As filed with the Securities and Exchange Commission on April 17, 2015
Registration Nos. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TOTAL S.A.
(Exact Name of Registrant as Specified in Its Charter)
Republic of France
(State or Other Jurisdiction of Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification No.)
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
011-331-4744-4546
(Address and Telephone Number of Registrant’s Principal Executive Offices)
| TOTAL CAPITAL (Exact Name of Registrant as Specified in Its Charter) |
TOTAL CAPITAL CANADA LTD. (Exact Name of Registrant as Specified in Its Charter) |
TOTAL CAPITAL INTERNATIONAL (Exact Name of Registrant as Specified in Its Charter) | ||
| Republic of France (State or Other Jurisdiction of Incorporation or Organization) |
Alberta, Canada (State or Other Jurisdiction of Incorporation or Organization) |
Republic of France (State or Other Jurisdiction of Incorporation or Organization) | ||
| Not Applicable (I.R.S. Employer Identification No.) |
Not Applicable (I.R.S. Employer Identification No.) |
Not Applicable (I.R.S. Employer Identification No.) | ||
| 2, place Jean Millier La Défense 6 92400 Courbevoie France 011-331-4744-4546 |
2900, 240 — 4th Avenue SW Calgary, Alberta T2P 4H4 Canada +1 403 571 7599 |
2, place Jean Millier La Défense 6 92400 Courbevoie France 011-331-4744-4546 | ||
| (Address and Telephone Number of Registrant’s Principal Executive Offices) |
(Address and Telephone Number of the Registrant’s Principal Executive Offices) | (Address and Telephone Number of Registrant’s Principal Executive Offices) |
Corporation Service Company
1180 Avenue of the Americas, Suite 210,
New York, NY 10036
(212) 299-5600
(Name, Address and Telephone Number of Agent for Service)
Please send copies of all communications to:
| Maarten Scholten Group General Counsel TOTAL S.A. Tour Coupole 2, place Jean Millier Arche Nord Coupole/Regnault 92078 Paris La Défense Cedex France 011-331-4744-4546 |
Krystian Czerniecki Sullivan & Cromwell LLP 24, rue Jean Goujon 75008 Paris France 011-331-7304-1000 |
Humbert de Wendel Group Treasurer TOTAL S.A. Tour Coupole 2, place Jean Millier Arche Nord Coupole/Regnault 92078 Paris La Défense Cedex France 011-331-4744-4546 | ||
| Andrew A. Bernstein Cleary Gottlieb Steen & Hamilton LLP 12, rue de Tilsitt 75008 Paris France 011-331-4074-6800 |
Approximate date of commencement of proposed sale to the public: From time to time after the effectiveness of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
CALCULATION OF REGISTRATION FEE
|
| ||
| Title of Each Class of Securities to be Registered |
Amount to be Registered/ Proposed Maximum Offering Price/Amount of Registration Fee | |
| (Guaranteed) Debt Securities |
(1) | |
|
| ||
| (1) | An indeterminate aggregate initial offering price or number of securities of each identified class is being registered as may from time to time be issued at indeterminate prices. Separate consideration may not be received for registered securities that are issuable on conversion or exchange of other securities. In accordance with Rules 456(b) and 457(r) under the Securities Act, the Registrants are deferring payment of all of the registration fee. |
PROSPECTUS
TOTAL S.A.
TOTAL CAPITAL
(A wholly-owned subsidiary of TOTAL S.A.)
FULLY AND UNCONDITIONALLY GUARANTEED
by
TOTAL S.A.
TOTAL CAPITAL CANADA LTD.
(A wholly-owned subsidiary of TOTAL S.A.)
FULLY AND UNCONDITIONALLY GUARANTEED
by
TOTAL S.A.
TOTAL CAPITAL INTERNATIONAL
(A wholly-owned subsidiary of TOTAL S.A.)
FULLY AND UNCONDITIONALLY GUARANTEED
by
TOTAL S.A.
(GUARANTEED) DEBT SECURITIES
TOTAL S.A., Total Capital, Total Capital Canada Ltd. or Total Capital International may use this prospectus from time to time to offer debt securities. Debt securities offered by Total Capital, Total Capital Canada Ltd. and/or Total Capital International using this prospectus will be fully and unconditionally guaranteed by TOTAL S.A., and are referred to as guaranteed debt securities in this prospectus.
You should read this prospectus and the accompanying prospectus supplement carefully before you invest. We may sell these securities to or through underwriters, and also to other purchasers or through agents. The names of the underwriters will be set forth in the accompanying prospectus supplement.
Investing in these securities involves certain risks. See “Risk Factors” beginning on page 2.
Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities, or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
Prospectus dated April 17, 2015.
| Page | ||||
| 1 | ||||
| 1 | ||||
| 2 | ||||
| 3 | ||||
| 4 | ||||
| 5 | ||||
| 5 | ||||
| 5 | ||||
| 6 | ||||
| 7 | ||||
| 8 | ||||
| 21 | ||||
| 24 | ||||
| 39 | ||||
| 41 | ||||
| 41 | ||||
| 42 | ||||
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, utilizing a shelf registration process. Under this shelf process, we may sell the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time TOTAL S.A., Total Capital, Total Capital Canada Ltd. or Total Capital International sells securities, we will provide a prospectus supplement that will contain specific information about the terms of those securities and their offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading “Where You Can Find More Information About Us”.
In this prospectus, the terms “we”, “our” and “us” refer to TOTAL S.A. or, in connection with an offering by Total Capital, both TOTAL S.A. and Total Capital or, in connection with an offering by Total Capital Canada Ltd., both TOTAL S.A. and Total Capital Canada Ltd. or, in connection with an offering by Total Capital International, both TOTAL S.A. and Total Capital International, “TOTAL” refers to TOTAL S.A., the “Total Group” refers to TOTAL and its subsidiaries, “Total Capital” refers to Total Capital, “Total Canada” refers to Total Capital Canada Ltd. and “Total Capital International” refers to Total Capital International. Any debt securities of Total Capital, Total Canada or Total Capital International which are offered using this prospectus will be fully and unconditionally guaranteed by TOTAL, and are referred to as guaranteed debt securities.
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES
TOTAL, Total Capital and Total Capital International are sociétés anonymes incorporated under the laws of France. Total Canada is a corporation incorporated under the laws of Alberta, Canada. Many of our directors and officers, and some of the experts named in this document, reside outside the United States, principally in France and Canada. In addition, although we have assets in the United States, a large portion of our assets and the assets of our directors and officers is located outside of the United States. As a result, although we have appointed Corporation Service Company, 1180 Avenue of the Americas, Suite 210, New York, NY 10036 as agent for service of process under the registration statement to which this prospectus relates, U.S. investors may find it difficult in a lawsuit based on the civil liability provisions of the U.S. federal securities laws:
| • | to effect service within the United States upon us or our directors and officers located outside the United States; |
| • | to enforce in U.S. courts or outside the United States judgments obtained against us or those persons in the U.S. courts; |
| • | to enforce in U.S. courts judgments obtained against us or those persons in courts in jurisdictions outside the United States; and |
| • | to enforce against us or those persons in France, Canada or in other jurisdictions outside the United States, whether in original actions or in actions for the enforcement of judgments of U.S. courts, civil liabilities based solely upon the U.S. federal securities laws. |
1
Investing in the securities offered using this prospectus involves risk. You should consider carefully the risks described below, together with the risks described in the documents incorporated by reference into this prospectus, and any risk factors included in the prospectus supplement, before you decide to buy our securities. If any of these risks actually occurs, our business, financial condition and results of operations could suffer, and the trading price and liquidity of the securities offered using this prospectus could decline, in which case you may lose all or part of your investment.
Risks Relating to TOTAL’s Business
You should read “Risk Factors” in TOTAL’s Annual Report on Form 20-F for the year ended December 31, 2014, which is incorporated by reference in this prospectus, for information on risks relating to TOTAL’s business.
Risks related to the offering and owning the debt securities
Since TOTAL is a holding company and currently conducts its operations through subsidiaries, your right to receive payments on the debt securities and the guarantee is subordinated to the other liabilities of TOTAL’s subsidiaries.
TOTAL is organized as a holding company, and substantially all of its operations are carried on through subsidiaries. TOTAL’s principal source of income is the dividends and distributions it receives from its subsidiaries. On an unconsolidated basis, TOTAL’s obligations consisted of $31,016 million of debt as of December 31, 2014. TOTAL’s ability to meet its financial obligations is dependent upon the availability of cash flows from its domestic and foreign subsidiaries and affiliated companies through dividends, intercompany advances, management fees and other payments. TOTAL’s subsidiaries are not guarantors on the debt securities we may offer, with any of TOTAL, Total Capital, Total Canada or Total Capital International as issuer. Moreover, these subsidiaries and affiliated companies are not required and may not be able to pay dividends to TOTAL. Claims of the creditors of TOTAL’s subsidiaries have priority as to the assets of such subsidiaries over the claims of creditors of TOTAL. Consequently, holders of TOTAL’s debt securities or Total Capital’s debt securities, Total Canada’s debt securities or Total Capital International’s debt securities, in each case, that are guaranteed by TOTAL, are in fact structurally subordinated, on TOTAL’s insolvency, to the prior claims of the creditors of TOTAL’s subsidiaries.
In addition, some of TOTAL’s subsidiaries are subject to laws restricting the amount of dividends they may pay. For example, these laws may prohibit dividend payments when net assets would fall below subscribed share capital, when the subsidiary lacks available profits or when the subsidiary fails to meet certain capital and reserve requirements. For example, French law prohibits those subsidiaries incorporated in France from paying dividends unless these payments are made out of distributable profits. These profits consist of accumulated, realized profits, which have not been previously utilized, less accumulated, realized losses, which have not been previously written off. Other statutory and general law obligations may also affect the ability of directors of TOTAL’s subsidiaries to declare dividends and the ability of our subsidiaries to make payments to us on account of intercompany loans.
Since the debt securities are unsecured, your right to receive payments may be adversely affected.
The debt securities that we are offering will be unsecured. The debt securities are not subordinated to any of our other debt obligations, and therefore they will rank equally with all our other unsecured and unsubordinated indebtedness (save for certain mandatory exceptions provided by French and Canadian law). As of December 31, 2014, TOTAL had approximately $798 million of consolidated secured indebtedness outstanding, and Total Capital, Total Canada and Total Capital International had no secured indebtedness outstanding. If any of
2
TOTAL, Total Capital, Total Canada or Total Capital International, as issuer of the debt securities, defaults on the debt securities (or the guarantee in the case of TOTAL if it is relevant), or after bankruptcy, liquidation or reorganization, then, to the extent the relevant obligor has granted security over its assets, the assets that secure that entity’s debts will be used to satisfy the obligations under that secured debt before the obligor can make payment on the debt securities or the guarantee. There may only be limited assets available to make payments on the debt securities or the guarantee in the event of an acceleration of the debt securities. If there is not enough collateral to satisfy the obligations of the secured debt, then the remaining amounts on the secured debt would share equally with all unsubordinated unsecured indebtedness (save for certain mandatory exceptions provided by French and Canadian law).
Transactions in the Notes could be subject to the European financial transaction tax, if adopted
On February 14, 2013, the European Commission adopted a proposal for a directive on a financial transaction tax (hereafter “FTT”) to be implemented under the enhanced cooperation procedure by eleven Member States (Austria, Belgium, Estonia, France, Germany, Greece, Italy, Portugal, Slovenia, Slovakia and Spain). Member States may join or leave the group of participating Member States at later stages. The proposal will be negotiated by Member States, and, subject to an agreement being reached by the participating Member States, a final directive will be enacted. The participating Member States will then implement the directive in local legislation. The FTT proposal remains subject to negotiation between the participating Member States. It may therefore be altered prior to any implementation. In January 2015, the ministers of the Participating Member States confirmed their commitment to implement the FTT progressively. The first steps would be implemented from January 1, 2016. If the proposed directive is adopted and implemented in local legislation, the FTT would be due on certain transactions by financial institutions in certain financial instruments (including debt instruments such as the debt securities issued pursuant to this prospectus). As a consequence, noteholders may be exposed to increased transaction costs. Prospective holders of the notes should consult their own tax advisers in relation to the consequences of the FTT associated with subscribing for, purchasing, holding and disposing of the notes.
Some of the information contained or incorporated by reference in this prospectus and the related prospectus supplement may constitute “forward-looking statements” within the meaning of the safe harbor provisions of The Private Securities Litigation Reform Act of 1995. Although we have based these forward-looking statements on our expectations and projections about future events, it is possible that actual results may differ materially from our expectations. In many cases, we include a discussion of the factors that are most likely to cause forward-looking statements to differ from actual results together with the forward-looking statements themselves.
Information regarding important factors that could cause actual results to differ, perhaps materially, from those in our forward looking statements is contained under “Cautionary Statement Concerning Forward-Looking Statements” in our Annual Report on Form 20-F for 2014, which is incorporated in this prospectus by reference (and will be contained in any of our annual reports for a subsequent year that are so incorporated). See “Where You Can Find More Information About Us” below for information about how to obtain a copy of this annual report.
In light of the factors set forth in the applicable Annual Report on Form 20-F and the other factors described in this prospectus, the forward-looking events might not occur at all or may occur differently than as described. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information or future events or for any other reason.
3
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
TOTAL files annual reports and other reports and information with the SEC. You may read and copy any document TOTAL files at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. In addition, TOTAL’s SEC filings are available to the public at the SEC’s web site at http://www.sec.gov.
TOTAL’s American depositary shares are listed on the New York Stock Exchange. The principal trading market for TOTAL’s shares is Euronext Paris. TOTAL’s shares are also listed on Euronext Brussels and the London Stock Exchange. You can consult reports and other information about TOTAL that it files pursuant to the rules of the New York Stock Exchange at such exchange.
TOTAL has filed with the SEC a registration statement on Form F-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this prospectus to a contract or other document of TOTAL, the reference is only a summary and you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document. You may review a copy of the registration statement at the SEC’s public reference room in Washington, D.C., as well as through the SEC’s Internet site.
The SEC allows TOTAL to “incorporate by reference” into this prospectus the information in documents filed with the SEC. This means that TOTAL can disclose important information to you by referring you to those documents. Each document incorporated by reference is current only as of the date of such document, and the incorporation by reference of such documents shall not create any implication that there has been no change in our affairs since the date thereof or that the information contained therein is current as of any time subsequent to its date. The information incorporated by reference is considered to be a part of this prospectus and should be read with the same care. When TOTAL updates the information contained in documents that have been incorporated by reference by making future filings with the SEC, the information incorporated by reference in this prospectus is considered to be automatically updated and superseded. In other words, in the case of a conflict or inconsistency between information contained in this prospectus and information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later.
TOTAL incorporates by reference the documents listed below and any documents TOTAL files with the SEC in the future under Section 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) until the offerings made under this prospectus are completed:
| • | the Annual Report on Form 20-F for the year ended December 31, 2014, filed with the SEC on March 26, 2015, as amended on March 27, 2015; |
| • | Exhibit 99.3 to the report on Form 6-K furnished to the SEC on February 12, 2015; and |
| • | the report on Form 6-K furnished to the SEC on April 17, 2015. |
Furthermore, TOTAL incorporates by reference any reports on Form 6-K furnished to the SEC by TOTAL pursuant to the Exchange Act that indicate on their cover page that they are incorporated by reference in this prospectus, both after the date of the initial registration statement, and after the date of this prospectus and before the date that any offering of the securities by means of this prospectus is terminated.
The Annual Report on Form 20-F of TOTAL for the year ended December 31, 2014 contains a summary description of TOTAL’s business and audited consolidated financial statements with an auditors’ report by TOTAL’s independent registered public accounting firms. These financial statements were prepared in accordance with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB), which we refer to herein as “IFRS”.
4
You may request a copy of these filings, other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing, at no cost, by writing to or telephoning TOTAL at the following address:
TOTAL S.A.
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
(011) 331 4744 4546
You should rely only on the information that we incorporate by reference or provide in this prospectus or the prospectus supplement. We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus or the prospectus supplement is accurate as of any date other than the date on the front of those documents.
TOTAL was incorporated on March 28, 1924 and has a duration until March 22, 2099, unless earlier dissolved or extended to a later date. TOTAL engages in all aspects of the petroleum industry, including upstream operations (oil and gas exploration, development and production, LNG) and downstream operations (refining, marketing and the trading and shipping of crude oil and petroleum products). TOTAL also produces base chemicals (petrochemicals and fertilizers) and specialty chemicals for the industrial and consumer markets. TOTAL began its upstream operations in the Middle East in 1924. Since that time, TOTAL has grown and expanded its operations worldwide. Most notably, in early 1999 TOTAL acquired control of PetroFina S.A. (“Petrofina” or “Fina”) and in early 2000, TOTAL acquired control of Elf Aquitaine S.A. (“Elf Aquitaine” or “Elf”). TOTAL currently owns 100% of Elf Aquitaine shares and, since early 2002, 100% of PetroFina shares. The Total Group operated under the name TotalFina from June 1999 to March 2000, and then under the name TotalFinaElf. Since May 2003, the Total Group has been operating once again under the name TOTAL.
Total Capital is a wholly-owned indirect subsidiary of TOTAL. It was incorporated as a société anonyme under the laws of France on December 15, 1999 under the name of DAJA 22, renamed TotalFinaElf Capital on July 17, 2000 and renamed Total Capital in May 2003. Total Capital is a financing vehicle for the Total Group and issues debt securities and commercial paper on behalf of the Total Group. Total Capital lends substantially all proceeds of its borrowings to the Total Group. TOTAL will fully and unconditionally guarantee the guaranteed debt securities issued by Total Capital as to payment of principal, premium, if any, interest and any other amounts due.
Total Canada is a wholly-owned subsidiary of TOTAL. It was incorporated on April 9, 2007 under the Business Corporations Act (Alberta). Total Canada is a financing vehicle for the Total Group and issues debt securities and commercial paper. Total Canada lends substantially all proceeds of its borrowings to the Total Group. TOTAL will fully and unconditionally guarantee the guaranteed debt securities issued by Total Canada as to payment of principal, premium, if any, interest and any other amounts due.
5
Total Capital International is a wholly-owned subsidiary of TOTAL. It was incorporated as a société anonyme under the laws of France on December 13, 2004 under the name of DAJA 56 and renamed Total Capital International on May 5, 2011. Total Capital International is a financing vehicle for the Total Group and issues debt securities. Total Capital International lends substantially all proceeds of its borrowings to the Total Group. TOTAL will fully and unconditionally guarantee the guaranteed debt securities issued by Total Capital International as to payment of principal, premium, if any, interest and any other amounts due.
6
Unless otherwise indicated in an accompanying prospectus supplement, the net proceeds from the sale of securities will be used for general corporate purposes. These purposes include working capital for TOTAL or other companies in the Total Group and the repayment of existing borrowings of TOTAL and its subsidiaries.
7
DESCRIPTION OF DEBT SECURITIES AND GUARANTEE
General
TOTAL may issue debt securities and Total Capital, Total Canada or Total Capital International may issue guaranteed debt securities using this prospectus. As required by U.S. federal law for all bonds and notes of companies that are publicly offered, the debt securities that TOTAL may issue are governed by a contract between TOTAL and The Bank of New York Mellon, as trustee, called an indenture. In the same manner, the guaranteed debt securities that each of Total Capital, Total Canada or Total Capital International may issue are governed by another, separate indenture, in each case among the respective issuer, TOTAL and The Bank of New York Mellon, as trustee.
The trustee under the indentures has two main roles:
| • | first, it can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, described under “Default and Related Matters — Events of Default — Remedies If an Event of Default Occurs” below; and |
| • | second, the trustee performs administrative duties for us, such as sending you interest payments, transferring your debt securities to a new buyer if you sell your debt securities and sending you notices. |
Under the indenture for the guaranteed debt securities that may be issued by Total Capital, Total Canada or Total Capital International, TOTAL acts as the guarantor. For the guaranteed debt securities that Total Capital, Total Canada or Total Capital International may issue using this prospectus, TOTAL will fully and unconditionally guarantee the payment of the principal of, premium, if any, and interest on the guaranteed debt securities, including certain additional amounts which may be payable under the debt securities and the guarantee, as described under “— Special Situations — Payment of Additional Amounts”. TOTAL will guarantee the payment of such amounts when such amounts become due and payable, whether at the stated maturity of the guaranteed debt securities, by declaration or acceleration, call for redemption or otherwise.
In other respects, the guaranteed debt securities are subject to the same material provisions as the other debt securities described below.
Each indenture and its associated documents contain the full legal text governing the matters described in this section. The indentures, the debt securities and the guarantee are governed by New York law. We and the trustee have agreed to, and each holder of a debt security by its acceptance thereof agrees to, waive the right to trial by jury with respect to any legal proceeding directly or indirectly arising out of or relating to the indentures or the debt securities. A form of each indenture is an exhibit to our registration statement. See “Where You Can Find More Information About Us” for information on how to obtain a copy.
The trustee will not be liable for special, indirect or consequential damages and will not be liable for any failure of its obligations caused by circumstances beyond its reasonable control.
This section summarizes the material provisions of the indentures, the debt securities and, for the case of guaranteed debt securities, the guarantee. However, because it is a summary, it does not describe every aspect of the indentures, the debt securities or the guarantee. This summary is subject to and qualified in its entirety by reference to all the provisions of the indentures, including some of the terms used in the indentures. We describe the meaning for only the more important terms. We also include references in parentheses to some sections of the indentures. Whenever we refer to particular sections or defined terms of the indentures in this prospectus or in the prospectus supplement, those sections or defined terms are incorporated by reference herein or in the prospectus supplement. This summary also is subject to and qualified by reference to the description of the particular terms of your series described in the prospectus supplement.
TOTAL, Total Capital, Total Canada and Total Capital International may issue as many distinct series of debt securities under their respective indentures as we wish. This section summarizes all material terms of the
8
debt securities that are common to all series, unless otherwise indicated in the prospectus supplement relating to a particular series. References to “we” and “us” in this section refer to either TOTAL, or in connection with an offering of guaranteed debt securities, both TOTAL and Total Capital, TOTAL and Total Canada or TOTAL and Total Capital International unless otherwise indicated.
We may issue the debt securities as original issue discount securities, which are debt securities that are offered and sold at a substantial discount to their stated principal amount. (Section 101) Special U.S. federal income tax, accounting and other considerations may apply to original issue discount securities. These considerations are discussed below under “Tax Considerations — United States Federal Income Taxation”. The debt securities may also be issued as indexed securities or securities denominated in foreign currencies or currency units, as described in more detail in the prospectus supplement relating to any such debt securities.
Unless otherwise specified in a prospectus supplement, we may issue debt securities of the same series as an outstanding series of debt securities without the consent of holders of securities in the outstanding series. Any additional debt securities so issued will have the same terms as the existing debt securities of the same series in all respects (except for the first interest payment on the new series, if any), so that such additional debt securities will be consolidated and form a single series with the existing debt securities of the same series.
In addition, the specific financial, legal and other terms particular to a series of debt securities are described in the prospectus supplement and the purchase agreement relating to the series. Those terms may vary from the terms described here. Accordingly, this summary also is subject to and qualified by reference to the description of the terms of the series described in the prospectus supplement.
The prospectus supplement relating to a series of debt securities will describe the following terms of the series:
| • | the title of the series of debt securities; |
| • | any limit on the aggregate principal amount of the series of debt securities; |
| • | any stock exchange, if any, on which we list the series of debt securities; |
| • | the date or dates on which we will pay the principal of the series of debt securities; |
| • | the rate or rates, which may be fixed or variable, per annum at which the series of debt securities will bear interest, if any, and the date or dates from which that interest, if any, will accrue; |
| • | the dates on which interest, if any, on the series of debt securities will be payable and the regular record dates for the interest payment dates; |
| • | any mandatory or optional sinking funds or analogous provisions or provisions for redemption at the option of the holder; |
| • | the date, if any, after which and the price or prices at which the series of debt securities may, in accordance with any optional or mandatory redemption provisions that are not described in this prospectus, be redeemed and the other detailed terms and provisions of those optional or mandatory redemption provisions, if any; |
| • | the denominations in which the series of debt securities will be issuable if other than denominations of $1,000 and any integral multiple of $1,000; |
| • | the currency of payment of principal of, premium, if any, and interest on the series of debt securities if other than the currency of the United States of America and the manner of determining the equivalent amount in the currency of the United States of America, if applicable; |
| • | any index used to determine the amount of payment of principal of, premium, if any, and interest on the series of debt securities; |
9
| • | whether we will be required to pay additional amounts for withholding taxes or other governmental charges and, if applicable, a related right to an optional tax redemption for such a series; |
| • | whether the series of debt securities will be issuable in whole or in part in the form of a global security as described below under “Legal Ownership — Global Securities”, and the depositary or its nominee with respect |
| • | to the series of debt securities, and any special circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depositary or its nominee; and |
| • | any other special features of the series of debt securities. |
The debt securities will be issued only in fully registered form without interest coupons.
Legal Ownership
Street Name and Other Indirect Holders
We generally will not recognize investors who hold securities in accounts at banks or brokers as legal holders of securities. When we refer to the holders of securities, we mean only the actual legal and (if applicable) record holder of those securities. Holding securities in accounts at banks or brokers is called holding in street name. If you hold securities in street name, we will recognize only the bank or broker or the financial institution the bank or broker uses to hold its securities. These intermediary banks, brokers and other financial institutions pass along principal, interest and other payments on the securities, either because they agree to do so in their customer agreements or because they are legally required to do so. If you hold securities in street name, you should check with your own institution to find out:
| • | how it handles securities payments and notices; |
| • | whether it imposes fees or charges; |
| • | how it would handle voting if it were ever required to vote; |
| • | whether and how you can instruct it to send you securities registered in your own name so you can be a direct holder as described below; and |
| • | how it would pursue rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests. |
Direct Holders
Our obligations, as well as the obligations of the trustee and those of any third parties employed by us or the trustee, under the securities run only to persons who are registered as holders of securities. As noted above, we do not have obligations to you if you hold in street name or other indirect means, either because you choose to hold securities in that manner or because the securities are issued in the form of global securities as described below. For example, once we make payment to the registered holder, we have no further responsibility for the payment even if that holder is legally required to pass the payment along to you as a street name customer but does not do so.
Global Securities
What is a Global Security? A global security is a special type of indirectly held security, as described above under “Street Name and Other Indirect Holders”. If we choose to issue securities in the form of global securities, the ultimate beneficial owners can only be indirect holders.
We require that the securities included in the global security not be transferred to the name of any other direct holder unless the special circumstances described below occur. The financial institution that acts as the
10
sole direct holder of the global security is called the depositary. Any person wishing to own a security must do so indirectly by virtue of an account with a broker, bank or other financial institution that in turn has an account with the depositary. The prospectus supplement relating to an offering of a series of securities will indicate whether the series will be issued only in the form of global securities.
Special Investor Considerations for Global Securities. As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize this type of investor as a holder of securities and instead deal only with the depositary that holds the global security.
If you are an investor in securities that are issued only in the form of global securities, you should be aware that:
| • | You cannot get securities registered in your own name. |
| • | You cannot receive physical certificates for your interest in the securities. |
| • | You will be a street name holder and must look to your own bank or broker for payments on the securities and protection of your legal rights relating to the securities, as explained earlier under “Street Name and Other Indirect Holders”. |
| • | You may not be able to sell interests in the securities to some insurance companies and other institutions that are required by law to own their securities in the form of physical certificates. |
| • | The depositary’s policies will govern payments, transfers, exchange and other matters relating to your interest in the global security. We and the trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary in any way. |
Special Situations When the Global Security Will Be Terminated. In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing securities. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own bank or brokers to find out how to have their interests in securities transferred to their own name so that they will be direct holders. The rights of street name investors and direct holders in the securities have been previously described in the subsections entitled “— Street Name and Other Indirect Holders” and “— Direct Holders”.
The special situations for termination of a global security are:
| • | When the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary. |
| • | When an event of default on the securities has occurred and has not been cured. Defaults on debt securities are discussed below under “Description of Debt Securities and Guarantee — Default and Related Matters — Events of Default”. |
| • | When the issuer or guarantor notifies the trustee that the global security is exchangeable for physical certificates. |
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or the trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
In the remainder of this description of debt securities, “you” means direct holders and not street name or other indirect holders of securities. Indirect holders should read the previous subsection entitled “Street Name and Other Indirect Holders”.
11
Overview of Remainder of This Description
The remainder of this description summarizes:
| • | Additional mechanics relevant to the debt securities under normal circumstances, such as how you transfer ownership and where we make payments. |
| • | Your rights under several special situations, such as if we merge with another company or if we want to change a term of the debt securities. |
| • | Your rights to receive payment of additional amounts due to changes in French tax withholding or deduction requirements. |
| • | Your rights if we default or experience other financial difficulties. |
| • | Our relationship with the trustee. |
Additional Mechanics
Exchange and Transfer
The debt securities will be issued:
| • | only in fully registered form; |
| • | without interest coupons; and |
| • | unless otherwise indicated in the prospectus supplement, in denominations that are even multiples of $1,000. |
You may have your debt securities broken into more debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed. (Section 305) This is called an exchange.
You may exchange or transfer registered debt securities at the office of the trustee. The trustee acts as our agent for registering debt securities in the names of holders and transferring registered debt securities. We may change this appointment to another entity or perform the service ourselves. The entity performing the role of maintaining the list of registered holders is called the security registrar. It will also register transfers of the registered debt securities. (Section 305)
You will not be required to pay a service charge to transfer or exchange debt securities, but you may be required to pay for any tax or other governmental charge associated with the exchange or transfer. The transfer or exchange of a registered debt security will only be made if the security registrar is satisfied with your proof of ownership.
If we have designated additional transfer agents, they are named in the prospectus supplement. We may cancel the designation of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts. (Section 1002)
If the debt securities are redeemable and we redeem less than all of the debt securities of a particular series, we may block the transfer or exchange of debt securities during a specified period of time in order to freeze the list of holders to prepare the mailing. The period begins 15 days before the day we mail the notice of redemption and ends on the day of that mailing. We may also refuse to register transfers or exchanges of debt securities selected for redemption. However, we will continue to permit transfers and exchanges of the unredeemed portion of any security being partially redeemed. (Section 305)
Payment and Paying Agents
We will pay interest to you if you are a direct holder listed in the trustee’s records at the close of business on a particular day in advance of each due date for interest, even if you no longer own the security on the interest
12
due date. That particular day, usually about two weeks in advance of the interest due date, is called the regular record date and is stated in the prospectus supplement. (Section 307)
We will pay interest, principal and any other money due on the registered debt securities at the corporate trust office of the trustee in New York City. That office is currently located at The Bank of New York Mellon, 101 Barclay Street, New York, New York 10286. You must make arrangements to have your payments picked up at or wired from that office. We may also choose to pay interest by mailing checks. Interest on global securities will be paid to the holder thereof by wire transfer.
Holders buying and selling debt securities must work out between them how to compensate for the fact that we will pay all the interest for an interest period to the one who is the registered holder on the regular record date. The most common manner is to adjust the sales price of the debt securities to pro rate interest fairly between buyer and seller. This pro rated interest amount is called accrued interest.
Street name and other indirect holders should consult their banks or brokers for information on how they will receive payments.
We may also arrange for additional payment offices, and may cancel or change these offices, including our use of the trustee’s corporate trust office. These offices are called paying agents. We may also choose to act as our own paying agent. We must notify you through the trustee of changes in the paying agents for any particular series of debt securities. (Section 1002)
Notices
We and the trustee will send notices only to direct holders, using their addresses as listed in the trustee’s records. (Section 106)
Regardless of who acts as paying agent, all money that we pay to a paying agent that remains unclaimed at the end of two years after the amount is due to direct holders will be repaid to us. After that two-year period, you may look only to us for payment and not to the trustee, any other paying agent or anyone else. (Section 1006)
Special Situations
Mergers and Similar Events
We are generally permitted to consolidate or merge with another company or firm. We are also permitted to sell or lease substantially all of our assets to another corporation or other entity or to buy or lease substantially all of the assets of another corporation or other entity. In addition, we are permitted to transfer:
| • | the obligations of Total Capital, Total Canada and/or Total Capital International to TOTAL or any majority-owned subsidiary of TOTAL; and |
| • | the obligations of TOTAL, as issuer of debt securities, to any majority-owned subsidiary of TOTAL, so long as the obligations of that subsidiary are guaranteed by TOTAL on the same terms as TOTAL’s guarantee of Total Capital’s, Total Canada’s and Total Capital International’s debt securities. |
Solely in the case of a transfer of Total Capital’s, Total Canada’s or Total Capital International’s obligations to TOTAL, the relevant guarantee of TOTAL will cease to exist without further action on our part.
No vote by holders of debt securities approving any of these actions is required, unless as part of the transaction we make changes to the applicable indenture requiring your approval, as described below under “— Modification and Waiver”. We may take these actions as part of a transaction involving outside third parties or as part of an internal corporate reorganization. We may take these actions even if they result in:
| • | a lower credit rating being assigned to the debt securities; or |
| • | additional amounts becoming payable in respect of withholding tax. |
13
Except as provided below, we have no obligation under the indentures to seek to avoid these results, or any other legal or financial effects that are disadvantageous to you, in connection with a merger, consolidation or sale or lease of assets that is permitted under the indentures. However, we may not take any of these actions unless all the following conditions are met:
| • | Where TOTAL, Total Capital, Total Canada or Total Capital International merges out of existence or sells or leases substantially all of its assets, or transfers its obligations to a substitute obligor, the other entity must be duly organized and validly existing under the laws of the relevant jurisdiction. |
| • | The merger, sale or lease of assets or other transaction, or the transfer of obligations to a substitute obligor, must not cause a default on the debt securities, and we must not already be in default. For purposes of this no-default test, a default would include an event of default that has occurred and not been cured, as described below under “Default and Related Matters — Events of Default — What is An Event of Default?” A default for this purpose would also include any event that would be an event of default if the requirements for giving us default notice or our default having to exist for a specific period of time were disregarded. |
| • | If any of TOTAL, Total Capital, Total Canada or Total Capital International merges out of existence or sells or leases substantially all of its assets, or transfers its obligations to a substitute obligor, the other entity must assume its obligations under the applicable indenture, debt securities and guarantee, including TOTAL’s, Total Capital’s, Total Canada’s and Total Capital International’s obligations to pay additional amounts described below under “— Payment of Additional Amounts”. In the event the jurisdiction of incorporation of the successor or substitute obligor is not the Republic of France with respect to TOTAL, Total Capital and Total Capital International or Canada with respect to Total Canada, such successor or substitute obligor shall also agree to be bound to the obligations described below under “— Payment of Additional Amounts” and “— Optional Tax Redemption” but shall substitute the successor’s or substitute obligor’s jurisdiction of incorporation for the Republic of France or Canada, as the case may be. |
In the case of debt securities issued by Total Canada, the above conditions shall not apply to any consolidation, amalgamation or merger under the laws of Canada or any province or territory thereof in which Total Canada is the successor corporation and continues to be liable by operation of law for the due and punctual payment of the principal of, and premium, if any, and interest on all the debt securities then outstanding and for all other obligations of Total Canada under the indenture and under such debt securities.
In addition, in the case of debt securities issued by Total Canada, Total Canada may, notwithstanding anything contained in the indenture, enter into any transaction with any direct or indirect wholly-owned subsidiary of TOTAL without complying with the conditions set forth above in a transaction or series of transactions in which Total Canada retains all of its obligations under and in respect of all outstanding debt securities (a “Permitted Reorganization”) provided that, as of the date of the Permitted Reorganization:
(a) substantially all of the unsubordinated and unsecured indebtedness for borrowed money of Total Canada which ranked pari passu with the then outstanding debt securities immediately prior to the proposed Permitted Reorganization will rank no better than pari passu with the then outstanding debt securities after the Permitted Reorganization; or
(b) at least two of Total Canada’s then current credit rating agencies (or if only one credit rating agency maintains ratings in respect of the debt securities at such time, that one credit rating agency) have affirmed that the rating assigned by them to the debt securities shall not be downgraded as a result of the Permitted Reorganization.
It is possible that the U.S. Internal Revenue Service may deem a merger or other similar transaction to cause an exchange for U.S. federal income tax purposes of debt securities for new securities by the holders of the debt securities. This could result in the recognition of taxable gain or loss for U.S. federal income tax purposes and possible other adverse tax consequences.
14
Modification and Waiver
There are three types of changes we can make to the indentures and the debt securities.
Changes Requiring Your Approval. First, there are changes that cannot be made to your debt securities without your specific approval, for example, by calling a meeting of holders and seeking a 100% quorum and unanimous consent, or, more likely, by obtaining written consents from each holder. We must obtain your specified approval in order to:
| • | change the stated maturity of the principal or interest on a debt security; |
| • | reduce any amounts due on a debt security; |
| • | reduce the amount of principal payable upon acceleration of the maturity of a debt security following a default; |
| • | change the place or currency of payment on a debt security; |
| • | impair your right to sue for payment; |
| • | reduce the percentage of holders of debt securities whose consent is needed to modify or amend the applicable indenture; |
| • | reduce the percentage of holders of debt securities whose consent is needed to waive compliance with various provisions of the applicable indenture or to waive various defaults; |
| • | modify any other aspect of the provisions dealing with modification and waiver of the applicable indenture; and |
| • | in the case of guaranteed debt securities, change in any manner adverse to the interests of holders the obligations of TOTAL to pay any principal, premium or interest under the guarantee. (Section 902) |
Changes Requiring a Majority Vote. The second type of change to the indentures and the debt securities is the kind that requires a vote in favor by holders of debt securities owning a majority of the principal amount of the particular series affected. Most changes fall into this category, except for clarifying changes and other changes that would not adversely affect holders of the debt securities in any material respect. (Section 901) The same vote would be required for us to obtain a waiver of all or part of the covenants described below, or a waiver of a past default. However, we cannot obtain a waiver of a payment default or any other aspect of the indentures or the debt securities described previously under “Changes Requiring Your Approval” unless we obtain your individual consent, for example, by calling a meeting of holders and seeking a 100% quorum and unanimous consent, or, more likely, by obtaining written consents from each holder, to the waiver. (Section 513)
Changes Not Requiring Approval. The third type of change does not require any vote by holders of debt securities. This type is limited to clarifications and other changes that would not adversely affect holders of the debt securities in any material respect. (Section 901)
Further Details Concerning Voting. When taking a vote, we will use the following rules to decide how much principal amount to attribute to a security:
| • | For original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of the debt securities were accelerated to that date because of a default. |
| • | For debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special rule for that security described in the prospectus supplement. |
| • | For debt securities denominated in one or more foreign currencies or currency units, we will use the U.S. dollar equivalent as of the date of original issuance. |
15
| • | Debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust for you money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under “Covenants — Defeasance and Discharge”. (Section 101) |
| • | We will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding debt securities that are entitled to vote or take other action under the applicable indenture (or failing us in certain circumstances, the trustee). If we set a record date for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding debt securities of that series on the record date and must be taken within 90 days following the record date or another period that we may specify (or as the trustee may specify, if it set the record date). We may shorten or lengthen (but not beyond 90 days) this period from time to time. (Sections 501, 502, 512, 513 and 902) |
Street name and other indirect holders should consult their banks or brokers for information on how approval may be granted or denied if we seek to change the indentures or the debt securities or request a waiver.
Redemption and Repayment
Unless otherwise indicated in the prospectus supplement, your debt security will not be entitled to the benefit of any sinking fund — that is, we will not deposit money on a regular basis into any separate custodial account to repay your debt securities. In addition, we will not be entitled to redeem your debt security before its stated maturity, other than as described below under “— Optional Tax Redemption”, unless the prospectus supplement specifies a redemption commencement date or other specific conditions upon which we may redeem the debt securities. You will not be entitled to require us to buy your debt security from you, before its stated maturity, unless the related prospectus supplement specifies one or more repayment dates.
In the event that we exercise an option to redeem any debt security, we will give written notice of the principal amount of the debt security to be redeemed to the trustee at least 45 days before the applicable redemption date and to the holder not less than 30 days nor more than 60 days before the applicable redemption date. We will give the notice in the manner described above under “Additional Mechanics — Notices”.
If a debt security represented by a global security is subject to repayment at the holder’s option, the depositary or its nominee, as the holder, will be the only person that can exercise the right to repayment. Any indirect holders who own beneficial interests in the global security and wish to exercise a repayment right must give proper and timely instructions to their banks or brokers through which they hold their interests, requesting that they notify the depositary to exercise the repayment right on their behalf. Different firms have different deadlines for accepting instructions from their customers, and you should take care to act promptly enough to ensure that your request is given effect by the depositary before the applicable deadline for exercise.
Street name and other indirect holders should contact their banks or brokers for information about how to exercise a repayment right in a timely manner.
We or our affiliates may purchase debt securities from investors who are willing to sell from time to time, either in the open market at prevailing prices or in private transactions at negotiated prices. Debt securities that we or they purchase may, in our discretion, be held, resold or canceled.
Payment of Additional Amounts
We will make payments on the debt securities without withholding any taxes unless otherwise required to do so by law or by the interpretation or administration thereof. If the Republic of France or, in the case of debt securities issued by Total Canada, Canada, or any tax authority in these jurisdictions requires TOTAL, Total Capital, Total Canada or Total Capital International to withhold or deduct amounts from payment on a debt
16
security or any amounts to be paid under the guarantee in respect of guaranteed debt securities or as additional amounts for or on account of taxes or any other governmental charges, or any other jurisdiction requires such withholding or deduction as a result of a merger or similar event, TOTAL, Total Capital, Total Canada or Total Capital International as the case may be, may be required to pay you an additional amount so that the net amount you receive will be the amount specified in the debt security to which you are entitled.
