Exhibit 5
AMENDMENT TO RIGHTS AGREEMENT
Amendment Number One, dated as of July 10, 1997, to
the Rights Agreement, dated as of June 25, 1997 (the "Rights
Agreement"), between Falcon Drilling Company, Inc., a Delaware
corporation (the "Company"), and American Stock Transfer &
Trust Company, a New York corporation, as Rights Agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent entered
into the Rights Agreement specifying the terms of the Rights
(as defined therein);
WHEREAS, the Company desires to amend the Rights
Agreement in accordance with Section 27 of the Rights
Agreement;
WHEREAS, the Company proposes to enter into an
Agreement and Plan of Merger, dated as of July 10, 1997 (the
"Merger Agreement"), among R&B Falcon Corporation, FDC
Acquisition Corp., Reading & Xxxxx Acquisition Corp., the
Company and Reading & Xxxxx Corporation ("R&B");
WHEREAS, as a condition to the Merger Agreement and
in order to induce R&B to enter into the Merger Agreement, the
Company proposes to enter into a Stock Option Agreement, dated
as of July 10, 1997, between the Company and R&B (the "Stock
Option Agreement"), pursuant to which the Company will grant
R&B an option (the "Option") to purchase up to 15,753,823 (as
such number may be adjusted as set forth in the Stock Option
Agreement) shares of common stock, par value $.01 per share of
the Company; and
WHEREAS, the Board of Directors of the Company has
determined it advisable and in the best interest of its
stockholders to amend the Rights Agreement to enable the
Company to enter into the Stock Option Agreement and
consummate the transactions contemplated thereby without
causing R&B to become an "Acquiring Person" (as defined in the
Rights Agreement).
NOW, THEREFORE, in consideration of the premises and
mutual agreements set forth herein and in the Rights
Agreement, the parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used and
not otherwise defined herein shall have the meaning assigned
to such terms in the Rights Agreement.
Section 2. Amendments to Rights Agreement. The
Rights Agreement is hereby amended as set forth in this
Section 2.
(a) Section 1(a) of the Rights Agreement
is hereby amended by deleting the second sentence thereof and
inserting in lieu thereof the following:
"Notwithstanding the foregoing: (i) "Acquiring Person"
shall not include any Person who becomes an Acquiring
Person solely as a result of a reduction in the number of
Common Shares outstanding due to the repurchase of Common
Shares by the Company unless and until such Person shall
purchase or otherwise become the Beneficial Owner of any
additional Common Shares of the Company; (ii) any Person
who, as of the Close of Business on June 25, 1997, is the
Beneficial Owner of 10% or more of the Common Shares of
the Company outstanding at such time shall not be deemed
to be or to have become an "Acquiring Person" until
August 1, 1997, and on August 1, 1997 shall be deemed to
be an "Acquiring Person" if, but only if, as of the Close
of Business on August 1, 1997, such Person is the
Beneficial Owner of 10% or more of the Common Shares of
the Company then outstanding, provided that if such
Person shall, subsequent to the Close of Business on June
25, 1997, become the Beneficial Owner of any additional
Common Shares of the Company, then such Person shall
thereupon be deemed to be an "Acquiring Person," unless
upon the consummation of such acquisition of beneficial
ownership by such Person such Person is not the
Beneficial Owner of 10% or more of the Common Shares of
the Company then outstanding; (iii) S-C Rig Investments,
L.P. and its Affiliates and Associates shall not be
deemed to be an Acquiring Person so long as they are the
Beneficial Owner of no more than 40% of the Common Shares
of the Company then outstanding; (iv) Reading & Xxxxx
Corporation ("R&B"), and its Affiliates and Associates
shall not be deemed to be an Acquiring Person as a result
of the grant of the Option (as defined in the Stock
Option Agreement) pursuant to the Stock Option Agreement,
dated as of July 10, 1997, between the Company and R&B
(the "Stock Option Agreement") or at any time following
the exercise thereof and the issuance of the Common
Shares of the Company in accordance with the terms of the
Stock Option Agreement; and (v) if the Board of Directors
of the Company determines in good faith that a Person who
would otherwise be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this paragraph
(a), became such inadvertently (including, without
limitation, because (x) such Person was unaware that it
beneficially owned a percentage of the Common Shares of
the Company that would otherwise cause such Person to be
an "Acquiring Person" or (y) such Person was aware of the
extent of its beneficial ownership of Common Shares of
the Company but had no actual knowledge of the
consequences of such beneficial ownership under this
Agreement) and without any intention of changing or
influencing control of the Company, and if such Person as
promptly as practicable divested or divests itself of
beneficial ownership of a sufficient number of Common
Shares of the Company so that such Person would no longer
be an "Acquiring Person" as defined pursuant to the
foregoing provisions of this paragraph (a), then such
Person shall not be deemed to be or to have become an
"Acquiring Person" for any purposes of this Agreement."
Section 3. Miscellaneous.
(a) The term "Agreement" as used in the
Rights Agreement shall be deemed to refer to the Rights
Agreement as amended hereby.
(b) The foregoing amendment shall be
effective as of the date first above written, and, except as
set forth herein, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
(c) This Amendment may be executed in two
or more counterparts, each of which shall be deemed to be an
original, but all for which together shall constitute one and
the same instrument.
(d) This Amendment shall be deemed to be
a contract made under the laws of the State of Delaware and
for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment Number One to be duly executed and attested,
all as of the day and year first above written.
Attest: FALCON DRILLING COMPANY, INC.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxxxx Xxxx Name: Xxxxxx X. Xxxxxxx
Title: Vice President Title: Chief Executive 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
Title: Assistant Secretary Title: Vice President
