TotalEnergies SE F-3ASR, filed Apr 30, 2021
TotalEnergies SE (TTE)
SECURITIES AND EXCHANGE COMMISSION
UNDER
THE SECURITIES ACT OF 1933
(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
+33 (0)1 47 44 45 46
(Address and Telephone Number of Registrant’s Principal Executive Offices)
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TOTAL CAPITAL
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TOTAL CAPITAL
CANADA LTD. |
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TOTAL CAPITAL INTERNATIONAL
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(Exact Name of Registrant as
Specified in Its Charter) |
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(Exact Name of Registrant as
Specified in Its Charter) |
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(Exact Name of Registrant as
Specified in Its Charter) |
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Republic of France
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Alberta, Canada
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Republic of France
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(State or Other Jurisdiction of
Incorporation or Organization) |
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(State or Other Jurisdiction of
Incorporation or Organization) |
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(State or Other Jurisdiction of
Incorporation or Organization) |
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Not Applicable
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Not Applicable
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Not Applicable
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(I.R.S. Employer
Identification No.) |
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(I.R.S. Employer
Identification No.) |
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(I.R.S. Employer
Identification No.) |
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2, place Jean Millier
La Défense 6 92400 Courbevoie France +33(0)1 47 44 45 46 |
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2900, 240 — 4th Avenue SW
Calgary, Alberta T2P 4H4 Canada +1 403 571 7599 |
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2, place Jean Millier
La Défense 6 92400 Courbevoie France +33(0)1 47 44 45 46 |
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(Address and Telephone Number
of Registrant’s Principal Executive Offices) |
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(Address and Telephone Number
of the Registrant’s Principal Executive Offices) |
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(Address and Telephone Number
of Registrant’s Principal Executive Offices) |
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19 West 44th Street, Suite 200,
New York, NY 10036
+1 800 927 9801
(Name, Address and Telephone Number of Agent for Service)
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Aurélien Hamelle
Group General Counsel TOTAL SE Tour Coupole 2, place Jean Millier Arche Nord Coupole/Regnault 92078 Paris La Défense Cedex France +33(0)1 47 44 45 46 |
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Ryan J. Maierson
Latham & Watkins LLP 811 Main Street, Suite 3700 Houston, Texas 77002 (713) 546-5400 |
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Roberto Luís Reyes Gaskin
Latham & Watkins 45, rue Saint-Dominique Paris 75007 France +33(1) 40 62 20 62 |
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Antoine Larenaudie
Group Treasurer TOTAL SE Tour CBX 1, Passerelle des Reflets 92400 Courbevoie France +33(0)1 47 44 45 46 |
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Cleary Gottlieb Steen & Hamilton LLP
12, rue de Tilsitt
75008 Paris
France
011-331-4074-6800
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Title of Each Class of
Securities to be Registered |
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Amount to be Registered/Proposed Maximum
Aggregate Price Per Security/ Proposed Maximum Offering Price |
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Amount of Registration Fee
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(Guaranteed) Debt Securities
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(1)(2)
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$ (3)
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by
TOTAL SE
by
TOTAL SE
by
TOTAL SE
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Page
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Tour Coupole
2, place Jean Millier
Arche Nord Coupole/Regnault
92078 Paris La Défense Cedex
France
+33 (0)1 47 44 45 46
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Securities and Exchange Commission registration fee
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| | | $ | (1) | | |
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Printing and engraving expenses
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| | | $ | (2) | | |
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Legal fees and expenses
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| | | $ | (2) | | |
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Accounting fees and expenses
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| | | $ | (2) | | |
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Indenture Trustee’s fees and expenses
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| | | $ | (2) | | |
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Rating Agencies’ fees
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| | | $ | (2) | | |
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Total
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| | | $ | (2) | | |
INFORMATION NOT REQUIRED IN PROSPECTUS
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Exhibit
Number |
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Description of Document
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| | 1.1 | | | | |
| | 1.2 | | | | |
| | 1.3 | | | |
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Exhibit
Number |
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Description of Document
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| | 1.4 | | | | |
| | 4.1 | | | Articles of Association (Statuts) of TOTAL SE.* | |
| | 4.2 | | | | |
| | 4.3 | | | | |
| | 4.4 | | | | |
| | 4.5 | | | | |
| | 4.6 | | | | |
| | 4.7 | | | | |
| | 4.8 | | | | |
| | 4.9 | | | | |
| | 5.1 | | | Opinion of Aurélien Hamelle, General Counsel of TOTAL SE, as to the validity of the Debt Securities and Guarantees as to certain matters of French law. | |
| | 5.2 | | | | |
| | 5.3 | | | | |
| | 23.1 | | | | |
| | 23.2 | | | | |
| | 23.3 | | | Consent of Aurélien Hamelle, General Counsel of TOTAL SE (included in Exhibit 5.1 above). | |
| | 23.4 | | | | |
| | 23.5 | | | | |
| | 24.1 | | | Power of attorney – TOTAL SE. | |
| | 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 | | | |
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Exhibit
Number |
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Description of Document
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| | 25.2 | | | | |
| | 25.3 | | | | |
| | 25.4 | | | |
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Signature
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Title
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PATRICK POUYANNE*
Patrick Pouyanné
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Chairman and Chief Executive Officer
(Principal Executive Officer) |
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/s/ JEAN-PIERRE SBRAIRE
Jean-Pierre Sbraire
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer) |
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FRÉDÉRIC AGNÈS*
Frédéric Agnès
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Chief Accounting Officer
(Principal Accounting Officer) |
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PATRICK ARTUS*
Patrick Artus
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Director
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Patricia Barbizet
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Director
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Marie-Christine Coisne-Roquette
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Director
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JÉRÔME CONTAMINE*
Jérôme Contamine
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Director
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LISE CROTEAU*
Lise Croteau
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Director
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MARK CUTIFANI*
Mark Cutifani
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Director
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VALERIE DELLA PUPPA TIBI*
Valerie della Puppa Tibi
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Director
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ROMAIN GARCIA-IVALDI*
Romain Garcia-Ivaldi
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Director
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MARIA VAN DER HOEVEN*
Maria van der Hoeven
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Director
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Signature
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Title
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ANNE-MARIE IDRAC*
Anne-Marie Idrac
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Director
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JEAN LEMIERRE*
Jean Lemierre
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Director
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ANGEL POBO*
Angel Pobo
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Director
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ROBERT O. HAMMOND*
Robert O. Hammond
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Authorized Representative in the United States