Total Capital, Total Canada, Total Capital International or TOTAL, as the case may be, will not have to pay additional amounts under any of the following circumstances:
| • | The holder of the debt securities (or a third party holding on behalf of the holder) is subject to such tax or governmental charge by reason of having some present or former connection to the Republic of France or, in the case of debt securities issued by Total Canada, Canada, or the other jurisdiction requiring such withholding or deduction, other than the mere holding of the debt security. |
| • | In the case of debt securities issued by Total Canada, the holder of the debt securities (or the beneficial owner thereof) does not deal at “arm’s length” with Total Canada or with TOTAL, within the meaning of the applicable tax legislation, at the time the amount is paid or payable. |
| • | The tax or governmental charge is imposed due to the presentation of a debt security, if presentation is required, for payment on a date more than 30 days after the security became due or after the payment was provided for, whichever occurs later. |
| • | The tax or governmental charge is on account of an estate, inheritance, gift, sale, transfer, personal property or similar tax or other governmental charge. |
| • | The tax or governmental charge is for a tax or governmental charge that is payable in a manner that does not involve withholding or deduction. |
| • | The tax or governmental charge is imposed or withheld because the holder or beneficial owner failed: |
| • | to provide information about the nationality, residence or identity of the holder or beneficial owner; or |
| • | to make a declaration or satisfy any information requirements that the statutes, treaties, regulations or administrative practices of the taxing jurisdiction require as a precondition to exemption from all or part of such tax or governmental charge. |
| • | The withholding or deduction is imposed pursuant to the European Union Directive 2003/48/EC regarding the taxation of savings income or any other directive amending, supplementing or replacing such directive, including European Union Directive 2014/48/EU, or any law implementing or complying with, or introduced in order to conform to, such directive or directives. |
| • | The withholding or deduction is imposed on a holder or beneficial owner who could have avoided such withholding or deduction by presenting its debt securities to another paying agent. |
| • | The holder is a fiduciary or partnership or an entity that is not the sole beneficial owner of the payment of the principal of, or any interest on, any debt security, and the laws of the jurisdiction require the payment to be included in the income of a beneficiary or settlor for tax purposes with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the holder of such security. |
| • | In addition, we expect that the relevant prospectus supplement will also provide that any amounts to be paid by Total Capital. Total Canada, Total Capital International or TOTAL, as the case may be, on the debt securities will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the |
17
| implementation of such Sections of the Code, which is referred to as FATCA Withholding, and that the trustee shall be entitled to deduct FATCA Withholding, and shall have no obligation to gross-up any of the aforementioned payments or to pay any additional amount as a result of such FATCA Withholding. |
These provisions will also apply to any taxes or governmental charges imposed by any jurisdiction in which a successor to, or substitute obligor of, Total Capital, Total Canada, Total Capital International or TOTAL is organized, except that the name of the jurisdiction of the successor or substitute obligor shall be substituted for the Republic of France or Canada, as the case may be.
The prospectus supplement relating to the debt securities may describe additional circumstances in which Total Capital, Total Canada or Total Capital International would not be required to pay additional amounts. (Section 1010) By the terms of the guarantee, if under the terms of the debt securities set forth in the prospectus supplement Total Capital, Total Canada or Total Capital International is not required to pay any additional amounts, then TOTAL as guarantor shall not be required to pay additional amounts under the guarantee, unless the guarantee has been modified or amended as described in the applicable prospectus supplement.
Please see the discussion under “Tax Considerations — French Taxation — Taxation of Income — Additional Amounts” for a summary of the treatment of additional amounts under French tax law.
Optional Tax Redemption
We may also have the option to redeem the debt securities of a given series if, as a result of any change in French tax treatment with respect to Total Capital, Total Capital International and TOTAL or Canadian tax treatment with respect to Total Canada (or treatment of any jurisdiction in which a successor to, or substitute obligor of, Total Capital, TOTAL or Total Canada is organized), Total Capital, Total Capital International, TOTAL or Total Canada would be required to pay additional amounts as described above under “— Payment of Additional Amounts”. This option applies only in the case of changes in such tax treatment that become effective or of which we are notified on or after the date specified in the prospectus supplement for the applicable series of debt securities (or in the case of a successor entity, after the date of succession). The redemption price for the debt securities, other than original issue discount debt securities, will be equal to the principal amount of the debt securities being redeemed plus accrued interest. The redemption price for original issue discount debt securities will be specified in the prospectus supplement for such securities. (Section 1108)
Defeasance and Discharge
The following discussion of defeasance and discharge will be applicable to your series of debt securities, unless the related prospectus supplement states otherwise. (Section 403)
Each indenture contains a provision that permits us to elect:
| • | to be discharged after 90 days from all our obligations (subject to limited exceptions) with respect to any series of debt securities then outstanding; and/or |
| • | to be released from our obligations under some of the covenants and from the consequences of an event of default resulting from a breach of such covenants. |
We can legally release ourselves from any payment or other obligations on the debt securities under either of the above elections, except for various obligations described below, if we, in addition to other actions, put in place the following arrangements for you to be repaid:
| • | We must deposit in trust for your benefit and the benefit of all other direct holders of the debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates. In addition, on the date of such deposit, we must not be in default. For purposes of |
18
| this no-default test, a default would include an event of default that has occurred and not been cured, as described below under “Default and Related Matters — Events of Default — What is An Event of Default?” A default for this purpose would also include any event that would be an event of default if the requirements for giving us default notice or our default having to exist for a specific period of time were disregarded. |
| • | We must deliver to the trustee a legal opinion of our counsel confirming that under current U.S. federal income tax law we may make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves in accordance with their terms. In the case of debt securities being discharged, we must deliver along with this opinion a private letter ruling from the U.S. Internal Revenue Service to this effect or a revenue ruling pertaining to a comparable form of transaction published by the U.S. Internal Revenue Service to the same effect. |
| • | If the debt securities are listed on the New York Stock Exchange, we must deliver to the trustee a legal opinion of our counsel confirming that the deposit, defeasance and discharge will not cause the debt securities to be delisted. |
However, even if we take these actions, a number of our obligations relating to the debt securities will remain. These include the following obligations:
| • | to register the transfer and exchange of debt securities; |
| • | to replace mutilated, destroyed, lost or stolen debt securities; |
| • | to maintain paying agencies; and |
| • | to hold money for payment in trust. |
Default and Related Matters
Ranking
The debt securities are not secured by any of our property or assets. Accordingly, your ownership of debt securities means you are one of our unsecured creditors. The debt securities are not subordinated to any of our other debt obligations and therefore they rank equally with all our other unsecured and unsubordinated indebtedness (save for certain mandatory exceptions provided by French and Canadian law).
Events of Default
You will have special rights if an event of default occurs and is not cured, as described later in this subsection.
What Is an Event of Default? The term “event of default” means any of the following:
| • | We do not pay the principal or any premium on a debt security at maturity. |
| • | We do not pay interest on a debt security within 30 days of its due date. |
| • | We remain in breach of a covenant or any other term of the applicable indenture for 90 days after we receive a notice of default stating we are in breach. The notice must be sent by either the trustee or holders of 25% of the principal amount of debt securities of the affected series. |
| • | We file for bankruptcy or certain other events in bankruptcy, insolvency or reorganization occur. |
| • | In respect of guaranteed debt securities issued by Total Capital or Total Canada, the guarantee is not (or is claimed by TOTAL, Total Capital or Total Canada not to be) in full force and effect. |
| • | Any other event of default described in the prospectus supplement occurs. (Section 501) |
19
Remedies If an Event of Default Occurs. If an event of default has occurred and has not been cured, the trustee or the holders of 25% in principal amount of the debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders of at least a majority in principal amount of the debt securities of the affected series if certain conditions are met. (Section 502)
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the indentures at the request of any holders unless the holders offer the trustee reasonable protection from expenses and liability. This protection is called an indemnity. (Section 603) If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. These majority holders may also direct the trustee in performing any other action under the indentures. (Section 512)
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
| • | You must give the trustee written notice that an event of default has occurred and remains uncured. |
| • | The holders of 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default, and must offer reasonable indemnity to the trustee against the cost and other liabilities of taking that action. |
| • | The trustee must have not taken action for 60 days after receipt of the above notice and offer of indemnity. |
| • | No direction inconsistent with such written request must have been given to the trustee during such 60-day period by holders of a majority in principal amount of all outstanding debt securities of that series. (Section 507) |
Nothing, however, will prevent an individual holder from bringing suit to enforce payment.
Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and to make or cancel a declaration of acceleration.
We will furnish to the trustee every year a written statement of certain of our officers certifying that, to their knowledge, we are in compliance with the indentures and the debt securities, or else specifying any default. (Section 1008)
Regarding the Trustee
TOTAL and several of its subsidiaries maintain banking relations with the trustee and its affiliates in the ordinary course of their business.
If an event of default occurs, or an event occurs that would be an event of default if the requirements for giving us default notice or our default having to exist for a specific period of time were disregarded, the trustee may be considered to have a conflicting interest with respect to the debt securities or the applicable indenture for purposes of the Trust Indenture Act of 1939, as amended. In that case, the trustee may be required to resign as trustee under the applicable indenture and we would be required to appoint a successor trustee.
20
Securities we issue may be held through one or more international and domestic clearing systems. The principal clearing systems we will use are the book-entry systems operated by DTC in the United States, Clearstream Banking, société anonyme, in Luxembourg (“Clearstream”) and Euroclear Bank S.A./N.V. in Brussels, Belgium (“Euroclear”). These systems have established electronic securities and payment, transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow securities to be issued, held and transferred among the clearing systems without the physical transfer of certificates.
Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market. Where payments for securities we issue in global form will be made in U.S. dollars, these procedures can be used for cross-market transfers and the securities will be cleared and settled on a delivery against payment basis.
Investors in securities that are issued outside of the United States, its territories and possessions must initially hold their interests through Euroclear, Clearstream or the clearance system that is described in the applicable prospectus supplement.
Cross-market transfers of securities that are not in global form may be cleared and settled in accordance with other procedures that may be established among the clearing systems for these securities.
The policies of DTC, Clearstream and Euroclear will govern payments, transfers, exchange and other matters relating to the investor’s interest in securities held by them. This is also true for any other clearance system that may be named in a prospectus supplement.
We have no responsibility for any aspect of the actions of DTC, Clearstream or Euroclear or any of their direct or indirect participants. We have no responsibility for any aspect of the records kept by DTC, Clearstream or Euroclear or any of their direct or indirect participants. We also do not supervise these systems in any way. This is also true for any other clearing system indicated in a prospectus supplement.
DTC, Clearstream, Euroclear and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. You should be aware that they are not obligated to perform these procedures and may modify them or discontinue them at any time.
The description of the clearing systems in this section reflects our understanding of the rules and procedures of DTC, Clearstream and Euroclear as they are currently in effect. Those systems could change their rules and procedures at any time.
The Clearing Systems
DTC
DTC has advised us as follows:
| • | DTC is: |
| • | a limited purpose trust company organized under the laws of the State of New York; |
| • | a member of the Federal Reserve System; |
| • | a “clearing corporation” within the meaning of the Uniform Commercial Code; and |
| • | a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. |
21
| • | DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes to accounts of its participants. This eliminates the need for physical movement of certificates. |
| • | Participants in DTC include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations. DTC is partially owned by some of these participants or their representatives. |
| • | Indirect access to the DTC system is also available to banks, brokers, dealers and trust companies that have relationships with participants. |
| • | The rules applicable to DTC and DTC participants are on file with the SEC. |
Clearstream
Clearstream has advised us as follows:
| • | Clearstream is a duly licensed bank organized as a société anonyme incorporated under the laws of Luxembourg and is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector (Commission de Surveillance du Secteur Financier). |
| • | Clearstream holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through electronic book-entry changes to the accounts of its customers. This eliminates the need for physical movement of certificates. |
| • | Clearstream provides other services to its participants, including safekeeping, administration, clearance and settlement of internationally traded securities and lending and borrowing of securities. It interfaces with the domestic markets in over 30 countries through established depositary and custodial relationships. |
| • | Clearstream’s customers include worldwide securities brokers and dealers, banks, trust companies and clearing corporations and may include professional financial intermediaries. Its U.S. customers are limited to securities brokers and dealers and banks. |
| • | Indirect access to the Clearstream system is also available to others that clear through Clearstream customers or that have custodial relationships with its customers, such as banks, brokers, dealers and trust companies. |
Euroclear
Euroclear has advised us as follows:
| • | Euroclear is incorporated under the laws of Belgium as a bank and is subject to regulation by the Belgian Banking and Finance Commission (Commission Bancaire et Financière) and the National Bank of Belgium (Banque Nationale de Belgique). |
| • | Euroclear holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates. |
| • | Euroclear provides other services to its customers, including credit custody, lending and borrowing of securities and tri-party collateral management. It interfaces with the domestic markets of several other countries. |
| • | Euroclear customers include banks, including central banks, securities brokers and dealers, trust companies and clearing corporations and may include certain other professional financial intermediaries. |
22
| • | Indirect access to the Euroclear system is also available to others that clear through Euroclear customers or that have relationships with Euroclear customers. |
| • | All securities in Euroclear are held on a fungible basis. This means that specific certificates are not matched to specific securities clearance accounts. |
Other Clearing Systems
We may choose any other clearing system for a particular series of securities. The clearance and settlement procedures for the clearing system we choose will be described in the applicable prospectus supplement.
Primary Distribution
The distribution of the securities will be cleared through one or more of the clearing systems that we have described above or any other clearing system that is specified in the applicable prospectus supplement. Payment for securities will be made on a delivery versus payment or free delivery basis. These payment procedures will be more fully described in the applicable prospectus supplement.
Clearance and settlement procedures may vary from one series of securities to another according to the currency that is chosen for the specific series of securities. Customary clearance and settlement procedures are described below.
Clearance and Settlement Procedures — DTC
DTC participants that hold securities through DTC on behalf of investors will follow the settlement practices applicable to United States corporate debt obligations.
For payments in U.S. dollars, securities will be credited to the securities custody accounts of these DTC participants against payment on the settlement date. For payments in a currency other than U.S. dollars, securities will be credited free of payment on the settlement date.
Clearance and Settlement Procedures — Euroclear and Clearstream
We understand that investors that hold their securities through Euroclear or Clearstream accounts will follow the settlement procedures that are applicable to conventional Eurobonds in registered form for debt securities, or such other procedures as are applicable for other securities.
Securities will be credited to the securities custody accounts of Euroclear and Clearstream participants on the business day following the settlement date, for value on the settlement date. They will be credited either free of payment or against payment for value on the settlement date.
Secondary Market Trading
Trading between DTC Participants
Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC’s rules. Secondary market trading will be settled using procedures applicable to United States corporate debt obligations.
If payment is made in U.S. dollars, settlement will be made versus payment. If payment is made in a currency other than U.S. dollars, settlement will be free of payment. If payment is made other than in U.S. dollars, separate payment arrangements outside of the DTC system must be made between the DTC participants involved.
23
Trading between Euroclear and/or Clearstream Participants
We understand that secondary market trading between Euroclear and/or Clearstream participants will occur in the ordinary way following the applicable rules and operating procedures of Euroclear and Clearstream. Secondary market trading will be settled using procedures applicable to conventional Eurobonds in registered form for debt securities, or such other procedures as are applicable for other securities.
Transfers Between DTC and Clearstream or Euroclear
Cross-market transfers between persons holding directly or indirectly through DTC, on the one hand, and directly or indirectly through Clearstream participants or Euroclear participants, on the other, will be effected in DTC in accordance with DTC rules on behalf of the relevant European international clearing system by its U.S. depositary. However, such cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving securities in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream participants and Euroclear participants may not deliver instructions directly to the respective U.S. depositaries.
Because of time-zone differences, credits of securities received by Clearstream or Euroclear as a result of a transaction with a DTC participant will be made during subsequent securities settlement processing and will be dated the business day following DTC settlement date. Such credits or any transactions in such securities settled during such processing will be reported to the relevant Clearstream participants or Euroclear participants on such business day. Cash received in Clearstream or Euroclear as a result of sales of securities by or through a Clearstream or Euroclear participant to a DTC participant will be received with value on the DTC settlement date but will be generally available to the relevant Clearstream or Euroclear cash account only as of the business day following settlement in DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of securities among their respective participants, they are under no obligation to perform or continue to perform such procedures and such procedures may be changed or discontinued at any time.
French Taxation
This section describes the material French tax consequences of acquiring, owning and disposing of the debt securities described in this prospectus and is the opinion of Sullivan & Cromwell LLP, our French tax counsel. It applies only to holders of debt securities issued by TOTAL, Total Capital or Total Capital International that are not residents of France for the purpose of French taxation, that are not shareholders of TOTAL, Total Capital or Total Capital International and do not hold debt securities in connection with a permanent establishment or a fixed base in France through which the holder carries on a business or performs personal services.
This summary is based on the laws in force as of the date hereof, and is subject to any changes in applicable French tax laws or in any applicable double taxation conventions or treaties with France occurring after such date. This discussion does not purport to be a complete analysis of all potential French tax effects of the acquisition, ownership and disposition of debt securities.
Prospective purchasers of debt securities are urged to consult their own tax advisors concerning the French and other tax consequences of acquiring, owning and disposing of debt securities and their eligibility for the benefits of any tax treaty.
24
Taxation of Income
Interest. Payments of interest and other revenues by the issuer with respect to debt securities issued on or after March 1, 2010 (other than debt securities which are consolidated (assimilables for the purpose of French law) and form a single series with debt securities issued prior to March 1, 2010 having the benefit of Article 131 quater of the French General Tax Code, the tax considerations of which are not described herein) will not be subject to the withholding tax set out under Article 125 A III of the French General Tax Code unless such payments are made outside France in a non-cooperative State or territory (Etat ou territoire non coopératif) within the meaning of Article 238-0 A of the French General Tax Code (a “Non-Cooperative State”). If such payments under the debt securities are made in a Non-Cooperative State, a 75% withholding tax will be applicable (subject to certain exceptions and to the more favorable provisions of any applicable double tax treaty) by virtue of Article 125 A III of the French General Tax Code. The list of Non-Cooperative States is published in a ministerial decree and updated annually.
Furthermore, pursuant to Article 238 A of the French General Tax Code, interest and other revenues on such debt securities will no longer be deductible from the taxable income of TOTAL, Total Capital or Total Capital International as from the fiscal years starting on or after January 1, 2011, if they are paid or accrued to persons established or domiciled in a Non-Cooperative State or paid on a bank account opened in a financial institution located in such a Non-Cooperative State. Under certain conditions, any such non-deductible interest and other revenues may be re-characterized as constructive dividends pursuant to Articles 109 et seq. of the French General Tax Code, in which case such non-deductible interest and other revenues may be subject to the withholding tax set out under Article 119 bis 2 of the French General Tax Code, at a rate of 30% or 75%, subject to more favorable provisions of any applicable tax treaty.
Notwithstanding the foregoing, none of the 75% withholding tax set out under Article 125 A III of the French General Tax Code, the non-deductibility of the interest and other revenues of such debt securities or the withholding tax provided under Article 119 bis 2 of the French General Tax Code that may be levied as a result of such non-deductibility, to the extent the relevant interest or revenues relate to genuine transactions and are not in an abnormal or exaggerated amount, will apply if TOTAL, Total Capital or Total Capital International can prove that the principal purpose and effect of a particular issue of debt securities was not that of allowing the payments of interest or other revenues to be made in a Non-Cooperative State (the “Exception”). Pursuant to French tax administrative guidelines Bulletin Officiel des Finances Publiques-Impôts BOI-INT-DG-20-50-20120912 and BOI-RPPM-RCM-30-10-20-50-20120912 and its annexes BOI-ANNX-000364-20120912 and BOIANNX-000366-20120912), an issue of debt securities will benefit from the Exception without TOTAL, Total Capital or Total Capital International having to provide any proof of the purpose and effect of such issue of debt securities, if such debt securities are:
(a) offered by means of a public offer within the meaning of Article L.411.1 of the French Monetary and Financial Code or pursuant to an equivalent offer in a State other than a Non-Cooperative State. For this purpose, an “equivalent offer” means any offer requiring registration or submission of an offer document by or with a foreign securities market authority; or
(b) admitted to trading on a regulated market or on a French or foreign multilateral securities trading system provided that such market or system is not located in a Non-Cooperative State, and the operation of such market is carried out by a market operator or an investment services provider, or by such other similar foreign entity, provided further that such market operator, investment services provider or entity is not located in a Non-Cooperative State; or
(c) admitted, at the time of their issue, to the operations of a central depositary or of a securities clearing and delivery and payments systems operator within the meaning of Article L.561-2 of the French Monetary and Financial Code, or of one of more similar foreign depositaries or operators provided that such depositary or operator is not located in a Non-Cooperative State.
25
As the debt securities issued pursuant to this Prospectus are offered by means of an offer equivalent to a public offer, payments of interest or other revenues made by or on behalf of TOTAL, Total Capital or Total Capital International with respect to the debt securities will not be subject to the withholding tax set out under Article 125 A III of the French General Tax Code. In addition, they will be subject neither to the non-deductibility set out under Article 238 A of the same Code nor to the withholding tax set out under Article 119 bis 2 of the same Code solely on account of their being paid on a bank account opened in a financial institution located in a Non-Cooperative State or accrued or paid to persons established or domiciled in a Non-Cooperative State.
The European Union (“EU”) adopted on March 24, 2014 the Directive 2014/48/EU (the “Tax Directive”) amending Directive 2003/48/EC regarding the taxation of savings income in the form of interest payments. Under the Tax Directive, paying agents shall provide to the competent authority of the State in which they are established details of the payment of interest and other similar income within the meaning of the Tax Directive made to, or for the benefit of, any individual resident in another EU Member State as the beneficial owner of the interest. The competent authority of the EU Member State of the paying agent is then required to communicate this information to the competent authority of the EU Member State of which the beneficial owner of the interest is a resident.
For a transitional period, however, Austria (unless during such period they elect otherwise) instead applies a withholding tax system in relation to interest payments pursuant to which tax will be levied, unless the recipient of such payments elects instead for an exchange of information procedure. The withholding tax rate is 35% . The transitional period shall end at the end of the first full fiscal year following the year during which certain non-EU countries (i.e., Liechtenstein, San Marino, Monaco, Andorra and the United States) will each enter into an agreement with the EU providing for an exchange of information upon request as defined in the OECD Model Agreement on Exchange of Information on Tax Matters released on April 18, 2002 with respect to interest payments made by paying agents established within those countries to beneficial owners located within the EU.
The Tax Directive may, however, be repealed in due course in order to avoid overlap with the amended Council Directive 2011/16/EU on administrative cooperation in the field of taxation, pursuant to which Member States other than Austria will be required to apply other new measures on mandatory automatic exchange of information from 1 January 2016. Austria has an additional year before being required to implement the new measures but it has announced that it will nevertheless begin to exchange information automatically in accordance with the timetable applicable to other Member States.
Article 242 ter and Article 49 I ter to 49 I sexies of the Schedule III of the French General Tax Code implements the Tax Directive and therefore imposes on paying agents based in France an obligation to report to the French tax authorities certain information with respect to interest payments made to beneficial owners domiciled in another EU Member State, including, among other things, the identity and address of the beneficial owner and a detailed list of the different categories of interest paid to that beneficial owner.
Investors should rely on their own analysis of the terms of the Tax Directive and should consult appropriate legal or taxation professionals.
Taxation on Sale or Other Disposition. Under article 244 bis C of the French General Tax Code, a person that is not a resident of France for the purpose of French taxation generally is not subject to any French income tax or capital gains tax on any gain derived from the sale or other disposition of a debt security.
Additional Amounts. If the French tax laws or regulations applicable to us (or to any of our successors) change and payments in respect of the debt securities become subject to withholding or deduction, we will, to the extent permitted by applicable law, be responsible for the payment of any additional amounts to offset such withholding, except as provided above in “Description of Debt Securities and Guarantee — Special Situations — Payment of Additional Amounts” or in any applicable prospectus supplement.
26
Under French law, an issuer may not bear on behalf of a holder of its debt securities any withholding tax due in respect of interest payments on such securities. It is unclear whether additional amounts payable (as described above in “Description of Debt Securities and Guarantee — Special Situations — Payment of Additional Amounts” or in any applicable prospectus supplement) in respect of withholding or deduction for taxes imposed on payments on the debt securities may be validly paid in accordance with French law.
Stamp Duty and Other Transfer Taxes
Transfers of debt securities will not be subject to any stamp duty or other transfer tax imposed in France, provided such transfer is not recorded in a deed registered in France.
Estate and Gift Tax
France imposes estate and gift tax on securities of a French company that are acquired by inheritance or gift. According to article 750 ter of the French General Tax Code, the taxation is triggered without regard to the residence of the transferor. However, France has entered into estate and gift tax treaties with a number of countries pursuant to which, assuming certain conditions are met, residents of the treaty country may be exempted from such tax or obtain a tax credit. As a result from the combination of the French domestic tax law and the estate and gift tax convention between the United States and France, a transfer of debt securities by gift or by reason of the death of a United States holder entitled to benefits under that convention will not be subject to French gift or inheritance tax, so long as, among other conditions, the donor or decedent was not domiciled in France at the time of the transfer and the debt securities were not used or held for use in the conduct of a business or profession through a permanent establishment or fixed base in France.
Wealth Tax
French wealth tax (impôt de solidarité sur la fortune) generally does not apply to debt securities owned by non-French residents according to article 885 L of the French General Tax Code. Subject to certain exceptions, a United States holder that is resident in the United States within the meaning of the income tax convention between the United States and France generally is exempt from French wealth tax.
Prospective purchasers who are individuals are urged to consult with their own tax advisers.
Canadian Taxation
This section describes the material Canadian federal income tax consequences of acquiring, owning and disposing of the debt securities described in this prospectus and is the opinion of Bennett Jones LLP, our Canadian tax counsel (“Canadian Counsel”). This section applies to you only if you acquire your debt securities in the offering or offerings contemplated by this prospectus, and if at all relevant times, and for the purposes of the Income Tax Act (Canada) (the “Tax Act”) and any applicable income tax treaty or convention, you deal with TOTAL, Total Canada, Total Capital and Total Capital International at arm’s length, are not and are not deemed to be a resident of Canada, will hold the debt securities as capital property, and will not use or hold and will not be deemed to use or hold the debt securities in connection with a business carried on in Canada (a “Non-Resident Holder”). Special rules which are not discussed in this summary may apply to a Non-Resident Holder that is an insurer carrying on business in Canada and elsewhere.
This section is based upon the current provisions of the Tax Act and the regulations thereunder, all specific proposals to amend such provisions publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date of this prospectus, and Canadian Counsel’s understanding of the current published administrative practices and assessing policies of the Canada Revenue Agency. This summary is not exhaustive of all possible Canadian federal income tax consequences, and except as noted above, does not take into account or anticipate any changes in law, whether by legislative, governmental or judicial action, and does not take into account tax
27
legislation or considerations of any province, territory or foreign jurisdiction, which may differ from the federal income tax considerations. This discussion does not address U.S. state, local and non-U.S. tax consequences or the alternative minimum tax.
This summary is of a general nature only and is not intended to be, nor should it be construed to be, legal or tax advice to any particular Non-Resident Holder, and no representation with respect to the income tax consequences to any particular Non-Resident Holder is made.
Under the Tax Act, provided that the interest paid or payable on any debt securities is not “participating debt interest”, within the meaning of the Tax Act, a Non-Resident Holder will not be subject to Canadian withholding tax in respect of any amounts paid or credited by Total Canada as, on account of, in lieu of, or in satisfaction of interest on the debt securities. Generally, interest paid or payable on the debt securities will not be participating debt interest unless all or a portion of such interest is contingent or dependent on the use of or production from property in Canada or is computed by reference to revenue, profit, or any other similar criterion or by reference to dividends paid or payable to shareholders of a corporation. There will be no other Canadian income taxes payable under the Tax Act in respect of the holding, redemption or disposition of the debt securities or the receipt of interest, premium or penalty on the debt securities by a Non-Resident Holder from Total Canada.
United States Federal Income Taxation
This section describes the material U.S. federal income tax consequences of owning the debt securities and is the opinion of Sullivan & Cromwell LLP, our U.S. tax counsel. It applies to you only if you acquire your debt securities in an offering contemplated by this prospectus and hold your debt securities as capital assets for tax purposes. This section does not apply to you if you are a member of a class of holders subject to special rules, such as:
| • | a dealer in securities or currencies; |
| • | a trader in securities that elects to use a mark-to-market method of accounting for its securities holdings; |
| • | a bank; |
| • | a life insurance company; |
| • | a tax-exempt organization; |
| • | a person that owns debt securities that are a hedge or that are hedged against interest rate or currency risks; |
| • | a person that owns debt securities as part of a straddle or conversion transaction for tax purposes; |
| • | a person that purchases or sells debt securities as part of a wash sale for tax purposes; or |
| • | a U.S. holder (as defined below) whose functional currency for tax purposes is not the U.S. dollar. |
This section is based on the Internal Revenue Code of 1986, as amended (the “Code”), its legislative history, existing and proposed regulations under the Code, published rulings and court decisions, as well as on the income tax treaty between the U.S. and France and on the income tax treaty between the U.S. and Canada, all as currently in effect. These laws are subject to change, possibly on a retroactive basis. This section does not address U.S. state, local and non-U.S. tax consequences or the alternative minimum tax.
If a partnership holds the debt securities, the U.S. federal income tax treatment of a partner will generally depend on the status of the partner and the tax treatment of the partnership. A partner in a partnership holding debt securities should consult its tax advisor with regard to the U.S. federal income tax treatment of an investment in the debt securities.
28
This subsection deals only with debt securities that are due to mature 30 years or less from the date on which they are issued. The U.S. federal income tax consequences of owning debt securities that are due to mature more than 30 years from their date of issue will be discussed in an applicable prospectus supplement.
Please consult your own tax advisor concerning the consequences of owning these debt securities in your particular circumstances under the Code and the laws of any other taxing jurisdiction.
U.S. Holders
This subsection describes the tax consequences to a U.S. holder. You are a U.S. holder if you are a beneficial owner of debt securities and you are:
| • | a citizen or resident of the U.S.; |
| • | a domestic corporation; |
| • | an estate whose income is subject to U.S. federal income tax regardless of its source; or |
| • | a trust if (i) a U.S. court can exercise primary supervision over the trust’s administration and one or more U.S. persons are authorized to control all substantial decisions of the trust, or (ii) the trust has a valid election in effect to be treated as a U.S. person. |
If you are not a U.S. holder, this subsection does not apply to you, and you should refer to “— U.S. Alien Holders” below.
Payments of Interest
Except as described below in the case of interest on a discount debt security that is not qualified stated interest, each as defined below under “— Original Issue Discount”, you will be taxed on any interest on your debt security, whether payable in U.S. dollars or a currency, composite currency or basket of currencies other than U.S. dollars, as ordinary income at the time you receive the interest or when it accrues, depending on your method of accounting for tax purposes. We will refer to a currency, composite currency or basket of currencies other than the U.S. dollar as “foreign currency”.
Interest paid by us on debt securities and original issue discount, if any, accrued with respect to the debt securities (as described below under “— Original Issue Discount”) is income from sources outside the U.S. subject to the rules regarding the foreign tax credit allowable to a U.S. holder. Under the foreign tax credit rules, interest paid will, depending on your circumstances, be either “passive” or “general” income for purposes of computing the foreign tax credit allowable to you.
Cash Basis Taxpayers. If you are a taxpayer that uses the cash receipts and disbursements method of accounting for tax purposes and you receive an interest payment that is denominated in, or determined by reference to, a foreign currency, you must recognize income equal to the U.S. dollar value of the interest payment, based on the exchange rate in effect on the date of receipt, regardless of whether you actually convert the payment into U.S. dollars.
Accrual Basis Taxpayers. If you are a taxpayer that uses an accrual method of accounting for tax purposes, you may determine the amount of income that you recognize with respect to an interest payment denominated in, or determined by reference to, a foreign currency by using one of two methods. Under the first method, you will determine the amount of income accrued based on the average exchange rate in effect during the interest accrual period or, with respect to an accrual period that spans two taxable years, that part of the period within the taxable year.
If you elect the second method, you will determine the amount of income accrued on the basis of the exchange rate in effect on the last day of the accrual period or, in the case of an accrual period that spans two taxable years, the exchange rate in effect on the last day of the part of the period within the taxable year.
29
Additionally, under this second method, if you receive a payment of interest within five business days of the last day of your accrual period or taxable year, you may instead translate the interest accrued into U.S. dollars at the exchange rate in effect on the day that you actually receive the interest payment. If you elect the second method, it will apply to all debt instruments that you hold at the beginning of the first taxable year to which the election applies and to all debt instruments that you subsequently acquire. You may not revoke this election without the consent of the United States Internal Revenue Service (“IRS”).
When you actually receive an interest payment, including a payment attributable to accrued but unpaid interest upon the sale or retirement of your debt security, denominated in, or determined by reference to, a foreign currency for which you accrued an amount of income, you will recognize ordinary income or loss measured by the difference, if any, between the exchange rate that you used to accrue interest income and the exchange rate in effect on the date of receipt, regardless of whether you actually convert the payment into U.S. dollars.
Original Issue Discount
General. If you own a debt security, other than a short-term debt security with a term of one year or less, it will be treated as a discount debt security issued at an original issue discount, if the amount by which the debt security’s stated redemption price at maturity exceeds its issue price is more than a de minimis amount. Generally, a debt security’s “issue price” will be the first price at which a substantial amount of debt securities included in the issue of which the debt security is a part is sold to persons other than bond houses, brokers or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers. A debt security’s stated redemption price at maturity is the total of all payments provided by the debt security that are not payments of qualified stated interest. Generally, an interest payment on a debt security is qualified stated interest if it is one part of a series of stated interest payments on a debt security that are unconditionally payable at least annually at a single fixed rate, with certain exceptions for lower rates paid during some periods, applied to the outstanding principal amount of the debt security. There are special rules for variable rate debt securities that are discussed below under “— Variable Rate Debt Securities”.
In general, your debt security is not a discount debt security if the amount by which its stated redemption price at maturity exceeds its issue price is less than the de minimis amount of 1/4 of one percent of its stated redemption price at maturity multiplied by the number of complete years to its maturity. Your debt security will have de minimis original issue discount if the amount of the excess is less than the de minimis amount. If your debt security has de minimis original issue discount, you must include the de minimis amount in income as stated principal payments are made on the debt security, unless you make the election described below under “— Election to Treat All Interest as Original Issue Discount”. You can determine the includible amount with respect to each such payment by multiplying the total amount of your debt security’s de minimis original issue discount by a fraction equal to
| • | the amount of the principal payment made |
divided by:
| • | the stated principal amount of the debt security. |
Generally, if your discount debt security matures more than one year from its date of issue, you must include original issue discount, or “OID”, in income before you receive cash attributable to that income. The amount of OID that you must include in income is calculated using a constant-yield method, and generally you will include increasingly greater amounts of OID in income over the life of your debt security. More specifically, you can calculate the amount of OID that you must include in income by adding the daily portions of OID with respect to your discount debt security for each day during the taxable year or portion of the taxable year that you hold your discount debt security. You can determine the daily portion by allocating to each day in any accrual period a pro rata portion of the OID allocable to that accrual period. You may select an accrual period of any
30
length with respect to your discount debt security and you may vary the length of each accrual period over the term of your discount debt security. However, no accrual period may be longer than one year and each scheduled payment of interest or principal on the discount debt security must occur on either the first or final day of an accrual period.
You can determine the amount of OID allocable to an accrual period by:
| • | multiplying your discount debt security’s adjusted issue price at the beginning of the accrual period by your debt security’s yield to maturity, and then |
| • | subtracting from this figure the sum of the payments of qualified stated interest on your debt security allocable to the accrual period. |
You must determine the discount debt security’s yield to maturity on the basis of compounding at the close of each accrual period and adjusting for the length of each accrual period. Further, you determine your discount debt security’s adjusted issue price at the beginning of any accrual period by:
| • | adding your discount debt security’s issue price and any accrued OID for each prior accrual period, and then |
| • | subtracting any payments previously made on your discount debt security that were not qualified stated interest payments. |
If an interval between payments of qualified stated interest on your discount debt security contains more than one accrual period, then, when you determine the amount of OID allocable to an accrual period, you must allocate the amount of qualified stated interest payable at the end of the interval, including any qualified stated interest that is payable on the first day of the accrual period immediately following the interval, pro rata to each accrual period in the interval based on their relative lengths. In addition, you must increase the adjusted issue price at the beginning of each accrual period in the interval by the amount of any qualified stated interest that has accrued prior to the first day of the accrual period but that is not payable until the end of the interval. You may compute the amount of OID allocable to an initial short accrual period by using any reasonable method if all other accrual periods, other than a final short accrual period, are of equal length.
The amount of OID allocable to the final accrual period is equal to the difference between:
| • | the amount payable at the maturity of your debt security, other than any payment of qualified stated interest; and |
| • | your debt security’s adjusted issue price as of the beginning of the final accrual period. |
Acquisition Premium. If you purchase your debt security for an amount that is less than or equal to the sum of all amounts, other than qualified stated interest, payable on your debt security after the purchase date but is greater than the amount of your debt security’s adjusted issue price, as determined above under “— General”, the excess is acquisition premium. If you do not make the election described below under “— Election to Treat All Interest as Original Issue Discount”, then you must reduce the daily portions of OID by a fraction equal to:
| • | the excess of your adjusted basis in the debt security immediately after purchase over the adjusted issue price of the debt security, divided by, |
| • | the excess of the sum of all amounts payable, other than qualified stated interest, on the debt security after the purchase date over the debt security’s adjusted issue price. |
Pre-Issuance Accrued Interest. An election may be made to decrease the issue price of your debt security by the amount of pre-issuance accrued interest if:
| • | a portion of the initial purchase price of your debt security is attributable to pre-issuance accrued interest; |
31
| • | the first stated interest payment on your debt security is to be made within one year of your debt security’s issue date; and |
| • | the payment will equal or exceed the amount of pre-issuance accrued interest. |
If this election is made, a portion of the first stated interest payment will be treated as a return of the excluded pre-issuance accrued interest and not as an amount payable on your debt security.
Debt Securities Subject to Contingencies Including Optional Redemption. Your debt security is subject to a contingency if it provides for an alternative payment schedule or schedules applicable upon the occurrence of a contingency or contingencies, other than a remote or incidental contingency, whether such contingency relates to payments of interest or of principal. In such a case, you must determine the yield and maturity of your debt security by assuming that the payments will be made according to the payment schedule most likely to occur if:
| • | the timing and amounts of the payments that comprise each payment schedule are known as of the issue date; and |
| • | one of such schedules is significantly more likely than not to occur. |
If there is no single payment schedule that is significantly more likely than not to occur, other than because of a mandatory sinking fund, you must include income on your debt security in accordance with the general rules that govern contingent payment obligations. These rules will be discussed in the applicable prospectus supplement.
Notwithstanding the general rules for determining yield and maturity, if your debt security is subject to contingencies, and either you or we have an unconditional option or options that, if exercised, would require payments to be made on the debt security under an alternative payment schedule or schedules, then:
| • | in the case of an option or options that we may exercise, we will be deemed to exercise or not to exercise an option or combination of options in the manner that minimizes the yield on your debt security; and |
| • | in the case of an option or options that you may exercise, you will be deemed to exercise or not to exercise an option or combination of options in the manner that maximizes the yield on your debt security. |
If both you and we hold options described in the preceding sentence, those rules will apply to each option in the order in which they may be exercised. You may determine the yield on your debt security for the purposes of those calculations by using any date on which your debt security may be redeemed or repurchased as the maturity date and the amount payable on the date that you chose in accordance with the terms of your debt security as the principal amount payable at maturity.
If a contingency, including the exercise of an option, actually occurs or does not occur contrary to an assumption made according to the above rules, then, except to the extent that a portion of your debt security is repaid as a result of the change in circumstances and solely to determine the amount and accrual of OID, you must redetermine the yield and maturity of your debt security by treating your debt security as having been retired and reissued on the date of the change in circumstances for an amount equal to your debt security’s adjusted issue price on that date.
Election to Treat All Interest as Original Issue Discount. You may elect to include in gross income all interest that accrues on your debt security using the constant-yield method described above under “— General”, with the modifications described below. For purposes of this election, interest will include stated interest, OID, de minimis OID, market discount, described below under “Market Discount”, de minimis market discount and unstated interest, as adjusted by any amortizable bond premium, described below under “Debt Securities Purchased at a Premium”, or acquisition premium.
32
If you make this election for your debt security, then, when you apply the constant-yield method:
| • | the issue price of your debt security will equal your cost; |
| • | the issue date of your debt security will be the date you acquired it; and |
| • | no payments on your debt security will be treated as payments of qualified stated interest. |
Generally, this election will apply only to the debt security for which you make it; however, if the debt security has amortizable bond premium, you will be deemed to have made an election to apply amortizable bond premium against interest for all debt instruments with amortizable bond premium, other than debt instruments the interest on which is excludible from gross income, that you hold as of the beginning of the taxable year to which the election applies or any taxable year thereafter. Additionally, if you make this election for a market discount debt security, you will be treated as having made the election discussed below under “Market Discount” to include market discount in income currently over the life of all debt instruments that you acquire on or after the first day of the first taxable year to which the election applies. You may not revoke any election to apply the constant-yield method to all interest on a debt security or the deemed elections with respect to amortizable bond premium or market discount debt securities without the consent of the IRS.
Variable Rate Debt Securities. Your debt security will be a variable rate debt security if:
| • | your debt security’s issue price does not exceed the total noncontingent principal payments by more than the lesser of: |
| • | 1.5 percent of the product of the total noncontingent principal payments and the number of complete years to maturity from the issue date; or |
| • | 15 percent of the total noncontingent principal payments; and |
| • | your debt security provides for stated interest, compounded or paid at least annually, only at: |
| • | one or more qualified floating rates; |
| • | a single fixed rate and one or more qualified floating rates; |
| • | a single objective rate; or |
| • | a single fixed rate and a single objective rate that is a qualified inverse floating rate. |
Your debt security will have a variable rate that is a qualified floating rate if:
| • | variations in the value of the rate can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in the currency in which your debt security is denominated; or |
| • | the rate is equal to such a rate multiplied by either: |
| • | a fixed multiple that is greater than 0.65 but not more than 1.35; or |
| • | a fixed multiple that is greater than 0.65 but not more than 1.35, increased or decreased by a fixed rate; and |
| • | the value of the rate on any date during the term of your debt security is set no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day. |
If your debt security provides for two or more qualified floating rates that are within 0.25 percentage points of each other on the issue date or can reasonably be expected to have approximately the same values throughout the term of the debt security, the qualified floating rates together constitute a single qualified floating rate.
Your debt security will not have a qualified floating rate, however, if the rate is subject to certain restrictions, including caps, floors, governors, or other similar restrictions, unless such restrictions are fixed throughout the term of the debt security or are not reasonably expected to significantly affect the yield on the debt security.
33
Your debt security will have a variable rate that is a single objective rate if:
| • | the rate is not a qualified floating rate; |
| • | the rate is determined using a single, fixed formula that is based on objective financial or economic information that is not within the control of, or unique to the circumstances of, the issuer or a related party; and |
| • | the value of the rate on any date during the term of your debt security is set no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day. |
Your debt security will not have a variable rate that is an objective rate, however, if it is reasonably expected that the average value of the rate during the first half of your debt security’s term will be either significantly less than or significantly greater than the average value of the rate during the final half of your debt security’s term.
