the notice of sale, via
express courier, by electronic transfer or otherwise on or before the Delivery
Date.
(b)
In lieu of delivering physical certificates representing the
Unlegended Shares, if the Company's transfer agent is participating in the
Depository Trust Company ("DTC") Fast Automated Securities Transfer program,
upon request of a Subscriber and its compliance with the provisions contained in
this paragraph, so long as the certificates therefore do not bear a legend and
the Subscriber is not obligated to return such certificate for the placement of
a legend thereon, the Company shall cause its transfer
20
agent to electronically transmit the Unlegended Shares by crediting the account
of Subscriber's prime broker with DTC through its Deposit Withdrawal Agent
Commission system.
12.
MISCELLANEOUS.
(A)
NOTICES.
ALL NOTICES, DEMANDS, REQUESTS, CONSENTS, APPROVALS, AND
OTHER COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING AND,
UNLESS OTHERWISE SPECIFIED HEREIN, SHALL BE (I) PERSONALLY SERVED, (II)
DEPOSITED IN THE MAIL, REGISTERED OR CERTIFIED, RETURN RECEIPT REQUESTED,
POSTAGE PREPAID, (III) DELIVERED BY REPUTABLE AIR COURIER SERVICE WITH CHARGES
PREPAID, OR (IV) TRANSMITTED BY HAND DELIVERY, TELEGRAM, OR FACSIMILE, ADDRESSED
AS SET FORTH BELOW OR TO SUCH OTHER ADDRESS AS SUCH PARTY SHALL HAVE SPECIFIED
MOST RECENTLY BY WRITTEN NOTICE.
ANY NOTICE OR OTHER COMMUNICATION REQUIRED OR
PERMITTED TO BE GIVEN HEREUNDER SHALL BE DEEMED EFFECTIVE (A) UPON HAND DELIVERY
OR DELIVERY BY FACSIMILE, WITH ACCURATE CONFIRMATION GENERATED BY THE
TRANSMITTING FACSIMILE MACHINE, AT THE ADDRESS OR NUMBER DESIGNATED BELOW (IF
DELIVERED ON A BUSINESS DAY DURING NORMAL BUSINESS HOURS WHERE SUCH NOTICE IS TO
BE RECEIVED), OR THE FIRST BUSINESS DAY FOLLOWING SUCH DELIVERY (IF DELIVERED
OTHER THAN ON A BUSINESS DAY DURING NORMAL BUSINESS HOURS WHERE SUCH NOTICE IS
TO BE RECEIVED) OR (B) ON THE SECOND BUSINESS DAY FOLLOWING THE DATE OF MAILING
BY EXPRESS COURIER SERVICE, FULLY PREPAID, ADDRESSED TO SUCH ADDRESS, OR UPON
ACTUAL RECEIPT OF SUCH MAILING, WHICHEVER SHALL FIRST OCCUR.
THE ADDRESSES FOR
SUCH COMMUNICATIONS SHALL BE: (I) IF TO THE COMPANY, TO: ANDOVER MEDICAL, INC.,
510 TURNPIKE STREET, SUITE 204, N. ANDOVER, MA 01845, ATTN: EDWIN A. REILLY,
PRESIDENT, TELECOPIER: (978) 557-1004, AND (II) IF TO THE SUBSCRIBERS, TO: THE
ADDRESS AND FACSIMILE NUMBER INDICATED ON THE SIGNATURE PAGE HERETO, WITH A COPY
BY FACSIMILE ONLY TO: ELLIOT H. LUTZKER, ESQ., PHILLIPS NIZER LLP, 666 FIFTH
AVENUE, NEW YORK, NY 10103,
TELECOPIER: (212) 262-5152.
(B)
ENTIRE AGREEMENT; ASSIGNMENT.
THIS AGREEMENT AND OTHER DOCUMENTS
DELIVERED IN CONNECTION HEREWITH REPRESENT THE ENTIRE AGREEMENT BETWEEN THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY BE AMENDED ONLY
BY A WRITING EXECUTED BY BOTH PARTIES.
NEITHER THE COMPANY NOR THE SUBSCRIBERS
HAVE RELIED ON ANY REPRESENTATIONS NOT CONTAINED OR REFERRED TO IN THIS
AGREEMENT AND THE DOCUMENTS DELIVERED HEREWITH.
NO RIGHT OR OBLIGATION OF
EITHER PARTY SHALL BE ASSIGNED BY THAT PARTY WITHOUT PRIOR NOTICE TO AND THE
WRITTEN CONSENT OF THE OTHER PARTY.
(C)
EXECUTION.
THIS AGREEMENT MAY BE EXECUTED BY FACSIMILE
TRANSMISSION, AND IN COUNTERPARTS,