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*By:
/s/ JEAN-PIERRE SBRAIRE
Jean-Pierre Sbraire
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Attorney-in-fact
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Signature
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Title
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ERIC BOZEC*
Eric Bozec
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Chairman and Chief Executive Officer
(Principal Executive Officer) |
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FRÉDÉRIC AGNÈS*
Frédéric Agnès
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Chief Accounting Officer (Principal Financial and
Accounting Officer), Director |
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HERVÉ JASKULKÉ*
Hervé Jaskulké
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Director
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/s/ ANTOINE LARENAUDIE
Antoine Larenaudie
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Director
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JEAN-PIERRE SBRAIRE*
Jean-Pierre Sbraire
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Director
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ROBERT O. HAMMOND*
Robert O. Hammond
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Authorized Representative in the United States
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*By:
/s/ ANTOINE LARENAUDIE
Antoine Larenaudie
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Attorney-in-fact
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Signature
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Title
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/s/ ANTOINE LARENAUDIE
Antoine Larenaudie
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President (Principal Executive Officer),
Director |
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JEROME PONTICQ*
Jerome Ponticq
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Chief Financial Officer (Principal Financial and
Accounting Officer), Director |
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SHAWN HINCH*
Shawn Hinch
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Director
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DIMITRI LOBADOWSKY*
Dimitri Lobadowsky
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Director
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ROBERT O. HAMMOND*
Robert O. Hammond
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Authorized Representative in the United States
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*By:
/s/ ANTOINE LARENAUDIE
Antoine Larenaudie
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Attorney-in-fact
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Signature
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Title
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JEAN-PIERRE SBRAIRE*
Jean-Pierre Sbraire
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Chairman and Chief Executive Officer
(Principal Executive Officer) |
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FRÉDÉRIC AGNES*
Frédéric Agnès
|
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Chief Accounting Officer (Principal Financial
and Accounting Officer), Director |
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ERIC BOZEC*
Eric Bozec
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Director
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HERVÉ JASKULKÉ*
Hervé Jaskulké
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Director
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/s/ ANTOINE LARENAUDIE
Antoine Larenaudie
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Director
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ROBERT O. HAMMOND*
Robert O. Hammond
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Authorized Representative in the United States
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*By:
/s/ ANTOINE LARENAUDIE
Antoine Larenaudie
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Attorney-in-fact
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Exhibit 1.1
PURCHASE AGREEMENT
[●], [●]
TOTAL SE
2, Place Jean Millier
La Défense 6,
92400 Courbevoie
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 SE (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 Latham & Watkins LLP, 885 Third Ave, New York, New York, 10022 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 SE Purchase Agreement Standard Provisions (2021 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 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.
MiFID Product Governance:
Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules, each of the Company and [●] (each a “Manufacturer” and together the “Manufacturers”) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Offered Securities and the related information set out in the Base Prospectus in connection with the Offered Securities. The Reselling Purchasers note the application of the Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Offered Securities by the Manufacturers and the related information set out in the Base Prospectus in connection with the Offered Securities.
Recognition of the U.S. Special Resolution Regimes:
| (a) | In the event that any Reselling Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Reselling Purchaser of this |
1
Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
| (b) | In the event that any Reselling Purchaser that is a Covered Entity (as defined below) or a BHC Act Affiliate (as defined below) of such Reselling Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States. |
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act, as amended and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended and the regulations promulgated thereunder.
Bail-In or Loss Absorption Powers:
Notwithstanding and to the exclusion of any other provision of this Agreement or any other agreements, arrangements or understandings, in the event that a Reselling Purchaser (each a “BRRD Party”, and together the “BRRD Parties”) becomes subject to the exercise of Bail-in Powers under an applicable Bail-in Legislation, each of the other BRRD Parties and the Company acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:
| (a) | the effect of the exercise of such powers in relation to any BRRD Liability of such BRRD Party arising under this Agreement that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities, or other obligations of such BRRD Party or another person (and the issue to or conferral on the other BRRD Parties of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of this Agreement; |
| (iii) | the cancellation of the BRRD Liability; |
| (iv) | the amendment or alteration of the amounts due in relation to the BRRD Liability, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a temporary period; |
| (b) | the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of such Bail-in Powers by the Relevant Resolution Authority. |
2
For purposes of this Agreement:
“Bail-in Legislation” means in relation to the UK a member state of EEA which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time, or Part I of the UK Banking Act 2009 and any other law, regulation, rule or requirement applicable from time to time in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Bail-in Powers” means any Write-down and Conversion Powers as defined in relation to the relevant Bail-in Legislation.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended, including by Directive 2019/879/EU of May 20, 2019.
“EEA” means the European Economic Area.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/.
“BRRD Liability” has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable Bail-in Legislation.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Relevant BRRD Party.
“UK” means the United Kingdom.
“Write-down and Conversion Powers” means the powers under the Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
For purposes of this 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.]
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Delivery of this Agreement by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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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 SE
| By: | |||
| Name: | |||
| Title: |
[RESELLING PURCHASER(S)]
| [Reselling Purchaser(s)] |
SCHEDULE I TO PURCHASE AGREEMENT
| Reselling Purchaser | Principal Amount of Offered Securities | |||
| [●] | $ | [●] | ||
| Total | $ | [●] | ||
SC I
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 |
[●]
SC II
SCHEDULE III TO PURCHASE AGREEMENT
Selling Restrictions
European Economic Area
Each Reselling Purchaser hereby represents and agrees that it has not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Offered Securities to any retail investor in the European Economic Area (“EEA”). For the purposes of this provision:
| (a) | the expression “retail investor” means a person who is one (or more) of the following: |
| (i) | a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or |
| (ii) | a customer within the meaning of Directive 2016/97/EU (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or |
| (iii) | not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”); and |
| (b) | the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities so as to enable an investor to decide to purchase or subscribe the Offered Securities. |
This EEA selling restriction is in addition to the other selling restrictions set out below.
No key information document required by Regulation (EU) No 1286/2014 (the “PRIIPs Regulation”) for offering or selling any in-scope instruments or otherwise making them available to retail investors in the EEA has been prepared. Offering or selling the Offered Securities or otherwise making them available to any retail investor in the EEA may be unlawful.