An objective rate as described above is a qualified inverse floating rate if:
| • | the rate is equal to a fixed rate minus a qualified floating rate; and |
| • | the variations in the rate can reasonably be expected to inversely reflect contemporaneous variations in the cost of newly borrowed funds. |
Your debt security will also have a single qualified floating rate or an objective rate if interest on your debt security is stated at a fixed rate for an initial period of one year or less followed by either a qualified floating rate or an objective rate for a subsequent period, and either:
| • | the fixed rate and the qualified floating rate or objective rate have values on the issue date of the debt security that do not differ by more than 0.25 percentage points; or |
| • | the value of the qualified floating rate or objective rate is intended to approximate the fixed rate. |
In general, if your variable rate debt security provides for stated interest at a single qualified floating rate or objective rate, or one of those rates after a single fixed rate for an initial period, all stated interest on your debt security is qualified stated interest. In this case, the amount of OID, if any, is determined by using, in the case of a qualified floating rate or qualified inverse floating rate, the value as of the issue date of the qualified floating rate or qualified inverse floating rate, or, for any other objective rate, a fixed rate that reflects the yield reasonably expected for your debt security.
If your variable rate debt security does not provide for stated interest at a single qualified floating rate or a single objective rate, and also does not provide for interest payable at a fixed rate other than a single fixed rate for an initial period, you generally must determine the interest and OID accruals on your debt security by:
| • | determining a fixed rate substitute for each variable rate provided under your variable rate debt security; |
| • | constructing the equivalent fixed rate debt instrument, using the fixed rate substitute described above; |
| • | determining the amount of qualified stated interest and OID with respect to the equivalent fixed rate debt instrument; and |
| • | adjusting for actual variable rates during the applicable accrual period. |
When you determine the fixed rate substitute for each variable rate provided under the variable rate debt security, you generally will use the value of each variable rate as of the issue date or, for an objective rate that is not a qualified inverse floating rate, a rate that reflects the reasonably expected yield on your debt security.
If your variable rate debt security provides for stated interest either at one or more qualified floating rates or at a qualified inverse floating rate, and also provides for stated interest at a single fixed rate, other than at a single
34
fixed rate for an initial period, you generally must determine interest and OID accruals by using the method described in the previous paragraph. However, your variable rate debt security will be treated, for purposes of the first three steps of the determination, as if your debt security had provided for a qualified floating rate, or a qualified inverse floating rate, rather than the fixed rate. The qualified floating rate, or qualified inverse floating rate, that replaces the fixed rate must be such that the fair market value of your variable rate debt security as of the issue date approximates the fair market value of an otherwise identical debt instrument that provides for the qualified floating rate, or qualified inverse floating rate, rather than the fixed rate.
Short-Term Debt Securities. In general, if you are an individual or other cash basis U.S. holder of a short-term debt security, you are not required to accrue OID, as specifically defined below for the purpose of this paragraph, for U.S. federal income tax purposes unless you elect to do so (although it is possible that you may be required to include any stated interest in income as you receive it). If you are an accrual basis taxpayer, a taxpayer in a special class, including, but not limited to, a regulated investment company, common trust fund, or a certain type of pass-through entity, or a cash basis taxpayer who so elects, you will be required to accrue OID on short-term debt securities on either a straight-line basis or under the constant-yield method, based on daily compounding. If you are not required and do not elect to include OID in income currently, any gain you realize on the sale or retirement of your short-term debt security will be ordinary income to the extent of the accrued OID, which will be determined on a straight-line basis unless you make an election to accrue the OID under the constant-yield method, through the date of sale or retirement. However, if you are not required and do not elect to accrue OID on your short-term debt securities, you will be required to defer deductions for interest on borrowings allocable to your short-term debt securities in an amount not exceeding the deferred income until the deferred income is realized.
When you determine the amount of OID subject to these rules, you must include all interest payments on your short-term debt security, including stated interest, in your short-term debt security’s stated redemption price at maturity.
Foreign Currency Discount Debt Securities. If your discount debt securities are denominated in, or their return is determined by reference to, a foreign currency, you must determine OID for any accrual period on your discount debt security in the foreign currency and then translate the amount of OID into U.S. dollars in the same manner as stated interest accrued by an accrual basis U.S. holder, as described above under “— Payments of Interest”. You may recognize ordinary income or loss when you receive an amount attributable to OID in connection with a payment of interest or the sale or retirement of your debt security.
Market Discount
You will be treated as if you purchased your debt security, other than a short-term debt security, at a market discount, and your debt security will be a market discount debt security, if:
| • | you purchase your debt security for less than its issue price as determined above under “Original Issue Discount”; and |
| • | the difference between the debt security’s stated redemption price at maturity or, in the case of a discount debt security, the debt security’s revised issue price, and the price you paid for your debt security is equal to greater than 1/4 of one percent of your debt security’s stated redemption price at maturity or revised issue price, respectively, multiplied by the number of complete years to the debt security’s maturity. To determine the revised issue price of your debt security for these purposes, you generally add any OID that has accrued on your debt security to its issue price. |
If your debt security’s stated redemption price at maturity or, in the case of a discount debt security, its revised issue price, exceeds the price you paid for the debt security by less than 1/4 of one percent multiplied by the number of complete years to the debt security’s maturity, the excess constitutes de minimis market discount, and the rules discussed below are not applicable to you.
35
You must treat any gain you recognize on the maturity or disposition of your market discount debt security as ordinary income to the extent of the accrued market discount on your debt security. Alternatively, you may elect to include market discount in income currently over the life of your debt security. If you make this election, it will apply to all debt instruments with market discount that you acquire on or after the first day of the first taxable year to which the election applies. You may not revoke this election without the consent of the IRS. If you own a market discount debt security and do not make this election you will generally be required to defer deductions for interest on borrowings allocable to your debt security in an amount not exceeding the accrued market discount on your debt security until the maturity or disposition of your debt security.
You will accrue market discount on your market discount debt security on a straight-line basis unless you elect to accrue market discount using a constant-yield method. If you make this election, it will apply only to the debt security with respect to which it is made and you may not revoke it.
Debt Securities Purchased at a Premium
If you purchase your debt security for an amount in excess of its principal amount, (or, in the case of a discount debt security, in excess of its stated redemption price at maturity), you may elect to treat the excess as amortizable bond premium. If you make this election, you will reduce the amount required to be included in your income each year with respect to interest on your debt security by the amount of amortizable bond premium allocable to that year, based on your debt security’s yield to maturity. If your debt security is denominated in, or determined by reference to, a foreign currency, you will compute your amortizable bond premium in units of the foreign currency, and your amortizable bond premium will reduce your interest income in units of the foreign currency. Gain or loss recognized that is attributable to changes in exchange rates between the time your amortized bond premium offsets interest income and the time of the acquisition of your debt security is generally taxable as ordinary income or loss. If you make an election to amortize bond premium, it will apply to all debt instruments, other than debt instruments the interest on which is excludible from gross income, that you hold at the beginning of the first taxable year to which the election applies, or that you thereafter acquire, and you may not revoke it without the consent of the IRS. See also “Original Issue Discount — Election to Treat All Interest as Original Issue Discount”.
Purchase, Sale and Retirement of the Debt Securities
Your tax basis in your debt security will generally be the U.S. dollar cost, as defined below, of your debt security, adjusted by:
| • | adding any amounts that you are required to include in income under the rules governing OID and market discount (the rules governing these amounts are discussed above); and then |
| • | subtracting any payments on your debt security that are not qualified stated interest payments and any amortizable bond premium applied to reduce interest on your debt security. |
If you purchase your debt security with foreign currency, the U.S. dollar cost of your debt security will generally be the U.S. dollar value of the purchase price on the date of purchase. However, if you are a cash basis taxpayer, or an accrual basis taxpayer if you so elect, and your debt security is traded on an established securities market, as defined in the applicable Treasury regulations, the U.S. dollar cost of your debt security will be the U.S. dollar value of the purchase price on the settlement date of your purchase.
You will generally recognize gain or loss on the sale or retirement of your debt security equal to the difference between the amount you realize on the sale or retirement, excluding any amounts attributable to accrued but unpaid interest (which will be treated as interest payments), and your tax basis in your debt security. If your debt security is sold or retired for an amount in foreign currency, the amount you realize will be the U.S. dollar value of such amount on the date the debt security is disposed of or retired, except that in the case of a debt security that is traded on an established securities market, as defined in the applicable Treasury regulations,
36
a cash basis taxpayer, or an accrual basis taxpayer that so elects, will determine the amount realized based on the U.S. dollar value of the foreign currency on the settlement date of the sale.
You will recognize capital gain or loss when you sell or retire your debt security, except to the extent:
| • | described above under “— Short-Term Debt Securities” or “— Market Discount” or |
| • | attributable to changes in exchange rates as described below. |
Capital gain of a non-corporate U.S. holder is generally taxed at preferential rates where the property is held for more than one year.
You must treat any portion of the gain or loss that you recognize on the sale or retirement of a debt security as ordinary income or loss to the extent attributable to changes in exchange rates. However, you take exchange gain or loss into account only to the extent of the total gain or loss you realize on the transaction.
Exchange of Amounts in a Currency Other Than U.S. Dollars
If you receive foreign currency as interest on your debt security or on the sale or retirement of your debt security, your tax basis in the foreign currency will equal its U.S. dollar value when the interest is received or at the time of the sale or retirement. If you purchase foreign currency, you generally will have a tax basis equal to the U.S. dollar value of the foreign currency on the date of your purchase. If you sell or dispose of a foreign currency, including if you use it to purchase debt securities or exchange it for U.S. dollars, any gain or loss recognized generally will be ordinary income or loss.
Indexed Debt Securities
The applicable prospectus supplement will discuss any special U.S. federal income tax rules with respect to debt securities the payments on which are determined by reference to any index and other debt securities that are subject to the rules governing contingent payment obligations which are not subject to the rules governing variable rate debt securities.
Medicare Tax
A U.S. holder that is an individual or estate, or a trust that does not fall into a special class of trusts that is exempt from such tax, is subject to a 3.8% tax on the lesser of (1) the U.S. holder’s “net investment income” (or “undistributed net investment income” in the case of an estate or trust) for the relevant taxable year and (2) the excess of the U.S. holder’s modified adjusted gross income for the taxable year over a certain threshold (which in the case of individuals will be between $125,000 and $250,000, depending on the individual’s circumstances). A holder’s net investment income generally includes its interest income and its net gains from the disposition of debt securities, unless such interest income or net gains are derived in the ordinary course of the conduct of a trade or business (other than a trade or business that consists of certain passive or trading activities). If you are a U.S. holder that is an individual, estate or trust, you are urged to consult your tax advisors regarding the applicability of the Medicare tax to your income and gains in respect of your investment in the debt securities.
Information with Respect to Foreign Financial Assets
Owners of “specified foreign financial assets” with an aggregate value in excess of $50,000 (and in some circumstances, a higher threshold) may be required to file an information report, currently on Form 8938, with respect to such assets with their tax returns. “Specified foreign financial assets” may include financial accounts maintained by foreign financial institutions, as well as the following, but only if they are held for investment and not held in accounts maintained by financial institutions: (i) stocks and securities issued by non-United States persons, (ii) financial instruments and contracts that have non-United States issuers or counterparties, and
37
(iii) interests in foreign entities. U.S. holders who fail to report the required information could be subject to substantial penalties. Holders are urged to consult their tax advisors regarding the application of this reporting requirement to their ownership of the debt securities.
U.S. Alien Holders
This subsection describes the tax consequences to a U.S. alien holder of owning debt securities. You are a U.S. alien holder if you are the beneficial owner of debt securities and are, for U.S. federal income tax purposes:
| • | a non-resident alien individual; |
| • | a foreign corporation; |
| • | an estate or trust that in either case is not subject to U.S. federal income tax on a net income basis on income or gain from the debt securities. |
If you are a U.S. holder, this section does not apply to you.
Interest on Debt Securities. If you are a U.S. alien holder, interest paid to you with respect to debt securities will not be subject to U.S. federal income tax unless the interest is “effectively connected” with your conduct of a trade or business within the U.S. (or are treated as such), and, if required by an applicable income tax treaty as a condition for subjecting you to U.S. taxation on a net income basis, the interest is attributable to a permanent establishment that you maintain in the U.S. In such cases you generally will be taxed in the same manner as a U.S. holder. If you are a corporate U.S. alien holder, “effectively connected” interest may also, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate or at a lower rate if you are eligible for the benefits of an income tax treaty that provides for a lower rate.
Disposition of Debt Securities. If you are a U.S. alien holder, you generally will not be subject to U.S. federal income tax on gain realized on the sale, exchange or retirement of your debt securities unless:
| • | the gain is “effectively connected” with your conduct of a trade or business within the U.S. and, if required by an applicable income tax treaty as a condition for subjecting you to U.S. taxation on a net income basis, attributable to a permanent establishment that you maintain in the U.S.; or |
| • | you are an individual, you are present in the U.S. for 183 or more days during the taxable year in which the gain is realized and certain other conditions exist. |
If you are a corporate U.S. alien holder, “effectively connected” gains that you recognize may also, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate or at a lower rate if you are eligible for the benefits of an income tax treaty that provides for a lower rate.
Treasury Regulations Requiring Disclosure of Reportable Transactions
Treasury regulations require U.S. taxpayers to report certain transactions that give rise to a loss in excess of certain thresholds (a “Reportable Transaction”). Under these regulations, if the debt securities are denominated in a foreign currency, a U.S. holder (or a U.S. alien holder that holds the debt securities in connection with a U.S. trade or business) that recognizes a loss with respect to the debt securities that is characterized as an ordinary loss due to changes in currency exchange rates (under any of the rules discussed above) would be required to report the loss on IRS Form 8886 (Reportable Transaction Disclosure Statement) if the loss exceeds the thresholds set forth in the regulations. For individuals and trusts, this loss threshold is $50,000 in any single taxable year. For other types of taxpayers and other types of losses, the thresholds are higher. You should consult with your tax advisor regarding any tax filing and reporting obligations that may apply in connection with acquiring, owning and disposing of debt securities.
38
Information with Respect to Foreign Financial Assets
Owners of “specified foreign financial assets” with an aggregate value in excess of $50,000 (and in some circumstances, a higher threshold) may be required to file an information report with respect to such assets with their tax returns. “Specified foreign financial assets” include any financial accounts maintained by foreign financial institutions (such as your debt securities), as well as any of the following, but only if they are held for investment and not held in accounts maintained by financial institutions: (i) stocks and securities issued by non-U.S. persons, (ii) financial instruments and contracts that have non-U.S. issuers or counterparties, and (iii) interests in foreign entities. Holders are urged to consult their tax advisors regarding the application of this reporting requirement to their ownership of the debt securities.
Backup Withholding and Information Reporting
If you are a noncorporate United States holder, information reporting requirements, on Internal Revenue Service Form 1099, generally would apply to payments of principal and interest on a debt security within the United States, and the payment of proceeds to you from the sale of a debt security effected at a United States office of a broker.
Additionally, backup withholding may apply to such payments if you fail to provide an accurate taxpayer identification number, comply with applicable certification requirements or are notified by the IRS that you have failed to report all interest and dividends required to be shown on your federal income tax returns.
If you are a U.S. alien holder, you are generally exempt from backup withholding and information reporting requirements with respect to payments of principal and interest made to you outside the United States by us or another non-United States payor. You are also generally exempt from backup withholding and information reporting requirements in respect of payments of principal and interest made within the United States and the payment of the proceeds from the sale of a debt security effected at a United States office of a broker, as long as either (i) the payor or broker does not have actual knowledge or reason to know that you are a United States person and you have furnished a valid and applicable IRS Form W-8 or other documentation upon which the payor or broker may rely to treat the payments as made to a non-United States person, or (ii) you otherwise establish an exemption.
Payment of the proceeds from the sale of a debt security effected at a foreign office of a broker generally will not be subject to information reporting or backup withholding. However, a sale effected at a foreign office of a broker could be subject to information reporting in the same manner as a sale within the United States (and in certain cases may be subject to backup withholding as well) if (i) the broker has certain connections to the United States, (ii) the proceeds or confirmation are sent to the United States or (iii) the sale has certain other specified connections with the United States.
You generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed your income tax liability by filing a refund claim with the IRS.
We may sell the securities offered by this prospectus:
| • | through underwriters; |
| • | through dealers; |
| • | through agents; or |
| • | directly to purchasers. |
39
The prospectus supplement relating to any offering will identify or describe:
| • | any underwriter, dealers or agents; |
| • | their compensation; |
| • | the net proceeds to us; |
| • | the purchase price of the securities; |
| • | the initial public offering price of the securities; and |
| • | any exchange on which the securities will be listed, if applicable. |
Underwriters
If we use underwriters in the sale, they will acquire securities for their own account and may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Unless we otherwise state in the prospectus supplement, various conditions to the underwriters’ obligation to purchase securities apply, and the underwriters will be obligated to purchase all of the securities contemplated in an offering if they purchase any of such securities. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Dealers
If we use dealers in the sale, unless we otherwise indicate in the prospectus supplement, we will sell securities to the dealers as principals. The dealers may then resell the securities to the public at varying prices that the dealers may determine at the time of resale.
Agents and Direct Sales
We may sell securities directly or through agents that we designate. The prospectus supplement will name any agent involved in the offering and sale and state any commissions we will pay to that agent. Unless we indicate otherwise in the prospectus supplement, any agent is acting on a best efforts basis for the period of its appointment.
Contracts with Institutional Investors for Delayed Delivery
If we indicate in the prospectus supplement, we will authorize underwriters, dealers or agents to solicit offers from various institutional investors to purchase securities. In this case, payment and delivery will be made on a future date that the prospectus supplement specifies. The underwriters, dealers or agents may impose limitations on the minimum amount that the institutional investor can purchase. They may also impose limitations on the portion of the aggregate amount of the securities that they may sell. These institutional investors include:
| • | commercial and savings banks; |
| • | insurance companies; |
| • | pension funds; |
| • | investment companies; |
| • | educational and charitable institutions; and |
| • | other similar institutions as we may approve. |
40
The obligations of any of these purchasers pursuant to delayed delivery and payment arrangements will not be subject to any conditions. However, one exception applies. An institution’s purchase of the particular securities cannot at the time of delivery be prohibited under the laws of any jurisdiction that governs:
| • | the validity of the arrangements; or |
| • | the performance by us or the institutional investor. |
Indemnification
Agreements that we will enter into with underwriters, dealers or agents may entitle them to indemnification by us against various civil liabilities. These include liabilities under the Securities Act of 1933. The agreements may also entitle them to contribution for payments which they may be required to make as a result of these liabilities. Underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for, us in the ordinary course of business.
Market Making
In the event that we do not list securities of any series on a U.S. national securities exchange, various broker-dealers may make a market in the securities, but will have no obligation to do so, and may discontinue any market making at any time without notice. Consequently, it may be the case that no broker-dealer will make a market in securities of any series or that the liquidity of the trading market for the securities will be limited.
The General Counsel of TOTAL will pass upon the validity of the debt securities and guarantees as to matters of French law. The Group U.S. Securities Counsel of TOTAL will pass upon the validity of the debt securities and guarantees as to matters of United States law. Bennett Jones LLP will pass upon the validity of the debt securities issued by Total Canada as to matters of Canadian law.
In connection with particular offerings of debt securities in the future, the General Counsel of TOTAL, or other counsel named in the applicable prospectus supplement, will pass upon the validity of the debt securities and guarantee as to matters of French law and the Group U.S. Counsel of TOTAL, or other counsel named in the applicable prospectus supplement, will pass upon the validity of the debt securities and guarantee as to matters of New York law. In addition, in connection with particular offerings of guaranteed debt securities of Total Canada, Bennett Jones LLP, or other counsel named in the applicable prospectus supplement, will pass upon the validity of the guaranteed debt securities as to matters of Canadian law. Cleary Gottlieb Steen & Hamilton LLP or any other law firm named in the applicable prospectus supplement will pass upon the validity of the debt securities and guarantee for any underwriters or agents.
The consolidated financial statements of TOTAL S.A., as of and for the years ended December 31, 2014, 2013 and 2012, appearing in TOTAL S.A.’s Annual Report on Form 20-F, as amended, for the year ended December 31, 2014 and the effectiveness of internal control over financial reporting as of December 31, 2014, have been audited by Ernst & Young Audit and KPMG Audit, a division of KPMG S.A., independent registered public accounting firms, as set forth in their reports incorporated herein by reference. Such consolidated financial statements and TOTAL S.A. management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2014 are incorporated herein by reference in reliance upon such reports given on the authority of said firms as experts in accounting and auditing. The audit report on the consolidated financial statements of TOTAL S.A. as of and for the years ended December 31, 2014, 2013 and 2012 refers to the change in the presentation currency of the consolidated financial statements of TOTAL S.A. from the Euro to the US dollar.
41
DeGolyer and MacNaughton, independent petroleum engineering consultants, performed an independent evaluation of the net proved liquids and natural gas reserves, as of December 31, 2014 of certain properties owned by OAO Novatek, a company in which the Total Group held an 18.24% interest as of December 31, 2014. DeGolyer and MacNaughton has delivered to us its summary letter report describing its procedures and conclusions, a copy of which appears as Exhibit 15.3 to our 2014 Annual Report on Form 20-F, as amended, for the year ended December 31, 2014, which is incorporated herein by reference.
The following is a statement of the expenses (all of which are estimated), other than any underwriting discounts and commissions and expenses reimbursed by or to us, to be incurred by us in connection with a distribution of securities registered under this registration statement:
| Securities and Exchange Commission registration fee |
$ | (1) | ||
| Printing and engraving expenses |
$ | 50,000 | ||
| Legal fees and expenses |
$ | 250,000 | ||
| Accounting fees and expenses |
$ | 150,000 | ||
| Indenture Trustee’s fees and expenses |
$ | 16,000 | ||
| Rating Agencies’ fees |
$ | 375,000 | ||
| Total |
$ | 841,000 | ||
| (1) | The registrants are registering an indeterminate amount of securities under the registration statement and in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrants are deferring payment of any registration fee until the time the securities are sold under the registration statement pursuant to a prospectus supplement. |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
Under French law, provisions of bylaws (statuts) that limit the liability of directors are prohibited. French law also prohibits a company from indemnifying its directors against liability. However, if a director is sued by a third party and ultimately prevails in the litigation on all counts, but is nevertheless required to bear attorneys’ fees and costs, the company may reimburse those fees and costs pursuant to an indemnification arrangement with the director.
Under the Business Corporations Act (Alberta) (the “ABCA”), Total Canada may indemnify a present or former director or officer or a person who acts or acted at Total Canada’s request as a director or officer of a body corporate of which Total Canada is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of Total Canada or that body corporate, if the director or officer acted honestly and in good faith with a view to the best interests of Total Canada, and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his conduct was lawful. Such indemnification may be in connection with a derivative action only with court approval. A director or officer is entitled to indemnification from Total Canada as a matter of right if he or she was substantially successful on the merits, fulfilled the conditions set forth above, and is fairly and reasonably entitled to indemnity.
The bylaws of Total Canada provide that, subject to the limitations contained in the ABCA, Total Canada shall indemnify a director or officer, a former director or officer, or a person who acts or acted at Total Canada’s
42
request as a director or officer of a body corporate of which Total Canada is or was a shareholder or creditor, and his heirs and legal representatives against: (a) all costs, charges and expenses, including an amount paid to settle an action or judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of Total Canada or such other body corporate; and (b) subject to the approval of the court, all other costs, charges and expenses reasonably incurred by him in connection with such action, except in respect of an action by or on behalf of Total Canada, or such body corporate, to procure a judgment in its favor. In each case, the indemnity is conditioned upon the indemnitee: (i) having acted honestly and in good faith with a view to the best interests of Total Canada; and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, having had reasonable grounds for believing that his conduct was lawful. Notwithstanding the foregoing, each indemnitee shall be entitled to indemnification from Total Canada in respect of all costs, charges and expenses reasonably incurred by him in connection with the defence of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of Total Canada or such other body corporate if he was substantially successful on the merits of his defence of the action or proceeding and fulfills the conditions described in (i) and (ii) above.
TOTAL, Total Capital, Total Canada and Total Capital International maintain liability insurance for their respective directors and officers, including insurance against liabilities under the U.S. Securities Act of 1933, as amended.
Item 9. Exhibits
| Exhibit |
Description of Document | |
| 1.1 | Form of Underwriting Agreement for TOTAL S.A. Debt Securities. | |
| 1.2 | Form of Underwriting Agreement for Total Capital Guaranteed Debt Securities. | |
| 1.3 | Form of Underwriting Agreement for Total Capital Canada Ltd. Guaranteed Debt Securities. | |
| 1.4 | Form of Underwriting Agreement for Total Capital International Guaranteed Debt Securities. | |
| 4.1 | Bylaws (Statuts) of TOTAL S.A.* | |
| 4.2 | Form of Indenture, between TOTAL S.A. and The Bank of New York Mellon.** | |
| 4.3 | Indenture, dated as of October 2, 2009, among Total Capital, TOTAL S.A., and The Bank of New York Mellon. ** | |
| 4.4 | Indenture, dated as of January 28, 2011, among Total Capital Canada Ltd., TOTAL S.A., and The Bank of New York Mellon.** | |
| 4.5 | Indenture, dated as of February 17, 2012, among Total Capital International, TOTAL S.A., and The Bank of New York Mellon.** | |
| 4.6 | Form of Debt Securities for TOTAL S.A. (included in Exhibit 4.2) | |
| 4.7 | Form of Debt Securities for Total Capital and Guarantee relating thereto (included in Exhibit 4.3). | |
| 4.8 | Form of Debt Securities for Total Capital Canada and Guarantee relating thereto (included in Exhibit 4.4) | |
| 4.9 | Form of Debt Securities for Total Capital International and Guarantee relating thereto (included in Exhibit 4.5) | |
| 5.1 | Opinion of Maarten Scholten, General Counsel of TOTAL S.A., as to the validity of the Debt Securities and Guarantees as to certain matters of French law. | |
| 5.2 | Opinion of Andrew Zdrahal, Group U.S. Securities Counsel of TOTAL S.A., as to the validity of the Debt Securities and Guarantees as to certain matters of United States law. | |
43
| Exhibit |
Description of Document | |
| 5.3 | Opinion of Bennett Jones LLP as to the validity of the Debt Securities as to certain matters of Canadian law. | |
| 8.1 | Opinion of Sullivan & Cromwell LLP as to certain matters of French taxation. | |
| 8.2 | Opinion of Sullivan & Cromwell LLP as to certain matters of U.S. taxation. | |
| 8.3 | Opinion of Bennett Jones LLP as to certain matters of Canadian taxation. | |
| 12.1 | Computation of ratio of earnings to fixed charges.* | |
| 23.1 | Consent of Ernst & Young Audit and KPMG AUDIT, a division of KPMG S.A. | |
| 23.2 | Consent of DeGolyer and MacNaughton. | |
| 23.3 | Consent of Maarten Scholten, General Counsel of TOTAL S.A. (included in Exhibit 5.1 above). | |
| 23.4 | Consent of Andrew Zdrahal, Group U.S. Securities Counsel of TOTAL S.A. (included in Exhibit 5.2 above). | |
| 23.5 | Consent of Bennett Jones LLP, Canadian counsel to TOTAL S.A. and Total Capital Canada Ltd. (included in Exhibit 5.3 above). | |
| 23.6 | Consent of Sullivan & Cromwell LLP, French tax counsel to TOTAL S.A., Total Capital and Total Capital International (included in Exhibit 8.1 above). | |
| 23.7 | Consent of Sullivan & Cromwell LLP, U.S. tax counsel to TOTAL S.A., Total Capital, Total Capital Canada Ltd. and Total Capital International (included in Exhibit 8.2 above). | |
| 23.8 | Consent of Bennett Jones LLP, Canadian tax counsel to TOTAL S.A. and Total Capital Canada Ltd. (included in Exhibit 8.3 above). | |
| 24.1 | Power of attorney — TOTAL S.A. | |
| 24.2 | Power of attorney — Total Capital. | |
| 24.3 | Power of attorney — Total Capital Canada Ltd. | |
| 24.4 | Power of attorney — Total Capital International. | |
| 25.1 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.2 above. | |
| 25.2 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.3 above. | |
| 25.3 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.4 above. | |
| 25.4 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.5 above. | |
| * | Previously filed as an exhibit to the Annual Report on Form 20-F of TOTAL S.A. for the year ended December 31, 2014, filed with the SEC on March 26, 2015, as amended on March 27, 2015. |
| ** | Previously filed on the Registration Statement on Form F-3 of TOTAL S.A. (File No. 333-180967), dated April 26, 2012. |
Item 10. Undertakings
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
44
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that
45
time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in a primary offering of securities of an undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser by using:
(i) Any preliminary prospectus or prospectus of an undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned registrant or used or referred to by an undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about an undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by an undersigned registrant to the purchaser.
(7) That, for purposes of determining any liability under the Securities Act of 1933, each filing of TOTAL’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of a registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, that registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
46
SIGNATURES OF TOTAL S.A.
Pursuant to the requirements of the Securities Act of 1933, TOTAL S.A. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement on Form F-3 of TOTAL S.A., Total Capital, Total Capital Canada Ltd. and Total Capital International to be signed on its behalf by the undersigned, thereunto duly authorized, in Paris, France on April 17, 2015.
| TOTAL S.A. | ||
| By: | /s/ HUMBERT DE WENDEL | |
| Name: | Humbert de Wendel | |
| Title: | Treasurer | |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on April 17, 2015.
| Signature |
Title | |
| PATRICK ARTUS* |
Director | |
| Patrick Artus |
||
| PATRICIA BARBIZET* |
Director | |
| Patricia Barbizet |
||
| MARC BLANC* |
Director | |
| Marc Blanc |
||
| GUNNAR BROCK* |
Director | |
| Gunnar Brock |
||
| MARIE-CHRISTINE COISNE-ROQUETTE* |
Director | |
| Marie-Christine Coisne-Roquette |
||
| BERTRAND COLLOMB* |
Director | |
| Bertrand Collomb |
||
| PAUL DESMARAIS JR.* |
Director | |
| Paul Desmarais Jr. |
||
| THIERRY DESMAREST* |
Director | |
| Thierry Desmarest |
||
| ANNE-MARIE IDRAC* |
Director | |
| Anne-Marie Idrac |
||
| CHARLES KELLER* |
Director | |
| Charles Keller |
||
| Signature |
Title | |
| BARBARA KUX* |
Director | |
| Barbara Kux |
||
| GERARD LAMARCHE* |
Director | |
| Gérard Lamarche |
||
| ANNE LAUVERGEON* |
Director | |
| Anne Lauvergeon |
||
| MICHEL PEBEREAU* |
Director | |
| Michel Pébereau |
||
| PATRICK POUYANNE* |
Chief Executive Officer | |
| Patrick Pouyanné |
(Principal Executive Officer) | |
| PATRICK DE LA CHEVARDIERE* |
Executive Vice President and Chief Financial Officer | |
| Patrick de La Chevardière |
(Principal Financial Officer) | |
| DOMINIQUE BONNET* |
Chief Accounting Officer | |
| Dominique Bonnet |
(Principal Accounting Officer) | |
| ROBERT O. HAMMOND* |
Authorized Representative in the United States | |
| Robert O. Hammond |
||
| Signature |
Title | |||
| *By: | /s/ HUMBERT DE WENDEL |
Attorney-in-fact | ||
| Humbert de Wendel | ||||
SIGNATURES OF TOTAL CAPITAL
Pursuant to the requirements of the Securities Act of 1933, Total Capital certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement on Form F-3 of TOTAL S.A., Total Capital, Total Capital Canada Ltd. and Total Capital International to be signed on its behalf by the undersigned, thereunto duly authorized, in Paris, France on April 17, 2015.
| TOTAL CAPITAL | ||||
| By: | TOTAL FINANCE CORPORATE SERVICES LIMITED | |||
| Title: | Director | |||
| By: | /s/ HUMBERT DE WENDEL | |||
| Name: | Humbert de Wendel | |||
| Title: | Authorized Signatory of Total Finance Corporate Services Limited | |||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form F-3 has been signed below by the following persons in the capacities indicated on April 17, 2015.
| Signature |
Title | |||
| PIERRE DE LA POMELIE* |
Chairman and Chief Executive Officer | |||
| Pierre de La Pomelie | (Principal Executive Officer), Director | |||
| DOMINIQUE BONNET* |
Chief Accounting Officer (Principal Financial and | |||
| Dominique Bonnet | Accounting Officer), Director | |||
| PATRICK DE LA CHEVARDIERE* |
Director | |||
| Patrick de La Chevardière | ||||
| HERVE JASKULKE* |
Director | |||
| Hervé Jaskulké | ||||
| TOTAL FINANCE CORPORATE SERVICES LIMITED | Director | |||
| By: /s/ HUMBERT DE WENDEL |
||||
| Humbert de Wendel, Authorized Signatory of Total Finance Corporate Services Limited |
||||
| ROBERT O. HAMMOND* |
Authorized Representative in the United States | |||
| Robert O. Hammond | ||||
| *By: |
/s/ HUMBERT DE WENDEL |
Attorney-in-fact | ||
| Humbert de Wendel | ||||
SIGNATURES OF TOTAL CAPITAL CANADA LTD.
Pursuant to the requirements of the Securities Act of 1933, Total Capital Canada Ltd. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement on Form F-3 of TOTAL S.A., Total Capital, Total Capital Canada Ltd. and Total Capital International to be signed on its behalf by the undersigned, thereunto duly authorized, in Paris, France on April 17, 2015.
| TOTAL CAPITAL CANADA LTD. | ||
| By: | /s/ HUMBERT DE WENDEL | |
| Name: | Humbert de Wendel | |
| Title: | President (Principal Executive Officer), Director | |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form F-3 has been signed below by the following persons in the capacities indicated on April 17, 2015.
| Signature |
Title | |||
| /s/ HUMBERT DE WENDEL Humbert de Wendel |
President (Principal Executive Officer), Director | |||
| PIERRE BOUSQUET* Pierre Bousquet |
Director | |||
| DELPHINE PERSOUYRE* Delphine Persouyre |
Chief Financial Officer (Principal Financial and Accounting Officer), Director | |||
| CRAIG SALOFF* Craig Saloff |
Director | |||
| ROBERT O. HAMMOND* Robert O. Hammond |
Authorized Representative in the United States | |||
| *By: |
/s/ HUMBERT DE WENDEL |
Attorney-in-fact | ||
| Humbert de Wendel | ||||
SIGNATURES OF TOTAL CAPITAL INTERNATIONAL
Pursuant to the requirements of the Securities Act of 1933, Total Capital International certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement on Form F-3 of TOTAL S.A., Total Capital, Total Capital Canada Ltd. and Total Capital International to be signed on its behalf by the undersigned, thereunto duly authorized, in Paris, France on April 17, 2015.
| TOTAL CAPITAL INTERNATIONAL | ||||
| By: | TOTAL FINANCE CORPORATE SERVICES LIMITED | |||
| Title: | Director | |||
| By: | /s/ HUMBERT DE WENDEL | |||
| Name: | Humbert de Wendel | |||
| Title: | Authorized Signatory of Total Finance Corporate Services Limited | |||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form F-3 has been signed below by the following persons in the capacities indicated on April 17, 2015.
| Signature |
Title | |||
| PATRICK DE LA CHEVARDIERE* |
Chairman and Chief Executive Officer | |||
| Patrick de La Chevardière | (Principal Executive Officer), Director | |||
| DOMINIQUE BONNET* |
Chief Accounting Officer (Principal Financial and | |||
| Dominique Bonnet | Accounting Officer), Director | |||
| HERVE JASKULKE* |
Director | |||
| Hervé Jaskulké | ||||
| PIERRE DE LA POMELIE* |
Director | |||
| Pierre de La Pomelie | ||||
| TOTAL FINANCE CORPORATE SERVICES LIMITED |
Director | |||
| By: /s/ HUMBERT DE WENDEL |
||||
| Humbert de Wendel, Authorized Signatory of Total Finance Corporate Services Limited |
||||
| ROBERT O. HAMMOND* |
Authorized Representative in the United States | |||
| Robert O. Hammond | ||||
| *By: | /s/ HUMBERT DE WENDEL |
Attorney-in-fact | ||
| Humbert de Wendel | ||||
INDEX TO EXHIBITS
| Exhibit |
Description of Document | |
| 1.1 | Form of Underwriting Agreement for TOTAL S.A. Debt Securities. | |
| 1.2 | Form of Underwriting Agreement for Total Capital Guaranteed Debt Securities. | |
| 1.3 | Form of Underwriting Agreement for Total Capital Canada Ltd. Guaranteed Debt Securities. | |
| 1.4 | Form of Underwriting Agreement for Total Capital International Guaranteed Debt Securities. | |
| 4.1 | Bylaws (Statuts) of TOTAL S.A.* | |
| 4.2 | Form of Indenture, between TOTAL S.A. and The Bank of New York Mellon.** | |
| 4.3 | Indenture, dated as of October 2, 2009, among Total Capital, TOTAL S.A., and The Bank of New York Mellon.** | |
| 4.4 | Indenture, dated as of January 28, 2011, among Total Capital Canada Ltd., TOTAL S.A., and The Bank of New York Mellon.** | |
| 4.5 | Indenture, dated as of February 17, 2012, among Total Capital International, TOTAL S.A., and The Bank of New York Mellon.** | |
| 4.6 | Form of Debt Securities for TOTAL S.A. (included in Exhibit 4.2). | |
| 4.7 | Form of Debt Securities for Total Capital and Guarantee relating thereto (included in Exhibit 4.3). | |
| 4.8 | Form of Debt Securities for Total Capital Canada and Guarantee relating thereto (included in Exhibit 4.4). | |
| 4.9 | Form of Debt Securities for Total Capital International and Guarantee relating thereto (included in Exhibit 4.5). | |
| 5.1 | Opinion of Maarten Scholten, General Counsel of TOTAL S.A., as to the validity of the Debt Securities and Guarantees as to certain matters of French law. | |
| 5.2 | Opinion of Andrew Zdrahal, Group U.S. Securities Counsel of TOTAL S.A., as to the validity of the Debt Securities and Guarantees as to certain matters of United States law. | |
| 5.3 | Opinion of Bennett Jones LLP as to the validity of the Debt Securities as to certain matters of Canadian law. | |
| 8.1 | Opinion of Sullivan & Cromwell LLP as to certain matters of French taxation. | |
| 8.2 | Opinion of Sullivan & Cromwell LLP as to certain matters of U.S. taxation. | |
| 8.3 | Opinion of Bennett Jones LLP as to certain matters of Canadian taxation. | |
| 12.1 | Computation of ratio of earnings to fixed charges.* | |
| 23.1 | Consent of Ernst & Young Audit and KPMG AUDIT, a division of KPMG S.A. | |
| 23.2 | Consent of DeGolyer and MacNaughton. | |
| 23.3 | Consent of Maarten Scholten, General Counsel of TOTAL S.A. (included in Exhibit 5.1 above). | |
| 23.4 | Consent of Andrew Zdrahal, Group U.S. Securities Counsel of TOTAL S.A. (included in Exhibit 5.2 above). | |
| 23.5 | Consent of Bennett Jones LLP, Canadian counsel to TOTAL S.A. and Total Capital Canada Ltd. (included in Exhibit 5.3 above). | |
| 23.6 | Consent of Sullivan & Cromwell LLP, French tax counsel to TOTAL S.A., Total Capital and Total Capital International (included in Exhibit 8.1 above). | |
| Exhibit |
Description of Document | |
| 23.7 | Consent of Sullivan & Cromwell LLP, U.S. tax counsel to TOTAL S.A., Total Capital, Total Capital Canada Ltd. and Total Capital International (included in Exhibit 8.2 above). | |
| 23.8 | Consent of Bennett Jones LLP, Canadian tax counsel to TOTAL S.A. and Total Capital Canada Ltd. (included in Exhibit 8.3 above). | |
| 24.1 | Power of attorney — TOTAL S.A. | |
| 24.2 | Power of attorney — Total Capital. | |
| 24.3 | Power of attorney — Total Capital Canada Ltd. | |
| 24.4 | Power of attorney — Total Capital International. | |
| 25.1 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.2 above. | |
| 25.2 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.3 above. | |
| 25.3 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.4 above. | |
| 25.4 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.5 above. | |
| * | Previously filed as an exhibit to the Annual Report on Form 20-F of TOTAL S.A. for the year ended December 31, 2014, filed with the SEC on March 26, 2015, as amended on March 27, 2015. |
| ** | Previously filed on the Registration Statement on Form F-3 of TOTAL S.A. (File No. 333-180967), dated April 26, 2012. |
[—], [—]
TOTAL S.A.
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Ladies and Gentlemen:
The underwriter(s) named in Schedule I hereto (such underwriter(s) being herein called the “Reselling Purchaser(s)”) understand(s) that TOTAL S.A. (the “Company”) proposes to issue and sell the debt securities of the Company specified in Schedule V hereto (the “Offered Securities”). Subject to the terms and conditions set forth or incorporated by reference herein, the Company agrees to sell, and each Reselling Purchaser(s) [severally] agrees to purchase, the aggregate principal amount of the Offered Securities set forth opposite [its] [each Reselling Purchaser’s] name in Schedule I hereto at [—]% of their principal amount plus accrued interest, if any, from [—],[—] to the date of payment and delivery:
The Reselling Purchaser(s) will pay for such Offered Securities upon delivery thereof at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York, 10004 or through the facilities of The Depository Trust Company at 10:00 A.M. (New York time) on [—],[—] (the “Closing Date”), or at such other time as shall be agreed upon between us.
Unless otherwise expressly specified herein, all of the provisions contained in the document entitled TOTAL S.A. Purchase Agreement Standard Provisions (2015 Edition) (the “Standard Provisions”) attached as Annex A hereto are herein incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. Unless otherwise defined herein, terms defined in the Standard Provisions are used herein as therein defined. Schedule II(a) hereto lists each Permitted Free Writing Prospectus agreed pursuant to Article V(a) of the Standard Provisions and Schedule II(b) hereto lists any additional documents incorporated by reference that were filed with the Commission subsequent to the Commission’s close of business on the business day immediately prior to the date of the execution of this Purchase Agreement. Schedule III hereto lists the selling restrictions applicable to the distribution and sale of the Offered Securities. Schedule IV lists all documents that the Company and the Reselling Purchaser(s) agree are to be included in the Pricing Disclosure Package. The final term sheet prepared in accordance with Article V(c) of the Standard Provisions is attached hereto as Schedule V.
For purposes of this Purchase Agreement and the Standard Provisions, the “Applicable Time” is [—]:[—] [A/P].M. New York time on the date hereof.
[All provisions of this Agreement, including those incorporated by reference, that require that notices or documents be furnished to each “Purchaser” or “Reselling Purchaser”, or that each “Purchaser” or “Reselling Purchaser” provide its authorization or consent, shall be deemed to have been satisfied if such notices or documents are furnished to, or such consent or authorization is provided by, [Lead Manager(s)], on behalf of each “Purchaser” or “Reselling Purchaser”.] [To be used in the event of a syndicated offering.]
