Ship Finance International Limited Common Stock ($1.00 par value) AMENDMENT NO. 1 TO ATM EQUITY OFFERINGSM SALES AGREEMENT
Ship
Finance International Limited
Common
Stock
($1.00
par value)
AMENDMENT
NO. 1 TO
ATM EQUITY OFFERINGSM
SALES
AGREEMENT
May 5,
2009
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
This
Amendment No. 1 to the ATM Equity OfferingSM Sales
Agreement (this “Amendment”) is made
and entered into as of May 5, 2009 by Ship Finance International Limited, a
Bermuda corporation (the “Company”), and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Agent”).
WHEREAS,
the Company and the Agent wish to amend certain provisions of the ATM Equity
OfferingSM Sales
Agreement dated as of December 5, 2008 (the “Sales Agreement”),
entered into by the Company and the Agent;
WHEREAS,
the Company, upon filing its annual report on Form 20-F for the year ended
December 31, 2008 on March 24, 2009, is no longer a “well-known seasoned issuer”
as defined in Rule 405 under the Securities Act of 1933, as amended (the
“Act”), and is
no longer eligible to file an “automatic shelf registration statement” as
defined under Rule 405 under the Act on Form F-3;
WHEREAS,
on March 24, 2009, the Company filed with the Securities and Exchange Commission
(the “Commission”) a
registration statement on Form F-3 registering the Company’s preferred shares,
debt securities, warrants, purchase contracts, units and Common Stock up to an
aggregate offering price for all securities of $500,000,000; and
WHEREAS,
once declared effective by the Commission, the March 24, 2009 registration
statement, as amended, will replace the automatic shelf registration statement
filed on Form F-3 on December 5, 2008.
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NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other
good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
1. All
capitalized terms used, but not otherwise defined or referenced, in this
Amendment shall have the meanings ascribed to them in the Sales Agreement. On
and after the date hereof, (a) each reference in the Sales Agreement and in this
Amendment to “this Agreement,” “hereunder,” “hereof” or words of like or similar
import referring to the Sales Agreement, shall mean and be a reference to the
Sales Agreement, as amended by this Amendment.
2. Section
1(a) of the Sales Agreement is deleted in its entirety and replaced with the
following:
“The
Company meets the requirements for use of Form F-3 under the Securities Act of
1933, as amended (the “Act”); the Company
has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form F-3 (No. 333-158162), including a
prospectus, relating to the registration of the Company’s preferred shares, debt
securities, warrants, purchase contracts, units and Common Stock (including the
Shares) (collectively, the “Securities”), to be
sold from time to time by the Company; such registration statement has been, or,
prior to the date of the first instruction to sell Shares made by the Company to
the Agent pursuant to Section 2(b), shall have been, declared effective by the
Commission; and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of the Company, threatened by the
Commission (the base prospectus filed as part of such registration statement, in
the form in which it has most recently been filed with the Commission on or
prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”;
the various parts of such registration statement, excluding any Form T-1 but
including all exhibits thereto and the information (if any) deemed to be part of
such registration statement at the time of effectiveness pursuant to
Rule 430A, Rule 430B or 430C under the Act, each as amended at the time
such part of the registration statement became effective, are hereinafter
collectively called the “Registration
Statement”; if the Company has filed an abbreviated registration
statement to register additional shares of Common Stock pursuant to Rule 462(b)
under the Securities Act (the “Rule 462 Registration
Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration Statement; the
prospectus supplement specifically relating to the Shares prepared and filed
with the Commission pursuant to Rule 424(b) under the Act and in accordance with
Section 6(a) is hereinafter called the “Prospectus
Supplement”; the Basic Prospectus, as amended and supplemented by the
Prospectus Supplement, is hereinafter called the “Prospectus”; any
reference herein to the Registration Statement, the Basic Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 6 of Form
F-3 under the Act; any reference to any amendment or supplement to the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer
to and include any post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Shares filed with the Commission pursuant
to Rule 424(b) under the Act and any documents filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and
incorporated by reference therein, in each case after the date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement; and any “issuer free writing prospectus” as defined in Rule 433
under the Act relating to the Shares is hereinafter called an “Issuer Free Writing
Prospectus”);”
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3. Section
1(aa) of the Sales Agreement is hereby amended by deleting clause (A) thereof so
that clause (B) thereof now constitutes Section 1(aa) in its
entirety.
4. Section
2(d) of the Sales Agreement is deleted in its entirety and replaced with the
following:
“Under no circumstances shall the
aggregate offering price or number, as the case may be, of Shares sold pursuant
to this Agreement exceed the aggregate offering price or number, as the case may
be, of Shares of Common Stock (i) set forth in the preamble paragraph of
this Agreement, (ii) available for issuance under the Prospectus and the
then currently effective Registration Statement or (iii) authorized from
time to time to be issued and sold under this Agreement by the Company’s board
of directors, or a duly authorized committee thereof, and notified to the Agent
in writing. In addition, under no circumstances shall any Shares be
sold at a price lower than the minimum price therefor authorized from time to
time by the Company’s board of directors, or a duly authorized committee
thereof, and notified to the Agent in writing.”
5. Section
3(f) of the Sales Agreement is deleted in its entirety and replaced with the
following:
“To pay
the required Commission filing fees relating to the Shares in accordance with
Rules 456 and 457 under the Act;”
6. Section
6(a) of the Sales Agreement is deleted in its entirety and replaced with the
following:
“The
Registration Statement and any post-effective amendment thereto filed prior to
the date of the first instruction to sell Shares made by the Company to the
Agent pursuant to Section 2(b) shall have been declared effective on or prior to
such date; the Prospectus Supplement shall have been filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 3(a) on or
prior to the date of the first instruction to sell Shares made by the Company to
the Agent pursuant to Section 2(b); any other material required to be filed by
the Company pursuant to Rule 433(d) under the Act shall have been filed with the
Commission within the applicable time periods prescribed for such filings by
Rule 433; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the reasonable satisfaction of the Agent.”
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7. Except
as specifically set forth herein, the provisions of the Sales Agreement and the
Exhibits and Schedules attached thereto remain in full force and
effect. This Amendment shall not constitute an amendment or waiver of
any provision of the Sales Agreement and shall not be construed as a waiver or
consent to any future action on the part of the Company, except to the extent
expressly set forth herein.
8. This
Amendment may be executed by any one or more of the parties hereto and thereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument. This Amendment may be delivered by any party by facsimile
or other electronic transmission.
9. This
Amendment shall be governed by and construed in accordance with the laws of the
State of New York without reference to its principles of conflicts of
law.
10. This
Amendment shall become effective as of the date hereof.
[signature page
follows]
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If the
foregoing Amendment is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Agent and the Company in accordance with its terms.
Very
truly yours,
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Accepted
and agreed as of the date first above written:
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by
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇
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Title:
Vice President
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