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 it has only offered or sold and will only offer or sell, directly or indirectly, any Offered Securities to the public in France pursuant to an exemption under Article 1(4) of the Prospectus Regulation and Article L.411-2 1° of the French Code monétaire et financier, and that the prospectus supplement and any other offering material relating to the Offered Securities and such offers, sales and distributions have been and shall be made in France only to qualified investors (investisseurs qualifiés), all as defined in, and in accordance with, the Prospectus Regulation as amended and any applicable French laws and regulations implementing the Prospectus Regulation and related regulations in France.
United Kingdom
Each Reselling Purchaser has represented and agreed that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Offered Securities in to any retail investor in the United Kingdom. For the purposes of this provision:
| (a) | the expression “retail investor” means a person who is one (or more) of the following: |
SC III
| (i) | a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or |
| (ii) | a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (the “FSMA”) and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or |
| (iii) | not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA; and |
| (b) | the expression an “offer” includes 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 for the Offered Securities. |
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 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 hereby represents, warrants and agrees:
| (a) | not to trade any Offered Securities to any person or company in Canada except: (i) pursuant to an exemption from the prospectus requirement under securities legislation in the applicable jurisdiction of Canada; or (ii) if the conditions to resale set out in subsection 2.5(2) of National Instrument 45-102 of the Canadian Securities Administrators are satisfied; |
| (b) | that it will not trade any Offered Securities to a person or company in Canada unless such Reselling Purchaser is registered as a dealer as required under the securities legislation of the applicable jurisdiction in Canada or can rely on an exemption from the dealer registration requirements under securities legislation in the applicable jurisdiction of Canada and has complied with all requirements in relation to that exemption; |
| (c) | that it will deliver, to each dealer who purchases any Offered Securities from the Reselling Purchaser (a “Subsequent US Dealer”), a notice stating in substance that, by purchasing such Offered Securities, the Subsequent US Dealer represents and agrees not to trade the Offered Securities to a person or company in Canada in contravention of securities legislation in any jurisdiction in Canada and to require each dealer to which it sells Offered Securities to deliver to each other dealer to which it sells Offered Securities a notice containing a statement substantially similar to that described above; and |
| (d) | upon request by the Company, it will provide a certificate to the Company and to staff of the Alberta Securities Commission to the effect that it has not, to the best of its knowledge, sold Offered Securities to a person or company in Canada except as provided for above and that it has complied with the provisions of (a) and (b) above. |
[Add other selling restrictions, if appropriate.]
SC III 2
SCHEDULE IV TO PURCHASE AGREEMENT
Pricing Disclosure Package
Pricing Prospectus
Final Term Sheet attached to the Purchase Agreement as Schedule V
[●]
SC IV
SCHEDULE V TO PURCHASE AGREEMENT
Final Term Sheet
TOTAL SE
$[●] [●]% Notes Due [●]
| Issuer | Total SE |
| Format | SEC-registered global notes |
| Title | $[●] [●]% Notes Due [●] |
| 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 SE 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, United Kingdom, Canada, [Other] |
| Managers | [●] |
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[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 at +[●].
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ANNEX A TO PURCHASE AGREEMENT
TOTAL SE
PURCHASE AGREEMENT STANDARD PROVISIONS
(2021 Edition)
From time to time, TOTAL SE, a société européenne organized under the laws of the Republic of France (the “Company”), may enter into one or more purchase agreements (each a “Purchase Agreement”) 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. 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:
(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:
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| (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 |
| (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
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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 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 européenne 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
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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 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 stamp, registration, issuance, transfer or other similar 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 creation, 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, (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 or (C) the execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated hereby and thereby (provided such sale and delivery is not recorded in a deed registered in France).
(r) 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 time the Company or any person acting on its behalf (within the meaning of, for this
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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 or as otherwise disclosed to the Reselling Purchasers, neither the Company nor, to the best of its knowledge, any of its subsidiaries or their respective directors, officers 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 in the Pricing Prospectus and the Prospectus or 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 subject to Sanctions, and the Company will not directly 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, for the purpose of financing the activities of any person in a manner that would result in a violation of any Sanctions by any party to the Purchase Agreement or any subsidiary of the Company, and the Company has instituted and maintains policies and procedures reasonably designed to prevent violation of such 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”) or by any other U.S. state department or agency, (y) any United Nations economic sanctions or (z) any economic sanctions of the European Union or any Member State thereof, and (ii) which are applicable at the relevant time the representations and warranties under this Article IV(v) are made.
(w) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus or to the Reselling Purchasers, the operations of the Company and its subsidiaries are and have been conducted in compliance with money laundering statutes of the applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental entity 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.
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
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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 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 and disclosure letter from 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
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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 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 Company 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) To furnish the Reselling Purchasers 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.
(c) 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.
(d) 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
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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.
(e) 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.
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
SC VI 8
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 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 and contribution agreements contained in this Article VIII (or otherwise to enforce this Agreement in respect of a matter resulting from a third-party claim), 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.
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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 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 and to the extent that such payments (i) are made to non-French tax resident persons that (x) are resident of a jurisdiction that has entered into a tax treaty with France containing a “Business Profits” clause similar to the “Business Profits” clause contained in the OECD Model Tax Convention on Income and on Capital and are fully entitled to the benefits of such treaty and (y) are neither incorporated, domiciled or, acting through a branch 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 (a “Non-Cooperative State”) and (ii) are not made and will not be made to an account held with a financial institution established in a Non-Cooperative State; 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. Any payments to any Payee shall be considered exclusive of any value added or similar taxes. Where the Company is obliged to pay value added or similar tax on any amount payable hereunder to a Payee, the Company shall in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax.
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.
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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 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 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
(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 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.
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.