1
IN WITNESS WHEREOF, the parties hereto have, by duly authorized directors, officers or attorneys-in-fact, executed this Agreement as of the date first above written.
| TOTAL S.A. | ||
| By: | ||
| Name: | ||
| Title: | ||
| [RESELLING PURCHASER(S)] | ||
|
| ||
| [Reselling Purchaser(s)] | ||
SCHEDULE I TO PURCHASE AGREEMENT
| Reselling Purchaser |
Principal Amount of Offered Securities |
|||
| [—] |
$ | [— | ] | |
|
|
|
|||
| Total |
$ | [— | ] | |
1
SCHEDULE II TO PURCHASE AGREEMENT
| (a) | Permitted Free Writing Prospectuses agreed pursuant to Article V(a) of the Standard Provisions |
Issuer Free Writing Prospectuses
Final Term Sheet attached to the Purchase Agreement as Schedule V
[—]
| (b) | Additional documents incorporated by reference |
[—]
1
SCHEDULE III TO PURCHASE AGREEMENT
Selling Restrictions
European Economic Area
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), each Reselling Purchaser has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Offered Securities to the public in that Relevant Member State, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Offered Securities to the public in that Relevant Member State at any time:
| • | to any legal entity which is a qualified investor as defined in the Prospectus Directive; or |
| • | to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), subject to obtaining the prior consent of the initial purchasers for any such offer; or |
| • | in any other circumstances falling within Article 3(2) of the Prospectus Directive |
provided, that no such offer of the Offered Securities shall require us or any of the Reselling Purchasers to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an offer of Offered Securities to the public in relation to any Offered Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities to be offered so as to enable an investor to decide to purchase or subscribe the Offered Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression Prospectus Directive means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State.
This European Economic Area selling restriction is in addition to the other selling restrictions set out below.
France
The Reselling Purchaser(s) agree(s) that the Offered Securities are being issued outside of France. Each Reselling Purchaser hereby represents, warrants and agrees that:
| (a) | no prospectus (including any amendment, supplement or replacement thereto) or any other offering material in connection with the offering of the Offered Securities has been submitted to the clearance procedures of the Autorité des marchés financiers or of the competent authority of another State that is a contracting party to the Agreement on the European Economic Area and notified to the Autorité des marchés financiers; |
| (b) | it has not offered or sold and will not offer or sell, directly or indirectly, the Offered Securities to the public in France, and has not released, issued, distributed or caused to be released, issued or distributed to the public in France or used in connection with any offer for subscription or sale of |
1
| the Offered Securities, the Prospectus or any other offering material relating to the Offered Securities, and that such offers, sales and distributions have been and shall be made in France only (i) to qualified investors (investisseurs qualifiés) and/or a restricted circle of investors (cercle restreint d’investisseurs), in each case investing for their own account, and as provided in Articles L. 411-2, D. 411-1 to D. 411-4, D. 734-1, D. 744-1, D. 754-1 and D. 764-1 of the French Code monétaire et financier, or (ii) to investment services providers authorized to engage in portfolio management on behalf of third parties, or (iii) in a transaction that, in accordance with Article L.411-2-I-1°-or-2° -or 3° of the French Code monétaire et financier and Article 211-2 of the General Regulations (Règlement Général) of the Autorité des Marchés Financiers, does not constitute an offer of securities to the public (offre au public de titres financiers); and |
| (c) | the Offered Securities may be resold only in compliance with Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the French Code monétaire et financier. |
United Kingdom
Each Reselling Purchaser hereby represents, warrants and agrees that:
| (a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Offered Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and |
| (b) | it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Offered Securities in, from or otherwise involving the United Kingdom. |
Canada
Each Reselling Purchaser has represented, warranted and agreed not to offer, sell, solicit an offer to purchase or take any other action in furtherance of a trade in the Offered Securities in Canada unless such offer, sale, solicitation or other action is made pursuant to an exemption from the requirements to file a prospectus with the relevant Canadian securities regulators and only by a dealer properly registered under applicable provincial or territorial securities laws or, alternatively, pursuant to an exemption from the dealer registration requirement in the relevant province or territory of Canada in which such offer, sale, solicitation or other action is made or taken.
[Add other selling restrictions, if appropriate.]
2
SCHEDULE IV TO PURCHASE AGREEMENT
Pricing Disclosure Package
Pricing Prospectus
Final Term Sheet attached to the Purchase Agreement as Schedule V
[—]
1
SCHEDULE V TO PURCHASE AGREEMENT
Final Term Sheet
TOTAL S.A.
$[—] [—]%Notes Due [—]
| Issuer |
Total S.A. | |
| Format |
SEC-registered global notes | |
| Title |
[—] | |
| Total initial principal amount being issued |
$[—] | |
| Issue price |
[—]% | |
| Pricing date |
[—] | |
| Expected settlement date |
[—] (T+[—]) | |
| Maturity date |
[—], unless earlier redeemed | |
| Day count |
[30/360] | |
| Day count convention |
Following, unadjusted | |
| Optional redemption terms |
Make-whole call at Treasury Rate plus [—] basis points Tax call at par | |
| Interest rate |
[—]% per annum | |
| Benchmark Treasury |
[—]% due [—] | |
| Benchmark Treasury price |
[—]-[—] | |
| Benchmark Treasury yield |
[—]% | |
| Spread to benchmark Treasury |
[—] bps | |
| Yield to maturity |
[—]% | |
| Date interest starts accruing |
[—] | |
| Interest payment dates |
Each [—] and [—] | |
| First interest payment date |
[—] | |
| Regular record dates for interest |
Each [—] and [—] | |
| Trustee |
The Bank of New York Mellon | |
| Listing |
None | |
| Denominations |
$[—] and increments of $[—] | |
| Expected ratings of the notes |
Moody’s: [—] | |
| Standard & Poor’s: [—] | ||
| Ratings are not a recommendation to purchase, hold or sell notes, inasmuch as the ratings do not comment as to market price or suitability for a particular investor. The ratings are based upon current information furnished to the rating agencies by TOTAL S.A. and information obtained by the rating agencies from other sources. The ratings are only accurate as of the date thereof and may be changed, superseded or withdrawn as a result of changes in, or unavailability of, such information, and therefore a prospective purchaser should check the current ratings before purchasing the notes. Each rating should be evaluated independently of any other rating. | ||
| CUSIP / ISIN |
[—]/[—] | |
| Selling restrictions |
European Economic Area, France, UK, Canada, [Other] | |
| Managers |
[—] | |
1
[Other terms]
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free +[—].
2
ANNEX A TO PURCHASE AGREEMENT
TOTAL S.A.
PURCHASE AGREEMENT STANDARD PROVISIONS
(2015 Edition)
1
From time to time, TOTAL S.A., a société anonyme organized under the laws of the Republic of France (the “Company”), may enter into one or more purchase agreements that provide for the sale of designated securities to the purchaser or purchasers named therein (each a “Purchaser”). The standard provisions set forth herein may be incorporated by reference in any such purchase agreement (each a “Purchase Agreement”). The Purchase Agreement relating to any particular sale of Offered Securities, including the provisions incorporated therein by reference, is herein referred to as this “Agreement”. Unless otherwise defined herein, terms defined in such Purchase Agreement are used herein as defined in the Purchase Agreement.
I.
The Company proposes to issue debt securities (the “Securities”) from time to time pursuant to the provisions of an Indenture to be entered into among the Company and The Bank of New York Mellon, as trustee (the “Trustee”), on or before the Closing Date (as defined below). The Securities may have varying designations, maturities, rates and times of payment of interest, selling prices and redemption and other terms.
II.
If a Purchaser advises the Company in the Purchase Agreement that it intends to resell the Offered Securities, the Company will provide assistance as hereinafter provided. The terms of any such resale will be set forth in the Prospectus. The provisions of Articles V, VII, VIII, X and XI of this Agreement will apply only to a Purchaser advising the Company in accordance with the first sentence of this Article II (a “Reselling Purchaser”).
III.
Payment for the Offered Securities shall be made by wire transfer or by certified or official bank check or checks payable to the order of the Company in immediately available Federal funds or in New York Clearing House funds as agreed to by the parties and at the time and place set forth in the Purchase Agreement, upon delivery to the Purchaser of the Offered Securities registered in such names and in such denominations as the Purchaser shall request in writing not less than one full business day prior to the date of delivery. The time and date of such payment and delivery with respect to the Offered Securities are herein referred to as the “Closing Date”.
IV.
The Company represents and warrants to, and agrees with each Purchaser, as of the date of the Purchase Agreement, that:
2
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”) on Form F-3 (File No. 333-[•]) relating to the Securities to be issued from time to time by the Company has been filed with the U.S. Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of the applicable Pricing Prospectus; such registration statement and any post-effective amendment thereto became effective on filing; no stop order suspending the effectiveness of such registration statement, any post-effective amendment thereto 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, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. For purposes of this Agreement:
| (i) | 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 the applicable Purchase Agreement relating to the Offered Securities, is hereinafter referred to as the “Base Prospectus”; |
| (ii) | any preliminary form of prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act is hereinafter referred to as a “Preliminary Prospectus”; |
| (iii) | the various parts of such registration statement, including all exhibits thereto (but excluding Form T-1) and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively referred to as the “Registration Statement”; |
| (iv) | the Base Prospectus, as amended and supplemented (by any Preliminary Prospectus or otherwise) immediately prior to the Applicable Time (as defined in the applicable Purchase Agreement with respect to the Offered Securities), is hereinafter referred to as the “Pricing Prospectus”; |
| (v) | the form of the final prospectus relating to the Offered Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Article VII(a) hereof is hereinafter referred to as the “Prospectus”; |
| (vi) | any reference in this Agreement to the Base Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Securities Act, as of the date of such prospectus; |
| (vii) | any reference to any amendment or supplement to the Base Prospectus, any Preliminary Prospectus 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 Offered Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the date of the Base Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be; |
| (viii) | any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report or Form 6-K 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 |
3
| (ix) | the “Applicable Time” is the time specified as such in the applicable Purchase Agreement. |
(b) No order preventing or suspending the use of any Preliminary Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Securities (an “Issuer Free Writing Prospectus”) has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Reselling Purchaser expressly for use therein.
(c) The Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Article V(c) hereof and any Issuer Free Writing Prospectus listed in Schedule IV to the applicable Purchase Agreement (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus agreed pursuant to Article V(a) hereof and listed on Schedule II(a) to the applicable Purchase Agreement does not conflict with the information contained or incorporated by reference in the Registration Statement, the Pricing Prospectus or the Prospectus, and each such Issuer Free Writing Prospectus, as supplemented by, and taken together with, the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and the Company has not used any Issuer Free Writing Prospectuses other than those listed on Schedule II(a) and Schedule IV to the applicable Purchase Agreement; provided, however, that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by any Reselling Purchaser expressly for use therein.
(d) The documents incorporated by reference in the Pricing Prospectus and Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were
4
made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Reselling Purchaser expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of the Purchase Agreement and prior to the execution of the Purchase Agreement, except as set forth on Schedule II(b) to the Purchase Agreement.
(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Reselling Purchaser expressly for use therein.
(f) The Company is validly existing as a société anonyme and in good standing under the laws of France and has all the requisite power and authority to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement and the Indenture.
(g) The Company has taken all necessary corporate action required by its statuts and by the laws of France to authorize the execution of the Purchase Agreement and the Indenture. The Company has taken all necessary corporate action required by its statuts and by the laws of France to authorize the issuance and sale of the Offered Securities.
(h) The Purchase Agreement has been duly authorized, executed and delivered by the Company.
(i) The Indenture, when executed and delivered, will be duly authorized, executed and delivered by the Company and will constitute a valid and legally binding obligation of the Company, and the Indenture has been duly qualified under the Trust Indenture Act.
(j) The Offered Securities to be issued by the Company have been duly authorized, and when issued, delivered and authenticated, as provided in the Indenture, will be duly and validly issued and will constitute legal, valid and binding obligations enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and entitled to the benefits of the Indenture.
(k) The Offered Securities to be issued by the Company will rank at least pari passu with all of the Company’s other unsecured and unsubordinated indebtedness.
(l) No consent, approval, authorization or order of, or filing with, any regulatory authority in the United States of America or France is legally required for the execution of the Indenture or the issuance and sale of the Offered Securities to the Purchasers pursuant to the Purchase Agreement, other than the filings with, and the orders of, the Commission in connection with the registration of the Offered Securities under the Securities Act and the qualification of the
5
Indenture under the Trust Indenture Act, except that the offer and sale of the Offered Securities in certain jurisdictions may be subject to the provisions of the securities or Blue Sky laws of such jurisdictions.
(m) Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Company, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of its properties or assets, or (ii) violate or result in a breach or a default under any of the terms of its statuts, any contract or instrument to which it is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which it is subject or by which it or its property is bound, which breach or default would have a material adverse effect on its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities or the Indenture, or the validity of the Offered Securities.
(n) Except as disclosed in the Pricing Prospectus and the Prospectus, there is no litigation or governmental proceeding pending, or to its actual knowledge threatened, against or affecting the Company or any of its subsidiaries that would result in a material adverse change in its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company or the Indenture.
(o) The Company is not an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(p) The statements set forth in the Pricing Prospectus and the Prospectus under the heading “Tax Considerations”, to the extent that they purport to summarize certain provisions of the United States federal income tax law and regulations, or certain provisions of the French tax law and regulations, constitute a fair summary of such provisions in all material respects.
(q) Except as described in the Pricing Prospectus and the Prospectus, there are no withholding taxes or stamp or other similar issuance or transfer taxes or duties imposed or payable in France or the United States or any political subdivision or taxing authority thereof or therein by or on behalf of the Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement (provided such sale and delivery is not recorded in a deed registered in France).
(r) Interest payments made by the Company in respect of the Offered Securities may be made to holders of Securities that are not Shareholders of the Company without withholding or deduction for or on account of any taxes, duties, assessments or charges of whatever nature imposed or levied by or on behalf of the French Republic or any political subdivision or authority thereof or therein provided that they are not paid to a person incorporated, domiciled, established, acting through a branch or to an account opened in a non-cooperative State or territory within the meaning of article 238-0 A of the French tax code (Code général des impôts), as amended from time to time.
(s) (i) At the time of the filing of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13(a) or 15(d) of the Exchange Act or form of prospectus) and (iii) at the
6
time the Company or any person acting on its behalf (within the meaning of, for this clause only, Rule 163(c) under the Securities Act) made any offer relating to the Offered Securities in reliance on the exemption provided by Rule 163, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been an “ineligible issuer” as defined in Rule 405.
(t) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Offered Securities and (ii) at the date of the Purchase Agreement, the Company was not, nor is, an “ineligible issuer,” as defined in Rule 405 under the Securities Act.
(u) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, neither the Company nor, to the best of its knowledge, any of its subsidiaries or their respective directors, officers or employees acting on behalf of the Company, has engaged in any activity or conduct which would violate in any material respect the U.S. Foreign Corrupt Practices Act or any other applicable anti-bribery or anti-corruption law or regulation, and the Company has instituted and maintains policies and procedures reasonably designed to prevent violation of such laws, regulations and rules.
(v) Except as otherwise disclosed to the Reselling Purchasers, none of the Company, any of its subsidiaries or, to the best of the knowledge of the Company, any of their respective directors or officers is a person or entity with whom dealings are restricted or prohibited by Sanctions, and the Company will not directly or indirectly use the proceeds from any offering of Offered Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, or other person or entity, in any manner that would result in a violation of Sanctions, and the Company has instituted and maintains policies and procedures reasonably designed to prevent violation of Sanctions. “Sanctions” under this provision means any economic sanctions (i) which are administered by (x) the United States, including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), (y) the European Union or (z) the United Nations, and (ii) which are applicable at the time the representations and warranties under this Article IV(v) are made.
(w) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, the operations of the Company and its subsidiaries are and have been conducted in compliance with money laundering statutes and the rules and regulations thereunder to the extent applicable to the Company (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental entity, authority or body or any arbitrator or non-governmental authority involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best of the Company’s knowledge and belief, threatened that would result in a material adverse effect in the condition (financial or otherwise) or operations of the Company and its consolidated subsidiaries, taken as a whole.
7
V.
(a) The Company represents and agrees that, unless it obtains the prior consent of the Reselling Purchasers, and each Reselling Purchaser represents and agrees that, unless it obtains the prior consent of the Company, in each case except for the final term sheet prepared and filed pursuant to Article V(c) hereof, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act. Any such free writing prospectus consented to by the Company and the Reselling Purchasers is hereinafter referred to as a “Permitted Free Writing Prospectus” and, if prior to the date of the Purchase Agreement, is listed on Schedule II (a) to the Purchase Agreement.
(b) The Company represents that it has complied and will comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission (or retention where required) and legending.
(c) The Company will prepare a final term sheet relating to the Offered Securities (attached to the Purchase Agreement as Schedule V), containing only information that describes the final terms of the Offered Securities and otherwise in a form consented to by the Reselling Purchasers, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date such final terms have been established for the offering of the Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company consents to the use by any Reselling Purchaser of a free writing prospectus that contains substantially only (i) information describing the preliminary terms of the Offered Securities or their offering or (ii) information that describes the final terms of the Offered Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection (including, for purposes of subsections (i) and (ii), any such information that is transmitted via Bloomberg screen notice).
(d) If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement, the Pricing Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, (i) the Company has promptly notified or will promptly notify the Reselling Purchasers and (ii) the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this provision shall not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished to the Company in writing by any Reselling Purchaser expressly for use therein.
VI.
The obligations of each Purchaser hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall be in effect, and no proceedings for such purpose shall be pending before or
8
threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; there shall have been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus; and the Purchaser shall have received, on the Closing Date, certificates dated the Closing Date and signed by officers of the Company or other duly authorized persons, to the foregoing effect and to the effect that the representations and warranties of the Company are true and correct as of the Closing Date. The officers or other persons making such certificates may each rely upon the best of their knowledge as to proceedings pending or threatened. The final term sheet contemplated by Article V(c) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.
(b) The Purchaser shall have received on the Closing Date an opinion or opinions of the General Counsel or Associate General Counsel of the Company or other counsel reasonably satisfactory to the Purchaser, as to certain matters of French, New York and United States federal law, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Purchaser shall have received on the Closing Date an opinion of counsel for the Purchaser, dated the Closing Date, in form and substance reasonably satisfactory to the Purchaser.
(d) The Purchaser shall have received on each of the date of pricing of Offered Securities and the Closing Date a letter from the independent auditors for the Company, dated the date of pricing of Offered Securities and the Closing Date, respectively, to the effect set forth in Exhibit B hereto.
(e) Since the date of the Purchase Agreement, no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(f) On or prior to the Closing Date, the Company shall have furnished to the Purchaser such further available information and certificates as the Purchaser may reasonably request.
VII.
In further consideration of the agreements contained herein of any Reselling Purchaser, the Company covenants to such Reselling Purchaser as follows:
(a) To prepare and file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the date of the Purchase Agreement or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement, the Base Prospectus, the Pricing Prospectus or the Prospectus after the date of the applicable Purchase Agreement and prior to the Closing Date which shall have been reasonably disapproved by the Reselling Purchasers promptly after
9
reasonable notice thereof (which notice the Company undertakes to provide); to advise the Reselling Purchasers, promptly after they receive notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish to any Reselling Purchaser with copies thereof; to file promptly all reports required to be filed by the Issuer with the Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Offered Securities, and during such same period to advise the Reselling Purchasers, promptly after the Company receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus or free writing prospectus relating to the Offered Securities, of the suspension of the qualification of such Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information, and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus or free writing prospectus relating to the Offered Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order.
(b) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement any of the Securities remain unsold by the Reselling Purchasers, to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities in a form satisfactory to the Reselling Purchasers. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if they have not already done so, file a new shelf registration statement relating to the Securities in a form satisfactory to the Reselling Purchasers and will use reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline, and it will take all other action necessary to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References in this Agreement to the Registration Statement shall include any such new automatic shelf registration statement or any such new shelf registration statement, as the case may be.
(c) To furnish the Reselling Purchasers with a copy of the signed Registration Statement (including exhibits thereto) and with copies of the Prospectus, as amended or supplemented, in such quantities as the Reselling Purchasers may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any time in connection with the offering or sale of the Offered Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, the Exchange Act and the Trust Indenture Act, to notify the Reselling Purchasers and upon their request to file such document and to prepare and furnish to each Reselling Purchaser and to any dealer in securities as many copies as the Reselling Purchasers may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance.
10
(d) To qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States of America as the Reselling Purchaser shall reasonably request and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions in the United States of America as the Reselling Purchaser may designate.
(e) As soon as practicable after the date of each Purchase Agreement, to make generally available to the Company’s securityholders an earnings statement covering a period of at least 12 months beginning after the date of such Purchase Agreement and satisfying the provisions of Section 11(a) of the Securities Act (including Rule 158 thereunder).
(f) During the period beginning on the date of this Agreement and terminating after the number of days, if any, indicated under “Restriction on Additional Sales” in the Purchase Agreement, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Offered Securities, without the prior written consent of the Reselling Purchaser.
(g) If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, to notify promptly the Reselling Purchaser so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.
VIII.
The Company agrees to indemnify and hold harmless each Reselling Purchaser and each person, if any, who controls such Reselling Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus (if used within the period set forth in paragraph (c) of Article VII hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Company by any Reselling Purchaser expressly for use therein.
Each Reselling Purchaser severally agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and any person controlling the Company to the same extent as the foregoing indemnity from the Company to each Reselling Purchaser, but only with reference to information relating to such Reselling Purchaser furnished in writing by such Reselling Purchaser expressly for use in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
11
In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such other person (the “indemnified party”) shall promptly notify the person or persons against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by the Reselling Purchaser in the case of parties indemnified pursuant to the second preceding paragraph and by the Company in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is unavailable to an indemnified party other than as a result of the proviso to the first paragraph of Article VIII or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Reselling Purchaser on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Reselling Purchaser on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Reselling Purchaser on the other in connection with the offering of the Offered Securities shall be deemed to be in the same proportion as the total net proceeds from the offering of such Offered Securities (before deducting expenses) received by the Company bear to the total commissions, if any, received by the Reselling Purchaser in respect thereof. If there are no commissions allowed or paid by the Company to the Reselling Purchaser in respect of the Offered Securities, the relative benefits received by the Reselling Purchaser in the preceding sentence shall be the difference between the price received by such Reselling Purchaser upon resale of the Offered Securities and the price paid for such Offered Securities pursuant to the Purchase Agreement. The relative fault of the Company on the one hand and of the Reselling Purchaser on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Reselling Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Reselling Purchaser agree that it would not be just and equitable if contribution pursuant to this Article VIII were determined by pro rata allocation or by any other method of allocation which does not take account of the considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages
12
and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VIII, no Reselling Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities resold to the public by such Reselling Purchaser were offered to the public exceeds the amount of any damages which such Reselling Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VIII and the representations and warranties of the Company in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by any Reselling Purchaser or on behalf of any Reselling Purchaser or any person controlling any Reselling Purchaser and (iii) acceptance of and payment for any of the Offered Securities.
The Company agrees that any legal suit, action or proceeding brought by any Reselling Purchaser to enforce the indemnity agreements contained in this Article VIII may be instituted in any state or Federal court in the Borough of Manhattan, The City of New York, New York, United States of America, waives, to the extent it may effectively do so, any objection which it may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. The Company has designated and appointed Corporation Service Company (or any successor corporation) as the authorized agent of the Company to accept and acknowledge on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such court and agrees that service of process upon said agent at its office at 1180 Avenue of the Americas, Suite 210, New York, NY 10036 (or such other address in the Borough of Manhattan, The City of New York, as the Company may designate by written notice to you), shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Company whether or not the Company shall then be doing, or at any time shall have done, business within the State of New York, and any such service of process shall be of the same force and validity as if service were made upon it according to the laws governing the validity and requirements of such service in such State, and waives all claim of error by reason of any such service. Said designation and appointment shall be irrevocable until the principal of and interest on the Offered Securities and all other sums owing by the Company to holders of the Offered Securities in accordance with the provisions of the Offered Securities and the Indenture have been paid in full by the Company in accordance with the provisions thereof. The Company agrees to take all action as may be necessary to continue the designation and appointment of Corporation Service Company or any successor corporation in full force and effect so that the Company shall at all times have an agent for service of process for the above purposes in the Borough of Manhattan, The City of New York, New York, United States of America.
IX.
Any payments to any Purchaser hereunder (each Purchaser is hereinafter referred to in this Article IX as a “Payee”) shall be in United States dollars and shall be payable free and clear of, and without deduction or withholding for, or on account of, any and all present or future taxes, duties, assessments, levies and other governmental charges of any nature whatsoever now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of France or any other jurisdiction from which such
13
payments are made, or any territory or political subdivision thereof, unless such deduction or withholding is required by law (“Foreign Taxes”). If by operation of law or otherwise, Foreign Taxes are required to be deducted or withheld from any amounts payable to a Payee, the Company agrees to pay such additional amounts to each Payee (the “Additional Amounts”) as may be necessary to ensure that the net amount actually received by the Payee, after deduction of any Foreign Taxes imposed with respect to the payment of such Additional Amounts, shall equal the amount the Payee would have received if Foreign Taxes had not been deducted or withheld from such payment; provided, however, that no Additional Amounts shall be so payable for or on account of: (i) any Foreign Taxes which would not have been imposed but for the fact that any Payee had a present or former personal or business connection with France or any other jurisdiction from which payments are made, or any territory or political subdivision thereof other than the mere ownership of, or receipt of payment under, the Offered Securities; (ii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; or (iii) any Foreign Taxes which are payable otherwise than by withholding or deduction.
The Company agrees to indemnify each Purchaser against any loss incurred by any such Purchaser as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Payee upon receipt of the Judgment Currency could have purchased United States dollars with the amount of Judgment Currency actually received by such Payee. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
X.
This Agreement shall be subject to termination in the absolute discretion of any Reselling Purchaser, by notice given to the Company, if prior to the Closing Date (i) trading in securities generally or trading in the Company’s securities on either Euronext Paris or the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York or France shall have been declared by either Federal, New York State or French authorities or a material disruption in commercial banking or securities settlement or clearance services within the United States or the European Union shall have occurred or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States or the European Union is such as to make it, in the judgment of such Reselling Purchaser, impracticable to resell the Offered Securities.
14
XI.
Without prejudice to the provisions of Article VII(d) and Article XIII hereof, the Reselling Purchasers jointly agree to pay all expenses incident to the issuance of the Offered Securities, including but not limited to:
(a) the fees and disbursements of the counsel to the Reselling Purchasers in connection with the issuance of the Offered Securities;
(b) the fees and expenses incurred in connection with the approval by The Depository Trust Company and other clearing and settlement organizations for the clearance through their respective systems; and
(c) all documented out-of-pocket expenses incurred by the Reselling Purchasers.
XII.
Notwithstanding the provisions of Article XI hereof, the Company agrees to pay the following expenses incident to the issuance of the Offered Securities:
(a) the Commission filing fees;
(b) the fees and disbursements of counsel to and the independent auditors of the Company in connection with the issuance of the Offered Securities;
(c) the printing and delivery to the Reselling Purchasers of copies of the Prospectus and any amendment or supplement thereto, and the preparing, printing and distributing of any Issuer Free Writing Prospectus to investors or prospective investors; and
the costs of the Trustee in connection with the issuance of the Offered Securities including the reasonable fees and disbursements of counsel for the Trustee.
XIII.
If this Agreement shall be terminated by the Purchaser(s) because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Purchaser(s) for all out-of-pocket expenses (including the fees and disbursements of counsel) reasonably incurred by such Purchaser(s) in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
15
The Company acknowledges and agrees that (a) the purchase and sale of the Offered Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Reselling Purchasers, on the other, (b) in connection therewith and with the process leading to such transaction each Reselling Purchaser is acting solely as a principal and not the agent or fiduciary of the Company and (c) no Reselling Purchaser has assumed a fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Reselling Purchaser has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement. The Company agrees that it will not claim that the Reselling Purchasers, or any of them, owes a fiduciary or similar duty to the Company in connection with such transaction or the process leading thereto.
16
EXHIBIT A
OPINION OF COUNSEL TO THE COMPANY
You shall have received on and as of the Closing Date an opinion or opinions of the General Counsel or Associate General Counsel of the Company, or other counsel reasonably satisfactory to you, subject to customary assumptions and qualifications, to the effect that:
| (1) | The Company is validly existing as a société anonyme under the laws of France and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement and the Indenture. |
| (2) | The Purchase Agreement has been duly authorized, executed and delivered by the Company. |
| (3) | The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (hereinafter called the “Trust Indenture Act”). |
| (4) | The Offered Securities to be issued by the Company have been duly authorized and, when issued, delivered and authenticated as provided in the Indenture, will be duly and validly issued and will constitute legal, valid and binding obligations enforceable against the Company in accordance with their terms, entitled to the benefits of the Indenture, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (5) | All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United Sates, the laws of the State of New York or the laws of the French Republic for the issuance, sale and delivery of the Offered Securities by the Company to the Reselling Purchasers have been obtained or made. |
| (6) | The Company is not, and after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Pricing Prospectus and the Prospectus, will not be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
| (7) | There are no stamp or other similar issuance or transfer taxes or duties imposed or payable in France or the United States or any political subdivision or taxing authority thereof or therein by or on behalf of the Reselling Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement (provided such sale and delivery is not recorded in a deed registered in France). |
| (8) | The choice of the laws of the State of New York to govern the Purchase Agreement, the Indenture and the Offered Securities is a valid choice of law, and a French court would uphold such choice of law in any proceeding on the Purchase Agreement, the Indenture or |
A-1
| the Offered Securities brought before it, provided that the relevant content of New York law is duly proved in any such proceedings and that the application of New York law (i) is not found to be contrary to mandatory provisions of the law of any jurisdiction presenting a close connection with the transaction, which under the laws of such jurisdiction are applicable irrespective of the law governing the Purchase Agreement, the Indenture or the Offered Securities, as the case may be, (ii) is not found to be contrary to a provision of French law whose application to the situation is found mandatory irrespective of the law governing the Purchase Agreement, the Indenture or the Offered Securities (lois de police) and (iii) is not found to be manifestly contrary to a provision of French international public policy (ordre public international), and provided further that in original actions brought in French courts certain questions of procedural law and public policy would be governed by French law and a French court could set aside the choice of New York law if such choice was held to have been intended to avoid a provision of French law which otherwise would have been mandatorily applicable. |
| (9) | Under the laws of the State of New York relating to personal jurisdiction, the Company has, pursuant to Section VIII of the Purchase Agreement and Section 114 of the Indenture, validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the Borough of Manhattan, The City of New York, New York (each a “New York Court”) in any action arising out of or relating to this Purchase Agreement or the transactions contemplated hereby. |
| (10) | Any final judgment for a sum of money against the Company in relation to the Purchase Agreement, the Indenture or the Offered Securities rendered by a competent New York court, applying New York law, would be recognized and enforced by competent French courts without a review of the merits, provided that (i) the court rendering the judgment had proper jurisdiction; (ii) fundamental procedural rights were duly complied with by the court rendering the judgment; (iii) the court rendering the judgment applied New York law as the law expressed to be governing the Purchase Agreement, the Indenture and the Offered Securities, as the case may be; and (iv) the judgment is not (a) contrary to French public policy (ordre public) as applicable in the context of enforcement of foreign judgments or (b) tainted by fraud. |
| (11) | Such counsel shall also state that they have reviewed the Registration Statement relating to the Securities (File No. 333-[—]) (the “Registration Statement”), the Prospectus included in the Registration Statement (the “Base Prospectus”), the Prospectus Supplement dated [—] (the “Prospectus Supplement”) and documents listed in Schedule [—] (those listed documents, taken together with the Base Prospectus, being referred to as the “Pricing Disclosure Package”) and participated in discussions with representatives of the Company and its independent accountants and representatives of the Purchasers and their counsel. Between the date of the Prospectus Supplement and the time of the delivery of this letter, such counsel participated in further discussions with representatives of the Purchasers and those of the Company and its independent accountants, concerning certain matters relating to the Company and reviewed certificates of certain officers of the Company, letters addressed to the Reselling Purchasers from the Company’s independent accountants and legal opinions addressed to the Reselling Purchasers from the Company’s general counsel. On the basis of the information that they gained in the course of the performance of such services, considered in light of their understanding of the applicable law (including the requirements of Form F-3 and the character of the prospectus contemplated thereby) and the experience they have gained through their practice under the Securities Act, such counsel shall confirm to the Reselling Purchasers that, in their opinion, the Registration Statement [as of the date of |
A-2
| the Prospectus Supplement], and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities to the requirements of the Securities Act, the Trust Indenture Act of 1939 and the applicable rules and regulations of the Securities and Exchange Commission thereunder. Such counsel shall confirm to the Purchasers that the statements made under the captions “Description of Debt Securities”, “Plan of Distribution” and “Tax Considerations” in the Base Prospectus and under the caption “Description of Notes” and “Underwriting” in the Prospectus Supplement, insofar as they relate to the provisions of documents or of French or United States federal tax law therein described, constitute a fair and accurate summary of such provisions in all material respects. Such counsel shall further state that nothing that came to the attention of such counsel in the course of such review has caused them to believe that, insofar as relevant to the offering of the Securities (i) the Registration Statement, [as of the time of the Prospectus Supplement], contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package, as of [—][A/P].M. on [—],[—], [the Applicable Time set forth in the Purchase Agreement], [when considered together with the price to the public and underwriting discount for the Securities set forth on the cover of the Prospectus Supplement and the statements made under caption “Description of Notes” in the Prospectus Supplement,] contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. |
Such counsel shall also advise the Reselling Purchasers that nothing came to the attention of such counsel in the course of the procedures described in the second sentence in the preceding paragraph that has caused them to believe that, the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date and time of delivery of such counsel’s letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Such opinion may state (1) that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, except to the extent specifically noted in the fourth sentence of the second preceding paragraph, and (2) that they do not express any opinion or belief as to the financial statements or other financial data derived from the accounting records contained in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, as to management’s report of its assessment of the effectiveness of the internal control over financial reporting or the auditors’ report as to the internal control over financial reporting, each as included in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the statement of the eligibility and qualification of the Trustee under the Indenture under which the Securities are being issued.
A-3
| (12) | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities, nor the fulfilment of or compliance with the terms and provisions hereof or thereof by the Company, will violate or result in a breach or a default under any of the terms of its statuts, or, to the best of such counsel’s knowledge, any contract or instrument to which it is a party or by which it or its property is bound or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality to which it is subject or by which it or its property is bound, which violation, breach or default would have a material adverse effect on the condition (financial or otherwise) or operations of the Company and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities or the Indenture, or the validity of the Offered Securities. |
| (13) | To the best of such counsel’s knowledge and except as disclosed in the Prospectus, there is no litigation or governmental proceeding pending, or to such counsel’s knowledge threatened, against or affecting the Company or any of its subsidiaries that would result in a material adverse change in the condition (financial or otherwise) or operations of the Company and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company and the Indenture. |
A-4
EXHIBIT B
LETTER OF INDEPENDENT AUDITORS
The letter of the independent auditors for the Company, to be delivered pursuant to Article VI, paragraph (e) of the document entitled Purchase Agreement Standard Provisions (2015 Edition) (the “Standard Provisions”) shall be to the effect that:
| (i) | Such auditors are independent registered public accounting firms with respect to the Company within the meaning of the Securities Act of 1933, as amended, and the applicable published rules and regulations thereunder. |
| (ii) | In the opinion of such auditors, the consolidated financial statements included in the Annual Report on Form 20-F of the Company most recently filed with the Securities and Exchange Commission (the “Annual Report”) comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the published rules and regulations thereunder. |
| (iii) | Nothing has come to the attention of such auditors, as a result of performing the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100 Interim financial information, and other specified procedures not constituting an audit, that caused them to believe: |
| a. | that the unaudited interim condensed consolidated financial statements of the Company, if any, incorporated by reference into the Registration Statement, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the applicable published rules and regulations thereunder, or that any material modifications should be made to such unaudited interim condensed consolidated financial statements, for them to be in conformity with IFRS; or |
| b. | that there was any change in common shares, increase in consolidated non-current financial debt or any decrease in consolidated total non-current assets or consolidated shareholders’ equity of the Company, except in all instances for changes, increases, or decreases that the Registration Statement discloses have occurred or may occur, as compared to the amounts shown on the balance sheet forming part of the unaudited interim condensed consolidated financial statements mentioned in a. above, provided the letter is issued not more than 135 days from the date of such balance sheet. |
If more than 135 days have elapsed from the date of the balance sheet forming part of the most recent audited consolidated financial statements or the most recent unaudited condensed consolidated financial statements with respect to which the auditors have performed the procedures specified by the PCAOB for a review of interim financial information, the letter of the independent auditors shall refer to statements made by the Company’s management as to item iii.b above
| (iv) | Such auditors have performed other procedures that are customary for auditors’ comfort letters in registered debt offerings as required by the Reselling Purchaser(s). |
B-1
[—],[—]
Total Capital
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
TOTAL S.A.
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Ladies and Gentlemen:
The underwriter(s) named in Schedule I hereto (such underwriter(s) being herein called the “Reselling Purchaser(s)”) understand(s) that Total Capital (the “Company”) and TOTAL S.A. (the “Guarantor”) propose to issue and sell the debt securities of the Company specified in Schedule V hereto (the “Offered Securities”). Subject to the terms and conditions set forth or incorporated by reference herein, the Company agrees to sell, and each Reselling Purchaser(s) [severally] agrees to purchase, the aggregate principal amount of the Offered Securities set forth opposite [its] [each Reselling Purchaser’s] name in Schedule I hereto at [—]% of their principal amount plus accrued interest, if any, from [—],[—] to the date of payment and delivery.
The Reselling Purchaser(s) will pay for such Offered Securities upon delivery thereof at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York, 10004 or through the facilities of The Depository Trust Company at 10:00 A.M. (New York time) on [—],[—] (the “Closing Date”), or at such other time as shall be agreed upon between us.
Unless otherwise expressly specified herein, all of the provisions contained in the document entitled Total Capital Purchase Agreement Standard Provisions (2015 Edition) (the “Standard Provisions”) attached as Annex A hereto are herein incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. Unless otherwise defined herein, terms defined in the Standard Provisions are used herein as therein defined. Schedule II(a) hereto lists each Permitted Free Writing Prospectus agreed pursuant to Article V(a) of the Standard Provisions and Schedule II(b) hereto lists any additional documents incorporated by reference that were filed with the Commission subsequent to the Commission’s close of business on the business day immediately prior to the date of the execution of this Purchase Agreement. Schedule III hereto lists the selling restrictions applicable to the distribution and sale of the Offered Securities. Schedule IV lists all documents that the Company, the Guarantor and the Reselling Purchaser(s) agree are to be included in the Pricing Disclosure Package. The final term sheet prepared in accordance with Article V(c) of the Standard Provisions is attached hereto as Schedule V.
1
For purposes of this Purchase Agreement and the Standard Provisions, the “Applicable Time” is [—]:[—][A/P].M. New York time on the date hereof.
[All provisions of this Agreement, including those incorporated by reference, that require that notices or documents be furnished to each “Purchaser” or “Reselling Purchaser”, or that each “Purchaser” or “Reselling Purchaser” provide its authorization or consent, shall be deemed to have been satisfied if such notices or documents are furnished to, or such consent or authorization is provided by, [Lead Manager(s)], on behalf of each “Purchaser” or “Reselling Purchaser”.] [To be used in the event of a syndicated offering.]
2
IN WITNESS WHEREOF, the parties hereto have, by duly authorized directors, officers or attorneys-in-fact, executed this Agreement as of the date first above written.
| TOTAL CAPITAL | ||
| By: |
| |
| TOTAL FINANCE CORPORATE SERVICES LIMITED | ||
| By: |
| |
| Name: | Humbert de Wendel | |
| Title: | Authorized Signatory of Total Finance | |
| Corporate Services Limited | ||
| TOTAL S.A. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| [RESELLING PURCHASER(S)] | ||
|
| ||
| [Reselling Purchaser(s)] | ||
SCHEDULE I TO PURCHASE AGREEMENT
| Reselling Purchaser |
Principal Amount of Offered Securities |
|||
| [—] |
$ | [— | ] | |
|
|
|
|||
| Total |
$ | [— | ] | |
1
SCHEDULE II TO PURCHASE AGREEMENT
(a) Permitted Free Writing Prospectuses agreed pursuant to Article V(a) of the Standard Provisions
Issuer Free Writing Prospectuses
Final Term Sheet attached to the Purchase Agreement as Schedule V
[—]
(b) Additional documents incorporated by reference
[—]
1
SCHEDULE III TO PURCHASE AGREEMENT
Selling Restrictions
European Economic Area
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), each Reselling Purchaser has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Offered Securities to the public in that Relevant Member State, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Offered Securities to the public in that Relevant Member State at any time:
| • | to any legal entity which is a qualified investor as defined in the Prospectus Directive; or |
| • | to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), subject to obtaining the prior consent of the initial purchasers for any such offer; or |
| • | in any other circumstances falling within Article 3(2) of the Prospectus Directive |
provided, that no such offer of the Offered Securities shall require us or any of the Reselling Purchasers to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an offer of Offered Securities to the public in relation to any Offered Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities to be offered so as to enable an investor to decide to purchase or subscribe the Offered Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression Prospectus Directive means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State.
This European Economic Area selling restriction is in addition to the other selling restrictions set out below.
1
France
The Reselling Purchaser(s) agree(s) that the Offered Securities are being issued outside of France. Each Reselling Purchaser hereby represents, warrants and agrees that:
| (a) | no prospectus (including any amendment, supplement or replacement thereto) or any other offering material in connection with the offering of the Offered Securities has been submitted to the clearance procedures of the Autorité des marchés financiers or of the competent authority of another State that is a contracting party to the Agreement on the European Economic Area and notified to the Autorité des marchés financiers; |
| (b) | it has not offered or sold and will not offer or sell, directly or indirectly, the Offered Securities to the public in France, and has not released, issued, distributed or caused to be released, issued or distributed to the public in France or used in connection with any offer for subscription or sale of the Offered Securities, the Prospectus or any other offering material relating to the Offered Securities, and that such offers, sales and distributions have been and shall be made in France only (i) to qualified investors (investisseurs qualifiés) and/or a restricted circle of investors (cercle restreint d’investisseurs), in each case investing for their own account and as provided in Articles L. 411-2, D. 411-1 to D. 411-4, D. 734-1, D. 744-1, D. 754-1 and D. 764-1 of the French Code monétaire et financier, or (ii) to investment services providers authorized to engage in portfolio management on behalf of third parties, or (iii) in a transaction that, in accordance with Article L.411-2-I-1°-or-2° -or 3° of the French Code monétaire et financier and Article 211-2 of the General Regulations (Règlement Général) of the Autorité des Marchés Financiers, does not constitute an offer of securities to the public (offre au public de titres financiers); and |
| (c) | the Offered Securities may be resold only in compliance with Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the French Code monétaire et financier. |
United Kingdom
Each Reselling Purchaser hereby represents, warrants and agrees that:
| (a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Offered Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantor; and |
| (b) | it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Offered Securities in, from or otherwise involving the United Kingdom. |
Canada
Each Reselling Purchaser has represented, warranted and agreed not to offer, sell, solicit an offer to purchase or take any other action in furtherance of a trade in the Offered Securities in Canada
2
unless such offer, sale, solicitation or other action is made pursuant to an exemption from the requirements to file a prospectus with the relevant Canadian securities regulators and only by a dealer properly registered under applicable provincial or territorial securities laws or, alternatively, pursuant to an exemption from the dealer registration requirement in the relevant province or territory of Canada in which such offer, sale, solicitation or other action is made or taken.
