely on this Waiver in
disposing of the Shares without regard to the sale and transfer restrictions
contained in the Agreement and without offering LJP the opportunity to purchase
the Shares, as previously required by the Agreement. Notwithstanding the
foregoing, if and to the extent that it is reasonably practicable, Abbott will
give LJP 48 hours written notice prior to selling a significant amount of its
Shares.
3. WAIVER OF XXXXXX. Xxxxxx hereby fully, finally and irrevocably waives
the following:
(a) its right to receive reports that LJP periodically files with the
Securities and Exchange Commission contained in Section 5(a) of the Agreement;
(b) LJP's Nasdaq obligations contained in Section 5(f) of the
Agreement;
(c) its right of first refusal on new issuances of securities of the
LJP contained
in Section 5(h) of the Agreement; and
(d) its rights contained in Section 6 of the Agreement, including,
without limitation, its demand registration rights under Section 6(a) of the
Agreement, if any currently exist, and its incidental registration rights under
Section 6(c) of the Agreement.
4. RELEASE OF ABBOTT. LJP, for itself and its agents, successors and
assigns, does hereby forever release and discharge Abbott, and any of its past
or present agents, employees, officers, directors, attorneys from causes of
action, losses, promises, damages, costs, expenses, liabilities and demands of
whatsoever character, nature and kind, known or unknown, suspected or
unsuspected, fixed or contingent, arising out of or in any way related to the
actions, conduct, omissions or events related to or arising out of this Waiver.
5. RELEASE OF THE LJP. Abbott, for itself and its agents, successors and
assigns, does hereby forever release and discharge LJP, and any of its past or
present agents, employees, officers, directors, attorneys from causes of action,
losses, promises, damages, costs, expenses, liabilities and demands of
whatsoever character, nature and kind, known or unknown, suspected or
unsuspected, fixed or contingent, arising out of or in any way related to the
actions, conduct, omissions or events related to or arising out of this Waiver.
6. WAIVER OF SECTION 1542 OF THE CIVIL CODE. The parties specifically
understand, acknowledge and agree that the releases enumerated in SECTIONS 4 AND
5 of this Waiver are a full and final releases, which shall be effective as a
bar to all actions, claims, counterclaims, obligations, causes of action,
losses, promises, damages, costs, expenses, liabilities and demands of
whatsoever character, nature and kind, known and unknown, suspected or
unsuspected, fixed or contingent, hereinabove specified to be so barred. The
parties, having been fully advised by their respective counsel, hereby expressly
and voluntarily waive all rights or benefits that they and each of them might
otherwise have under the provisions of Section 1542 of the Civil Code of the
State of California, which provides as follows, and under all federal, state
and/or common law statutes or principles of similar effect:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement
with the debtor.
7. COUNTERPARTS. This Waiver may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one instrument, and signatures transmitted electronically or by
facsimile will be deemed original signatures.
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IN WITNESS WHEREOF, LJP and Abbott each have caused this Waiver to be
executed by a duly authorized officer as of the date first written above.
LA JOLLA PHARMACEUTICAL COMPANY:
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Xxxxxx X. Xxxxx,
Chief Executive Officer
XXXXXX LABORATORIES:
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Xxxx X. Xxxxxx
Vice President and Treasurer
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