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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 européenne 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, registration, issuance, transfer or other similar 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 creation, 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, (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 or (C) the execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated hereby and thereby (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 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 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 |
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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.
| (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. |
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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 (2021 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 PCAOB AS 4105 Review of Interim Financial Information, and other specified procedures not constituting an audit, that caused them to believe 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 International Accounting Standard 34 as issued by the International Accounting Standards Board, the standard of IFRS applicable to interim financial reporting. |
| (iv) | Nothing has come to the attention of such auditors, as a result of making certain inquiries of Company officials, and conducting certain other procedures referred to in the letter, that caused them to believe that there was any increase or decrease in certain financial statement items of the Company, except in all instances for increases or decreases that the Registration Statement discloses have occurred or may occur, as compared to the amounts shown on the consolidated financial statements mentioned in (ii) or (iii) above (as applicable), provided the letter is issued less than 135 days from the date of such financial statements. |
If 135 days or more have elapsed from the date 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 (iv) above.
| (v) | Such auditors have performed other procedures that are customary for auditors’ comfort letters in registered debt offerings as required by the Reselling Purchaser(s). |
Exhibit 1.2
PURCHASE AGREEMENT
[●], [●]
Total Capital
2, Place Jean Millier
La Défense 6,
92400 Courbevoie
France
TOTAL SE
2, Place Jean Millier
La Défense 6,
92400 Courbevoie
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 SE (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 Latham & Watkins LLP, 885 Third Ave, New York, New York, 10022 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 (2021 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 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.
MiFID Product Governance:
Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules, each of the Company and [●] (each a “Manufacturer” and together the “Manufacturers”) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Offered Securities and the related information set out in the Base Prospectus in connection with the Offered Securities. The Reselling Purchasers note the application of the Product Governance Rules and acknowledge the target market and distribution channels identified as applying to
1
the Offered Securities by the Manufacturers and the related information set out in the Base Prospectus in connection with the Offered Securities.
Recognition of the U.S. Special Resolution Regimes:
| (a) | In the event that any Reselling Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Reselling Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. |
| (b) | In the event that any Reselling Purchaser that is a Covered Entity (as defined below) or a BHC Act Affiliate (as defined below) of such Reselling Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States. |
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act, as amended and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended and the regulations promulgated thereunder.
Bail-In or Loss Absorption Powers:
Notwithstanding and to the exclusion of any other provision of this Agreement or any other agreements, arrangements or understandings, in the event that a Reselling Purchaser (each a “BRRD Party”, and together the “BRRD Parties”) becomes subject to the exercise of Bail-in Powers under an applicable Bail-in Legislation, each of the other BRRD Parties, the Company and the Guarantor acknowledge and accept that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:
| (a) | the effect of the exercise of such powers in relation to any BRRD Liability of such BRRD Party arising under this Agreement that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities, or other obligations of such BRRD Party or another person (and the issue to or conferral on the other BRRD Parties of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of this Agreement; |
| (iii) | the cancellation of the BRRD Liability; |
2
| (iv) | the amendment or alteration of the amounts due in relation to the BRRD Liability, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a temporary period; |
| (b) | the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of such Bail-in Powers by the Relevant Resolution Authority. |
For purposes of this Agreement:
“Bail-in Legislation” means in relation to the UK a member state of EEA which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time, or Part I of the UK Banking Act 2009 and any other law, regulation, rule or requirement applicable from time to time in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Bail-in Powers” means any Write-down and Conversion Powers as defined in relation to the relevant Bail-in Legislation.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended, including by Directive 2019/879/EU of May 20, 2019.
“EEA” means the European Economic Area.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/.
“BRRD Liability” has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable Bail-in Legislation.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Relevant BRRD Party.
“UK” means the United Kingdom.
“Write-down and Conversion Powers” means the powers under the Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
For purposes of this 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.]
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Delivery of this Agreement by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures
3
and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
4
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: | |||
| Name: | |||
| Title: |
TOTAL SE
| By: | |||
| Name: | |||
| Title: |
[RESELLING PURCHASER(S)]
| [Reselling Purchaser(s)] |
SCHEDULE I TO PURCHASE AGREEMENT
| Reselling Purchaser | Principal Amount of Offered Securities | |||
| [●] | $ | [●] | ||
| Total | $ | [●] | ||
SC I
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 |
[●]
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SCHEDULE III TO PURCHASE AGREEMENT
Selling Restrictions
European Economic Area
Each Reselling Purchaser hereby represents and agrees that it has not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Offered Securities to any retail investor in the European Economic Area (“EEA”). For the purposes of this provision:
| (a) | the expression “retail investor” means a person who is one (or more) of the following: |
| (i) | a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or |
| (ii) | a customer within the meaning of Directive 2016/97/EU (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or |
| (iii) | not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”); and |
| (b) | the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities so as to enable an investor to decide to purchase or subscribe the Offered Securities. |
This EEA selling restriction is in addition to the other selling restrictions set out below.
No key information document required by Regulation (EU) No 1286/2014 (the “PRIIPs Regulation”) for offering or selling any in-scope instruments or otherwise making them available to retail investors in the EEA has been prepared. Offering or selling the Offered Securities or otherwise making them available to any retail investor in the EEA may be unlawful.
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 it has only offered or sold and will only offer or sell, directly or indirectly, any Offered Securities to the public in France pursuant to an exemption under Article 1(4) of the Prospectus Regulation and Article L.411-2 1° of the French Code monétaire et financier, and that the prospectus supplement and any other offering material relating to the Offered Securities and such offers, sales and distributions have been and shall be made in France only to qualified investors (investisseurs qualifiés), all as defined in, and in accordance with, the Prospectus Regulation as amended and any applicable French laws and regulations implementing the Prospectus Regulation and related regulations in France.
United Kingdom
Each Reselling Purchaser has represented and agreed that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Offered Securities in to any retail investor in the United Kingdom. For the purposes of this provision:
| (a) | the expression “retail investor” means a person who is one (or more) of the following: |
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| (i) | a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or |
| (ii) | a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (the “FSMA”) and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or |
| (iii) | not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA; and |
| (b) | the expression an “offer” includes 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 for the Offered Securities. |
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 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 hereby represents, warrants and agrees:
| (a) | not to trade any Offered Securities to any person or company in Canada except: (i) pursuant to an exemption from the prospectus requirement under securities legislation in the applicable jurisdiction of Canada; or (ii) if the conditions to resale set out in subsection 2.5(2) of National Instrument 45-102 of the Canadian Securities Administrators are satisfied; |
| (b) | that it will not trade any Offered Securities to a person or company in Canada unless such Reselling Purchaser is registered as a dealer as required under the securities legislation of the applicable jurisdiction in Canada or can rely on an exemption from the dealer registration requirements under securities legislation in the applicable jurisdiction of Canada and has complied with all requirements in relation to that exemption; |
| (c) | that it will deliver, to each dealer who purchases any Offered Securities from the Reselling Purchaser (a “Subsequent US Dealer”), a notice stating in substance that, by purchasing such Offered Securities, the Subsequent US Dealer represents and agrees not to trade the Offered Securities to a person or company in Canada in contravention of securities legislation in any jurisdiction in Canada and to require each dealer to which it sells Offered Securities to deliver to each other dealer to which it sells Offered Securities a notice containing a statement substantially similar to that described above; and |
| (d) | upon request by the Company, it will provide a certificate to the Company and to staff of the Alberta Securities Commission to the effect that it has not, to the best of its knowledge, sold Offered Securities to a person or company in Canada except as provided for above and that it has complied with the provisions of (a) and (b) above. |
[Add other selling restrictions, if appropriate.]