[Add other selling restrictions, if appropriate.]
3
SCHEDULE IV TO PURCHASE AGREEMENT
Pricing Disclosure Package
Pricing Prospectus
Final Term Sheet attached to the Purchase Agreement as Schedule V
[—]
1
SCHEDULE V TO PURCHASE AGREEMENT
Final Term Sheet
TOTAL CAPITAL
(A wholly-owned subsidiary of TOTAL S.A.)
$[—][—]% Guaranteed Notes Due [—],
Guaranteed on an unsecured, unsubordinated basis by
TOTAL S.A.
| Issuer | Total Capital | |
| Guarantee | Payment of the principal of, premium, if any, and interest on the notes is guaranteed by TOTAL S.A. | |
| Format | SEC-registered global notes | |
| Title | [—] | |
| Total initial principal amount being issued | $[—] | |
| Issue price | [—]% | |
| Pricing date | [—] | |
| Expected settlement date | [—] (T+[—]) | |
| Maturity date | [—], unless earlier redeemed | |
| Day count | [30/360] | |
| Day count convention | Following, unadjusted | |
| Optional redemption terms | Make-whole call at Treasury Rate plus [—] basis points | |
| Tax call at par | ||
| Interest rate | [—]% per annum | |
| Benchmark Treasury | [—]% due [—] | |
| Benchmark Treasury price | [—]-[—] | |
| Benchmark Treasury yield | [—]% | |
| Spread to benchmark Treasury | [—] bps | |
| Yield to maturity | [—]% | |
| Date interest starts accruing | [—] | |
| Interest payment dates | Each [—] and [—] | |
1
| First interest payment date | [—] | |
| Regular record dates for interest | Each [—] and [—] | |
| Trustee | The Bank of New York Mellon | |
| Listing | None | |
| Denominations | $[—] and increments of $[—] | |
| Expected ratings of the notes | Moody’s: [—] | |
| Standard & Poor’s: [—] | ||
| Ratings are not a recommendation to purchase, hold or sell notes, inasmuch as the ratings do not comment as to market price or suitability for a particular investor. The ratings are based upon current information furnished to the rating agencies by Total Capital and TOTAL S.A. and information obtained by the rating agencies from other sources. The ratings are only accurate as of the date thereof and may be changed, superseded or withdrawn as a result of changes in, or unavailability of, such information, and therefore a prospective purchaser should check the current ratings before purchasing the notes. Each rating should be evaluated independently of any other rating. | ||
| CUSIP / ISIN | [—]/[—] | |
| Selling restrictions | European Economic Area, France, UK, Canada, [Other] | |
| Managers | [—] | |
[Other terms]
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free +[—].
11
ANNEX A TO THE PURCHASE AGREEMENT
TOTAL CAPITAL
PURCHASE AGREEMENT STANDARD PROVISIONS
(2015 Edition)
12
From time to time, Total Capital, a société anonyme organized under the laws of the Republic of France (the “Company”), may enter into one or more purchase agreements that provide for the sale of designated securities to the purchaser or purchasers named therein (each a “Purchaser”). The standard provisions set forth herein may be incorporated by reference in any such purchase agreement (each a “Purchase Agreement”). The Purchase Agreement relating to any particular sale of Offered Securities, including the provisions incorporated therein by reference, is herein referred to as this “Agreement”. Unless otherwise defined herein, terms defined in such Purchase Agreement are used herein as defined in the Purchase Agreement.
I.
The Company proposes to issue debt securities (the “Securities”) from time to time pursuant to the provisions of an Indenture to be entered into among the Company, TOTAL S.A. (the “Guarantor”) and The Bank of New York Mellon, as trustee (the “Trustee”), on or before the Closing Date (as defined below). Pursuant to the Indenture, the Guarantor will guarantee payment of the principal of (and premium, if any) and interest on the Securities (the obligations of the Guarantor in respect of any Offered Securities is referred to as the “Guarantee”). The Securities may have varying designations, maturities, rates and times of payment of interest, selling prices and redemption and other terms.
II.
If a Purchaser advises the Company and the Guarantor in the Purchase Agreement that it intends to resell the Offered Securities, the Company and the Guarantor will provide assistance as hereinafter provided. The terms of any such resale will be set forth in the Prospectus. The provisions of Articles V, VII, VIII, X and XI of this Agreement will apply only to a Purchaser advising the Company and the Guarantor in accordance with the first sentence of this Article II (a “Reselling Purchaser”).
III.
Payment for the Offered Securities shall be made by wire transfer or by certified or official bank check or checks payable to the order of the Company in immediately available Federal funds or in New York Clearing House funds as agreed to by the parties and at the time and place set forth in the Purchase Agreement, upon delivery to the Purchaser of the Offered Securities registered in such names and in such denominations as the Purchaser shall request in writing not less than one full business day prior to the date of delivery. The time and date of such payment and delivery with respect to the Offered Securities are herein referred to as the “Closing Date”.
2
IV.
The Company and the Guarantor jointly and severally represent and warrant to, and agree with each Purchaser, as of the date of the Purchase Agreement, that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”) on Form F-3 (File No. 333-[—]) relating to the Securities to be issued from time to time by the Company has been filed with the U.S. Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of the applicable Pricing Prospectus; such registration statement and any post-effective amendment thereto became effective on filing; no stop order suspending the effectiveness of such registration statement, any post-effective amendment thereto or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company and the Guarantor, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by either the Company or the Guarantor. For purposes of this Agreement:
| (i) | 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 the applicable Purchase Agreement relating to the Offered Securities, is hereinafter referred to as the “Base Prospectus”; |
| (ii) | any preliminary form of prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act is hereinafter referred to as a “Preliminary Prospectus”; |
| (iii) | the various parts of such registration statement, including all exhibits thereto (but excluding Form T-1) and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively referred to as the “Registration Statement”; |
| (iv) | the Base Prospectus, as amended and supplemented (by any Preliminary Prospectus or otherwise) immediately prior to the Applicable Time (as defined in the applicable Purchase Agreement with respect to the Offered Securities), is hereinafter referred to as the “Pricing Prospectus”; |
| (v) | the form of the final prospectus relating to the Offered Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Article VII(a) hereof, is hereinafter referred to as the “Prospectus”; |
| (vi) | any reference in this Agreement to the Base Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Securities Act, as of the date of such prospectus; |
| (vii) | any reference to any amendment or supplement to the Base Prospectus, any Preliminary Prospectus 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 |
3
| Offered Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the date of the Base Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be; |
| (viii) | any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report or Form 6-K of the Guarantor 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 |
| (ix) | the “Applicable Time” is the time specified as such in the applicable Purchase Agreement. |
(b) No order preventing or suspending the use of any Preliminary Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Securities (an “Issuer Free Writing Prospectus”) has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
(c) The Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Article V(c) hereof and any Issuer Free Writing Prospectus listed in Schedule IV to the applicable Purchase Agreement (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus agreed pursuant to Article V(a) hereof and listed on Schedule II(a) to the applicable Purchase Agreement does not conflict with the information contained or incorporated by reference in the Registration Statement, the Pricing Prospectus or the Prospectus, and each such Issuer Free Writing Prospectus, as supplemented by, and taken together with, the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and neither the Company nor the Guarantor has used any Issuer Free Writing Prospectuses other than those listed on Schedule II(a) and Schedule IV to the applicable Purchase Agreement; provided, however, that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
(d) The documents incorporated by reference in the Pricing Prospectus and Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be
5
stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of the Purchase Agreement and prior to the execution of the Purchase Agreement, except as set forth on Schedule II(b) to the Purchase Agreement.
(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
(f) Each of the Company and the Guarantor is validly existing as a société anonyme and in good standing under the laws of France and has all the requisite power and authority to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement, the Indenture, and in the case of the Guarantor, the Guarantee.
(g) Each of the Guarantor and the Company has taken all necessary corporate action required by its statuts and by the laws of France to authorize the execution of the Purchase Agreement and the Indenture, and in the case of the Guarantor, the Guarantee. The Company has taken all necessary corporate action required by its statuts and by the laws of France to authorize the issuance and sale of the Offered Securities.
(h) The Purchase Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(i) The Indenture, when executed and delivered, will be duly authorized, executed and delivered by each of the Company and the Guarantor and will constitute a valid and legally binding obligation of the Company and the Guarantor, and the Indenture has been duly qualified under the Trust Indenture Act.
(j) The Offered Securities to be issued by the Company and the Guarantee to be issued by the Guarantor have been duly authorized, and when issued, delivered and authenticated, as provided in the Indenture, will be duly and validly issued and will constitute legal, valid and
5
binding obligations enforceable against the Company and the Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and entitled to the benefits of the Indenture.
(k) The Offered Securities to be issued by the Company will rank at least pari passu with all of the Company’s other unsecured and unsubordinated indebtedness. The obligations of the Guarantor in respect of the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Guarantor.
(l) No consent, approval, authorization or order of, or filing with, any regulatory authority in the United States of America or France is legally required for the execution of the Indenture, the issuance and sale of the Offered Securities to the Purchasers pursuant to the Purchase Agreement or the execution of the Guarantee by the Guarantor, other than the filings with, and the orders of, the Commission in connection with the registration of the Offered Securities and the Guarantee under the Securities Act and the qualification of the Indenture under the Trust Indenture Act, except that the offer and sale of the Offered Securities in certain jurisdictions may be subject to the provisions of the securities or Blue Sky laws of such jurisdictions.
(m) Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities or the Guarantee, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Company and the Guarantor, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of its properties or assets, or (ii) violate or result in a breach or a default under any of the terms of its statuts, any contract or instrument to which it is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which it is subject or by which it or its property is bound, which breach or default would have a material adverse effect on its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities, the Indenture or the Guarantee, or the validity of the Offered Securities.
(n) Except as disclosed in the Pricing Prospectus and the Prospectus, there is no litigation or governmental proceeding pending, or to its actual knowledge threatened, against or affecting the Guarantor or any of its subsidiaries that would result in a material adverse change in its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company, the Indenture, or, in the case of the Guarantor, the Guarantee.
(o) Neither the Company nor the Guarantor is an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(p) The statements set forth in the Pricing Prospectus and the Prospectus under the heading “Tax Considerations”, to the extent that they purport to summarize certain provisions of the United States federal income tax law and regulations, or certain provisions of the French tax law and regulations, constitute a fair summary of such provisions in all material respects.
6
(q) Except as described in the Pricing Prospectus and the Prospectus, there are no withholding taxes or stamp or other similar issuance or transfer taxes or duties imposed or payable in France or the United States or any political subdivision or taxing authority thereof or therein by or on behalf of the Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement (provided such sale and delivery is not recorded in a deed registered in France).
(r) Interest payments made by the Company in respect of the Offered Securities and by the Guarantor in respect of the Guarantee may be made to holders of Securities that are not Shareholders of the Company without withholding or deduction for or on account of any taxes, duties, assessments or charges of whatever nature imposed or levied by or on behalf of the French Republic or any political subdivision or authority thereof or therein provided that they are not paid to a person incorporated, domiciled, established, acting through a branch or to an account opened in a non-cooperative State or territory within the meaning of article 238-0 A of the French tax code (Code général des impôts), as amended from time to time.
(s) (i) At the time of the filing of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13(a) or 15(d) of the Exchange Act or form of prospectus) and (iii) at the time either of the Company or the Guarantor or any person acting on its behalf (within the meaning of, for this clause only, Rule 163(c) under the Securities Act) made any offer relating to the Offered Securities in reliance on the exemption provided by Rule 163, each of the Company and the Guarantor was a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been an “ineligible issuer” as defined in Rule 405.
(t) (i) At the earliest time after the filing of the Registration Statement that the Company, the Guarantor or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Offered Securities and (ii) at the date of the Purchase Agreement, neither the Company nor the Guarantor was, nor is, an “ineligible issuer,” as defined in Rule 405 under the Securities Act.
(u) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, neither the Company nor the Guarantor nor, to the best of the knowledge of the Company or the Guarantor, any of their respective subsidiaries or their respective directors, officers or employees acting on behalf of the Company or the Guarantor, has engaged in any activity or conduct which would violate in any material respect the U.S. Foreign Corrupt Practices Act or any other applicable anti-bribery or anti-corruption law or regulation, and the Company and the Guarantor have instituted and maintain policies and procedures reasonably designed to prevent violation of such laws, regulations and rules.
(v) Except as otherwise disclosed to the Reselling Purchasers, none of the Company, the Guarantor, any of their respective subsidiaries or, to the best of the knowledge of the Company or the Guarantor, any of their respective directors or officers is a person or entity with whom dealings are restricted or prohibited by Sanctions, and the Company will not directly or indirectly use the proceeds from any offering of Offered Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, or other person or entity, in any manner that would result in a violation of Sanctions, and the Company and the Guarantor have instituted and maintain policies and procedures reasonably designed to prevent violation of Sanctions. “Sanctions” under this provision means any economic sanctions (i) which are administered by (x) the United States, including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), (y) the European Union or (z) the United Nations, and (ii) which are applicable at the time the representations and warranties under this Article IV(v) are made.
7
(w) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, the operations of the Company, the Guarantor and their respective subsidiaries are and have been conducted in compliance with money laundering statutes and the rules and regulations thereunder to the extent applicable to the Company and the Guarantor (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental entity, authority or body or any arbitrator or non-governmental authority involving the Company, the Guarantor or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the best of the Company and the Guarantor’s knowledge and belief, threatened that would result in a material adverse effect in the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole.
V.
(a) Each of the Company and the Guarantor represents and agrees that, unless it obtains the prior consent of the Reselling Purchasers, and each Reselling Purchaser represents and agrees that, unless it obtains the prior consent of the Company and the Guarantor, in each case except for the final term sheet prepared and filed pursuant to Article V(c) hereof, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act. Any such free writing prospectus consented to by the Company, the Guarantor and the Reselling Purchasers is hereinafter referred to as a “Permitted Free Writing Prospectus” and, if prior to the date of the Purchase Agreement, is listed on Schedule II (a) to the Purchase Agreement.
(b) Each of the Company and the Guarantor represents that it has complied and will comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission (or retention where required) and legending.
(c) The Company and the Guarantor will prepare a final term sheet relating to the Offered Securities (attached to the Purchase Agreement as Schedule V), containing only information that describes the final terms of the Offered Securities and otherwise in a form consented to by the Reselling Purchasers, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date such final terms have been established for the offering of the Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. Each of the Company and the Guarantor consents to the use by any Reselling Purchaser of a free writing prospectus that contains substantially only (i) information describing the preliminary terms of the Offered Securities or their offering or (ii) information that describes the final terms of the Offered Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection (including, for purposes of subsections (i) and (ii), any such information that is transmitted via Bloomberg screen notice).
(d) If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement, the Pricing Prospectus or the Prospectus or included or would include an untrue statement of a
8
material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, (i) the Company or the Guarantor has promptly notified or will promptly notify the Reselling Purchasers and (ii) the Company or the Guarantor has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this provision shall not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished to the Company or the Guarantor in writing by any Reselling Purchaser expressly for use therein.
VI.
The obligations of each Purchaser hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; there shall have been no material adverse change in the condition of the Guarantor and its subsidiaries taken as a whole, except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus; and the Purchaser shall have received, on the Closing Date, certificates dated the Closing Date and signed by officers of the Company and the Guarantor or other duly authorized persons, to the foregoing effect and to the effect that the representations and warranties of the Guarantor and Company are true and correct as of the Closing Date. The officers or other persons making such certificates may each rely upon the best of their knowledge as to proceedings pending or threatened. The final term sheet contemplated by Article V(c) hereof, and any other material required to be filed by the Company and/or the Guarantor pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.
(b) The Purchaser shall have received on the Closing Date an opinion or opinions of the General Counsel or Associate General Counsel of the Guarantor or other counsel reasonably satisfactory to the Purchaser, as to certain matters of French, New York and United States federal law, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Purchaser shall have received on the Closing Date an opinion in respect of the Company of the General Counsel or Associate General Counsel of the Guarantor or other French counsel reasonably satisfactory to the Purchaser, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(d) The Purchaser shall have received on the Closing Date an opinion of counsel for the Purchaser, dated the Closing Date, in form and substance reasonably satisfactory to the Purchaser.
(e) The Purchaser shall have received on each of the date of pricing of Offered Securities and the Closing Date a letter from the independent auditors for the Guarantor, dated the date of pricing of Offered Securities and the Closing Date, respectively, to the effect set forth in Exhibit C hereto.
9
(f) Since the date of the Purchase Agreement, no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(g) On or prior to the Closing Date, the Company shall have furnished to the Purchaser such further available information and certificates as the Purchaser may reasonably request.
VII.
In further consideration of the agreements contained herein of any Reselling Purchaser, the Company and the Guarantor covenant to such Reselling Purchaser as follows:
(a) To prepare and file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the date of the Purchase Agreement or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement, the Base Prospectus, the Pricing Prospectus or the Prospectus after the date of the applicable Purchase Agreement and prior to the Closing Date which shall have been reasonably disapproved by the Reselling Purchasers promptly after reasonable notice thereof (which notice the Company and the Guarantor undertake to provide); to advise the Reselling Purchasers, promptly after they receive notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish to any Reselling Purchaser with copies thereof; to file promptly all reports required to be filed by the Company or the Guarantor with the Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Offered Securities, and during such same period to advise the Reselling Purchasers, promptly after the Company or the Guarantor receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus or free writing prospectus relating to the Offered Securities, of the suspension of the qualification of such Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information, and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus or free writing prospectus relating to the Offered Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order.
(b) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement any of the Securities remain unsold by the Reselling Purchasers, to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities in a form satisfactory to the Reselling Purchasers. If at the Renewal Deadline the Company or the Guarantor is no longer eligible to file an automatic shelf
10
registration statement, the Company and the Guarantor will, if they have not already done so, file a new shelf registration statement relating to the Securities in a form satisfactory to the Reselling Purchasers and will use reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline, and it will take all other action necessary to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References in this Agreement to the Registration Statement shall include any such new automatic shelf registration statement or any such new shelf registration statement, as the case may be.
(c) To furnish the Reselling Purchasers with a copy of the signed Registration Statement (including exhibits thereto) and with copies of the Prospectus, as amended or supplemented, in such quantities as the Reselling Purchasers may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any time in connection with the offering or sale of the Offered Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, the Exchange Act and the Trust Indenture Act, to notify the Reselling Purchasers and upon their request to file such document and to prepare and furnish to each Reselling Purchaser and to any dealer in securities as many copies as the Reselling Purchasers may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(d) To qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States of America as the Reselling Purchaser shall reasonably request and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions in the United States of America as the Reselling Purchaser may designate.
(e) As soon as practicable after the date of each Purchase Agreement, to make generally available to the Guarantor’s and the Company’s securityholders an earnings statement covering a period of at least 12 months beginning after the date of such Purchase Agreement and satisfying the provisions of Section 11(a) of the Securities Act (including Rule 158 thereunder).
(f) During the period beginning on the date of this Agreement and terminating after the number of days, if any, indicated under “Restriction on Additional Sales” in the Purchase Agreement, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Offered Securities, without the prior written consent of the Reselling Purchaser.
(g) If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, to notify promptly the Reselling Purchaser so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.
11
VIII.
The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Reselling Purchaser and each person, if any, who controls such Reselling Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus (if used within the period set forth in paragraph (c) of Article VII hereof and as amended or supplemented if the Company or the Guarantor shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
Each Reselling Purchaser severally agrees to indemnify and hold harmless the Company and the Guarantor, their directors, their officers who sign the Registration Statement and any person controlling the Company or the Guarantor to the same extent as the foregoing indemnity from the Company and the Guarantor to each Reselling Purchaser, but only with reference to information relating to such Reselling Purchaser furnished in writing by such Reselling Purchaser expressly for use in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such other person (the “indemnified party”) shall promptly notify the person or persons against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by the Reselling Purchaser in the case of parties indemnified pursuant to the second preceding paragraph and by the Company or the Guarantor in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is unavailable to an indemnified party other than as a result of the proviso to the first paragraph of Article VIII or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified
12
party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Reselling Purchaser on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantor on the one hand and of the Reselling Purchaser on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Reselling Purchaser on the other in connection with the offering of the Offered Securities shall be deemed to be in the same proportion as the total net proceeds from the offering of such Offered Securities (before deducting expenses) received by the Company bear to the total commissions, if any, received by the Reselling Purchaser in respect thereof. If there are no commissions allowed or paid by the Company or the Guarantor to the Reselling Purchaser in respect of the Offered Securities, the relative benefits received by the Reselling Purchaser in the preceding sentence shall be the difference between the price received by such Reselling Purchaser upon resale of the Offered Securities and the price paid for such Offered Securities pursuant to the Purchase Agreement. The relative fault of the Company and the Guarantor on the one hand and of the Reselling Purchaser on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantor or by the Reselling Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantor and the Reselling Purchaser agree that it would not be just and equitable if contribution pursuant to this Article VIII were determined by pro rata allocation or by any other method of allocation which does not take account of the considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VIII, no Reselling Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities resold to the public by such Reselling Purchaser were offered to the public exceeds the amount of any damages which such Reselling Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VIII and the representations and warranties of the Company and the Guarantor in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by any Reselling Purchaser or on behalf of any Reselling Purchaser or any person controlling any Reselling Purchaser and (iii) acceptance of and payment for any of the Offered Securities.
Each of the Guarantor and the Company agrees that any legal suit, action or proceeding brought by any Reselling Purchaser to enforce the indemnity agreements contained in this Article VIII may be instituted in any state or Federal court in the Borough of Manhattan, The City of New York, New York, United States of America, waives, to the extent it may effectively do so, any objection which it may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. Each of the Guarantor and the Company has designated and appointed Corporation Service Company (or any successor corporation) as
13
the authorized agent of each of the Guarantor and the Company to accept and acknowledge on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such court and agrees that service of process upon said agent at its office at 1180 Avenue of the Americas, Suite 210, New York, NY 10036 (or such other address in the Borough of Manhattan, The City of New York, as the Guarantor or the Company, as applicable, may designate by written notice to you), shall be deemed in every respect effective service of process upon the Guarantor or the Company, as applicable, in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Guarantor or the Company, as applicable, whether or not the Guarantor or the Company, as applicable, shall then be doing, or at any time shall have done, business within the State of New York, and any such service of process shall be of the same force and validity as if service were made upon it according to the laws governing the validity and requirements of such service in such State, and waives all claim of error by reason of any such service. Said designation and appointment shall be irrevocable until the principal of and interest on the Offered Securities and all other sums owing by the Company or the Guarantor to holders of the Offered Securities in accordance with the provisions of the Offered Securities and the Indenture have been paid in full by the Company or the Guarantor in accordance with the provisions thereof. Each of the Guarantor and the Company agrees to take all action as may be necessary to continue the designation and appointment of Corporation Service Company or any successor corporation in full force and effect so that the Guarantor shall at all times have an agent for service of process for the above purposes in the Borough of Manhattan, The City of New York, New York, United States of America.
IX.
Any payments to any Purchaser hereunder (each Purchaser is hereinafter referred to in this Article IX as a “Payee”) shall be in United States dollars and shall be payable free and clear of, and without deduction or withholding for, or on account of, any and all present or future taxes, duties, assessments, levies and other governmental charges of any nature whatsoever now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of France or any other jurisdiction from which such payments are made, or any territory or political subdivision thereof, unless such deduction or withholding is required by law (“Foreign Taxes”). If by operation of law or otherwise, Foreign Taxes are required to be deducted or withheld from any amounts payable to a Payee, the Company or the Guarantor, as the case may be, agrees to pay such additional amounts to each Payee (the “Additional Amounts”) as may be necessary to ensure that the net amount actually received by the Payee, after deduction of any Foreign Taxes imposed with respect to the payment of such Additional Amounts, shall equal the amount the Payee would have received if Foreign Taxes had not been deducted or withheld from such payment; provided, however, that no Additional Amounts shall be so payable for or on account of: (i) any Foreign Taxes which would not have been imposed but for the fact that any Payee had a present or former personal or business connection with France or any other jurisdiction from which payments are made, or any territory or political subdivision thereof other than the mere ownership of, or receipt of payment under, the Offered Securities; (ii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; or (iii) any Foreign Taxes which are payable otherwise than by withholding or deduction.
The Company and the Guarantor, jointly and severally, agree to indemnify each Purchaser against any loss incurred by any such Purchaser as a result of any judgment or order being given or made for any
14
amount due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Payee upon receipt of the Judgment Currency could have purchased United States dollars with the amount of Judgment Currency actually received by such Payee. The foregoing indemnity shall constitute a separate and independent obligation of the Company and the Guarantor, and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
X.
This Agreement shall be subject to termination in the absolute discretion of any Reselling Purchaser, by notice given to the Company and the Guarantor, if prior to the Closing Date (i) trading in securities generally or trading in the Guarantor’s securities on either Euronext Paris or the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York or France shall have been declared by either Federal, New York State or French authorities or a material disruption in commercial banking or securities settlement or clearance services within the United States or the European Union shall have occurred or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States or the European Union is such as to make it, in the judgment of such Reselling Purchaser, impracticable to resell the Offered Securities.
XI.
Without prejudice to the provisions of Article VII(d) and Article XIII hereof, the Reselling Purchasers jointly agree to pay all expenses incident to the issuance of the Offered Securities, including but not limited to:
(a) the fees and disbursements of the counsel to the Reselling Purchasers in connection with the issuance of the Offered Securities;
(b) the fees and expenses incurred in connection with the approval by The Depository Trust Company and other clearing and settlement organizations for the clearance through their respective systems; and
(c) all documented out-of-pocket expenses incurred by the Reselling Purchasers.
XII.
Notwithstanding the provisions of Article XI hereof, the Company and the Guarantor jointly agree to pay the following expenses incident to the issuance of the Offered Securities:
15
(a) the Commission filing fees;
(b) the fees and disbursements of counsel to and the independent auditors of the Company and Guarantor in connection with the issuance of the Offered Securities;
(c) the printing and delivery to the Reselling Purchasers of copies of the Prospectus and any amendment or supplement thereto, and the preparing, printing and distributing of any Issuer Free Writing Prospectus to investors or prospective investors; and
(d) the costs of the Trustee in connection with the issuance of the Offered Securities including the reasonable fees and disbursements of counsel for the Trustee.
XIII.
If this Agreement shall be terminated by the Purchaser(s) because of any failure or refusal on the part of the Company or the Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company or the Guarantor shall be unable to perform its obligations under this Agreement, the Company or the Guarantor will reimburse the Purchaser(s) for all out-of-pocket expenses (including the fees and disbursements of counsel) reasonably incurred by such Purchaser(s) in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
The Company and the Guarantor each acknowledge and agree that (a) the purchase and sale of the Offered Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the several Reselling Purchasers, on the other, (b) in connection therewith and with the process leading to such transaction each Reselling Purchaser is acting solely as a principal and not the agent or fiduciary of the Company or the Guarantor and (c) no Reselling Purchaser has assumed a fiduciary responsibility in favor of the Company or the Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Reselling Purchaser has advised or is currently advising the Company or the Guarantor on other matters) or any other obligation to the Company or the Guarantor except the obligations expressly set forth in this Agreement. The Company and the Guarantor each agree that it will not claim that the Reselling Purchasers, or any of them, owes a fiduciary or similar duty to the Company or the Guarantor in connection with such transaction or the process leading thereto.
16
EXHIBIT A
OPINION OF GUARANTOR COUNSEL
You shall have received on and as of the Closing Date an opinion or opinions of the General Counsel or Associate General Counsel of the Guarantor, or other counsel reasonably satisfactory to you, subject to customary assumptions and qualifications, to the effect that:
| (1) | Each of the Company and the Guarantor is validly existing as a société anonyme under the laws of France and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement, the Indenture, and in the case of the Guarantor, the Guarantee. |
| (2) | The Purchase Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor. |
| (3) | The Indenture has been duly authorized, executed and delivered by each of the Company and the Guarantor and constitutes a valid and legally binding obligation of the Company and the Guarantor enforceable against the Company and the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (hereinafter called the “Trust Indenture Act”). |
| (4) | The Offered Securities to be issued by the Company have been duly authorized and, when issued, delivered and authenticated as provided in the Indenture, will be duly and validly issued and will constitute legal, valid and binding obligations enforceable against the Company in accordance with their terms, entitled to the benefits of the Indenture, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (5) | Upon due execution, authentication and delivery of the Offered Securities, upon which the text of the Guarantee has been endorsed as contemplated in the Indenture, the Guarantee will constitute a valid and legally binding obligation of the Guarantor with respect to the Offered Securities, enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (6) | All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company or the Guarantor under the Federal laws of the United Sates, the laws of the State of New York or the laws of the French Republic for the issuance, sale and delivery of the Offered Securities by the Company to the Reselling Purchasers have been obtained or made. |
| (7) | Neither the Company nor the Guarantor is, or after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Pricing Prospectus and the Prospectus, will be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
A - 1
| (8) | There are no stamp or other similar issuance or transfer taxes or duties imposed or payable in France or the United States or any political subdivision or taxing authority thereof or therein by or on behalf of the Reselling Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement (provided such sale and delivery is not recorded in a deed registered in France). |
| (9) | The choice of the laws of the State of New York to govern the Purchase Agreement, the Indenture, the Offered Securities and the Guarantee is a valid choice of law, and a French court would uphold such choice of law in any proceeding on the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee brought before it, provided that the relevant content of New York law is duly proved in any such proceedings and that the application of New York law (i) is not found to be contrary to mandatory provisions of the law of any jurisdiction presenting a close connection with the transaction, which under the laws of such jurisdiction are applicable irrespective of the law governing the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee, as the case may be, (ii) is not found to be contrary to a provision of French law whose application to the situation is found mandatory irrespective of the law governing the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee (lois de police) and (iii) is not found to be manifestly contrary to a provision of French international public policy (ordre public international), and provided further that in original actions brought in French courts certain questions of procedural law and public policy would be governed by French law and a French court could set aside the choice of New York law if such choice was held to have been intended to avoid a provision of French law which otherwise would have been mandatorily applicable. |
| (10) | Under the laws of the State of New York relating to personal jurisdiction, the Company has, pursuant to Section VIII of the Purchase Agreement and Section 114 of the Indenture, validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the Borough of Manhattan, The City of New York, New York (each a “New York Court”) in any action arising out of or relating to this Purchase Agreement or the transactions contemplated hereby. |
| (11) | Any final judgment for a sum of money against the Company or the Guarantor in relation to the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee rendered by a competent New York court, applying New York law, would be recognized and enforced by competent French courts without a review of the merits, provided that (i) the court rendering the judgment had proper jurisdiction; (ii) fundamental procedural rights were duly complied with by the court rendering the judgment; (iii) the court rendering the judgment applied New York law as the law expressed to be governing the Purchase Agreement, the Indenture, the Offered Securities and the Guarantee, as the case may be; and (iv) the judgment is not (a) contrary to French public policy (ordre public) as applicable in the context of enforcement of foreign judgments or (b) tainted by fraud. |
| (12) | Such counsel shall also state that they have reviewed the Registration Statement relating to the Securities (File No. 333-[—]) (the “Registration Statement”), the Prospectus included in the Registration Statement (the “Base Prospectus”), the Prospectus Supplement dated [—] (the “Prospectus Supplement”) and documents listed in Schedule [—] (those listed documents, taken together with the Base Prospectus, being referred to as the “Pricing |
A - 2
| Disclosure Package”) and participated in discussions with representatives of the Company and the Guarantor and their independent accountants and representatives of the Purchasers and their counsel. Between the date of the Prospectus Supplement and the time of the delivery of this letter, such counsel participated in further discussions with representatives of the Purchasers and those of the Company and the Guarantor and their independent accountants, concerning certain matters relating to the Company and the Guarantor and reviewed certificates of certain officers of the Company and the Guarantor, letters addressed to the Reselling Purchasers from the Company’s independent accountants and legal opinions addressed to the Reselling Purchasers from the Guarantor’s group general counsel. On the basis of the information that they gained in the course of the performance of such services, considered in light of their understanding of the applicable law (including the requirements of Form F-3 and the character of the prospectus contemplated thereby) and the experience they have gained through their practice under the Securities Act, such counsel shall confirm to the Reselling Purchasers that, in their opinion, the Registration Statement [as of the date of the Prospectus Supplement], and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities to the requirements of the Securities Act, the Trust Indenture Act of 1939 and the applicable rules and regulations of the Securities and Exchange Commission thereunder. Such counsel shall confirm to the Purchasers that the statements made under the captions “Description of Debt Securities and Guarantee”, “Plan of Distribution” and “Tax Considerations” in the Base Prospectus and under the caption “Description of Notes” and “Underwriting” in the Prospectus Supplement, insofar as they relate to the provisions of documents or of French or United States federal tax law therein described, constitute a fair and accurate summary of such provisions in all material respects. Such counsel shall further state that nothing that came to the attention of such counsel in the course of such review has caused them to believe that, insofar as relevant to the offering of the Securities (i) the Registration Statement, [as of the time of the Prospectus Supplement], contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package, as of [—][A/P].M. on [—],[—][the Applicable Time set forth in the Purchase Agreement], [when considered together with the price to the public and underwriting discount for the Securities set forth on the cover of the Prospectus Supplement and the statements made under caption “Description of Notes” in the Prospectus Supplement,] contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. |
Such counsel shall also advise the Reselling Purchasers that nothing came to the attention of such counsel in the course of the procedures described in the second sentence in the preceding paragraph that has caused them to believe that, the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date and time of delivery of such counsel’s letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
A - 3
Such opinion may state (1) that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, except to the extent specifically noted in the fourth sentence of the second preceding paragraph, and (2) that they do not express any opinion or belief as to the financial statements or other financial data derived from the accounting records contained in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, as to management’s report of its assessment of the effectiveness of the internal control over financial reporting or the auditors’ report as to the internal control over financial reporting, each as included in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the statement of the eligibility and qualification of the Trustee under the Indenture under which the Securities are being issued.
| (13) | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities or the Guarantee, nor the fulfilment of or compliance with the terms and provisions hereof or thereof by the Guarantor, will violate or result in a breach or a default under any of the terms of its statuts, or, to the best of such counsel’s knowledge, any contract or instrument to which it is a party or by which it or its property is bound or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality to which it is subject or by which it or its property is bound, which violation, breach or default would have a material adverse effect on the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities, the Indenture or the Guarantee, or the validity of the Offered Securities. |
| (14) | To the best of such counsel’s knowledge and except as disclosed in the Prospectus, there is no litigation or governmental proceeding pending, or to such counsel’s knowledge threatened, against or affecting the Guarantor or any of its subsidiaries that would result in a material adverse change in the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company, the Indenture or the Guarantee. |
A - 4
EXHIBIT B
OPINION OF COUNSEL TO THE COMPANY
You shall have received on and as of the Closing Date an opinion of the General Counsel or Associate General Counsel of the Guarantor, or other counsel reasonably satisfactory to you, subject to customary assumptions and qualifications, to the effect that:
| 1. | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities, nor the fulfilment of or compliance with the terms and provisions hereof or thereof by the Company, will violate or result in a breach or a default under any of the terms of its statuts, or, to the best of such counsel’s knowledge, any contract or instrument to which it is a party or by which it or its property is bound or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality to which it is subject or by which it or its property is bound, which violation, breach or default would have a material adverse effect on its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities or the Indenture, or the validity of the Offered Securities. |
| 2. | To the best of such counsel’s knowledge and except as disclosed in the Prospectus, there is no litigation or governmental proceeding pending, or to such counsel’s knowledge threatened, against or affecting the Company or any of its subsidiaries that would result in a material adverse change in the condition (financial or otherwise) or operations of the Company and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company and the Indenture. |
B - 1
EXHIBIT C
LETTER OF INDEPENDENT AUDITORS
The letter of the independent auditors for the Guarantor, to be delivered pursuant to Article VI, paragraph (e) of the document entitled Purchase Agreement Standard Provisions (2015 Edition) (the “Standard Provisions”) shall be to the effect that:
| (i) | Such auditors are independent registered public accounting firms with respect to the Guarantor within the meaning of the Securities Act of 1933, as amended, and the applicable published rules and regulations thereunder. |
| (ii) | In the opinion of such auditors, the consolidated financial statements included in the Annual Report on Form 20-F of the Guarantor most recently filed with the Securities and Exchange Commission (the “Annual Report”) comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the published rules and regulations thereunder. |
| (iii) | Nothing has come to the attention of such auditors, as a result of performing the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100 Interim financial information, and other specified procedures not constituting an audit, that caused them to believe: |
| a. | that the unaudited interim condensed consolidated financial statements of the Guarantor, if any, incorporated by reference into the Registration Statement, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the applicable published rules and regulations thereunder, or that any material modifications should be made to such unaudited interim condensed consolidated financial statements, for them to be in conformity with IFRS; or |
| b. | that there was any change in common shares, increase in consolidated non-current financial debt or any decrease in consolidated total non-current assets or consolidated shareholders’ equity of the Guarantor, except in all instances for changes, increases, or decreases that the Registration Statement discloses have occurred or may occur, as compared to the amounts shown on the balance sheet forming part of the unaudited interim condensed consolidated financial statements mentioned in a. above, provided the letter is issued not more than 135 days from the date of such balance sheet. |
If more than 135 days have elapsed from the date of the balance sheet forming part of the most recent audited consolidated financial statements or the most recent unaudited condensed consolidated financial statements with respect to which the auditors have performed the procedures specified by the PCAOB for a review of interim financial information, the letter of the independent auditors shall refer to statements made by the Guarantor’s management as to item iii.b above
| (iv) | Such auditors have performed other procedures that are customary for auditors’ comfort letters in registered debt offerings as required by the Reselling Purchaser(s). |
C - 1
[—], [—]
Total Capital Canada Ltd.
2900, 240 — 4th Avenue S.W.
Calgary, Alberta, T2P 4H4
Canada
TOTAL S.A.
Tour Coupole 2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Ladies and Gentlemen:
The underwriter(s) named in Schedule I hereto (such underwriter(s) being herein called the “Reselling Purchaser(s)”)
understand(s) that Total Capital Canada Ltd. (the “Company”) and TOTAL S.A. (the “Guarantor”) propose to issue and sell the debt securities of the Company specified in Schedule V hereto (the “Offered Securities”). Subject to the terms and conditions set forth or incorporated by reference herein, the Company agrees to sell, and each Reselling Purchaser(s) [severally] agrees to purchase, the aggregate principal amount of the Offered Securities set forth opposite [its] [each Reselling Purchaser’s] name in Schedule I hereto at [—]% of their principal amount plus accrued interest, if any, from [—],[—] to the date of payment and delivery:
The Reselling Purchaser(s) will pay for such Offered Securities upon delivery thereof at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York, 10004 or through the facilities of The Depository Trust Company at 10:00 A.M. (New York time) on [—],[—] (the “Closing Date”), or at such other time as shall be agreed upon between us.
Unless otherwise expressly specified herein, all of the provisions contained in the document entitled Total Capital Canada Ltd. Purchase Agreement Standard Provisions (2015 Edition) (the “Standard Provisions”) attached as Annex A hereto are herein incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. Unless otherwise defined herein, terms defined in the Standard Provisions are used herein as therein defined. Schedule II(a) hereto lists each Permitted Free Writing Prospectus agreed pursuant to Article V(a) of the Standard Provisions and Schedule II(b) hereto lists any additional documents incorporated by reference that were filed with the Commission subsequent to the Commission’s close of business on the business day immediately prior to the date of the execution of this Purchase Agreement. Schedule III hereto lists the selling restrictions applicable to the distribution and sale of the Offered Securities. Schedule IV lists all documents that the Company, the Guarantor and the Reselling Purchaser(s) agree are to be included in the Pricing Disclosure Package. The final term sheet prepared in accordance with Article V(c) of the Standard Provisions is attached hereto as Schedule V.
For purposes of this Purchase Agreement and the Standard Provisions, the “Applicable Time” is [—]:[—] [A/P].M. New York time on the date hereof.
[All provisions of this Agreement, including those incorporated by reference, that require that notices or documents be furnished to each “Purchaser” or “Reselling Purchaser”, or that each “Purchaser” or “Reselling Purchaser” provide its authorization or consent, shall be deemed to have been satisfied if such notices or documents are furnished to, or such consent or authorization is provided by, [Lead Manager(s)], on behalf of each “Purchaser” or “Reselling Purchaser”.][To be used in the event of a syndicated offering.]
1
IN WITNESS WHEREOF, the parties hereto have, by duly authorized directors, officers or attorneys-in-fact, executed this Agreement as of the date first above written.
| TOTAL CAPITAL CANADA LTD. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| TOTAL S.A. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| [RESELLING PURCHASER(S)] | ||
|
| ||
| [Reselling Purchaser(s)] | ||
SCHEDULE I TO PURCHASE AGREEMENT
| Reselling Purchaser |
Principal Amount of Offered Securities |
|||
| [—] |
$ | [— | ] | |
|
|
|
|||
| Total |
$ | [— | ] | |
1
SCHEDULE II TO PURCHASE AGREEMENT
(a) Permitted Free Writing Prospectuses agreed pursuant to Article V(a) of the Standard Provisions
Issuer Free Writing Prospectuses
Final Term Sheet attached to the Purchase Agreement as Schedule V
[—]
(b) Additional documents incorporated by reference
[—]
1
SCHEDULE III TO PURCHASE AGREEMENT
Selling Restrictions
[European Economic Area In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), each Reselling Purchaser has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Offered Securities to the public in that Relevant Member State, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Offered Securities to the public in that Relevant Member State at any time:
| • | to any legal entity which is a qualified investor as defined in the Prospectus Directive; or |
| • | to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), subject to obtaining the prior consent of the initial purchasers for any such offer; or |
| • | in any other circumstances falling within Article 3(2) of the Prospectus Directive |
provided, that no such offer of the Offered Securities shall require us or any of the Reselling Purchasers to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an offer of Offered Securities to the public in relation to any Offered Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities to be offered so as to enable an investor to decide to purchase or subscribe the Offered Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression Prospectus Directive means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State.
