Exhibit 4.5
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AGREEMENT ON REMOVAL OF RIGHTS AGENT AND
APPOINTMENT OF SUCCESSOR RIGHTS AGENT
AGREEMENT ON REMOVAL OF RIGHTS AGENT AND APPOINTMENT OF SUCCESSOR RIGHTS
AGENT (this "Agreement"), dated as of September 9, 2003, by and among MAXCOR
FINANCIAL GROUP INC., a Delaware corporation formerly known as Financial
Services Acquisition Corporation (the "Company"), CONTINENTAL STOCK TRANSFER &
TRUST COMPANY ("Continental"), and THE BANK OF NEW YORK ("BNY"). This Agreement
refers to the Rights Agreement (the "Rights Agreement"), dated as of December 6,
1996, by and between the Company and Continental, as amended by Amendment No. 1
to Rights Agreement, dated as of July 26, 2001, by and between the Company and
Continental. Capitalized terms used in this Amendment without definition shall
have the meanings ascribed to such terms in the Rights Agreement.
W I T N E S S E T H:
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WHEREAS, Section 21 of the Rights Agreement provides, among other
things, that the Company may remove the Rights Agent upon thirty (30) days'
notice in writing, mailed to the Rights Agent by registered or certified mail,
and to the holders of the Rights Certificates by first-class mail;
WHEREAS, Section 21 of the Rights Agreement provides, among other
things, that, if the Rights Agent shall be removed, the Company shall appoint a
successor to the Rights Agent;
WHEREAS, Section 21 of the Rights Agreement provides, among other
things, that any successor Rights Agent shall be (a) a corporation organized and
doing business under the laws of the United States or of any State thereof, in
good standing, 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 $50,000,000 or (b) an affiliate of a
corporation described in clause (a) of this recital;
WHEREAS, Section 21 of the Rights Agreement provides, among other
things, that 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 and that the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it under the Rights Agreement, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose; and
WHEREAS, the Company, in connection with appointing BNY as its transfer
agent and registrar, desires to appoint BNY as its Rights Agent, and therefore
remove Continental from the performance of such services;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto, intending to be legally bound, agree as
follows:
1. The Company hereby removes Continental from its service as Rights
Agent, effective as of the close of business on October 13, 2003, and
appoints BNY to serve as successor Rights Agent under the Rights
Agreement, effective as of the open of business on October 14, 2003.
2. Continental hereby agrees and acknowledges that, effective as of the
close of business on October 13, 2003, it shall no longer serve as
Rights Agent under the Rights Agreement and hereby waives any notice
that may be required to be delivered to it pursuant to Section 21 of
the Rights Agreement regarding its removal as Rights Agent and
replacement by a successor Rights Agent.
3. Continental hereby further agrees to deliver and transfer to BNY, as
successor Rights Agent, any property held by Continental under the
Rights Agreement, and to execute and deliver any further assurance,
conveyance, act or deed reasonably necessary for the purpose.
4. BNY hereby represents and warrants to the Company that it meets the
requirements contained in Section 21 of the Rights Agreement with
respect to the characteristics of a successor Rights Agent.
5. BNY hereby agrees and acknowledges that, effective as of the open of
business on October 14, 2003, it shall commence as successor Rights
Agent under the Rights Agreement.
6. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE APPLY UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.
7. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together
shall constitute one and the same agreement.
8. This Agreement shall be effective as of the date hereof and, subject
to the changes effected hereby, the Rights Agreement shall remain in
full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, all as of the
date first above written.
MAXCOR FINANCIAL GROUP INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chief Operating Officer
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Assistant Vice President
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