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SCHEDULE IV TO PURCHASE AGREEMENT
Pricing Disclosure Package
Pricing Prospectus
Final Term Sheet attached to the Purchase Agreement as Schedule V
[●]
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SCHEDULE V TO PURCHASE AGREEMENT
Final Term Sheet
TOTAL CAPITAL
(A wholly-owned subsidiary of TOTAL SE)
$[●] [●]% Guaranteed Notes Due [●]
Guaranteed on an unsecured, unsubordinated basis by TOTAL SE
| Issuer | Total Capital |
| Guarantee | Payment of the principal of, premium, if any, and interest on the notes is guaranteed by TOTAL SE |
| Format | SEC-registered global notes |
| Title | $[●] [●]% Notes Due [●] |
| 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 and TOTAL SE 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. |
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| CUSIP / ISIN | [●]/[●] |
| Selling Restrictions | European Economic Area, France, United Kingdom, 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 at +[●].
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ANNEX A TO THE PURCHASE AGREEMENT
TOTAL CAPITAL
PURCHASE AGREEMENT STANDARD PROVISIONS
(2021 Edition)
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 (each a “Purchase Agreement”) 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. 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 SE (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 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
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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
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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 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 existing as a société anonyme, the Guarantor is validly existing as a societas europaea and each is 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, 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
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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.
(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 stamp, registration, issuance, transfer or other similar 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 creation, 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, (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 or (C) the execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated hereby and thereby (provided such sale and delivery is not recorded in a deed registered in France).
(r) 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-
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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 or as otherwise disclosed to the Reselling Purchasers, 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 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 in the Pricing Prospectus and the Prospectus or to the Reselling Purchasers, none of the Company, the Guarantor, or 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 subject to Sanctions, and neither the Company nor the Guarantor will directly 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, for the purpose of financing the activities of any person in a manner that would result in a violation of any Sanctions by any party to the Purchase Agreement or any subsidiary of the Company or the Guarantor, and the Company and the Guarantor have instituted and maintain policies and procedures reasonably designed to prevent violation of such 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”) or by any other U.S. state department or agency, (y) any United Nations economic sanctions or (z) any economic sanctions of the European Union or any Member State thereof, and (ii) which are applicable at the relevant time the representations and warranties under this Article IV(v) are made.
(w) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus or to the Reselling Purchasers, the operations of the Company, the Guarantor and their respective subsidiaries are and have been conducted in compliance with money laundering statutes of the applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental entity 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
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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.
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 Company and the Guarantor 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
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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 and disclosure letter from 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:
(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) To furnish the Reselling Purchasers 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
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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.
(c) 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.
(d) 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.
(e) 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
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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.
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 Company and the Guarantor agrees that any legal suit, action or proceeding brought by any Reselling Purchaser to enforce the indemnity and contribution agreements contained in this Article VIII (or otherwise to enforce this Agreement in respect of a matter resulting from a third-party claim), may be instituted in any state or Federal
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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 Company and the Guarantor has designated and appointed Corporation Service Company (or any successor corporation) as the authorized agent of each of the Company and the Guarantor 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 or the Guarantor, as applicable, may designate by written notice to you), shall be deemed in every respect effective service of process upon the Company or the Guarantor, as applicable, in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Company or the Guarantor, as applicable, whether or not the Company or the Guarantor, 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 Company and the Guarantor 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 and to the extent that such payments (i) are made to non-French tax resident persons that (x) are resident of a jurisdiction that has entered into a tax treaty with France containing a “Business Profits” clause similar to the “Business Profits” clause contained in the OECD Model Tax Convention on Income and on Capital and are fully entitled to the benefits of such treaty and (y) are neither incorporated, domiciled or, acting through a branch 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 (a “Non-Cooperative State”) and (ii) are not made and will not be made to an account held with a financial institution established in a Non-Cooperative State; 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. Any payments to any Payee shall be considered exclusive of any value added or similar taxes. Where the Company is obliged to pay value added or similar tax on any amount payable hereunder to a Payee, the Company shall in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax.
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
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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 (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:
(a) the Commission filing fees;
(b) the fees and disbursements of counsel to and the independent auditors of the Company and the 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.
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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.
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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 Company is validly existing as a société anonyme and the Guarantor is validly existing as a societas europaea each under the laws of France and each 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. |
| (8) | There are no stamp, registration, issuance, transfer or other similar 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 creation, 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, (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 or (C) the execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated hereby and thereby (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, |
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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.
| (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. |
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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. |
Exhibit B - 1
EXHIBIT C
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 (2021 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 PCAOB AS 4105 Review of Interim Financial Information, and other specified procedures not constituting an audit, that caused them to believe 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 International Accounting Standard 34 as issued by the International Accounting Standards Board, the standard of IFRS applicable to interim financial reporting. |
| (iv) | Nothing has come to the attention of such auditors, as a result of making certain inquiries of Company officials, and conducting certain other procedures referred to in the letter, that caused them to believe that there was any increase or decrease in certain financial statement items of the Company, except in all instances for increases or decreases that the Registration Statement discloses have occurred or may occur, as compared to the amounts shown on the consolidated financial statements mentioned in (ii) or (iii) above (as applicable), provided the letter is issued less than 135 days from the date of such financial statements. |
If 135 days or more have elapsed from the date 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 (iv) above.
| (v) | Such auditors have performed other procedures that are customary for auditors’ comfort letters in registered debt offerings as required by the Reselling Purchaser(s). |
Exhibit C - 1
Exhibit 1.3
PURCHASE AGREEMENT
[●], [●]
Total Capital Canada Ltd.
2900, 240 — 4th Avenue SW
Calgary, Alberta T2P 4H4
Canada
TOTAL SE
2, Place Jean Millier
La Défense 6,
92400 Courbevoie
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 SE (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 Latham & Watkins LLP, 885 Third Ave, New York, New York, 10022 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 (2021 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 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.