This European Economic Area selling restriction is in addition to the other selling restrictions set out below.
France
The Reselling Purchaser(s) agree(s) that the Offered Securities are being issued outside of France. Each Reselling Purchaser hereby represents, warrants and agrees that:
| (a) | no prospectus (including any amendment, supplement or replacement thereto) or any other offering material in connection with the offering of the Offered Securities has been submitted to the clearance procedures of the Autorité des marchés financiers or of the competent authority of another State that is a contracting party to the Agreement on the European Economic Area and notified to the Autorité des marchés financiers; |
| (b) | it has not offered or sold and will not offer or sell, directly or indirectly, the Offered Securities to the public in France, and has not released, issued, distributed or caused to be released, issued or distributed to the public in France or used in connection with any offer for subscription or sale of the Offered Securities, the Prospectus or any other offering material relating to the Offered Securities, and that such offers, sales and distributions have been and shall be made in France only (i) to qualified investors (investisseurs qualifiés) and/or a restricted circle of investors (cercle restreint d’investisseurs), in each case investing for their own account, and as provided in Articles L. 411-2, D. 411-1 to D. 411-4, D. 734-1, D. 744-1, D. 754-1 and D. 764-1 of the French Code monétaire et financier, or (ii) to investment services providers authorized to engage in portfolio management on behalf of third parties, or (iii) in a transaction that, in accordance with Article L.411-2-I-1°-or-2° -or 3° of the French Code monétaire et financier and Article 211-2 of the General Regulations (Règlement Général) of the Autorité des Marchés Financiers, does not constitute an offer of securities to the public (offre au public de titres financiers); and |
1
| (c) | the Offered Securities may be resold only in compliance with Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the French Code monétaire et financier. |
United Kingdom
Each Reselling Purchaser hereby represents, warrants and agrees that:
| (a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Offered Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantor; and |
| (b) | it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Offered Securities in, from or otherwise involving the United Kingdom. |
Canada
Each Reselling Purchaser has represented, warranted and agreed not to offer, sell, solicit an offer to purchase or take any other action in furtherance of a trade in the Offered Securities in Canada unless such offer, sale, solicitation or other action is made pursuant to an exemption from the requirements to file a prospectus with the relevant Canadian securities regulators and only by a dealer properly registered under applicable provincial or territorial securities laws or, alternatively, pursuant to an exemption from the dealer registration requirement in the relevant province or territory of Canada in which such offer, sale, solicitation or other action is made or taken.
[Add other selling restrictions, if appropriate.]
2
SCHEDULE IV TO PURCHASE AGREEMENT
Pricing Disclosure Package
Pricing Prospectus
Final Term Sheet attached to the Purchase Agreement as Schedule V
[—]
1
SCHEDULE V TO PURCHASE AGREEMENT
Final Term Sheet
TOTAL CAPITAL CANADA LTD.
(A wholly-owned subsidiary of TOTAL S.A.)
$[—] [—] % Guaranteed Notes Due [—]
Guaranteed on an unsecured, unsubordinated basis by
TOTAL S.A.
| Issuer |
Total Capital Canada Ltd. | |
| Guarantee |
Payment of the principal of, premium, if any, and interest on the notes is guaranteed by TOTAL S.A. | |
| Format |
SEC-registered global notes | |
| Title |
[—] | |
| Total initial principal amount being issued |
$[—] | |
| Issue price |
[—]% | |
| Pricing date |
[—] | |
| Expected settlement date |
[—] (T+[—]) | |
| Maturity date |
[—], unless earlier redeemed | |
| Day count |
[30/360] | |
| Day count convention |
Following, unadjusted | |
| Optional redemption terms |
Make-whole call at Treasury Rate plus [—] basis points | |
| Tax call at par | ||
| Interest rate |
[—]% per annum | |
| Benchmark Treasury |
[—]% due [—] | |
| Benchmark Treasury Price |
[—]-[—] | |
| Benchmark Treasury Yield |
[—]% | |
| Spread to Benchmark Treasury |
[—] bps | |
| Yield to Maturity |
[—]% | |
| Date interest starts accruing |
[—] | |
| Interest payment dates |
Each [—] and [—] | |
| First interest payment date |
[—] | |
| Regular record dates for interest |
Each [—] and [—] | |
| Trustee |
The Bank of New York Mellon | |
| Listing |
None | |
| Denominations |
$[—] and increments of $[—] | |
| Expected ratings of the notes |
Moody’s: [—] | |
| Standard & Poor’s: [—] | ||
| Ratings are not a recommendation to purchase, hold or sell notes, inasmuch as the ratings do not comment as to market price or suitability for a particular investor. The ratings are based upon current information furnished to the rating agencies by Total Capital Canada Ltd. and TOTAL S.A. and information obtained by the rating agencies from other sources. The ratings are only accurate as of the date thereof and may be changed, superseded or withdrawn as a result of changes in, or unavailability of, such information, and therefore a prospective purchaser should check the current ratings before purchasing the notes. Each rating should be evaluated independently of any other rating. | ||
1
| CUSIP / ISIN |
[—]/[—] | |
| Selling restrictions |
European Economic Area, France, UK, Canada, [Other] | |
| Managers |
[—] | |
[Other terms]
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free +[—].
2
ANNEX A TO THE PURCHASE AGREEMENT
TOTAL CAPITAL CANADA LTD.
PURCHASE AGREEMENT STANDARD PROVISIONS
(2015 Edition)
From time to time, Total Capital Canada Ltd., a corporation incorporated under the laws of Alberta, Canada (the “Company”), may enter into one or more purchase agreements that provide for the sale of designated securities to the purchaser or purchasers named therein (each a “Purchaser”). The standard provisions set forth herein may be incorporated by reference in any such purchase agreement (each a “Purchase Agreement”). The Purchase Agreement relating to any particular sale of Offered Securities, including the provisions incorporated therein by reference, is herein referred to as this “Agreement”. Unless otherwise defined herein, terms defined in such Purchase Agreement are used herein as defined in the Purchase Agreement.
I.
The Company proposes to issue debt securities (the “Securities”) from time to time pursuant to the provisions of an Indenture to be entered into among the Company, TOTAL S.A. (the “Guarantor”) and The Bank of New York Mellon, as trustee (the “Trustee”), on or before the Closing Date (as defined below). Pursuant to the Indenture, the Guarantor will guarantee payment of the principal of (and premium, if any) and interest on the Securities (the obligations of the Guarantor in respect of any Offered Securities is referred to as the “Guarantee”). The Securities may have varying designations, maturities, rates and times of payment of interest, selling prices and redemption and other terms.
II.
If a Purchaser advises the Company and the Guarantor in the Purchase Agreement that it intends to resell the Offered Securities, the Company and the Guarantor will provide assistance as hereinafter provided. The terms of any such resale will be set forth in the Prospectus. The provisions of Articles V, VII, VIII, X and XI of this Agreement will apply only to a Purchaser advising the Company and the Guarantor in accordance with the first sentence of this Article II (a “Reselling Purchaser”).
III.
Payment for the Offered Securities shall be made by wire transfer or by certified or official bank check or checks payable to the order of the Company in immediately available Federal funds or in New York Clearing House funds as agreed to by the parties and at the time and place set forth in the Purchase Agreement, upon delivery to the Purchaser of the Offered Securities registered in such names and in such denominations as the Purchaser shall request in writing not less than one full business day prior to the date of delivery. The time and date of such payment and delivery with respect to the Offered Securities are herein referred to as the “Closing Date”.
IV.
The Company and the Guarantor jointly and severally represent and warrant to, and agree with each Purchaser, as of the date of the Purchase Agreement, that:
| (a) | An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”) on Form F-3 (File No. 333-[—]) relating to the Securities to be issued from time to time by the Company has been filed with the U.S. Securities and Exchange Commission (the “Commission”) not earlier than three years prior to |
1
| the date of the applicable Pricing Prospectus; such registration statement and any post-effective amendment thereto became effective on filing; no stop order suspending the effectiveness of such registration statement, any post-effective amendment thereto or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company and the Guarantor, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by either the Company or the Guarantor. For purposes of this Agreement: |
| (i) | 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 the applicable Purchase Agreement relating to the Offered Securities, is hereinafter referred to as the “Base Prospectus”; |
| (ii) | any preliminary form of prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act is hereinafter referred to as a “Preliminary Prospectus”; |
| (iii) | the various parts of such registration statement, including all exhibits thereto (but excluding Form T-1) and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively referred to as the “Registration Statement”; |
| (iv) | the Base Prospectus, as amended and supplemented (by any Preliminary Prospectus or otherwise) immediately prior to the Applicable Time (as defined in the applicable Purchase Agreement with respect to the Offered Securities), is hereinafter referred to as the “Pricing Prospectus”; |
| (v) | the form of the final prospectus relating to the Offered Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Article VII(a) hereof is hereinafter referred to as the “Prospectus”; |
| (vi) | any reference in this Agreement to the Base Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Securities Act, as of the date of such prospectus; |
| (vii) | any reference to any amendment or supplement to the Base Prospectus, any Preliminary Prospectus 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 Offered Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the date of the Base Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be; |
| (viii) | any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report or Form 6-K of the Guarantor 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 |
| (ix) | the “Applicable Time” is the time specified as such in the applicable Purchase Agreement. |
| (b) | No order preventing or suspending the use of any Preliminary Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Securities (an “Issuer Free Writing Prospectus”) has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein. |
| (c) | The Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Article V(c) hereof and any Issuer Free Writing Prospectus listed in Schedule IV to the applicable Purchase Agreement (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus agreed pursuant to Article V(a) hereof and listed on Schedule II(a) to the applicable Purchase Agreement does not conflict with the information contained or incorporated by reference in the |
2
| Registration Statement, the Pricing Prospectus or the Prospectus, and each such Issuer Free Writing Prospectus, as supplemented by, and taken together with, the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and neither the Company nor the Guarantor has used any Issuer Free Writing Prospectuses other than those listed on Schedule II(a) and Schedule IV to the applicable Purchase Agreement; provided, however, that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein. |
| (d) | The documents incorporated by reference in the Pricing Prospectus and Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of the Purchase Agreement and prior to the execution of the Purchase Agreement, except as set forth on Schedule II(b) to the Purchase Agreement. |
| (e) | The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein. |
| (f) | The Company is validly subsisting as a corporation and in good standing under the laws of Alberta, Canada. The Guarantor is validly existing as a société anonyme and in good standing under the laws of France. Each of the Company and the Guarantor has all the requisite power and authority to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement, the Indenture, and in the case of the Guarantor, the Guarantee. |
| (g) | The Guarantor has taken all necessary corporate action required by its statuts and by the laws of France to authorize the execution of the Purchase Agreement, the Indenture, and the Guarantee. The Company has taken all necessary corporate action required by its articles of incorporation, its by-laws and by the Business Corporations Act (Alberta) to authorize the execution of the Purchase Agreement and the Indenture and the issuance and sale of the Offered Securities. |
| (h) | The Purchase Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor. |
| (i) | The Indenture, when executed and delivered, will be duly authorized, executed and delivered by each of the Company and the Guarantor and will constitute a valid and legally binding obligation of the Company and the Guarantor, and the Indenture has been duly qualified under the Trust Indenture Act. |
| (j) | The Offered Securities to be issued by the Company and the Guarantee to be issued by the Guarantor have been duly authorized, and when issued, delivered and authenticated, as provided in the Indenture, will be duly and validly issued and will constitute legal, valid and binding obligations enforceable against the Company and the Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and entitled to the benefits of the Indenture. |
| (k) | The Offered Securities to be issued by the Company will rank at least pari passu with all of the Company’s other unsecured and unsubordinated indebtedness. The obligations of the Guarantor in respect of the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Guarantor. |
3
| (l) | No consent, approval, authorization or order of, or filing with, any regulatory authority in the United States of America, France or Canada is legally required for the execution of the Indenture, the issuance and sale of the Offered Securities to the Purchasers pursuant to the Purchase Agreement or the execution of the Guarantee by the Guarantor, other than the filings with, and the orders of, the Commission in connection with the registration of the Offered Securities and the Guarantee under the Securities Act and the qualification of the Indenture under the Trust Indenture Act, and a filing with, and an order from, applicable Canadian securities regulators in respect of the qualification of the Trustee under the Indenture under the Business Corporations Act (Alberta), except that the offer and sale of the Offered Securities in certain jurisdictions may be subject to the provisions of the securities or Blue Sky laws of such jurisdictions. |
| (m) | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities or the Guarantee, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Company and the Guarantor, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of its properties or assets, or (ii) violate or result in a breach or a default under any of the terms of its statuts or articles of incorporation, as applicable, certificate of incorporation, by-laws and similar documents, any contract or instrument to which it is a party or by which it or its property is bound, or, subject to the receipt by the Company of an order from applicable Canadian securities regulators in respect of the qualification of the Trustee under the Indenture under the Business Corporations Act (Alberta), any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which it is subject or by which it or its property is bound, which breach or default would have a material adverse effect on its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities, the Indenture or the Guarantee, or the validity of the Offered Securities. |
| (n) | Except as disclosed in the Pricing Prospectus and the Prospectus, there is no litigation or governmental proceeding pending, or to its actual knowledge threatened, against or affecting the Guarantor or any of its subsidiaries that would result in a material adverse change in its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company, the Indenture, or, in the case of the Guarantor, the Guarantee. |
| (o) | Neither the Company nor the Guarantor is an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
| (p) | The statements set forth in the Pricing Prospectus and the Prospectus under the heading “Tax Considerations”, to the extent that they purport to summarize certain provisions of the United States federal income tax law and regulations, the French tax law and regulations or the Canadian federal income tax law and regulations, constitute a fair summary of such provisions in all material respects. |
| (q) | Except as described in the Pricing Prospectus and the Prospectus, there are no withholding taxes or stamp or other similar issuance or transfer taxes or duties imposed or payable in France, Canada or the United States or any political subdivision or taxing authority thereof or therein by or on behalf of the Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement (provided such sale and delivery is not recorded in a deed registered in France). |
| (r) | Interest payments made by the Company in respect of the Offered Securities and by the Guarantor in respect of the Guarantee may be made to holders of Securities that are not Shareholders of the Company without withholding or deduction for or on account of any taxes, duties, assessments or charges of whatever nature imposed or levied by or on behalf of the French Republic or any political subdivision or authority thereof or therein provided that they are not paid to a person incorporated, domiciled, established, acting through a branch or to an account opened in a non-cooperative State or territory within the meaning of article 238-0 A of the French tax code (Code général des impôts), as amended from time to time. |
| (s) | Provided that the holders of the Securities deal, at all relevant times, with the Company and the Guarantor at arm’s length, within the meaning of the Income Tax Act (Canada), interest payments made by the Company in respect of the Offered Securities and by the Guarantor in respect of the Guarantee may be made to holders of Securities without withholding or deduction for or on account of any taxes, duties, assessments or charges of whatever nature imposed or levied by or on behalf of Canada or any political subdivision or authority thereof or therein. |
| (t) | (i) At the time of the filing of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13(a) or 15(d) of the Exchange Act or form of prospectus) and (iii) at the time either of the Company or the Guarantor or any person acting on its behalf (within the meaning of, for this clause only, Rule 163(c) under the Securities Act) made any offer relating to the Offered Securities in reliance on the exemption provided by Rule 163, each of the Company and the Guarantor was a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been an “ineligible issuer” as defined in Rule 405. |
4
| (u) | (i) At the earliest time after the filing of the Registration Statement that the Company, the Guarantor or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Offered Securities and (ii) at the date of the Purchase Agreement, neither the Company nor the Guarantor was, nor is, an “ineligible issuer,” as defined in Rule 405 under the Securities Act. |
| (v) | Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, neither the Company nor the Guarantor nor, to the best of the knowledge of the Company or the Guarantor, any of their respective subsidiaries or their respective directors, officers or employees acting on behalf of the Company or the Guarantor, has engaged in any activity or conduct which would violate in any material respect the U.S. Foreign Corrupt Practices Act or any other applicable anti-bribery or anti-corruption law or regulation, and the Company and the Guarantor have instituted and maintain policies and procedures reasonably designed to prevent violation of such laws, regulations and rules. |
| (w) | Except as otherwise disclosed to the Reselling Purchasers, none of the Company, the Guarantor, any of their respective subsidiaries or, to the best of the knowledge of the Company or the Guarantor, any of their respective directors or officers is a person or entity with whom dealings are restricted or prohibited by Sanctions, and the Company will not directly or indirectly use the proceeds from any offering of Offered Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, or other person or entity, in any manner that would result in a violation of Sanctions, and the Company and the Guarantor have instituted and maintain policies and procedures reasonably designed to prevent violation of Sanctions. “Sanctions” under this provision means any economic sanctions (i) which are administered by (x) the United States, including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), (y) the European Union or (z) the United Nations, and (ii) which are applicable at the time the representations and warranties under this Article IV(v) are made. |
| (x) | Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, the operations of the Company, the Guarantor and their respective subsidiaries are and have been conducted in compliance with money laundering statutes and the rules and regulations thereunder to the extent applicable to the Company and the Guarantor (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental entity, authority or body or any arbitrator or non-governmental authority involving the Company, the Guarantor or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the best of the Company and the Guarantor’s knowledge and belief, threatened that would result in a material adverse effect in the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole. |
V.
| (a) | Each of the Company and the Guarantor represents and agrees that, unless it obtains the prior consent of the Reselling Purchasers, and each Reselling Purchaser represents and agrees that, unless it obtains the prior consent of the Company and the Guarantor, in each case except for the final term sheet prepared and filed pursuant to Article V(c) hereof, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act. Any such free writing prospectus consented to by the Company, the Guarantor and the Reselling Purchasers is hereinafter referred to as a “Permitted Free Writing Prospectus” and, if prior to the date of the Purchase Agreement, is listed on Schedule II(a) to the Purchase Agreement. |
| (b) | Each of the Company and the Guarantor represents that it has complied and will comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission (or retention where required) and legending. |
| (c) | The Company and the Guarantor will prepare a final term sheet relating to the Offered Securities (attached to the Purchase Agreement as Schedule V), containing only information that describes the final terms of the Offered Securities and otherwise in a form consented to by the Reselling Purchasers, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date such final terms have been established for the offering of the Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. Each of the Company and the Guarantor consents to the use by any Reselling |
5
| Purchaser of a free writing prospectus that contains substantially only (i) information describing the preliminary terms of the Offered Securities or their offering or (ii) information that describes the final terms of the Offered Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection (including, for purposes of subsections (i) and (ii), any such information that is transmitted via Bloomberg screen notice). |
| (d) | If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement, the Pricing Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, (i) the Company or the Guarantor has promptly notified or will promptly notify the Reselling Purchasers and (ii) the Company or the Guarantor has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this provision shall not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished to the Company or the Guarantor in writing by any Reselling Purchaser expressly for use therein. |
VI.
The obligations of each Purchaser hereunder are subject to the following conditions:
| (a) | No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; there shall have been no material adverse change in the condition of the Guarantor and its subsidiaries taken as a whole, except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus; and the Purchaser shall have received, on the Closing Date, certificates dated the Closing Date and signed by officers of the Company and the Guarantor or other duly authorized persons, to the foregoing effect and to the effect that the representations and warranties of the Guarantor and Company are true and correct as of the Closing Date. The officers or other persons making such certificates may each rely upon the best of their knowledge as to proceedings pending or threatened. The final term sheet contemplated by Article V(c) hereof, and any other material required to be filed by the Company and/or the Guarantor pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act. |
| (b) | The Purchaser shall have received on the Closing Date an opinion or opinions of the General Counsel or Associate General Counsel of the Guarantor or other counsel reasonably satisfactory to the Purchaser, as to certain matters of French, New York and United States federal law, dated the Closing Date, to the effect set forth in Exhibit A hereto. |
| (c) | The Purchaser shall have received on the Closing Date an opinion in respect of the Company of Canadian counsel reasonably satisfactory to the Purchaser, dated the Closing Date, to the effect set forth in Exhibit B hereto. |
| (d) | The Purchaser shall have received on the Closing Date an opinion of counsel for the Purchaser, dated the Closing Date, in form and substance reasonably satisfactory to the Purchaser. |
| (e) | The Purchaser shall have received on each of the date of pricing of Offered Securities and the Closing Date a letter from the independent auditors for the Guarantor, dated the date of pricing of Offered Securities and the Closing Date, respectively, to the effect set forth in Exhibit C hereto. |
| (f) | Since the date of the Purchase Agreement, no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities. |
| (g) | On or prior to the Closing Date, the Company shall have furnished to the Purchaser such further available information and certificates as the Purchaser may reasonably request. |
VII.
In further consideration of the agreements contained herein of any Reselling Purchaser, the Company and the Guarantor covenant to such Reselling Purchaser as follows:
6
| (a) | To prepare and file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the date of the Purchase Agreement or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement, the Base Prospectus, the Pricing Prospectus or the Prospectus after the date of the applicable Purchase Agreement and prior to the Closing Date which shall have been reasonably disapproved by the Reselling Purchasers promptly after reasonable notice thereof (which notice the Company and the Guarantor undertake to provide); to advise the Reselling Purchasers, promptly after they receive notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish to any Reselling Purchaser with copies thereof; to file promptly all reports required to be filed by the Company or the Guarantor with the Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Offered Securities, and during such same period to advise the Reselling Purchasers, promptly after the Company or the Guarantor receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus or free writing prospectus relating to the Offered Securities, of the suspension of the qualification of such Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information, and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus or free writing prospectus relating to the Offered Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order. |
| (b) | If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement any of the Securities remain unsold by the Reselling Purchasers, to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities in a form satisfactory to the Reselling Purchasers. If at the Renewal Deadline the Company or the Guarantor is no longer eligible to file an automatic shelf registration statement, the Company and the Guarantor will, if they have not already done so, file a new shelf registration statement relating to the Securities in a form satisfactory to the Reselling Purchasers and will use reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline, and it will take all other action necessary to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References in this Agreement to the Registration Statement shall include any such new automatic shelf registration statement or any such new shelf registration statement, as the case may be. |
| (c) | To furnish the Reselling Purchasers with a copy of the signed Registration Statement (including exhibits thereto) and with copies of the Prospectus, as amended or supplemented, in such quantities as the Reselling Purchasers may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any time in connection with the offering or sale of the Offered Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, the Exchange Act and the Trust Indenture Act, to notify the Reselling Purchasers and upon their request to file such document and to prepare and furnish to each Reselling Purchaser and to any dealer in securities as many copies as the Reselling Purchasers may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance. |
| (d) | To qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States of America as the Reselling Purchaser shall reasonably request and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions in the United States of America as the Reselling Purchaser may designate. |
| (e) | As soon as practicable after the date of each Purchase Agreement, to make generally available to the Guarantor’s and the Company’s securityholders an earnings statement covering a period of at least 12 months beginning after the date of such Purchase Agreement and satisfying the provisions of Section 11(a) of the Securities Act (including Rule 158 thereunder). |
7
| (f) | During the period beginning on the date of this Agreement and terminating after the number of days, if any, indicated under “Restriction on Additional Sales” in the Purchase Agreement, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Offered Securities, without the prior written consent of the Reselling Purchaser. |
| (g) | If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, to notify promptly the Reselling Purchaser so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented. |
VIII.
The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Reselling Purchaser and each person, if any, who controls such Reselling Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus (if used within the period set forth in paragraph (c) of Article VII hereof and as amended or supplemented if the Company or the Guarantor shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
Each Reselling Purchaser severally agrees to indemnify and hold harmless the Company and the Guarantor, their directors, their officers who sign the Registration Statement and any person controlling the Company or the Guarantor to the same extent as the foregoing indemnity from the Company and the Guarantor to each Reselling Purchaser, but only with reference to information relating to such Reselling Purchaser furnished in writing by such Reselling Purchaser expressly for use in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such other person (the “indemnified party”) shall promptly notify the person or persons against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by the Reselling Purchaser in the case of parties indemnified pursuant to the second preceding paragraph and by the Company or the Guarantor in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is unavailable to an indemnified party other than as a result of the proviso to the first paragraph of Article VIII or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Reselling Purchaser on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantor on the one hand and of the Reselling Purchaser on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Reselling Purchaser on the other in connection with the offering of the
8
Offered Securities shall be deemed to be in the same proportion as the total net proceeds from the offering of such Offered Securities (before deducting expenses) received by the Company bear to the total commissions, if any, received by the Reselling Purchaser in respect thereof. If there are no commissions allowed or paid by the Company or the Guarantor to the Reselling Purchaser in respect of the Offered Securities, the relative benefits received by the Reselling Purchaser in the preceding sentence shall be the difference between the price received by such Reselling Purchaser upon resale of the Offered Securities and the price paid for such Offered Securities pursuant to the Purchase Agreement. The relative fault of the Company and the Guarantor on the one hand and of the Reselling Purchaser on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantor or by the Reselling Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantor and the Reselling Purchaser agree that it would not be just and equitable if contribution pursuant to this Article VIII were determined by pro rata allocation or by any other method of allocation which does not take account of the considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VIII, no Reselling Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities resold to the public by such Reselling Purchaser were offered to the public exceeds the amount of any damages which such Reselling Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VIII and the representations and warranties of the Company and the Guarantor in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by any Reselling Purchaser or on behalf of any Reselling Purchaser or any person controlling any Reselling Purchaser and (iii) acceptance of and payment for any of the Offered Securities.
Each of the Guarantor and the Company agrees that any legal suit, action or proceeding brought by any Reselling Purchaser to enforce the indemnity agreements contained in this Article VIII may be instituted in any state or Federal court in the Borough of Manhattan, The City of New York, New York, United States of America, waives, to the extent it may effectively do so, any objection which it may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. Each of the Guarantor and the Company has designated and appointed Corporation Service Company (or any successor corporation) as the authorized agent of each of the Guarantor and the Company to accept and acknowledge on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such court and agrees that service of process upon said agent at its office at 1180 Avenue of the Americas, Suite 210, New York, NY 10036 (or such other address in the Borough of Manhattan, The City of New York, as the Guarantor or the Company, as applicable, may designate by written notice to you), shall be deemed in every respect effective service of process upon the Guarantor or the Company, as applicable, in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Guarantor or the Company, as applicable, whether or not the Guarantor or the Company, as applicable, shall then be doing, or at any time shall have done, business within the State of New York, and any such service of process shall be of the same force and validity as if service were made upon it according to the laws governing the validity and requirements of such service in such State, and waives all claim of error by reason of any such service. Said designation and appointment shall be irrevocable until the principal of and interest on the Offered Securities and all other sums owing by the Company or the Guarantor to holders of the Offered Securities in accordance with the provisions of the Offered Securities and the Indenture have been paid in full by the Company or the Guarantor in accordance with the provisions thereof. Each of the Guarantor and the Company agrees to take all action as may be necessary to continue the designation and appointment of Corporation Service Company or any successor corporation in full force and effect so that the Guarantor shall at all times have an agent for service of process for the above purposes in the Borough of Manhattan, The City of New York, New York, United States of America.
IX.
Any payments to any Purchaser hereunder (each Purchaser is hereinafter referred to in this Article IX as a “Payee”) shall be in United States dollars and shall be payable free and clear of, and without deduction or withholding for, or on account of, any and all present or future taxes, duties, assessments, levies and other governmental charges of any nature whatsoever now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of France, Canada or any other jurisdiction from which such
9
payments are made, or any territory or political subdivision thereof, unless such deduction or withholding is required by law (“Foreign Taxes”). If by operation of law or otherwise, Foreign Taxes are required to be deducted or withheld from any amounts payable to a Payee, the Company or the Guarantor, as the case may be, agrees to pay such additional amounts to each Payee (the “Additional Amounts”) as may be necessary to ensure that the net amount actually received by the Payee, after deduction of any Foreign Taxes imposed with respect to the payment of such Additional Amounts, shall equal the amount the Payee would have received if Foreign Taxes had not been deducted or withheld from such payment; provided, however, that no Additional Amounts shall be so payable for or on account of: (i) any Foreign Taxes which would not have been imposed but for the fact that any Payee had a present or former personal or business connection with France, Canada or any other jurisdiction from which payments are made, or any territory or political subdivision thereof other than the mere ownership of, or receipt of payment under, the Offered Securities; (ii) any Foreign Taxes which would not have been imposed if the Payee dealt at arm’s length, within the meaning of the applicable taxing legislation, with the Company and the Guarantor; (iii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; or (iv) any Foreign Taxes which are payable otherwise than by withholding or deduction.
The Company and the Guarantor, jointly and severally, agree to indemnify each Purchaser against any loss incurred by any such Purchaser as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Payee upon receipt of the Judgment Currency could have purchased United States dollars with the amount of Judgment Currency actually received by such Payee. The foregoing indemnity shall constitute a separate and independent obligation of the Company and the Guarantor, and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
X.
This Agreement shall be subject to termination in the absolute discretion of any Reselling Purchaser, by notice given to the Company and the Guarantor, if prior to the Closing Date (i) trading in securities generally or trading in the Guarantor’s securities on either Euronext Paris or the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York, Canada or France shall have been declared by either Federal, New York State, Canadian or French authorities or a material disruption in commercial banking or securities settlement or clearance services within the United States or the European Union shall have occurred or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States, Canada or the European Union is such as to make it, in the judgment of such Reselling Purchaser, impracticable to resell the Offered Securities.
XI.
Without prejudice to the provisions of Article VII(d) and Article XIII hereof, the Reselling Purchasers jointly agree to pay all expenses incident to the issuance of the Offered Securities (other than fees of counsel to and the independent auditors of the Company and Guarantor related to such issuance), including but not limited to:
| (a) | the fees and disbursements of the counsel to the Reselling Purchasers in connection with the issuance of the Offered Securities; |
| (b) | the fees and expenses incurred in connection with the approval by The Depository Trust Company and other clearing and settlement organizations for the clearance through their respective systems; and |
| (c) | all documented out-of-pocket expenses incurred by the Reselling Purchasers. |
XII.
Notwithstanding the provisions of Article XI hereof, the Company and the Guarantor jointly agree to pay the following expenses incident to the issuance of the Offered Securities:
10
| (a) | the Commission filing fees; |
| (b) | the fees and disbursements of counsel to and the independent auditors of the Company and Guarantor in connection with the issuance of the Offered Securities; |
| (c) | the printing and delivery to the Reselling Purchasers of copies of the Prospectus and any amendment or supplement thereto, and the preparing, printing and distributing of any Issuer Free Writing Prospectus to investors or prospective investors; and |
| (d) | the costs of the Trustee in connection with the issuance of the Offered Securities including the reasonable fees and disbursements of counsel for the Trustee. |
XIII.
If this Agreement shall be terminated by the Purchaser(s) because of any failure or refusal on the part of the Company or the Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company or the Guarantor shall be unable to perform its obligations under this Agreement, the Company or the Guarantor will reimburse the Purchaser(s) for all out-of-pocket expenses (including the fees and disbursements of counsel) reasonably incurred by such Purchaser(s) in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
The Company and the Guarantor each acknowledge and agree that (a) the purchase and sale of the Offered Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the several Reselling Purchasers, on the other, (b) in connection therewith and with the process leading to such transaction each Reselling Purchaser is acting solely as a principal and not the agent or fiduciary of the Company or the Guarantor and (c) no Reselling Purchaser has assumed a fiduciary responsibility in favor of the Company or the Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Reselling Purchaser has advised or is currently advising the Company or the Guarantor on other matters) or any other obligation to the Company or the Guarantor except the obligations expressly set forth in this Agreement. The Company and the Guarantor each agree that it will not claim that the Reselling Purchasers, or any of them, owes a fiduciary or similar duty to the Company or the Guarantor in connection with such transaction or the process leading thereto.
11
EXHIBIT A
OPINION OF GUARANTOR COUNSEL
You shall have received on and as of the Closing Date an opinion or opinions of the General Counsel or Associate General Counsel of the Guarantor, or other counsel reasonably satisfactory to you, subject to customary assumptions and qualifications, to the effect that:
| (1) | The Guarantor is validly existing as a société anonyme under the laws of France and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement, the Indenture, and the Guarantee. |
| (2) | The Purchase Agreement has been duly authorized, executed and delivered the Guarantor. |
| (3) | The Indenture has been duly authorized, executed and delivered by the Guarantor and constitutes a valid and legally binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (hereinafter called the “Trust Indenture Act”). |
| (4) | Upon due execution, authentication and delivery of the Offered Securities, upon which the text of the Guarantee has been endorsed as contemplated in the Indenture, the Guarantee will constitute a valid and legally binding obligation of the Guarantor with respect to the Offered Securities, enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (5) | All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company or the Guarantor under the Federal laws of the United Sates, the laws of the State of New York or the laws of the French Republic for the issuance, sale and delivery of the Offered Securities by the Company to the Reselling Purchasers have been obtained or made. |
| (6) | Neither the Company nor the Guarantor is, or after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Pricing Prospectus and the Prospectus, will be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
| (7) | There are no stamp or other similar issuance or transfer taxes or duties imposed or payable in France or the United States or any political subdivision or taxing authority thereof or therein by or on behalf of the Reselling Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement (provided such sale and delivery is not recorded in a deed registered in France). |
| (8) | The choice of the laws of the State of New York to govern the Purchase Agreement, the Indenture, the Offered Securities and the Guarantee is a valid choice of law, and a French court would uphold such choice of law in any proceeding on the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee brought before it, provided that the relevant content of New York law is duly proved in any such proceedings and that the application of New York law (i) is not found to be contrary to mandatory provisions of the law of any jurisdiction presenting a close connection with the transaction, which under the laws of such jurisdiction are applicable irrespective of the law governing the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee, as the case may be, (ii) is not found to be contrary to a provision of French law whose application to the situation is found mandatory irrespective of the law governing the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee (lois de police) and (iii) is not found to be manifestly contrary to a provision of French international public policy (ordre public international), and provided further that in original actions brought in French courts certain questions of procedural law and public policy would be governed by French law and a French court could set aside the choice of New York law if such choice was held to have been intended to avoid a provision of French law which otherwise would have been mandatorily applicable. |
A-1
| (9) | Under the laws of the State of New York relating to personal jurisdiction, the Guarantor has, pursuant to Section VIII of the Purchase Agreement and Section 114 of the Indenture, validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the Borough of Manhattan, The City of New York, New York (each a “New York Court”) in any action arising out of or relating to this Purchase Agreement or the transactions contemplated hereby. |
| (10) | Any final judgment for a sum of money against the Guarantor in relation to the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee rendered by a competent New York court, applying New York law, would be recognized and enforced by competent French courts without a review of the merits, provided that (i) the court rendering the judgment had proper jurisdiction; (ii) fundamental procedural rights were duly complied with by the court rendering the judgment; (iii) the court rendering the judgment applied New York law as the law expressed to be governing the Purchase Agreement, the Indenture, the Offered Securities and the Guarantee, as the case may be; and (iv) the judgment is not (a) contrary to French public policy (ordre public) as applicable in the context of enforcement of foreign judgments or (b) tainted by fraud. |
| (11) | Such counsel shall also state that they have reviewed the Registration Statement relating to the Securities (File No. 333-[—]) (the “Registration Statement”), the Prospectus included in the Registration Statement (the “Base Prospectus”), the Prospectus Supplement dated [—] (the “Prospectus Supplement”) and documents listed in Schedule [—] (those listed documents, taken together with the Base Prospectus, being referred to as the “Pricing Disclosure Package”) and participated in discussions with representatives of the Company and the Guarantor and their independent accountants and representatives of the Purchasers and their counsel. Between the date of the Prospectus Supplement and the time of the delivery of this letter, such counsel participated in further discussions with representatives of the Purchasers and those of the Company and the Guarantor and their independent accountants, concerning certain matters relating to the Company and the Guarantor and reviewed certificates of certain officers of the Company and the Guarantor, letters addressed to the Reselling Purchasers from the Company’s independent accountants and legal opinions addressed to the Reselling Purchasers from the Guarantor’s group general counsel. On the basis of the information that they gained in the course of the performance of such services, considered in light of their understanding of the applicable law (including the requirements of Form F-3 and the character of the prospectus contemplated thereby) and the experience they have gained through their practice under the Securities Act, such counsel shall confirm to the Reselling Purchasers that, in their opinion, the Registration Statement [as of the date of the Prospectus Supplement], and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities to the requirements of the Securities Act, the Trust Indenture Act of 1939 and the applicable rules and regulations of the Securities and Exchange Commission thereunder. Such counsel shall confirm to the Purchasers that the statements made under the captions “Description of Debt Securities and Guarantee”, “Plan of Distribution” and “Tax Considerations” in the Base Prospectus and under the caption “Description of Notes” and “Underwriting” in the Prospectus Supplement, insofar as they relate to the provisions of documents or of French or United States federal tax law therein described, constitute a fair and accurate summary of such provisions in all material respects. Such counsel shall further state that nothing that came to the attention of such counsel in the course of such review has caused them to believe that, insofar as relevant to the offering of the Securities (i) the Registration Statement, [as of the time of the Prospectus Supplement], contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package, as of [—][A/P].M. on [—],[—][the Applicable Time set forth in the Purchase Agreement], [when considered together with the price to the public and underwriting discount for the Securities set forth on the cover of the Prospectus Supplement and the statements made under caption “Description of Notes” in the Prospectus Supplement,] contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. |
Such counsel shall also advise the Reselling Purchasers that nothing came to the attention of such counsel in the course of the procedures described in the second sentence in the preceding paragraph that has caused them to believe that, the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date and time of delivery of such counsel’s letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Such opinion may state (1) that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, except to the extent specifically noted in the fourth sentence of the second preceding paragraph, and (2) that they do not express any opinion or
A-2
belief as to the financial statements or other financial data derived from the accounting records contained in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, as to management’s report of its assessment of the effectiveness of the internal control over financial reporting or the auditors’ report as to the internal control over financial reporting, each as included in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the statement of the eligibility and qualification of the Trustee under the Indenture under which the Securities are being issued.
| (12) | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities or the Guarantee, nor the fulfilment of or compliance with the terms and provisions hereof or thereof by the Guarantor, will violate or result in a breach or a default under any of the terms of its statuts, or, to the best of such counsel’s knowledge, any contract or instrument to which it is a party or by which it or its property is bound or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality to which it is subject or by which it or its property is bound, which violation, breach or default would have a material adverse effect on the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities, the Indenture or the Guarantee, or the validity of the Offered Securities. |
| (13) | To the best of such counsel’s knowledge and except as disclosed in the Prospectus, there is no litigation or governmental proceeding pending, or to such counsel’s knowledge threatened, against or affecting the Guarantor, the Company or any of their subsidiaries that would result in a material adverse change in the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole, or of the Company and its consolidated subsidiaries, taken as a whole, or the ability of the Guarantor or of the Company to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company, the Indenture or the Guarantee. |
| (14) | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities, nor the fulfilment of or compliance with the terms and provisions hereof or thereof by the Company, will violate or result in a breach or a default under any of the terms of any contract or instrument to which it is a party or by which it or its property is bound. |
A-3
EXHIBIT B
OPINION OF COUNSEL TO THE COMPANY
You shall have received on and as of the Closing Date an opinion of Canadian counsel reasonably satisfactory to you, subject to customary assumptions and qualifications, to the effect that:
| (1) | The Company is a valid and subsisting corporation under the Business Corporations Act (Alberta) and has the corporate power and capacity to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement and the Indenture. |
| (2) | The Purchase Agreement has been duly authorized and, to the extent execution and delivery are matters governed by the laws of the Province of Alberta and the federal laws of Canada applicable therein (“Alberta Law”), executed and delivered by the Company. |
| (3) | The Indenture has been duly authorized and, to the extent execution and delivery are matters governed by Alberta Law, executed and delivered by the Company. |
| (4) | The Offered Securities to be issued by the Company have been duly authorized and, to the extent issue, delivery and authentication are matters governed by Alberta Law, when issued, delivered and authenticated as provided in the Indenture, will be duly and validly issued. |
| (5) | All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company or the Guarantor under Alberta Law for the issuance, sale and delivery of the Offered Securities by the Company to the Reselling Purchasers have been obtained or made, other than the exemption that will be required to be obtained under the Business Corporations Act (Alberta) prior to the appointment of the trustee under the Indenture to exempt the Indenture from the relevant provisions thereof. |
| (6) | No stamp or other transfer tax, duties or issuance tax imposed under Alberta Law or by any Canadian federal or Alberta political subdivision or taxing authority are or will be payable by or on behalf of the Reselling Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement. |
| (7) | In any proceeding in a court of competent jurisdiction in the Province of Alberta (an “Alberta Court”) for the enforcement of the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee as the case may be, the Alberta Court would apply the laws of the State of New York (“New York Law”), in accordance with the parties’ choice of New York Law in the Purchase Agreement, the Indenture, the Offered Securities and the Guarantee, as the case may be, to all issues which under the laws of the Province of Alberta and the federal laws of Canada applicable therein (“Alberta Law”) are to be determined in accordance with the chosen law of the contract, provided that: |
| (a) | the parties’ choice of New York Law is bona fide and legal and there is no reason for avoiding the choice on the grounds of Alberta public policy, as such term is interpreted under Alberta Law (“Public Policy”), and |
| (i) | in any such proceeding, and notwithstanding the parties’ choice of law, the Alberta Court: |
| (ii) | will not take judicial notice of the provisions of New York Law but will only apply such provisions if they are pleaded and proven by expert testimony; |
| (iii) | will not apply any New York Law and will apply Alberta Law to matters which would be characterized under Alberta Law as procedural; |
| (iv) | will apply provisions of Alberta Law that have overriding effect; |
| (v) | will not apply any New York Law if such application would be characterized under Alberta Law as the direct or indirect enforcement of a foreign revenue, expropriatory, penal or other public law or if its application would be contrary to Public Policy; and |
B-1
| (vi) | will not enforce the performance of any obligation that is illegal under the laws of any jurisdiction in which the obligation is to be performed. |
| (8) | An Alberta Court would give a judgment based upon a final and conclusive in personam judgment of a court exercising jurisdiction in any state or federal court in the Borough of Manhattan, the City of New York, New York, United States of America for a sum certain, obtained against the Company or the Guarantor with respect to a claim arising out of the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee, as applicable (a “New York Judgment”), without reconsideration of the merits: |
| (a) | provided that: |
| (i) | the provisions of the Purchase Agreement, the Indenture, the Offered Securities and the Guarantee, as the case may be, respecting service of process on the Company or the Guarantor, as applicable, were complied with when obtaining the New York Judgment; |
| (ii) | an action to enforce the New York Judgment must be commenced in the Alberta Court within the shorter of the applicable Alberta limitation period or the applicable New York limitation period; |
| (iii) | the Alberta Court has discretion to stay or decline to hear an action on the New York Judgment if the New York Judgment is under appeal or there is another subsisting judgment in any jurisdiction relating to the same cause of action; |
| (iv) | the Alberta Court will render judgment only in Canadian dollars; and |
| (v) | an action in the Alberta Court on the New York Judgment may be affected by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally; and |
| (b) | subject to the following defenses: |
| (i) | the New York Judgment was obtained by fraud or in a manner contrary to the principles of natural justice but the New York Judgment would not be contrary to natural justice by reason only that service of process was effected on the agent for service of process appointed by the Company or the Guarantor pursuant to Section 114 of the Indenture or Article VIII of the Purchase Agreement; |
| (ii) | the New York Judgment is for a claim which under Alberta Law would be characterized as based on a foreign revenue, expropriatory, penal law or other public law; |
| (iii) | the New York Judgment is contrary to Public Policy or to an order made by the Attorney General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by the Competition Tribunal under the Competition Act (Canada) in respect of certain judgments referred to in these statutes; and |
| (iv) | the New York Judgment has been satisfied or is void under New York Law. |
| (9) | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Company, will violate or result in a breach or a default under any of the terms of its articles of incorporation and by-laws, any Alberta Law, or, to the best of such counsel’s knowledge, any order, writ, injunction or decree of any court or government instrumentality in the Province of Alberta to which the Company is subject or by which it or its property is bound, which violation, breach or default would have a material adverse effect on its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities or the Indenture, or the validity of the Offered Securities. |
B-2
EXHIBIT C
LETTER OF INDEPENDENT AUDITORS
The letter of the independent auditors for the Guarantor, to be delivered pursuant to Article VI, paragraph (e) of the document entitled Purchase Agreement Standard Provisions (2015 Edition) (the “Standard Provisions”) shall be to the effect that:
| (i) | Such auditors are independent registered public accounting firms with respect to the Guarantor within the meaning of the Securities Act of 1933, as amended, and the applicable published rules and regulations thereunder. |
| (ii) | In the opinion of such auditors, the consolidated financial statements included in the Annual Report on Form 20-F of the Guarantor most recently filed with the Securities and Exchange Commission (the “Annual Report”) comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the published rules and regulations thereunder. |
| (iii) | Nothing has come to the attention of such auditors, as a result of performing the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100 Interim financial information, and other specified procedures not constituting an audit, that caused them to believe: |
| a. | that the unaudited interim condensed consolidated financial statements of the Guarantor, if any, incorporated by reference into the Registration Statement, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the applicable published rules and regulations thereunder, or that any material modifications should be made to such unaudited interim condensed consolidated financial statements, for them to be in conformity with IFRS; or |
| b. | that there was any change in common shares, increase in consolidated non-current financial debt or any decrease in consolidated total non-current assets or consolidated shareholders’ equity of the Guarantor, except in all instances for changes, increases, or decreases that the Registration Statement discloses have occurred or may occur, as compared to the amounts shown on the balance sheet forming part of the unaudited interim condensed consolidated financial statements mentioned in a. above, provided the letter is issued not more than 135 days from the date of such balance sheet. |
If more than 135 days have elapsed from the date of the balance sheet forming part of the most recent audited consolidated financial statements or the most recent unaudited condensed consolidated financial statements with respect to which the auditors have performed the procedures specified by the PCAOB for a review of interim financial information, the letter of the independent auditors shall refer to statements made by the Guarantor’s management as to item iii.b above
| (iv) | Such auditors have performed other procedures that are customary for auditors’ comfort letters in registered debt offerings as required by the Reselling Purchaser(s). |
C-1
[—],[— ]
Total Capital International
Tour Coupole 2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
TOTAL S.A.
