AMENDMENT, ASSIGNMENT AND ASSUMPTION OF RIGHTS AGREEMENT
Amendment, Assignment and Assumption of Rights
Agreement, dated as of June 2, 1997, by and among Boatmen's
National Bank, a national banking association with its principal
office at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 (the
"Assignor"), ChaseMellon Shareholder Services, L.L.C. with a
place of business at 00 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Assignee"), and Cucos Inc., a
Louisiana corporation with its principal office at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxx 00000 (the "Company").
WITNESSETH:
WHEREAS, the Company and Commercial National Bank in
Shreveport ("CNB") entered into a certain Rights Agreement, dated
as of February 5, 1990 (the "Rights Agreement"); and
WHEREAS, CNB assigned to The Whitney National Bank
("TWNB"), and TWNB assumed from CNB, CNB's rights, duties and
obligations as Rights Agent under the Rights Agreement; and
WHEREAS, TWNB assigned to Assignor, and Assignor has
heretofore assumed from TWNB, TWNB's rights, duties and
obligations as Rights Agent under the Rights Agreement; and
WHEREAS, Assignor has advised the Company that it
desires to discontinue service as Rights Agent under the Rights
Agreement; and
WHEREAS, after reviewing the terms and conditions of
the Rights Agreement, Assignee has advised the Company that
Assignee desires to assume all of the rights and obligations of
Assignor under the Rights Agreement, subject to the amendment of
the Rights Agreement in certain respects set forth herein; and
WHEREAS, the Company desires Assignee to assume
Assignor's rights and duties as Rights Agent under the Rights
Agreement effective as of the date of this Assignment, subject to
the amendment of the Rights Agreement in certain respects set
forth herein.
NOW, THEREFORE, in consideration of the promises and
covenants herein contained and for other good and valuable
consideration, intending to be legally bound, the parties hereby
agree as follows:
1. Amendment of Rights Agreement. the Rights Agreement is
hereby amended as follows:
(a) Section 2 of the Rights Agreement is amended
by deleting the words: "and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the Distribution
Date also be the holders of he Common Stock)."
(b) Section 18(a) of the rights Agreement is
hereby amended by inserting the following sentence at the end
thereof: "Anything to the contrary notwithstanding, in no event
shall the Rights agent be liable for special, indirect,
consequential or incidental loss or damage of any kind whatsoever
(including but not limited to loss profits), event if the Rights
agent has been advised of the likelihood of such loss or damage."
(c) Section 21 of the Rights Agreement is hereby
amended by deleting the fifth sentence in its entirety and
replacing it with the following: "Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be
either (a) a corporation organized and doing business under the
laws of the United States or of any state of the United States,
in good standing, which is authorized under such laws to exercise
corporate trust 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 $100,000,000 or (b) an affiliate of such a
corporation"
(d) As amended hereby, the Rights Agreement shall
remain in full force and effect.
2. Assignment by Assignor. Assignor hereby assigns
and transfer to Assignee all of Assignee's right, title and
interest in and to the Rights Agreement, as amended hereby, such
assignment to become effective as of the date hereof.
3. Assumption by Assignee. Assignee hereby accepts
the aforesaid assignment and transfer and agrees to assume the
performance of all the terms, covenants, conditions and
obligations of the Rights Agreement, as amended hereby, to be
performed by the Assignee as Rights Agent thereunder, such
assumption to become effective as of the date hereof.
4. Consent of Company. The Company hereby consents to
the assignment from Assignor to Assignee and agrees that it shall
not look to Assignor for the performance of any of the terms,
covenants and conditions of the Rights Agreement required to be
performed by the Assignee in its capacity as Rights Agent
thereunder.
5. Successor and Assigns Bound. This Assignment and
all the terms, covenants and conditions herein shall inure to the
benefit of, and be binding on, the respective successors and
assigns of the parties hereto.
6. Counterparts. This Assignment may be executed in
one or more counterparts all of which taken together shall be
deemed one original.
IN WITNESS WHEREOF, this document has been executed by
the parties as of the date first written above.
BOATMEN'S NATIONAL BANK
By: /s/ Authorized Officeer
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: /s/ Authorized Officer
CUCOS INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
Chairman and Chief
Executive Officer