MiFID Product Governance:
Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules, each of the Company and [●] (each a “Manufacturer” and together the “Manufacturers”) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Offered Securities and the related information set out in the Base Prospectus in connection with the Offered Securities. The Reselling Purchasers note the application of the Product Governance Rules and acknowledge the target market and distribution channels identified as applying to
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the Offered Securities by the Manufacturers and the related information set out in the Base Prospectus in connection with the Offered Securities.
Recognition of the U.S. Special Resolution Regimes:
| (a) | In the event that any Reselling Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Reselling Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. |
| (b) | In the event that any Reselling Purchaser that is a Covered Entity (as defined below) or a BHC Act Affiliate (as defined below) of such Reselling Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States. |
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act, as amended and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended and the regulations promulgated thereunder.
Bail-In or Loss Absorption Powers:
Notwithstanding and to the exclusion of any other provision of this Agreement or any other agreements, arrangements or understandings, in the event that a Reselling Purchaser (each a “BRRD Party”, and together the “BRRD Parties”) becomes subject to the exercise of Bail-in Powers under an applicable Bail-in Legislation, each of the other BRRD Parties, the Company and the Guarantor acknowledge and accept that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:
| (a) | the effect of the exercise of such powers in relation to any BRRD Liability of such BRRD Party arising under this Agreement that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities, or other obligations of such BRRD Party or another person (and the issue to or conferral on the other BRRD Parties of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of this Agreement; |
| (iii) | the cancellation of the BRRD Liability; |
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| (iv) | the amendment or alteration of the amounts due in relation to the BRRD Liability, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a temporary period; |
| (b) | the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of such Bail-in Powers by the Relevant Resolution Authority. |
For purposes of this Agreement:
“Bail-in Legislation” means in relation to the UK a member state of EEA which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time, or Part I of the UK Banking Act 2009 and any other law, regulation, rule or requirement applicable from time to time in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Bail-in Powers” means any Write-down and Conversion Powers as defined in relation to the relevant Bail-in Legislation.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended, including by Directive 2019/879/EU of May 20, 2019.
“EEA” means the European Economic Area.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/.
“BRRD Liability” has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable Bail-in Legislation.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Relevant BRRD Party.
“UK” means the United Kingdom.
“Write-down and Conversion Powers” means the powers under the Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
For purposes of this 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.]
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Delivery of this Agreement by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures
3
and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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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 SE
| By: | |||
| Name: | |||
| Title: |
[RESELLING PURCHASER(S)]
| [Reselling Purchaser(s)] |
SCHEDULE I TO PURCHASE AGREEMENT
| Reselling Purchaser | Principal Amount of Offered Securities | |||
| [●] | $ | [●] | ||
| Total | $ | [●] | ||
SC I
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 |
[●]
SC II
SCHEDULE III TO PURCHASE AGREEMENT
Selling Restrictions
European Economic Area
Each Reselling Purchaser hereby represents and agrees that it has not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Offered Securities to any retail investor in the European Economic Area (“EEA”). For the purposes of this provision:
| (a) | the expression “retail investor” means a person who is one (or more) of the following: |
| (i) | a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or |
| (ii) | a customer within the meaning of Directive 2016/97/EU (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or |
| (iii) | not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”); and |
| (b) | the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities so as to enable an investor to decide to purchase or subscribe the Offered Securities. |
This EEA selling restriction is in addition to the other selling restrictions set out below.
No key information document required by Regulation (EU) No 1286/2014 (the “PRIIPs Regulation”) for offering or selling any in-scope instruments or otherwise making them available to retail investors in the EEA has been prepared. Offering or selling the Offered Securities or otherwise making them available to any retail investor in the EEA may be unlawful.
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 it has only offered or sold and will only offer or sell, directly or indirectly, any Offered Securities to the public in France pursuant to an exemption under Article 1(4) of the Prospectus Regulation and Article L.411-2 1° of the French Code monétaire et financier, and that the prospectus supplement and any other offering material relating to the Offered Securities and such offers, sales and distributions have been and shall be made in France only to qualified investors (investisseurs qualifiés), all as defined in, and in accordance with, the Prospectus Regulation as amended and any applicable French laws and regulations implementing the Prospectus Regulation and related regulations in France.
United Kingdom
Each Reselling Purchaser has represented and agreed that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Offered Securities in to any retail investor in the United Kingdom. For the purposes of this provision:
| (a) | the expression “retail investor” means a person who is one (or more) of the following: |
SC III
| (i) | a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or |
| (ii) | a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (the “FSMA”) and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or |
| (iii) | not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA; and |
| (b) | the expression an “offer” includes 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 for the Offered Securities. |
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 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 hereby represents, warrants and agrees:
| (a) | not to trade any Offered Securities to any person or company in Canada except: (i) pursuant to an exemption from the prospectus requirement under securities legislation in the applicable jurisdiction of Canada; or (ii) if the conditions to resale set out in subsection 2.5(2) of National Instrument 45-102 of the Canadian Securities Administrators are satisfied; |
| (b) | that it will not trade any Offered Securities to a person or company in Canada unless such Reselling Purchaser is registered as a dealer as required under the securities legislation of the applicable jurisdiction in Canada or can rely on an exemption from the dealer registration requirements under securities legislation in the applicable jurisdiction of Canada and has complied with all requirements in relation to that exemption; |
| (c) | that it will deliver, to each dealer who purchases any Offered Securities from the Reselling Purchaser (a “Subsequent US Dealer”), a notice stating in substance that, by purchasing such Offered Securities, the Subsequent US Dealer represents and agrees not to trade the Offered Securities to a person or company in Canada in contravention of securities legislation in any jurisdiction in Canada and to require each dealer to which it sells Offered Securities to deliver to each other dealer to which it sells Offered Securities a notice containing a statement substantially similar to that described above; and |
| (d) | upon request by the Company, it will provide a certificate to the Company and to staff of the Alberta Securities Commission to the effect that it has not, to the best of its knowledge, sold Offered Securities to a person or company in Canada except as provided for above and that it has complied with the provisions of (a) and (b) above. |
[Add other selling restrictions, if appropriate.]