Tour Coupole 2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Ladies and Gentlemen:
The underwriter(s) named in Schedule I hereto (such underwriter(s) being herein called the “Reselling Purchaser(s)”) understand(s) that Total Capital International (the “Company”) and TOTAL S.A. (the “Guarantor”) propose to issue and sell the debt securities of the Company specified in Schedule V hereto (the “Offered Securities”). Subject to the terms and conditions set forth or incorporated by reference herein, the Company agrees to sell, and each Reselling Purchaser(s) [severally] agrees to purchase, the aggregate principal amount of the Offered Securities set forth opposite [its] [each Reselling Purchaser’s] name in Schedule I hereto at [—]% of their principal amount plus accrued interest, if any, from [—],[—] to the date of payment and delivery.
The Reselling Purchaser(s) will pay for such Offered Securities upon delivery thereof at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York, 10004 or through the facilities of The Depository Trust Company at 10:00 A.M. (New York time) on [—],[—] (the “Closing Date”), or at such other time as shall be agreed upon between us.
Unless otherwise expressly specified herein, all of the provisions contained in the document entitled Total Capital International Purchase Agreement Standard Provisions (2015 Edition) (the “Standard Provisions”) attached as Annex A hereto are herein incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. Unless otherwise defined herein, terms defined in the Standard Provisions are used herein as therein defined. Schedule II(a) hereto lists each Permitted Free Writing Prospectus agreed pursuant to Article V(a) of the Standard Provisions and Schedule II(b) hereto lists any additional documents incorporated by reference that were filed with the Commission subsequent to the Commission’s close of business on the business day immediately prior to the date of the execution of this Purchase Agreement. Schedule III hereto lists the selling restrictions applicable to the distribution and sale of the Offered Securities. Schedule IV lists all documents that the Company, the Guarantor and the Reselling Purchaser(s) agree are to be included in the Pricing Disclosure Package. The final term sheet prepared in accordance with Article V(c) of the Standard Provisions is attached hereto as Schedule V.
1
For purposes of this Purchase Agreement and the Standard Provisions, the “Applicable Time” is [—]:[—][A/P].M. New York time on the date hereof.
[All provisions of this Agreement, including those incorporated by reference, that require that notices or documents be furnished to each “Purchaser” or “Reselling Purchaser”, or that each “Purchaser” or “Reselling Purchaser” provide its authorization or consent, shall be deemed to have been satisfied if such notices or documents are furnished to, or such consent or authorization is provided by, [Lead Manager(s)], on behalf of each “Purchaser” or “Reselling Purchaser”.] [To be used in the event of a syndicated offering.]
2
IN WITNESS WHEREOF, the parties hereto have, by duly authorized directors, officers or attorneys-in-fact, executed this Agreement as of the date first above written.
| TOTAL CAPITAL INTERNATIONAL | ||||
| By: | TOTAL FINANCE CORPORATE SERVICES LIMITED | |||
| By: | ||||
| Name: | Humbert de Wendel | |||
| Title: | Authorized Signatory of Total Finance Corporate Services Limited | |||
| TOTAL S.A. | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| [RESELLING PURCHASER(S)] | ||||
|
| ||||
| [Reselling Purchaser(s)] | ||||
SCHEDULE I TO PURCHASE AGREEMENT
| Reselling Purchaser |
Principal Amount of Offered Securities |
|||
| [—] |
$ | [— | ] | |
|
|
|
|||
| Total |
$ | [— | ] | |
1
SCHEDULE II TO PURCHASE AGREEMENT
(a) Permitted Free Writing Prospectuses agreed pursuant to Article V(a) of the Standard Provisions
Issuer Free Writing Prospectuses
Final Term Sheet attached to the Purchase Agreement as Schedule V
[—]
(b) Additional documents incorporated by reference
[—]
1
SCHEDULE III TO PURCHASE AGREEMENT
Selling Restrictions
European Economic Area
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), each Reselling Purchaser has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Offered Securities to the public in that Relevant Member State, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Offered Securities to the public in that Relevant Member State at any time:
| • | to any legal entity which is a qualified investor as defined in the Prospectus Directive; or |
| • | to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), subject to obtaining the prior consent of the initial purchasers for any such offer; or |
| • | in any other circumstances falling within Article 3(2) of the Prospectus Directive |
provided, that no such offer of the Offered Securities shall require us or any of the Reselling Purchasers to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an offer of Offered Securities to the public in relation to any Offered Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities to be offered so as to enable an investor to decide to purchase or subscribe the Offered Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression Prospectus Directive means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State.
This European Economic Area selling restriction is in addition to the other selling restrictions set out below.
1
France
The Reselling Purchaser(s) agree(s) that the Offered Securities are being issued outside of France.
Each Reselling Purchaser hereby represents, warrants and agrees that:
(a) no prospectus (including any amendment, supplement or replacement thereto) or any other offering material in connection with the offering of the Offered Securities has been submitted to the clearance procedures of the Autorité des marchés financiers or of the competent authority of another State that is a contracting party to the Agreement on the European Economic Area and notified to the Autorité des marchés financiers;
(b) it has not offered or sold and will not offer or sell, directly or indirectly, the Offered Securities to the public in France, and has not released, issued, distributed or caused to be released, issued or distributed to the public in France or used in connection with any offer for subscription or sale of the Offered Securities, the Prospectus or any other offering material relating to the Offered Securities, and that such offers, sales and distributions have been and shall be made in France only (i) to qualified investors (investisseurs qualifiés) and/or a restricted circle of investors (cercle restreint d’investisseurs), in each case investing for their own account and as provided in Articles L. 411-2, D. 411-1 to D. 411-4, D. 734-1, D. 744-1, D. 754-1 and D. 764-1 of the French Code monétaire et financier, or (ii) to investment services providers authorized to engage in portfolio management on behalf of third parties, or (iii) in a transaction that, in accordance with Article L.411-2-I-1°-or-2° -or 3° of the French Code monétaire et financier and Article 211-2 of the General Regulations (Règlement Général) of the Autorité des Marchés Financiers, does not constitute an offer of securities to the public (offre au public de titres financiers); and
(c) the Offered Securities may be resold only in compliance with Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the French Code monétaire et financier.
United Kingdom
Each Reselling Purchaser hereby represents, warrants and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Offered Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantor; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Offered Securities in, from or otherwise involving the United Kingdom.
Canada
Each Reselling Purchaser has represented, warranted and agreed not to offer, sell, solicit an offer to purchase or take any other action in furtherance of a trade in the Offered Securities in Canada unless such offer, sale, solicitation or other action is made pursuant to an exemption from the requirements to file a prospectus with the relevant Canadian securities regulators and only by a dealer properly registered under applicable provincial or territorial securities laws or, alternatively, pursuant to an exemption from the dealer registration requirement in the relevant province or territory of Canada in which such offer, sale, solicitation or other action is made or taken.
[Add other selling restrictions, if appropriate.]
2
SCHEDULE IV TO PURCHASE AGREEMENT
Pricing Disclosure Package
Pricing Prospectus
Final Term Sheet attached to the Purchase Agreement as Schedule V
[—]
1
SCHEDULE V TO PURCHASE AGREEMENT
Final Term Sheet
TOTAL CAPITAL INTERNATIONAL
(A wholly-owned subsidiary of TOTAL S.A.)
$[—] [—]% Guaranteed Notes Due [—],
Guaranteed on an unsecured, unsubordinated basis by
TOTAL S.A.
| Issuer |
Total Capital International | |
| Guarantee |
Payment of the principal of, premium, if any, and interest on the notes is guaranteed by TOTAL S.A. | |
| Format |
SEC-registered global notes | |
| Title |
[—] | |
| Total initial principal amount being issued |
$[—] | |
| Issue price |
[—]% | |
| Pricing date |
[—] | |
| Expected settlement date |
[—] (T+[—]) | |
| Maturity date |
[—], unless earlier redeemed | |
| Day count |
[30/360] | |
| Day count convention |
Following, unadjusted | |
| Optional redemption terms |
Make-whole call at Treasury Rate plus [—] basis points | |
| Tax call at par | ||
| Interest rate |
[—]% per annum | |
| Benchmark Treasury |
[—]% due [—] | |
| Benchmark Treasury price |
[—]-[—] | |
| Benchmark Treasury yield |
[—]% | |
| Spread to benchmark Treasury |
[—] bps | |
| Yield to maturity |
[—]% | |
| Date interest starts accruing |
[—] | |
| Interest payment dates |
Each [—] and [—] | |
1
| First interest payment date |
[—] | |
| Regular record dates for interest |
Each [—] and [—] | |
| Trustee |
The Bank of New York Mellon | |
| Listing |
None | |
| Denominations |
$[—] and increments of $[—] | |
| Expected ratings of the notes |
Moody’s: [—] | |
| Standard & Poor’s: [—] | ||
| Ratings are not a recommendation to purchase, hold or sell notes, inasmuch as the ratings do not comment as to market price or suitability for a particular investor. The ratings are based upon current information furnished to the rating agencies by Total Capital International and TOTAL S.A. and information obtained by the rating agencies from other sources. The ratings are only accurate as of the date thereof and may be changed, superseded or withdrawn as a result of changes in, or unavailability of, such information, and therefore a prospective purchaser should check the current ratings before purchasing the notes. Each rating should be evaluated independently of any other rating. | ||
| CUSIP / ISIN |
[—]/[—] | |
| Selling restrictions |
European Economic Area, France, UK, Canada, [Other] | |
| Managers |
[—] | |
[Other terms]
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free +[—].
2
ANNEX A TO THE PURCHASE AGREEMENT
TOTAL CAPITAL INTERNATIONAL
PURCHASE AGREEMENT STANDARD PROVISIONS
(2015 Edition)
1
From time to time, Total Capital International, a société anonyme organized under the laws of the Republic of France (the “Company”), may enter into one or more purchase agreements that provide for the sale of designated securities to the purchaser or purchasers named therein (each a “Purchaser”). The standard provisions set forth herein may be incorporated by reference in any such purchase agreement (each a “Purchase Agreement”). The Purchase Agreement relating to any particular sale of Offered Securities, including the provisions incorporated therein by reference, is herein referred to as this “Agreement”. Unless otherwise defined herein, terms defined in such Purchase Agreement are used herein as defined in the Purchase Agreement.
I.
The Company proposes to issue debt securities (the “Securities”) from time to time pursuant to the provisions of an Indenture to be entered into among the Company, TOTAL S.A. (the “Guarantor”) and The Bank of New York Mellon, as trustee (the “Trustee”), on or before the Closing Date (as defined below). Pursuant to the Indenture, the Guarantor will guarantee payment of the principal of (and premium, if any) and interest on the Securities (the obligations of the Guarantor in respect of any Offered Securities is referred to as the “Guarantee”). The Securities may have varying designations, maturities, rates and times of payment of interest, selling prices and redemption and other terms.
II.
If a Purchaser advises the Company and the Guarantor in the Purchase Agreement that it intends to resell the Offered Securities, the Company and the Guarantor will provide assistance as hereinafter provided. The terms of any such resale will be set forth in the Prospectus. The provisions of Articles V, VII, VIII, X and XI of this Agreement will apply only to a Purchaser advising the Company and the Guarantor in accordance with the first sentence of this Article II (a “Reselling Purchaser”).
III.
Payment for the Offered Securities shall be made by wire transfer or by certified or official bank check or checks payable to the order of the Company in immediately available Federal funds or in New York Clearing House funds as agreed to by the parties and at the time and place set forth in the Purchase Agreement, upon delivery to the Purchaser of the Offered Securities registered in such names and in such denominations as the Purchaser shall request in writing not less than one full business day prior to the date of delivery. The time and date of such payment and delivery with respect to the Offered Securities are herein referred to as the “Closing Date”.
IV.
The Company and the Guarantor jointly and severally represent and warrant to, and agree with each Purchaser, as of the date of the Purchase Agreement, that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”) on Form F-3 (File No. 333-[—]) relating
2
to the Securities to be issued from time to time by the Company has been filed with the U.S. Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of the applicable Pricing Prospectus; such registration statement and any post-effective amendment thereto became effective on filing; no stop order suspending the effectiveness of such registration statement, any post-effective amendment thereto or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company and the Guarantor, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by either the Company or the Guarantor. For purposes of this Agreement:
| (i) | 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 the applicable Purchase Agreement relating to the Offered Securities, is hereinafter referred to as the “Base Prospectus”; |
| (ii) | any preliminary form of prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act is hereinafter referred to as a “Preliminary Prospectus”; |
| (iii) | the various parts of such registration statement, including all exhibits thereto (but excluding Form T-1) and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively referred to as the “Registration Statement”; |
| (iv) | the Base Prospectus, as amended and supplemented (by any Preliminary Prospectus or otherwise) immediately prior to the Applicable Time (as defined in the applicable Purchase Agreement with respect to the Offered Securities), is hereinafter referred to as the “Pricing Prospectus”; |
| (v) | the form of the final prospectus relating to the Offered Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Article VII(a) hereof, is hereinafter referred to as the “Prospectus”; |
| (vi) | any reference in this Agreement to the Base Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Securities Act, as of the date of such prospectus; |
| (vii) | any reference to any amendment or supplement to the Base Prospectus, any Preliminary Prospectus 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 Offered Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the date of the Base Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be; |
| (viii) | any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report or Form 6-K of the Guarantor 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 |
3
| (ix) | the “Applicable Time” is the time specified as such in the applicable Purchase Agreement. |
(b) No order preventing or suspending the use of any Preliminary Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Securities (an “Issuer Free Writing Prospectus”) has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
(c) The Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Article V(c) hereof and any Issuer Free Writing Prospectus listed in Schedule IV to the applicable Purchase Agreement (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus agreed pursuant to Article V(a) hereof and listed on Schedule II(a) to the applicable Purchase Agreement does not conflict with the information contained or incorporated by reference in the Registration Statement, the Pricing Prospectus or the Prospectus, and each such Issuer Free Writing Prospectus, as supplemented by, and taken together with, the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and neither the Company nor the Guarantor has used any Issuer Free Writing Prospectuses other than those listed on Schedule II(a) and Schedule IV to the applicable Purchase Agreement; provided, however, that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
(d) The documents incorporated by reference in the Pricing Prospectus and Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
4
necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of the Purchase Agreement and prior to the execution of the Purchase Agreement, except as set forth on Schedule II(b) to the Purchase Agreement.
(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
(f) Each of the Company and the Guarantor is validly existing as a société anonyme and in good standing under the laws of France and has all the requisite power and authority to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement, the Indenture, and in the case of the Guarantor, the Guarantee.
(g) Each of the Guarantor and the Company has taken all necessary corporate action required by its statuts and by the laws of France to authorize the execution of the Purchase Agreement and the Indenture, and in the case of the Guarantor, the Guarantee. The Company has taken all necessary corporate action required by its statuts and by the laws of France to authorize the issuance and sale of the Offered Securities.
(h) The Purchase Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(i) The Indenture, when executed and delivered, will be duly authorized, executed and delivered by each of the Company and the Guarantor and will constitute a valid and legally binding obligation of the Company and the Guarantor, and the Indenture has been duly qualified under the Trust Indenture Act.
(j) The Offered Securities to be issued by the Company and the Guarantee to be issued by the Guarantor have been duly authorized, and when issued, delivered and authenticated, as provided in the Indenture, will be duly and validly issued and will constitute legal, valid and binding obligations enforceable against the Company and the Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and entitled to the benefits of the Indenture.
5
(k) The Offered Securities to be issued by the Company will rank at least pari passu with all of the Company’s other unsecured and unsubordinated indebtedness. The obligations of the Guarantor in respect of the Guarantee will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Guarantor.
(l) No consent, approval, authorization or order of, or filing with, any regulatory authority in the United States of America or France is legally required for the execution of the Indenture, the issuance and sale of the Offered Securities to the Purchasers pursuant to the Purchase Agreement or the execution of the Guarantee by the Guarantor, other than the filings with, and the orders of, the Commission in connection with the registration of the Offered Securities and the Guarantee under the Securities Act and the qualification of the Indenture under the Trust Indenture Act, except that the offer and sale of the Offered Securities in certain jurisdictions may be subject to the provisions of the securities or Blue Sky laws of such jurisdictions.
(m) Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities or the Guarantee, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Company and the Guarantor, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of its properties or assets, or (ii) violate or result in a breach or a default under any of the terms of its statuts, any contract or instrument to which it is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which it is subject or by which it or its property is bound, which breach or default would have a material adverse effect on its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities, the Indenture or the Guarantee, or the validity of the Offered Securities.
(n) Except as disclosed in the Pricing Prospectus and the Prospectus, there is no litigation or governmental proceeding pending, or to its actual knowledge threatened, against or affecting the Guarantor or any of its subsidiaries that would result in a material adverse change in its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company, the Indenture, or, in the case of the Guarantor, the Guarantee.
(o) Neither the Company nor the Guarantor is an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(p) The statements set forth in the Pricing Prospectus and the Prospectus under the heading “Tax Considerations”, to the extent that they purport to summarize certain provisions of the United States federal income tax law and regulations, or certain provisions of the French tax law and regulations, constitute a fair summary of such provisions in all material respects.
(q) Except as described in the Pricing Prospectus and the Prospectus, there are no withholding taxes or stamp or other similar issuance or transfer taxes or duties imposed or payable in France or the United States or any political subdivision or taxing authority thereof or therein by or on behalf of the Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement (provided such sale and delivery is not recorded in a deed registered in France).
6
(r) Interest payments made by the Company in respect of the Offered Securities and by the Guarantor in respect of the Guarantee may be made to holders of Securities that are not Shareholders of the Company without withholding or deduction for or on account of any taxes, duties, assessments or charges of whatever nature imposed or levied by or on behalf of the French Republic or any political subdivision or authority thereof or therein provided that they are not paid to a person incorporated, domiciled, established, acting through a branch or to an account opened in a non-cooperative State or territory within the meaning of article 238-0 A of the French tax code (Code général des impôts), as amended from time to time.
(s) (i) At the time of the filing of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13(a) or 15(d) of the Exchange Act or form of prospectus) and (iii) at the time either of the Company or the Guarantor or any person acting on its behalf (within the meaning of, for this clause only, Rule 163(c) under the Securities Act) made any offer relating to the Offered Securities in reliance on the exemption provided by Rule 163, each of the Company and the Guarantor was a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been an “ineligible issuer” as defined in Rule 405.
(t) (i) At the earliest time after the filing of the Registration Statement that the Company, the Guarantor or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Offered Securities and (ii) at the date of the Purchase Agreement, neither the Company nor the Guarantor was, nor is, an “ineligible issuer,” as defined in Rule 405 under the Securities Act.
(u) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, neither the Company nor the Guarantor nor, to the best of the knowledge of the Company or the Guarantor, any of their respective subsidiaries or their respective directors, officers or employees acting on behalf of the Company or the Guarantor, has engaged in any activity or conduct which would violate in any material respect the U.S. Foreign Corrupt Practices Act or any other applicable anti-bribery or anti-corruption law or regulation, and the Company and the Guarantor have instituted and maintain policies and procedures reasonably designed to prevent violation of such laws, regulations and rules.
(v) Except as otherwise disclosed to the Reselling Purchasers, none of the Company, the Guarantor, any of their respective subsidiaries or, to the best of the knowledge of the Company or the Guarantor, any of their respective directors or officers is a person or entity with whom dealings are restricted or prohibited by Sanctions, and the Company will not directly or indirectly use the proceeds from any offering of Offered Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, or other person or entity, in any manner that would result in a violation of Sanctions, and the Company and the Guarantor have instituted and maintain policies and procedures reasonably designed to prevent violation of Sanctions. “Sanctions” under this provision means any economic sanctions (i) which are administered by (x) the United States, including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), (y) the European Union or (z) the United Nations, and (ii) which are applicable at the time the representations and warranties under this Article IV(v) are made.
(w) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, the operations of the Company, the Guarantor and their respective subsidiaries are and have been conducted in compliance with money laundering statutes and the rules and regulations thereunder to the extent applicable to the Company and the Guarantor (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental entity, authority or body or any arbitrator or non-governmental authority involving the Company, the Guarantor or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the best of the Company and the Guarantor’s knowledge and belief, threatened that would result in a material adverse effect in the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole.
7
V.
(a) Each of the Company and the Guarantor represents and agrees that, unless it obtains the prior consent of the Reselling Purchasers, and each Reselling Purchaser represents and agrees that, unless it obtains the prior consent of the Company and the Guarantor, in each case except for the final term sheet prepared and filed pursuant to Article V(c) hereof, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act. Any such free writing prospectus consented to by the Company, the Guarantor and the Reselling Purchasers is hereinafter referred to as a “Permitted Free Writing Prospectus” and, if prior to the date of the Purchase Agreement, is listed on Schedule II(a) to the Purchase Agreement.
(b) Each of the Company and the Guarantor represents that it has complied and will comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission (or retention where required) and legending.
(c) The Company and the Guarantor will prepare a final term sheet relating to the Offered Securities (attached to the Purchase Agreement as Schedule V), containing only information that describes the final terms of the Offered Securities and otherwise in a form consented to by the Reselling Purchasers, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date such final terms have been established for the offering of the Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. Each of the Company and the Guarantor consents to the use by any Reselling Purchaser of a free writing prospectus that contains substantially only (i) information describing the preliminary terms of the Offered Securities or their offering or (ii) information that describes the final terms of the Offered Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection (including, for purposes of subsections (i) and (ii), any such information that is transmitted via Bloomberg screen notice).
(d) If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement, the Pricing Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, (i) the Company or the Guarantor has promptly notified or will promptly notify the Reselling Purchasers and (ii) the Company or the Guarantor has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this provision shall not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished to the Company or the Guarantor in writing by any Reselling Purchaser expressly for use therein.
8
VI.
The obligations of each Purchaser hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; there shall have been no material adverse change in the condition of the Guarantor and its subsidiaries taken as a whole, except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus; and the Purchaser shall have received, on the Closing Date, certificates dated the Closing Date and signed by officers of the Company and the Guarantor or other duly authorized persons, to the foregoing effect and to the effect that the representations and warranties of the Guarantor and Company are true and correct as of the Closing Date. The officers or other persons making such certificates may each rely upon the best of their knowledge as to proceedings pending or threatened. The final term sheet contemplated by Article V(c) hereof, and any other material required to be filed by the Company and/or the Guarantor pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act.
(b) The Purchaser shall have received on the Closing Date an opinion or opinions of the General Counsel or Associate General Counsel of the Guarantor or other counsel reasonably satisfactory to the Purchaser, as to certain matters of French, New York and United States federal law, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Purchaser shall have received on the Closing Date an opinion in respect of the Company of the General Counsel or Associate General Counsel of the Guarantor or other French counsel reasonably satisfactory to the Purchaser, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(d) The Purchaser shall have received on the Closing Date an opinion of counsel for the Purchaser, dated the Closing Date, in form and substance reasonably satisfactory to the Purchaser.
(e) The Purchaser shall have received on each of the date of pricing of Offered Securities and the Closing Date a letter from the independent auditors for the Guarantor, dated the date of pricing of Offered Securities and the Closing Date, respectively, to the effect set forth in Exhibit C hereto.
(f) Since the date of the Purchase Agreement, no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
9
(g) On or prior to the Closing Date, the Company shall have furnished to the Purchaser such further available information and certificates as the Purchaser may reasonably request.
VII.
In further consideration of the agreements contained herein of any Reselling Purchaser, the Company and the Guarantor covenant to such Reselling Purchaser as follows:
(a) To prepare and file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the date of the Purchase Agreement or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement, the Base Prospectus, the Pricing Prospectus or the Prospectus after the date of the applicable Purchase Agreement and prior to the Closing Date which shall have been reasonably disapproved by the Reselling Purchasers promptly after reasonable notice thereof (which notice the Company and the Guarantor undertake to provide); to advise the Reselling Purchasers, promptly after they receive notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish to any Reselling Purchaser with copies thereof; to file promptly all reports required to be filed by the Company or the Guarantor with the Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Offered Securities, and during such same period to advise the Reselling Purchasers, promptly after the Company or the Guarantor receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus or free writing prospectus relating to the Offered Securities, of the suspension of the qualification of such Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information, and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus or free writing prospectus relating to the Offered Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order.
(b) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement any of the Securities remain unsold by the Reselling Purchasers, to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities in a form satisfactory to the Reselling Purchasers. If at the Renewal Deadline the Company or the Guarantor is no longer eligible to file an automatic shelf registration statement, the Company and the Guarantor will, if they have not already done so, file a new shelf registration statement relating to the Securities in a form satisfactory to the Reselling Purchasers and will use reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline, and it will take all other action necessary to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References in this Agreement to the Registration Statement shall include any such new automatic shelf registration statement or any such new shelf registration statement, as the case may be.
10
(c) To furnish the Reselling Purchasers with a copy of the signed Registration Statement (including exhibits thereto) and with copies of the Prospectus, as amended or supplemented, in such quantities as the Reselling Purchasers may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any time in connection with the offering or sale of the Offered Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, the Exchange Act and the Trust Indenture Act, to notify the Reselling Purchasers and upon their request to file such document and to prepare and furnish to each Reselling Purchaser and to any dealer in securities as many copies as the Reselling Purchasers may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(d) To qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States of America as the Reselling Purchaser shall reasonably request and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions in the United States of America as the Reselling Purchaser may designate.
(e) As soon as practicable after the date of each Purchase Agreement, to make generally available to the Guarantor’s and the Company’s securityholders an earnings statement covering a period of at least 12 months beginning after the date of such Purchase Agreement and satisfying the provisions of Section 11(a) of the Securities Act (including Rule 158 thereunder).
(f) During the period beginning on the date of this Agreement and terminating after the number of days, if any, indicated under “Restriction on Additional Sales” in the Purchase Agreement, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Offered Securities, without the prior written consent of the Reselling Purchaser.
(g) If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, to notify promptly the Reselling Purchaser so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.
11
VIII.
The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Reselling Purchaser and each person, if any, who controls such Reselling Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus (if used within the period set forth in paragraph (c) of Article VII hereof and as amended or supplemented if the Company or the Guarantor shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Company or the Guarantor by any Reselling Purchaser expressly for use therein.
Each Reselling Purchaser severally agrees to indemnify and hold harmless the Company and the Guarantor, their directors, their officers who sign the Registration Statement and any person controlling the Company or the Guarantor to the same extent as the foregoing indemnity from the Company and the Guarantor to each Reselling Purchaser, but only with reference to information relating to such Reselling Purchaser furnished in writing by such Reselling Purchaser expressly for use in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such other person (the “indemnified party”) shall promptly notify the person or persons against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by the Reselling Purchaser in the case of parties indemnified pursuant to the second preceding paragraph and by the Company or the Guarantor in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is unavailable to an indemnified party other than as a result of the proviso to the first paragraph of Article VIII or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Reselling Purchaser on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantor on the one hand and of the Reselling Purchaser on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Reselling Purchaser on the other in connection with the offering of the Offered Securities shall be deemed to be in the same proportion as the total net proceeds from the offering of such Offered Securities (before deducting expenses) received by the Company bear to the total commissions, if any, received by the Reselling Purchaser in respect thereof. If there are no commissions allowed or paid by the Company or the Guarantor to the Reselling Purchaser in respect of the Offered Securities, the relative benefits received by the Reselling Purchaser in the preceding sentence shall be the difference between the price received by such Reselling Purchaser upon resale of the Offered Securities and the price paid for such Offered Securities pursuant to the Purchase Agreement. The relative fault of the Company and the Guarantor on the one hand and of the Reselling Purchaser on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantor or by the Reselling Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
12
The Company, the Guarantor and the Reselling Purchaser agree that it would not be just and equitable if contribution pursuant to this Article VIII were determined by pro rata allocation or by any other method of allocation which does not take account of the considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VIII, no Reselling Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities resold to the public by such Reselling Purchaser were offered to the public exceeds the amount of any damages which such Reselling Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VIII and the representations and warranties of the Company and the Guarantor in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by any Reselling Purchaser or on behalf of any Reselling Purchaser or any person controlling any Reselling Purchaser and (iii) acceptance of and payment for any of the Offered Securities.
Each of the Guarantor and the Company agrees that any legal suit, action or proceeding brought by any Reselling Purchaser to enforce the indemnity agreements contained in this Article VIII may be instituted in any state or Federal court in the Borough of Manhattan, The City of New York, New York, United States of America, waives, to the extent it may effectively do so, any objection which it may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. Each of the Guarantor and the Company has designated and appointed Corporation Service Company (or any successor corporation) as the authorized agent of each of the Guarantor and the Company to accept and acknowledge on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such court and agrees that service of process upon said agent at its office at 1180 Avenue of the Americas, Suite 210, New York, NY 10036 (or such other address in the Borough of Manhattan, The City of New York, as the Guarantor or the Company, as applicable, may designate by written notice to you), shall be deemed in every respect effective service of process upon the Guarantor or the Company, as applicable, in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Guarantor or the Company, as applicable, whether or not the Guarantor or the Company, as applicable, shall then be doing, or at any time shall have done, business within the State of New York, and any such service of process shall be of the same force and validity as if service were made upon it according to the laws governing the validity and requirements of such service in such State, and waives all claim of error by reason of any such service. Said designation and appointment shall be irrevocable until the principal of and interest on the Offered Securities and all other sums owing by the Company or the Guarantor to holders of the Offered Securities in accordance with the provisions of the Offered Securities and the Indenture have been paid in full by the Company or the Guarantor in accordance with the provisions thereof. Each of the Guarantor and the Company agrees to take all action as may be necessary to continue the designation and appointment of Corporation Service Company or any successor corporation in full force and effect so that the Guarantor shall at all times have an agent for service of process for the above purposes in the Borough of Manhattan, The City of New York, New York, United States of America.
13
IX.
Any payments to any Purchaser hereunder (each Purchaser is hereinafter referred to in this Article IX as a “Payee”) shall be in United States dollars and shall be payable free and clear of, and without deduction or withholding for, or on account of, any and all present or future taxes, duties, assessments, levies and other governmental charges of any nature whatsoever now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of France or any other jurisdiction from which such payments are made, or any territory or political subdivision thereof, unless such deduction or withholding is required by law (“Foreign Taxes”). If by operation of law or otherwise, Foreign Taxes are required to be deducted or withheld from any amounts payable to a Payee, the Company or the Guarantor, as the case may be, agrees to pay such additional amounts to each Payee (the “Additional Amounts”) as may be necessary to ensure that the net amount actually received by the Payee, after deduction of any Foreign Taxes imposed with respect to the payment of such Additional Amounts, shall equal the amount the Payee would have received if Foreign Taxes had not been deducted or withheld from such payment; provided, however, that no Additional Amounts shall be so payable for or on account of: (i) any Foreign Taxes which would not have been imposed but for the fact that any Payee had a present or former personal or business connection with France or any other jurisdiction from which payments are made, or any territory or political subdivision thereof other than the mere ownership of, or receipt of payment under, the Offered Securities; (ii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; or (iii) any Foreign Taxes which are payable otherwise than by withholding or deduction.
The Company and the Guarantor, jointly and severally, agree to indemnify each Purchaser against any loss incurred by any such Purchaser as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Payee upon receipt of the Judgment Currency could have purchased United States dollars with the amount of Judgment Currency actually received by such Payee. The foregoing indemnity shall constitute a separate and independent obligation of the Company and the Guarantor, and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
14
X.
This Agreement shall be subject to termination in the absolute discretion of any Reselling Purchaser, by notice given to the Company and the Guarantor, if prior to the Closing Date (i) trading in securities generally or trading in the Guarantor’s securities on either Euronext Paris or the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York or France shall have been declared by either Federal, New York State or French authorities or a material disruption in commercial banking or securities settlement or clearance services within the United States or the European Union shall have occurred or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States or the European Union is such as to make it, in the judgment of such Reselling Purchaser, impracticable to resell the Offered Securities.
XI.
Without prejudice to the provisions of Article VII(d) and Article XIII hereof, the Reselling Purchasers jointly agree to pay all expenses incident to the issuance of the Offered Securities, including but not limited to:
(a) the fees and disbursements of the counsel to the Reselling Purchasers in connection with the issuance of the Offered Securities;
(b) the fees and expenses incurred in connection with the approval by The Depository Trust Company and other clearing and settlement organizations for the clearance through their respective systems; and
(c) all documented out-of-pocket expenses incurred by the Reselling Purchasers.
XII.
Notwithstanding the provisions of Article XI hereof, the Company and the Guarantor jointly agree to pay the following expenses incident to the issuance of the Offered Securities:
(a) the Commission filing fees;
(b) the fees and disbursements of counsel to and the independent auditors of the Company and Guarantor in connection with the issuance of the Offered Securities;
(c) the printing and delivery to the Reselling Purchasers of copies of the Prospectus and any amendment or supplement thereto, and the preparing, printing and distributing of any Issuer Free Writing Prospectus to investors or prospective investors; and
15
(d) the costs of the Trustee in connection with the issuance of the Offered Securities including the reasonable fees and disbursements of counsel for the Trustee.
XIII.
If this Agreement shall be terminated by the Purchaser(s) because of any failure or refusal on the part of the Company or the Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company or the Guarantor shall be unable to perform its obligations under this Agreement, the Company or the Guarantor will reimburse the Purchaser(s) for all out-of-pocket expenses (including the fees and disbursements of counsel) reasonably incurred by such Purchaser(s) in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
The Company and the Guarantor each acknowledge and agree that (a) the purchase and sale of the Offered Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the several Reselling Purchasers, on the other, (b) in connection therewith and with the process leading to such transaction each Reselling Purchaser is acting solely as a principal and not the agent or fiduciary of the Company or the Guarantor and (c) no Reselling Purchaser has assumed a fiduciary responsibility in favor of the Company or the Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Reselling Purchaser has advised or is currently advising the Company or the Guarantor on other matters) or any other obligation to the Company or the Guarantor except the obligations expressly set forth in this Agreement. The Company and the Guarantor each agree that it will not claim that the Reselling Purchasers, or any of them, owes a fiduciary or similar duty to the Company or the Guarantor in connection with such transaction or the process leading thereto.
