Exhibit 4.5
AGREEMENT OF SUBSTITUTION AND
AMENDMENT OF RIGHTS AGREEMENT
This Agreement of Substitution and Amendment of Rights Agreement (the
"Amendment") is entered into as of August 19, 2002, by and between Fresh Brands,
Inc., a Wisconsin corporation (the "Company") and American Stock Transfer and
Trust Company, a New York banking corporation ("AST").
RECITALS
A. On or about October 12, 2001 , the Company entered into a Common Shares
Rights Agreements (the "Rights Agreement") with Firstar Bank, N.A., a
National Banking Association (the "Predecessor Agent"), pursuant which the
Predecessor Agent agreed to act as the Company's rights agent.
B. Predecessor Agent was chosen as the Company's rights agent because
Predecessor Agent was the Company's transfer agent and performed certain
other related services.
C. Predecessor Agent has indicated that it will cease performing transfer
agent and related services.
D. The Company wishes to remove the Predecessor Agent and substitute AST as
rights agent pursuant to Section 21 of the Rights Agreement, and AST wishes
to accept such substitution.
E. The Company has given the Predecessor Agent notice of removal of the
Predecessor Agent as rights agent.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and of other
consideration, the sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. Section 21 of the Rights Agreement is deleted and replaced by the
following:
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties
under this Agreement upon 30 days' notice in writing mailed to the
Company and to each transfer agent of the Common Shares by registered
or certified mail, and to the holders of the Right Certificates by
first class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon 30 days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Shares by registered or certified
mail, and to the holders of the Right Certificates by first class
mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving
notice of such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall, with
such notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right Certificate may
apply to any court of competent jurisdiction for the appointment of a
new Rights Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a corporation authorized to
do business as a banking institution, organized and doing business
under the laws of the United States, of the State of Wisconsin or of
the State of New York, in good standing, having an office in the State
of Wisconsin or the State of New York (or, in the discretion of the
Board of Directors of the Company, any other state of the United
States), which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at
least $10 million, or (b) an Affiliate of a corporation described in
clause (a) of this sentence. After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the Company
shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares, and mail a notice
thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in this Section
21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
2. The Company hereby appoints AST as rights agent pursuant to Section 21
of the Rights Agreement, to serve in that capacity for the consideration and
subject to all of the terms and conditions of the Rights Agreement, as amended
by this Amendment.
3. AST hereby accepts the appointment as rights agent pursuant to Section
21 of the Rights Agreement and agrees to serve in that capacity for the
consideration and subject to all of the terms and conditions of the Rights
Agreement, as amended by this Amendment.
4. From and after the effective date hereof, each and every reference in
the Rights Agreement to a "Rights Agent" shall be deemed to be a reference to
AST.
5. Section 26(b) of the Rights Agreement is amended to substitute the
following address for the address of the Predecessor Agent:
If to AST: American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
6. Except as expressly modified herein, the Right Agreement shall remain
in full force and effect.
7. This Amendment may be executed in one or more counterparts, each of
which shall together constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the dated indicated above.
ATTEST: FRESH BRANDS, INC.
By: /s/ Xxxxxx X. Go By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Go Xxxxxx X. Xxxx
Vice President, Chief Financial President and Chief Executive
Officer, Treasurer and Secretary Officer
ATTEST: AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
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Title: Assistant Secretary Title: Vice President
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