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SCHEDULE IV TO PURCHASE AGREEMENT
Pricing Disclosure Package
Pricing Prospectus
Final Term Sheet attached to the Purchase Agreement as Schedule V
[●]
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SCHEDULE V TO PURCHASE AGREEMENT
Final Term Sheet
TOTAL CAPITAL CANADA LTD.
(A wholly-owned subsidiary of TOTAL SE)
$[●] [●]% Guaranteed Notes Due [●]
Guaranteed on an unsecured, unsubordinated basis by TOTAL SE
| Issuer | Total Capital Canada Ltd. |
| Guarantee | Payment of the principal of, premium, if any, and interest on the notes is guaranteed by TOTAL SE |
| Format | SEC-registered global notes |
| Title | $[●] [●]% Notes Due [●] |
| 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 SE 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 |
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before purchasing the notes. Each rating should be evaluated independently of any other rating.
| |
| CUSIP / ISIN | [●]/[●] |
| Selling Restrictions | European Economic Area, France, United Kingdom, 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 at +[●].
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ANNEX A TO THE PURCHASE AGREEMENT
TOTAL CAPITAL CANADA LTD.
PURCHASE AGREEMENT STANDARD PROVISIONS
(2021 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 (each a “Purchase Agreement”) 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. 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 SE (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 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
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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
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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 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 existing as a corporation and is in good standing under the laws of Alberta Canada. The Guarantor is validly existing as a societas europaea and is 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
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(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.
(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
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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 stamp, registration, issuance, transfer or other similar 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 creation, 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, (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 or (C) the execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated hereby and thereby (provided such sale and delivery is not recorded in a deed registered in France).
(r) 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.
(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 or as otherwise disclosed to the Reselling Purchasers, 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 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 in the Pricing Prospectus and the Prospectus or to the Reselling Purchasers, none of the Company, the Guarantor, or 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 subject to Sanctions, and neither the Company nor the Guarantor will directly 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, for the purpose of financing the activities of any person in a manner that would result in a violation of any Sanctions by any party to the Purchase Agreement or any subsidiary of the Company or the Guarantor, and the Company and the Guarantor have
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instituted and maintain policies and procedures reasonably designed to prevent violation of such 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”) or by any other U.S. state department or agency, (y) any United Nations economic sanctions or (z) any economic sanctions of the European Union or any Member State thereof, and (ii) which are applicable at the relevant time the representations and warranties under this Article IV(v) are made.
(x) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus or to the Reselling Purchasers, the operations of the Company, the Guarantor and their respective subsidiaries are and have been conducted in compliance with money laundering statutes of the applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental entity 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 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
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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 Company and the Guarantor 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 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 and disclosure letter from 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:
(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
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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) To furnish the Reselling Purchasers 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.
(c) 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.
(d) 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.
(e) 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
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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.
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
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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 Company and the Guarantor agrees that any legal suit, action or proceeding brought by any Reselling Purchaser to enforce the indemnity and contribution agreements contained in this Article VIII (or otherwise to enforce this Agreement in respect of a matter resulting from a third-party claim), 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 Company and the Guarantor has designated and appointed Corporation Service Company (or any successor corporation) as the authorized agent of each of the Company and the Guarantor 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 or the Guarantor, as applicable, may designate by written notice to you), shall be deemed in every respect effective service of process upon the Company or the Guarantor, as applicable, in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Company or the Guarantor, as applicable, whether or not the Company or the Guarantor, 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 Company and the Guarantor 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 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
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received if Foreign Taxes had not been deducted or withheld from such payment and to the extent that such payments (i) are made to non-French tax resident persons that (x) are resident of a jurisdiction that has entered into a tax treaty with France containing a “Business Profits” clause similar to the “Business Profits” clause contained in the OECD Model Tax Convention on Income and on Capital and are fully entitled to the benefits of such treaty and (y) are neither incorporated, domiciled or, acting through a branch 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 (a “Non-Cooperative State”) and (ii) are not made and will not be made to an account held with a financial institution established in a Non-Cooperative State; 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. Any payments to any Payee shall be considered exclusive of any value added or similar taxes. Where the Company is obliged to pay value added or similar tax on any amount payable hereunder to a Payee, the Company shall in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax.
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, Canada 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 (other than fees of counsel to and the independent auditors of the Company and Guarantor related to such issuance), including but not limited to:
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(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 the 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.
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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 societas europaea each under the laws of France and each 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, registration, issuance, transfer or other similar 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 creation, 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, (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 or (C) the execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated hereby and thereby (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.
| (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 |
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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.
| (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. |
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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 |
| (b) | in any such proceeding, and notwithstanding the parties’ choice of law, the Alberta Court: |
| (i) | 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; |
| (ii) | will not apply any New York Law and will apply Alberta Law to matters which would be characterized under Alberta Law as procedural; |
| (iii) | will apply provisions of Alberta Law that have overriding effect; |
Exhibit B - 1
| (iv) | 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 |
| (v) | 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. |
Exhibit B - 2
EXHIBIT C
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 (2021 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 PCAOB AS 4105 Review of Interim Financial Information, and other specified procedures not constituting an audit, that caused them to believe 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 International Accounting Standard 34 as issued by the International Accounting Standards Board, the standard of IFRS applicable to interim financial reporting. |
| (iv) | Nothing has come to the attention of such auditors, as a result of making certain inquiries of Company officials, and conducting certain other procedures referred to in the letter, that caused them to believe that there was any increase or decrease in certain financial statement items of the Company, except in all instances for increases or decreases that the Registration Statement discloses have occurred or may occur, as compared to the amounts shown on the consolidated financial statements mentioned in (ii) or (iii) above (as applicable), provided the letter is issued less than 135 days from the date of such financial statements. |
If 135 days or more have elapsed from the date 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 (iv) above.
| (v) | Such auditors have performed other procedures that are customary for auditors’ comfort letters in registered debt offerings as required by the Reselling Purchaser(s). |
Exhibit C - 1
Exhibit 1.4
PURCHASE AGREEMENT
[●], [●]
Total Capital International
2, Place Jean Millier
La Défense 6,
92400 Courbevoie
France
TOTAL SE
2, Place Jean Millier
La Défense 6,
92400 Courbevoie
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 SE (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 Latham & Watkins LLP, 885 Third Ave, New York, New York, 10022 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 (2021 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 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.