16
EXHIBIT A
OPINION OF GUARANTOR COUNSEL
You shall have received on and as of the Closing Date an opinion or opinions of the General Counsel or Associate General Counsel of the Guarantor, or other counsel reasonably satisfactory to you, subject to customary assumptions and qualifications, to the effect that:
| (1) | Each of the Company and the Guarantor is validly existing as a société anonyme under the laws of France and has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Offered Securities, the Purchase Agreement, the Indenture, and in the case of the Guarantor, the Guarantee. |
| (2) | The Purchase Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor. |
| (3) | The Indenture has been duly authorized, executed and delivered by each of the Company and the Guarantor and constitutes a valid and legally binding obligation of the Company and the Guarantor enforceable against the Company and the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (hereinafter called the “Trust Indenture Act”). |
| (4) | The Offered Securities to be issued by the Company have been duly authorized and, when issued, delivered and authenticated as provided in the Indenture, will be duly and validly issued and will constitute legal, valid and binding obligations enforceable against the Company in accordance with their terms, entitled to the benefits of the Indenture, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (5) | Upon due execution, authentication and delivery of the Offered Securities, upon which the text of the Guarantee has been endorsed as contemplated in the Indenture, the Guarantee will constitute a valid and legally binding obligation of the Guarantor with respect to the Offered Securities, enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (6) | All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company or the Guarantor under the Federal laws of the United Sates, the laws of the State of New York or the laws of the French Republic for the issuance, sale and delivery of the Offered Securities by the Company to the Reselling Purchasers have been obtained or made. |
| (7) | Neither the Company nor the Guarantor is, or after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Pricing Prospectus and the Prospectus, will be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
A-1
| (8) | There are no stamp or other similar issuance or transfer taxes or duties imposed or payable in France or the United States or any political subdivision or taxing authority thereof or therein by or on behalf of the Reselling Purchasers in connection with (A) the issuance, sale and delivery of the Offered Securities to or for the account of the Reselling Purchasers in the manner contemplated in the Purchase Agreement or (B) the sale and delivery by the Reselling Purchasers of the Offered Securities to the purchasers thereof in connection with the distribution of the Offered Securities in the manner contemplated in the Purchase Agreement (provided such sale and delivery is not recorded in a deed registered in France). |
| (9) | The choice of the laws of the State of New York to govern the Purchase Agreement, the Indenture, the Offered Securities and the Guarantee is a valid choice of law, and a French court would uphold such choice of law in any proceeding on the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee brought before it, provided that the relevant content of New York law is duly proved in any such proceedings and that the application of New York law (i) is not found to be contrary to mandatory provisions of the law of any jurisdiction presenting a close connection with the transaction, which under the laws of such jurisdiction are applicable irrespective of the law governing the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee, as the case may be, (ii) is not found to be contrary to a provision of French law whose application to the situation is found mandatory irrespective of the law governing the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee (lois de police) and (iii) is not found to be manifestly contrary to a provision of French international public policy (ordre public international), and provided further that in original actions brought in French courts certain questions of procedural law and public policy would be governed by French law and a French court could set aside the choice of New York law if such choice was held to have been intended to avoid a provision of French law which otherwise would have been mandatorily applicable. |
| (10) | Under the laws of the State of New York relating to personal jurisdiction, the Company has, pursuant to Section VIII of the Purchase Agreement and Section 114 of the Indenture, validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the Borough of Manhattan, The City of New York, New York (each a “New York Court”) in any action arising out of or relating to this Purchase Agreement or the transactions contemplated hereby. |
| (11) | Any final judgment for a sum of money against the Company or the Guarantor in relation to the Purchase Agreement, the Indenture, the Offered Securities or the Guarantee rendered by a competent New York court, applying New York law, would be recognized and enforced by competent French courts without a review of the merits, provided that (i) the court rendering the judgment had proper jurisdiction; (ii) fundamental procedural rights were duly complied with by the court rendering the judgment; (iii) the court rendering the judgment applied New York law as the law expressed to be governing the Purchase Agreement, the Indenture, the Offered Securities and the Guarantee, as the case may be; and (iv) the judgment is not (a) contrary to French public policy (ordre public) as applicable in the context of enforcement of foreign judgments or (b) tainted by fraud. |
| (12) | Such counsel shall also state that they have reviewed the Registration Statement relating to the Securities (File No. 333-[—]) (the “Registration Statement”), the Prospectus included in the Registration Statement (the “Base Prospectus”), the Prospectus Supplement dated [—] (the “Prospectus Supplement”) and documents listed in Schedule [—] (those listed documents, taken together with the Base Prospectus, being referred to as the “Pricing Disclosure Package”) and participated in discussions with representatives of the Company and the Guarantor and their independent accountants and representatives of the Purchasers and their counsel. Between the date of the Prospectus Supplement and the time of the delivery of this letter, such counsel participated in further discussions with representatives of the Purchasers and those of the Company and the Guarantor and their independent accountants, concerning certain matters relating to the Company and the Guarantor and reviewed certificates of certain officers of the Company and the Guarantor, letters addressed to the Reselling Purchasers from the Company’s independent accountants and legal opinions addressed to the Reselling Purchasers from the Guarantor’s group general counsel. On the basis of the information that they gained in the course of the performance of such services, considered in light of their understanding of the applicable law (including the requirements of Form F-3 and the character of the prospectus contemplated thereby) and the experience they have gained through their practice under the Securities Act, such counsel shall confirm to the Reselling Purchasers that, in their opinion, the Registration Statement [as of the date of the Prospectus Supplement], and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities to the requirements of the Securities Act, the Trust Indenture Act of 1939 and the applicable rules and regulations of the Securities and Exchange Commission thereunder. Such counsel shall confirm to the Purchasers that the statements made under the captions “Description of Debt Securities and Guarantee”, “Plan of Distribution” and “Tax Considerations” in the Base Prospectus and under the caption “Description of Notes” and “Underwriting” in the Prospectus Supplement, insofar as they relate to the provisions of documents or of French or United States federal tax law therein described, constitute a fair and accurate summary of such provisions in all material respects. Such counsel shall further state that nothing that came to the attention of such counsel in the course of such review has caused them to believe that, insofar as relevant to the offering of the Securities (i) the Registration Statement, [as of the time of the Prospectus Supplement], contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package, as of [—][A/P].M. on [—],[—][the Applicable Time set forth in the Purchase Agreement], [when considered together with the price to the public and underwriting discount for the Securities set forth on the cover of the Prospectus Supplement and the statements made under caption “Description of Notes” in the Prospectus Supplement,] contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. |
Such counsel shall also advise the Reselling Purchasers that nothing came to the attention of such counsel in the course of the procedures described in the second sentence in the preceding paragraph that has caused them to believe that, the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date and time of delivery of such counsel’s letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
A-2
Such opinion may state (1) that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, except to the extent specifically noted in the fourth sentence of the second preceding paragraph, and (2) that they do not express any opinion or belief as to the financial statements or other financial data derived from the accounting records contained in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, as to management’s report of its assessment of the effectiveness of the internal control over financial reporting or the auditors’ report as to the internal control over financial reporting, each as included in the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to the statement of the eligibility and qualification of the Trustee under the Indenture under which the Securities are being issued.
| (13) | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities or the Guarantee, nor the fulfilment of or compliance with the terms and provisions hereof or thereof by the Guarantor, will violate or result in a breach or a default under any of the terms of its statuts, or, to the best of such counsel’s knowledge, any contract or instrument to which it is a party or by which it or its property is bound or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality to which it is subject or by which it or its property is bound, which violation, breach or default would have a material adverse effect on the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities, the Indenture or the Guarantee, or the validity of the Offered Securities. |
| (14) | To the best of such counsel’s knowledge and except as disclosed in the Prospectus, there is no litigation or governmental proceeding pending, or to such counsel’s knowledge threatened, against or affecting the Guarantor or any of its subsidiaries that would result in a material adverse change in the condition (financial or otherwise) or operations of the Guarantor and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company, the Indenture or the Guarantee. |
A-3
EXHIBIT B
OPINION OF COUNSEL TO THE COMPANY
You shall have received on and as of the Closing Date an opinion of the General Counsel or Associate General Counsel of the Guarantor, or other counsel reasonably satisfactory to you, subject to customary assumptions and qualifications, to the effect that:
| 1. | Neither the execution of the Purchase Agreement and the Indenture, nor the issuance of the Offered Securities, nor the fulfilment of or compliance with the terms and provisions hereof or thereof by the Company, will violate or result in a breach or a default under any of the terms of its statuts, or, to the best of such counsel’s knowledge, any contract or instrument to which it is a party or by which it or its property is bound or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality to which it is subject or by which it or its property is bound, which violation, breach or default would have a material adverse effect on its condition (financial or otherwise) or operations or its ability to perform its obligations under the Purchase Agreement, the Offered Securities or the Indenture, or the validity of the Offered Securities. |
| 2. | To the best of such counsel’s knowledge and except as disclosed in the Prospectus, there is no litigation or governmental proceeding pending, or to such counsel’s knowledge threatened, against or affecting the Company or any of its subsidiaries that would result in a material adverse change in the condition (financial or otherwise) or operations of the Company and its consolidated subsidiaries, taken as a whole, or its ability to perform its obligations under the Purchase Agreement, the Offered Securities issued by the Company and the Indenture. |
B-1
EXHIBIT C
LETTER OF INDEPENDENT AUDITORS
The letter of the independent auditors for the Guarantor, to be delivered pursuant to Article VI, paragraph (e) of the document entitled Purchase Agreement Standard Provisions (2015 Edition) (the “Standard Provisions”) shall be to the effect that:
| (i) | Such auditors are independent registered public accounting firms with respect to the Guarantor within the meaning of the Securities Act of 1933, as amended, and the applicable published rules and regulations thereunder. |
| (ii) | In the opinion of such auditors, the consolidated financial statements included in the Annual Report on Form 20-F of the Guarantor most recently filed with the Securities and Exchange Commission (the “Annual Report”) comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the published rules and regulations thereunder. |
| (iii) | Nothing has come to the attention of such auditors, as a result of performing the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100 Interim financial information, and other specified procedures not constituting an audit, that caused them to believe: |
| a. | that the unaudited interim condensed consolidated financial statements of the Guarantor, if any, incorporated by reference into the Registration Statement, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act of 1933, as amended, and the applicable published rules and regulations thereunder, or that any material modifications should be made to such unaudited interim condensed consolidated financial statements, for them to be in conformity with IFRS; or |
| b. | that there was any change in common shares, increase in consolidated non-current financial debt or any decrease in consolidated total non-current assets or consolidated shareholders’ equity of the Guarantor, except in all instances for changes, increases, or decreases that the Registration Statement discloses have occurred or may occur, as compared to the amounts shown on the balance sheet forming part of the unaudited interim condensed consolidated financial statements mentioned in a. above, provided the letter is issued not more than 135 days from the date of such balance sheet. |
If more than 135 days have elapsed from the date of the balance sheet forming part of the most recent audited consolidated financial statements or the most recent unaudited condensed consolidated financial statements with respect to which the auditors have performed the procedures specified by the PCAOB for a review of interim financial information, the letter of the independent auditors shall refer to statements made by the Guarantor’s management as to item iii.b above
| (iv) | Such auditors have performed other procedures that are customary for auditors’ comfort letters in registered debt offerings as required by the Reselling Purchaser(s). |
C-1
[TOTAL LETTERHEAD]
Paris, April 16, 2015
TOTAL S.A.
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Total Capital
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Total Capital Canada Ltd.
2900, 240 – 4th Avenue S.W.
Calgary, Alberta, T2P 4H4
Canada
Total Capital International
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Dear Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933, as amended (the “Act”), of an indeterminate aggregate amount of debt securities (the “Total Debt Securities”) of TOTAL S.A., a société anonyme organized under the laws of the Republic of France (“TOTAL”), guaranteed debt securities (the “Total Capital Guaranteed Securities”) of Total Capital, a société anonyme organized under the laws of the Republic of France (“Total Capital”), guaranteed debt securities (the “Total Canada Guaranteed Securities”) of Total Capital Canada Ltd., a corporation incorporated under the laws of Alberta, Canada (“Total Canada”), guaranteed debt securities (the “Total International Guaranteed Securities”) of Total Capital International, a société anonyme organized under the laws of the Republic of France (“Total International”) and the related guarantees of the Total Capital Guaranteed Securities, the Total Canada Guaranteed Securities and the Total International Guaranteed Securities (collectively referred to herein as the “Guarantees”) by TOTAL, I, as General Counsel of TOTAL, have examined such corporate records, certificates and other documents and such questions of law as I have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, I advise you that, in my opinion:
| (1) | each of TOTAL, Total Capital and Total International is a société anonyme duly incorporated and validly existing under the laws of the Republic of France; |
| (2) | the Indenture relating to the Total Debt Securities, when duly and validly executed by TOTAL in accordance with a valid resolution of the board of directors of TOTAL duly authorizing such execution, will be duly authorized; |
| (3) | the Indenture relating to the Total Capital Guaranteed Securities has been duly authorized and validly executed by each of Total Capital and TOTAL in accordance with a valid resolution of the board of directors duly authorizing such execution of Total Capital and TOTAL, respectively; |
| (4) | the Indenture relating to the Total Canada Guaranteed Securities has been duly authorized and validly executed by TOTAL in accordance with a valid resolution of the board of directors of TOTAL duly authorizing such execution, assuming due authorization and execution of such Indenture in accordance with applicable laws and regulations by Total Canada; |
| (5) | the Indenture relating to the Total International Guaranteed Securities has been duly authorized and validly executed by each of Total International and TOTAL in accordance with a valid resolution of the board of directors duly authorizing such execution of Total International and TOTAL, respectively; |
| (6) | the Total Debt Securities, when duly and validly issued in accordance with a valid resolution of the board of directors of TOTAL duly authorizing such issuance, will be duly authorized; |
| (7) | the Total Capital Guaranteed Securities, when duly and validly issued in accordance with a valid resolution of the board of directors of Total Capital duly authorizing such issuance, will be duly authorized; |
| (8) | the Total International Guaranteed Securities, when duly and validly issued in accordance with a valid resolution of the board of directors of Total International duly authorizing such issuance, will be duly authorized; and |
| (9) | each of the Guarantees, when duly and validly executed by TOTAL in accordance with a valid resolution of the board of directors of TOTAL duly authorizing each of such Guarantees, will be duly authorized. |
I have assumed that at the time of each authorization or issuance, there will not have occurred any change in applicable law or any amendment in the bylaws (statuts) of TOTAL, Total Capital or Total International, as the case may be, affecting such authorizations required for issuance of the Total Debt Securities, Total Capital Guaranteed Securities, the Total Canada Guaranteed Securities or the Total International Guaranteed Securities, as the case may be.
The foregoing opinion is limited to the laws of the Republic of France in force on this date and I am expressing no opinion as to the effect of the laws of any other jurisdiction. I understand you are relying as to all matters governed by the laws of the State of New York upon the opinion dated April 16, 2015, of Andrew Zdrahal, Group U.S. Securities Counsel to TOTAL, and as to matters governed by the laws of Canada upon the opinion dated April 16, 2015 of Bennett Jones LLP, Canadian counsel to Total Canada, which opinions are being delivered to you by such counsels.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement relating to the Total Debt Securities, the Total Capital Guaranteed Securities, the Total Canada Guaranteed Securities, the Total International Guaranteed Securities and the Guarantees and to the references to me under the caption “Validity of Securities” in the Prospectus included therein. In giving such consent I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
| /s/ MAARTEN SCHOLTEN |
| Maarten Scholten |
| General Counsel |
3
[TOTAL LETTERHEAD]
Paris, April 16, 2015
TOTAL S.A.
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Total Capital
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Total Capital Canada Ltd.
2900, 240 – 4th Avenue S.W.
Calgary, Alberta, T2P 4H4
Canada
Total Capital International
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Dear Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933, as amended (the “Act”), of an indeterminate aggregate amount of debt securities (the “Total Debt Securities”) of TOTAL S.A., a société anonyme organized under the laws of the Republic of France (“TOTAL”), guaranteed debt securities (the “Total Capital Guaranteed Securities”) of Total Capital, a société anonyme organized under the laws of the Republic of France (“Total Capital”), guaranteed debt securities (the “Total Canada Guaranteed Securities”) of Total Capital Canada Ltd., a corporation incorporated under the laws of Alberta, Canada (“Total Canada”), guaranteed debt securities (the “ Total International Guaranteed Securities”) of Total Capital International, a société anonyme organized under the laws of the Republic of France (“Total International”) (such securities collectively referred to herein as the “Debt Securities”) and the related guarantees of the Total Capital Guaranteed Securities, the Total Canada Guaranteed Securities and the Total International Guaranteed Securities (collectively referred to herein as the “Guarantees”) by TOTAL, I, as Group U.S. Counsel of TOTAL, have examined such corporate records, certificates and other documents and such questions of law as I have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, I advise you that, in my opinion, when (i) the Registration Statement on Form F-3 has been duly filed and has become automatically effective under the Act, (ii) each Indenture relating to the Debt Securities has been duly authorized and validly executed, (iii) the Debt Securities have been duly authorized and validly executed, and the terms of each of the Debt Securities and of their issuance and sale have been duly established in conformity with such respective Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument then binding upon TOTAL, Total Capital, Total Canada or Total International, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over TOTAL, Total Capital, Total Canada or Total International, as the case may be, (iv) the Guarantees have been duly authorized and validly executed, (v) the text of the Guarantees related to
each of the Debt Securities shall have been endorsed on the respective Debt Securities as contemplated in the respective Indenture, and (vi) each of the Debt Securities shall have been issued and sold as contemplated in the Registration Statement:
| (1) | each of the Debt Securities will constitute valid and legally binding obligations of TOTAL, Total Capital, Total Canada and Total International, respectively, subject in each case to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and |
| (2) | each of the Guarantees related to the Total Capital Guaranteed Securities, Total Canada Guaranteed Securities and Total International Guaranteed Securities will constitute a valid and legally binding obligation of TOTAL, subject in each case to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
The foregoing opinion is limited to the laws of the State of New York, and I am expressing no opinion as to the effect of the laws of any other jurisdiction. I understand you are relying as to all matters governed by the laws of the Republic of France upon the opinion dated April 16, 2015, of Maarten Scholten, General Counsel to TOTAL, and as to matters governed by the laws of Canada upon the opinion dated April 16, 2015, of Bennett Jones LLP, Canadian counsel to Total Canada, which opinions are being delivered to you by such counsels.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement relating to the Total Debt Securities, the Total Capital Guaranteed Securities, the Total Canada Guaranteed Securities, the Total International Guaranteed Securities and the Guarantees and to the references to me under the caption “Validity of Securities” in the Prospectus included therein. In giving such consent I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours,
|
| /s/ ANDREW ZDRAHAL |
| Andrew Zdrahal |
| Group U.S. Securities Counsel |
2
[Bennett Jones LLP Letterhead]
April 16, 2015
TOTAL S.A.
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Total Capital
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Total Capital Canada Ltd.
2900, 240 – 4th Avenue S.W.
Calgary, Alberta, T2P 4H4
Canada
Total Capital International
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Dear Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933, as amended (the “Act”), of an indeterminate aggregate amount of debt securities (the “TOTAL Debt Securities”) of TOTAL S.A., a société anonyme organized under the laws of the Republic of France (“TOTAL”), guaranteed debt securities (the “Total Capital Guaranteed Securities”) of Total Capital, a société anonyme organized under the laws of the Republic of France (“Total Capital”), guaranteed debt securities (the “Total Canada Guaranteed Securities”) of Total Capital Canada Ltd., a corporation incorporated under the laws of Alberta, Canada (“Total Canada”), guaranteed debt securities (the “Total International Guaranteed Securities”) of Total Capital International, a société anonyme organized under the laws of the Republic of France (“Total International”) and the related guarantees of the Total Capital Guaranteed Securities, the Total Canada Guaranteed Securities and the Total International Guaranteed Securities (collectively referred to herein as the “Guarantees”) by TOTAL, we, as Canadian counsel to Total Canada, have examined such corporate records, certificates and other documents and such questions of law as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion:
| 1. | Total Canada is a valid and subsisting corporation under the Business Corporations Act (Alberta); |
| 2. | the Indenture relating to Total Canada Guaranteed Securities has been duly and validly executed by Total Canada in accordance with a valid resolution of the board of directors of Total Canada, and, assuming due authorization and execution of such Indenture in accordance with applicable laws and regulations by TOTAL, has been duly authorized; and |
| 3. | the Total Canada Guaranteed Securities, when duly and validly issued in accordance with a valid resolution of the board of directors of Total Canada duly authorizing such issuance, will be duly authorized. |
The foregoing opinion is limited to the laws of the Province of Alberta and the federal laws of Canada applicable therein in force on this date and we are expressing no opinion as to the effect of the laws of any other jurisdiction. We understand you are relying as to all matters governed by the laws of the Republic of France upon the opinion dated April 16, 2015, of Maarten Scholten, Group General Counsel to TOTAL, and as to all matters governed by the laws of the State of New York upon the opinion April 16, 2015, of Andrew Zdrahal, Group U.S. Securities Counsel to TOTAL, which opinions are being delivered to you by such counsel.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement relating to the TOTAL Debt Securities, the Total Capital Guaranteed Securities, the Total Canada Guaranteed Securities, the Total International Guaranteed Securities and the Guarantees and to the references to us under the caption “Validity of Securities” in the Prospectus included therein. In giving such consent we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Bennett Jones LLP
[Sullivan & Cromwell LLP Letterhead]
April 16, 2015
TOTAL S.A.
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
Total Capital
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
Total Capital Canada Ltd.
2900, 240 — 4th Avenue S.W.
Calgary, Alberta, T2P 4H4
Canada
Total Capital International
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
Dear Ladies and Gentlemen:
We have acted as French tax counsel to Total S.A., Total Capital and Total Capital International (together, the “Issuers”) in connection with the Registration Statement on Form F-3, filed by the Issuers under the Securities Act of 1933 (the “Act”), of an indeterminate aggregate amount of debt securities (the “Registration Statement”).
We hereby confirm to you that our opinion is as set forth under the caption “Tax Considerations—French Taxation” in the Prospectus included in the Registration Statement, subject to the limitations contained therein.
We hereby consent to the use of our name and the filing of this letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP
[Sullivan & Cromwell LLP Letterhead]
April 16, 2015
TOTAL S.A.
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
Total Capital
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
Total Capital Canada Ltd.
2900, 240 — 4th Avenue S.W.
Calgary, Alberta, T2P 4H4
Canada
Total Capital International
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
Dear Ladies and Gentlemen:
We have acted as United States tax counsel to Total S.A., Total Capital, Total Capital Canada Ltd. and Total Capital International (together, the “Issuers”) in connection with the Registration Statement on Form F-3, filed by the Issuers under the Securities Act of 1933 (the “Act”), of an indeterminate aggregate amount of debt securities (the “Registration Statement”).
We hereby confirm to you that our opinion is as set forth under the caption “Tax Considerations—United States Federal Income Taxation” in the Prospectus included in the Registration Statement, subject to the limitations contained therein.
We hereby consent to the use of our name and the filing of this letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP
[Bennett Jones LLP Letterhead]
April 16, 2015
TOTAL S.A.
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Total Capital
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Total Capital Canada Ltd.
2900, 240 – 4th Avenue S.W.
Calgary, Alberta, T2P 4H4
Canada
Total Capital International
Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
Dear Ladies and Gentlemen:
We have acted as Canadian tax counsel to Total S.A. (“Total”), Total Capital, Total Capital Canada Ltd. (“Total Canada”) and Total Capital International (“Total International” and, together with Total, Total Capital and Total Canada, the “Issuers”) in connection with the Registration Statement on Form F-3, filed by the Issuers under the Securities Act of 1933, as amended (the “Act”), of an indeterminate aggregate amount of debt securities of Total, guaranteed debt securities of Total Capital, guaranteed debt securities of Total Canada and guaranteed debt securities of Total International (the “Registration Statement”).
We hereby confirm to you that our opinion is as set forth under the caption “Tax Considerations-Canadian Taxation” in the Prospectus included in the Registration Statement, subject to the assumptions and limitations contained therein.
We hereby consent to the use of our name and the filing of this letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, |
| /s/ Bennett Jones LLP |
Exhibit 23.2
DeGolyer and MacNaughton
5001 Spring Valley Road
Suite 800 East
Dallas, Texas 75244
April 16, 2015
TOTAL S.A.
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
Ladies and Gentlemen:
We hereby consent to the reference to our firm DeGolyer and MacNaughton under the heading “Experts” in this Registration Statement on Form F-3 and the incorporation by reference therein of our third-party report dated January 20, 2015, concerning our estimates of the net proved crude oil, condensate, and natural gas reserves as of December 31, 2014, of certain properties owned by OAO Novatek, which is included as Exhibit 15.3 to the TOTAL S.A. Annual Report on Form 20-F, as amended, for the year ended December 31, 2014.
| Very truly yours, |
| /s/ DEGOLYER AND MACNAUGHTON |
| DeGOLYER and MacNAUGHTON Texas Registered Engineering Firm F-716 |
Consent of Independent Registered Public Accounting Firms
We consent to the incorporation by reference in this Registration Statement (Form F-3) of:
| (i) | our report dated March 2, 2015, with respect to the consolidated balance sheets of TOTAL S.A. and its subsidiaries as of December 31, 2014, 2013 and 2012, and the related consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity for each of the three years in the period ended December 31, 2014 (our report thereon refers to the change in the presentation currency of the consolidated financial statements of TOTAL S.A. from the euro to the US dollar), and |
| (ii) | our report dated March 2, 2015, with respect to the effectiveness of TOTAL S.A. and its subsidiaries’ internal control over financial reporting as of December 31, 2014, |
which reports appear in the Annual Report on Form 20-F of TOTAL S.A for the year ended December 31, 2014 filed with the Securities and Exchange Commission on March 26, 2015, as amended on March 27, 2015.
We also consent to the references to our firms under the heading “Experts” in this Registration Statement and under the heading “Selected Financial Data” in the Annual Report on Form 20-F of TOTAL S.A., as amended, for the year ended December 31, 2014, which is incorporated by reference in this Registration Statement.
Paris La Défense, April 16, 2015
| KPMG Audit |
ERNST & YOUNG Audit |
| /s/ MICHEL PIETTE | /s/ VALERIE BESSON | /s/ YVON SALAUN | /s/ LAURENT MIANNAY | |||
| Michel Piette | Valérie Besson | Yvon Salaün | Laurent Miannay | |||
| Partner | Partner | Partner | Partner | |||
POWER OF ATTORNEY
Reference is hereby made to the registration by TOTAL S.A. under the U.S. Securities Act of 1933, as amended, of securities to be issued, from time to time, by TOTAL S.A. (the “Securities”). Such Securities will be registered on a registration statement on Form F-3 (the “Registration Statement”), and filed with the United States Securities and Exchange Commission (the “SEC”).
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby authorizes and appoints any person listed below or Humbert de Wendel, Treasurer of TOTAL S.A., as his or her attorney-in-fact, with the power of substitution, for him or her in any and all capacities, to sign the Registration Statement, any and all amendments thereto (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact full power and authority, with the power of substitution, to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together, shall constitute one instrument.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the dates noted below.
| Date: March 26, 2015 | By: | /s/ PATRICK ARTUS | ||||
| Name: | Patrick Artus | |||||
| Title: | Director | |||||
| Date: April 3, 2015 | By: | /s/ PATRICIA BARBIZET | ||||
| Name: | Patricia Barbizet | |||||
| Title: | Director | |||||
| Date: March 23, 2015 | By: | /s/ MARC BLANC | ||||
| Name: | Marc Blanc | |||||
| Title: | Director | |||||
| Date: March 30, 2015 | By: | /s/ GUNNAR BROCK | ||||
| Name: | Gunnar Brock | |||||
| Title: | Director | |||||
| Date: March 27, 2015 | By: | /s/ MARIE-CHRISTINE COISNE-ROQUETTE | ||||
| Name: | Marie-Christine Coisne-Roquette | |||||
| Title: | Director | |||||
| Date: April 3, 2015 | By: | /s/ BERTRAND COLLOMB | ||||
| Name: | Bertrand Collomb | |||||
| Title: | Director | |||||
| Date: March 26, 2015 | By: | /s/ PAUL DESMARAIS JR. | ||||
| Name: | Paul Desmarais Jr. | |||||
| Title: | Director | |||||
[Signature page of Form F-3 Power of Attorney — TOTAL S.A.]
| Date: March 24, 2015 | By: | /s/ THIERRY DESMAREST | ||||
| Name: | Thierry Desmarest | |||||
| Title: | Director | |||||
| Date: April 3, 2015 | By: | /s/ ANNE-MARIE IDRAC | ||||
| Name: | Anne-Marie Idrac | |||||
| Title: | Director | |||||
| Date: March 30, 2015 | By: | /s/ CHARLES KELLER | ||||
| Name: | Charles Keller | |||||
| Title: | Director | |||||
| Date: March 27, 2015 | By: | /s/ BARBARA KUX | ||||
| Name: | Barbara Kux | |||||
| Title: | Director | |||||
| Date: March 30, 2015 | By: | /s/ GERARD LAMARCHE | ||||
| Name: | Gérard Lamarche | |||||
| Title: | Director | |||||
| Date: March 27, 2015 | By: | /s/ ANNE LAUVERGEON | ||||
| Name: | Anne Lauvergeon | |||||
| Title: | Director | |||||
| Date: April 3, 2015 | By: | /s/ MICHEL PEBEREAU | ||||
| Name: | Michel Pébereau | |||||
| Title: | Director | |||||
[Signature page of Form F-3 Power of Attorney — TOTAL S.A.]
| Date: March 24, 2015 | By: | /s/ PATRICK POUYANNE | ||||
| Name: | Patrick Pouyanné | |||||
| Title: | Chief Executive Officer (Principal Executive Officer) | |||||
| Date: April 3, 2015 | By: | /s/ PATRICK DE LA CHEVARDIERE | ||||
| Name: | Patrick de La Chevardière | |||||
| Title: |
Executive Vice President and Chief Financial Officer (Principal Financial Officer) | |||||
| Date: April 3, 2015 | By: | /s/ DOMINIQUE BONNET | ||||
| Name: | Dominique Bonnet | |||||
| Title: |
Chief Accounting Officer (Principal Accounting Officer) | |||||
| Date: March 19, 2015 | By: | /s/ ROBERT O. HAMMOND | ||||
| Name: | Robert O. Hammond | |||||
| Title: | Authorized Representative in the United States | |||||
[Signature page of Form F-3 Power of Attorney — TOTAL S.A.]
POWER OF ATTORNEY
Reference is hereby made to the registration by Total Capital under the U.S. Securities Act of 1933, as amended, of debt securities guaranteed by TOTAL S.A. to be issued, from time to time, by Total Capital (the “Securities”). Such Securities will be registered on a registration statement on Form F-3 (the “Registration Statement”), and filed with the United States Securities and Exchange Commission (the “SEC”).
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby authorizes and appoints any person listed below or Humbert de Wendel, Treasurer of TOTAL S.A., as his or her attorney-in-fact, with the power of substitution, for him or her in any and all capacities, to sign the Registration Statement, any and all amendments thereto (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact full power and authority, with the power of substitution, to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together, shall constitute one instrument.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the dates noted below.
| Date: March 25, 2015 | By: | /s/ PIERRE DE LA POMELIE | ||||
| Pierre de LA POMELIE Chairman and Chief Executive Officer (Principal Executive Officer), Director | ||||||
| Date: March 25, 2015 | By: | /s/ DOMINIQUE BONNET | ||||
| Dominique BONNET Chief Accounting Officer (Principal Financial and Accounting Officer), Director | ||||||
| Date: April 3, 2015 | By: | /s/ PATRICK DE LA CHEVARDIERE | ||||
| Patrick de LA CHEVARDIERE Director | ||||||
| Date: March 25, 2015 | By: | /s/ HERVE JASKULKE | ||||
| Hervé JASKULKE Director | ||||||
| Date: April 13, 2015 | By: | Total Finance Corporate Services Limited Director | ||||
| By: | /s/ HUMBERT DE WENDEL | |||||
| Humbert DE WENDEL, Authorized Signatory of Total Finance Corporate Services Limited | ||||||
| Date: March 19, 2015 | By: | /s/ ROBERT O. HAMMOND | ||||
| Robert O. HAMMOND Authorized Representative in the United States | ||||||
[Signature page of Form F-3 Power of Attorney — Total Capital]
POWER OF ATTORNEY
Reference is hereby made to the registration by Total Capital Canada Ltd. under the U.S. Securities Act of 1933, as amended, of debt securities guaranteed by TOTAL S.A. to be issued, from time to time, by Total Capital Canada Ltd. (the “Securities”). Such Securities will be registered on a registration statement on Form F-3 (the “Registration Statement”), and filed with the United States Securities and Exchange Commission (the “SEC”).
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby authorizes and appoints any person listed below or Humbert de Wendel, Treasurer of TOTAL S.A., as his or her attorney-in-fact, with the power of substitution, for him or her in any and all capacities, to sign the Registration Statement, any and all amendments thereto (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact full power and authority, with the power of substitution, to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together, shall constitute one instrument.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the dates noted below.
| Date: April 13, 2015 | By: | /s/ HUMBERT DE WENDEL | ||||
| Humbert DE WENDEL President (Principal Executive Officer), Director | ||||||
| Date: March 27, 2015 | By: | /s/ PIERRE BOUSQUET | ||||
| Pierre BOUSQUET Director | ||||||
| Date: April 8, 2015 | By: | /s/ DELPHINE PERSOUYRE | ||||
| Delphine PERSOUYRE Chief Financial Officer (Principal Financial and Accounting Officer), Director | ||||||
| Date: April 9, 2015 | By: | /s/ CRAIG SALOFF | ||||
| Craig SALOFF Director | ||||||
| Date: March 19, 2015 | By: | /s/ ROBERT O. HAMMOND | ||||
| Robert O. HAMMOND Authorized Representative in the United States | ||||||
[Signature page of Form F-3 Power of Attorney — Total Capital Canada Ltd.]
POWER OF ATTORNEY
Reference is hereby made to the registration by Total Capital International under the U.S. Securities Act of 1933, as amended, of debt securities guaranteed by TOTAL S.A. to be issued, from time to time, by Total Capital International (the “Securities”). Such Securities will be registered on a registration statement on Form F-3 (the “Registration Statement”), and filed with the United States Securities and Exchange Commission (the “SEC”).
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby authorizes and appoints any person listed below or Humbert de Wendel, Treasurer of TOTAL S.A., as his or her attorney-in-fact, with the power of substitution, for him or her in any and all capacities, to sign the Registration Statement, any and all amendments thereto (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact full power and authority, with the power of substitution, to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together, shall constitute one instrument.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the dates noted below.
| Date: April 3, 2015 | By: | /s/ PATRICK DE LA CHEVARDIERE | ||||
| Patrick de LA CHEVARDIERE Chairman and Chief Executive Officer (Principal Executive Officer), Director | ||||||
| Date: March 25, 2015 | By: | /s/ DOMINIQUE BONNET | ||||
| Dominique BONNET Chief Accounting Officer (Principal Financial and Accounting Officer), Director | ||||||
| Date: March 25, 2015 | By: | /s/ HERVE JASKULKE | ||||
| Hervé JASKULKE | ||||||
| Director | ||||||
| Date: March 25, 2015 | By: | /s/ PIERRE DE LA POMELIE | ||||
| Pierre de LA POMELIE | ||||||
| Director | ||||||
| Date: April 13, 2015 | By: | Total Finance Corporate Services Limited | ||||
| Director | ||||||
| By: | /s/ HUMBERT DE WENDEL | |||||
| Humbert DE WENDEL, Authorized Signatory of Total Finance Corporate Services Limited | ||||||
| Date: March 19, 2015 | By: | /s/ ROBERT O. HAMMOND | ||||
| Robert O. HAMMOND Authorized Representative in the United States | ||||||
[Signature page of Form F-3 Power of Attorney — Total Capital International]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New York | 13-5160382 | |
| (Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| One Wall Street, New York, N.Y. |
10286 | |
| (Address of principal executive offices) | (Zip code) | |
TOTAL S.A.
(Exact name of obligor as specified in its charter)
| Republic of France | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| 2, place Jean Millier La Défense 6 92400 Courbevoie France |
||
| (Address of principal executive offices) | (Zip code) | |
Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Superintendent of the Department of Financial Services of the State of New York |
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 | |
| Federal Reserve Bank of New York |
33 Liberty Street, New York, N.Y. 10045 | |
| Federal Deposit Insurance Corporation |
Washington, D.C. 20429 | |
| New York Clearing House Association |
New York, N.Y. 10005 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
- 2 -
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 1st day of April, 2015.
| THE BANK OF NEW YORK MELLON | ||
| By: |
/s/ Francine Kincaid | |
| Name: |
Francine Kincaid | |
| Title: |
Vice President | |
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
6,317,000 | |||
| Interest-bearing balances |
105,168,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
20,186,000 | |||
| Available-for-sale securities |
95,176,000 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
70,000 | |||
| Securities purchased under agreements to resell |
10,534,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
21,000 | |||
| Loans and leases, net of unearned income |
35,904,000 | |||
| LESS: Allowance for loan and lease losses |
168,000 | |||
| Loans and leases, net of unearned income and allowance |
35,736,000 | |||
| Trading assets |
7,279,000 | |||
| Premises and fixed assets (including capitalized leases) |
1,043,000 | |||
| Other real estate owned |
3,000 | |||
| Investments in unconsolidated subsidiaries and associated companies |
556,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets: |
||||
| Goodwill |
6,405,000 | |||
| Other intangible assets |
1,152,000 | |||
| Other assets |
14,520,000 | |||
|
|
|
|||
| Total assets |
304,166,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
137,928,000 | |||
| Noninterest-bearing |
95,930,000 | |||
| Interest-bearing |
41,998,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
119,551,000 | |||
| Noninterest-bearing |
8,281,000 | |||
| Interest-bearing |
111,270,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
2,155,000 | |||
| Securities sold under agreements to repurchase |
3,490,000 | |||
| Trading liabilities |
6,798,000 | |||
| Other borrowed money: |
5,925,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
765,000 | |||
| Other liabilities |
6,284,000 | |||
|
|
|
|||
| Total liabilities |
282,896,000 | |||
|
|
|
|||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
10,061,000 | |||
| Retained earnings |
10,852,000 | |||
| Accumulated other comprehensive income |
-1,128,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
20,920,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
350,000 | |||
| Total equity capital |
21,270,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
304,166,000 | |||
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
| Thomas P. Gibbons, Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Gerald L. Hassell Catherine A. Rein Michael J. Kowalski |
Directors |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New York | 13-5160382 | |
| (Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) |
| One Wall Street, New York, N.Y. |
10286 | |
| (Address of principal executive offices) | (Zip code) |
TOTAL CAPITAL
(Exact name of obligor as specified in its charter)
| Republic of France | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
| 2, place Jean Millier La Défense 6 92400 Courbevoie France |
||
| (Address of principal executive offices) | (Zip code) |
TOTAL S.A.
(Exact name of obligor as specified in its charter)
| Republic of France | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| 2, place Jean Millier La Défense 6 92400 Courbevoie France |
||
| (Address of principal executive offices) | (Zip code) | |
(Guaranteed) Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Superintendent of the Department of Financial Services of the State of New York |
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 | |
| Federal Reserve Bank of New York |
33 Liberty Street, New York, N.Y. 10045 | |
| Federal Deposit Insurance Corporation |
Washington, D.C. 20429 | |
| New York Clearing House Association |
New York, N.Y. 10005 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
- 2 -
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 1st day of April, 2015.
| THE BANK OF NEW YORK MELLON | ||
| By: | /s/ Francine Kincaid | |
| Name: | Francine Kincaid | |
| Title: | Vice President | |
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
6,317,000 | |||
| Interest-bearing balances |
105,168,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
20,186,000 | |||
| Available-for-sale securities |
95,176,000 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
70,000 | |||
| Securities purchased under agreements to resell |
10,534,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
21,000 | |||
| Loans and leases, net of unearned income |
35,904,000 | |||
| LESS: Allowance for loan and lease losses |
168,000 | |||
| Loans and leases, net of unearned income and allowance |
35,736,000 | |||
| Trading assets |
7,279,000 | |||
| Premises and fixed assets (including capitalized leases) |
1,043,000 | |||
| Other real estate owned |
3,000 | |||
| Investments in unconsolidated subsidiaries and associated companies |
556,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets: |
||||
| Goodwill |
6,405,000 | |||
| Other intangible assets |
1,152,000 | |||
| Other assets |
14,520,000 | |||
|
|
|
|||
| Total assets |
304,166,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
137,928,000 | |||
| Noninterest-bearing |
95,930,000 | |||
| Interest-bearing |
41,998,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
119,551,000 | |||
| Noninterest-bearing |
8,281,000 | |||
| Interest-bearing |
111,270,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
2,155,000 | |||
| Securities sold under agreements to repurchase |
3,490,000 | |||
| Trading liabilities |
6,798,000 | |||
| Other borrowed money: |
5,925,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
765,000 | |||
| Other liabilities |
6,284,000 | |||
|
|
|
|||
| Total liabilities |
282,896,000 | |||
|
|
|
|||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
10,061,000 | |||
| Retained earnings |
10,852,000 | |||
| Accumulated other comprehensive income |
-1,128,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
20,920,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
350,000 | |||
| Total equity capital |
21,270,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
304,166,000 | |||
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
| Thomas P. Gibbons, Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Gerald L. Hassell Catherine A. Rein Michael J. Kowalski |
Directors |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New York (Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382 (I.R.S. employer identification no.) | |
| One Wall Street, New York, N.Y. (Address of principal executive offices) |
10286 (Zip code) | |
TOTAL CAPITAL CANADA LTD.
(Exact name of obligor as specified in its charter)
| Alberta, Canada (State or other jurisdiction of incorporation or organization) |
Not Applicable (I.R.S. employer identification no.) | |
| 2900, 240- 4th Avenue SW Calgary, Alberta T2P 4H4 Canada (Address of principal executive offices) |
(Zip code) | |
TOTAL S.A.
(Exact name of obligor as specified in its charter)
| Republic of France (State or other jurisdiction of incorporation or organization) |
Not Applicable (I.R.S. employer identification no.) | |
| 2, place Jean Millier La Défense 6 92400 Courbevoie France (Address of principal executive offices) |
(Zip code) | |
(Guaranteed) Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Superintendent of the Department of Financial Services of the State of New York |
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 | |
| Federal Reserve Bank of New York |
33 Liberty Street, New York, N.Y. 10045 | |
| Federal Deposit Insurance Corporation |
Washington, D.C. 20429 | |
| New York Clearing House Association |
New York, N.Y. 10005 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
- 2 -
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 1st day of April, 2015.
| THE BANK OF NEW YORK MELLON | ||
| By: | /s/ Francine Kincaid | |
| Name: | Francine Kincaid | |
| Title: | Vice President | |
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
6,317,000 | |||
| Interest-bearing balances |
105,168,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
20,186,000 | |||
| Available-for-sale securities |
95,176,000 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
70,000 | |||
| Securities purchased under agreements to resell |
10,534,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
21,000 | |||
| Loans and leases, net of unearned income |
35,904,000 | |||
| LESS: Allowance for loan and lease losses |
168,000 | |||
| Loans and leases, net of unearned income and allowance |
35,736,000 | |||
| Trading assets |
7,279,000 | |||
| Premises and fixed assets (including capitalized leases) |
1,043,000 | |||
| Other real estate owned |
3,000 | |||
| Investments in unconsolidated subsidiaries and associated companies |
556,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets: |
||||
| Goodwill |
6,405,000 | |||
| Other intangible assets |
1,152,000 | |||
| Other assets |
14,520,000 | |||
|
|
|
|||
| Total assets |
304,166,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
137,928,000 | |||
| Noninterest-bearing |
95,930,000 | |||
| Interest-bearing |
41,998,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
119,551,000 | |||
| Noninterest-bearing |
8,281,000 | |||
| Interest-bearing |
111,270,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
2,155,000 | |||
| Securities sold under agreements to repurchase |
3,490,000 | |||
| Trading liabilities |
6,798,000 | |||
| Other borrowed money: |
5,925,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
765,000 | |||
| Other liabilities |
6,284,000 | |||
|
|
|
|||
| Total liabilities |
282,896,000 | |||
|
|
|
|||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
10,061,000 | |||
| Retained earnings |
10,852,000 | |||
| Accumulated other comprehensive income |
-1,128,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
20,920,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
350,000 | |||
| Total equity capital |
21,270,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
304,166,000 | |||
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
| Thomas P. Gibbons, Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Gerald L. Hassell Catherine A. Rein Michael J. Kowalski |
Directors |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New York (Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382 (I.R.S. employer identification no.) | |
| One Wall Street, New York, N.Y. (Address of principal executive offices) |
10286 (Zip code) | |
TOTAL CAPITAL INTERNATIONAL
(Exact name of obligor as specified in its charter)
| Republic of France (State or other jurisdiction of incorporation or organization) |
Not Applicable (I.R.S. employer identification no.) | |
| 2, place Jean Millier La Défense 6 92400 Courbevoie France (Address of principal executive offices) |
(Zip code) | |
TOTAL S.A.
(Exact name of obligor as specified in its charter)
| Republic of France (State or other jurisdiction of incorporation or organization) |
Not Applicable (I.R.S. employer identification no.) | |
| 2, place Jean Millier La Défense 6 92400 Courbevoie France (Address of principal executive offices) |
(Zip code) | |
(Guaranteed) Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Superintendent of the Department of Financial Services of the State of New York |
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 | |
| Federal Reserve Bank of New York |
33 Liberty Street, New York, N.Y. 10045 | |
| Federal Deposit Insurance Corporation |
Washington, D.C. 20429 | |
| New York Clearing House Association |
New York, N.Y. 10005 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
- 2 -
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 1st day of April, 2015.
| THE BANK OF NEW YORK MELLON | ||
| By: | /s/ Francine Kincaid | |
| Name: | Francine Kincaid | |
| Title: | Vice President | |
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
6,317,000 | |||
| Interest-bearing balances |
105,168,000 | |||
| Securities: |
||||
| Held-to-maturity securities |
20,186,000 | |||
| Available-for-sale securities |
95,176,000 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
70,000 | |||
| Securities purchased under agreements to resell |
10,534,000 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
21,000 | |||
| Loans and leases, net of unearned income |
35,904,000 | |||
| LESS: Allowance for loan and lease losses |
168,000 | |||
| Loans and leases, net of unearned income and allowance |
35,736,000 | |||
| Trading assets |
7,279,000 | |||
| Premises and fixed assets (including capitalized leases) |
1,043,000 | |||
| Other real estate owned |
3,000 | |||
| Investments in unconsolidated subsidiaries and associated companies |
556,000 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets: |
||||
| Goodwill |
6,405,000 | |||
| Other intangible assets |
1,152,000 | |||
| Other assets |
14,520,000 | |||
|
|
|
|||
| Total assets |
304,166,000 | |||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
137,928,000 | |||
| Noninterest-bearing |
95,930,000 | |||
| Interest-bearing |
41,998,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
119,551,000 | |||
| Noninterest-bearing |
8,281,000 | |||
| Interest-bearing |
111,270,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
2,155,000 | |||
| Securities sold under agreements to repurchase |
3,490,000 | |||
| Trading liabilities |
6,798,000 | |||
| Other borrowed money: |
5,925,000 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
765,000 | |||
| Other liabilities |
6,284,000 | |||
|
|
|
|||
| Total liabilities |
282,896,000 | |||
|
|
|
|||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
10,061,000 | |||
| Retained earnings |
10,852,000 | |||
| Accumulated other comprehensive income |
-1,128,000 | |||
| Other equity capital components |
0 | |||
| Total bank equity capital |
20,920,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
350,000 | |||
| Total equity capital |
21,270,000 | |||
|
|
|
|||
| Total liabilities and equity capital |
304,166,000 | |||
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
| Thomas P. Gibbons, Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Gerald L. Hassell Catherine A. Rein Michael J. Kowalski |
Directors |