MiFID Product Governance:
Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules, each of the Company and [●] (each a “Manufacturer” and together the “Manufacturers”) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Offered Securities and the related information set out in the Base Prospectus in connection with the Offered Securities. The Reselling Purchasers note the application of the Product Governance Rules and acknowledge the target market and distribution channels identified as applying to
1
the Offered Securities by the Manufacturers and the related information set out in the Base Prospectus in connection with the Offered Securities.
Recognition of the U.S. Special Resolution Regimes:
| (a) | In the event that any Reselling Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Reselling Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. |
| (b) | In the event that any Reselling Purchaser that is a Covered Entity (as defined below) or a BHC Act Affiliate (as defined below) of such Reselling Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States. |
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act, as amended and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended and the regulations promulgated thereunder.
Bail-In or Loss Absorption Powers:
Notwithstanding and to the exclusion of any other provision of this Agreement or any other agreements, arrangements or understandings, in the event that a Reselling Purchaser (each a “BRRD Party”, and together the “BRRD Parties”) becomes subject to the exercise of Bail-in Powers under an applicable Bail-in Legislation, each of the other BRRD Parties, the Company and the Guarantor acknowledge and accept that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:
| (a) | the effect of the exercise of such powers in relation to any BRRD Liability of such BRRD Party arising under this Agreement that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities, or other obligations of such BRRD Party or another person (and the issue to or conferral on the other BRRD Parties of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of this Agreement; |
| (iii) | the cancellation of the BRRD Liability; |
2
| (iv) | the amendment or alteration of the amounts due in relation to the BRRD Liability, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a temporary period; |
| (b) | the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of such Bail-in Powers by the Relevant Resolution Authority. |
For purposes of this Agreement:
“Bail-in Legislation” means in relation to the UK a member state of EEA which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time, or Part I of the UK Banking Act 2009 and any other law, regulation, rule or requirement applicable from time to time in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Bail-in Powers” means any Write-down and Conversion Powers as defined in relation to the relevant Bail-in Legislation.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended, including by Directive 2019/879/EU of May 20, 2019.
“EEA” means the European Economic Area.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/.
“BRRD Liability” has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable Bail-in Legislation.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Relevant BRRD Party.
“UK” means the United Kingdom.
“Write-down and Conversion Powers” means the powers under the Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
For purposes of this 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.]
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Delivery of this Agreement by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures
3
and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
4
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: | |||
| Name: | |||
| Title: |
TOTAL SE
| By: | |||
| Name: | |||
| Title: |
[RESELLING PURCHASER(S)]
| [Reselling Purchaser(s)] |
SCHEDULE I TO PURCHASE AGREEMENT
| Reselling Purchaser | Principal Amount of Offered Securities | |||
| [●] | $ | [●] | ||
| Total | $ | [●] | ||
SC I
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 |
[●]
SC II
SCHEDULE III TO PURCHASE AGREEMENT
Selling Restrictions
European Economic Area
Each Reselling Purchaser hereby represents and agrees that it has not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any Offered Securities to any retail investor in the European Economic Area (“EEA”). For the purposes of this provision:
| (a) | the expression “retail investor” means a person who is one (or more) of the following: |
| (i) | a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or |
| (ii) | a customer within the meaning of Directive 2016/97/EU (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or |
| (iii) | not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”); and |
| (b) | the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities so as to enable an investor to decide to purchase or subscribe the Offered Securities. |
This EEA selling restriction is in addition to the other selling restrictions set out below.
No key information document required by Regulation (EU) No 1286/2014 (the “PRIIPs Regulation”) for offering or selling any in-scope instruments or otherwise making them available to retail investors in the EEA has been prepared. Offering or selling the Offered Securities or otherwise making them available to any retail investor in the EEA may be unlawful.
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 it has only offered or sold and will only offer or sell, directly or indirectly, any Offered Securities to the public in France pursuant to an exemption under Article 1(4) of the Prospectus Regulation and Article L.411-2 1° of the French Code monétaire et financier, and that the prospectus supplement and any other offering material relating to the Offered Securities and such offers, sales and distributions have been and shall be made in France only to qualified investors (investisseurs qualifiés), all as defined in, and in accordance with, the Prospectus Regulation as amended and any applicable French laws and regulations implementing the Prospectus Regulation and related regulations in France.
United Kingdom
Each Reselling Purchaser has represented and agreed that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Offered Securities in to any retail investor in the United Kingdom. For the purposes of this provision:
| (a) | the expression “retail investor” means a person who is one (or more) of the following: |
SC III
| (i) | a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or |
| (ii) | a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (the “FSMA”) and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or |
| (iii) | not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA; and |
| (b) | the expression an “offer” includes 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 for the Offered Securities. |
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 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 hereby represents, warrants and agrees:
| (a) | not to trade any Offered Securities to any person or company in Canada except: (i) pursuant to an exemption from the prospectus requirement under securities legislation in the applicable jurisdiction of Canada; or (ii) if the conditions to resale set out in subsection 2.5(2) of National Instrument 45-102 of the Canadian Securities Administrators are satisfied; |
| (b) | that it will not trade any Offered Securities to a person or company in Canada unless such Reselling Purchaser is registered as a dealer as required under the securities legislation of the applicable jurisdiction in Canada or can rely on an exemption from the dealer registration requirements under securities legislation in the applicable jurisdiction of Canada and has complied with all requirements in relation to that exemption; |
| (c) | that it will deliver, to each dealer who purchases any Offered Securities from the Reselling Purchaser (a “Subsequent US Dealer”), a notice stating in substance that, by purchasing such Offered Securities, the Subsequent US Dealer represents and agrees not to trade the Offered Securities to a person or company in Canada in contravention of securities legislation in any jurisdiction in Canada and to require each dealer to which it sells Offered Securities to deliver to each other dealer to which it sells Offered Securities a notice containing a statement substantially similar to that described above; and |
| (d) | upon request by the Company, it will provide a certificate to the Company and to staff of the Alberta Securities Commission to the effect that it has not, to the best of its knowledge, sold Offered Securities to a person or company in Canada except as provided for above and that it has complied with the provisions of (a) and (b) above. |
[Add other selling restrictions, if appropriate.]
SC III 2
SCHEDULE IV TO PURCHASE AGREEMENT
Pricing Disclosure Package
Pricing Prospectus
Final Term Sheet attached to the Purchase Agreement as Schedule V
[●]
SC IV
SCHEDULE V TO PURCHASE AGREEMENT
Final Term Sheet
TOTAL CAPITAL INTERNATIONAL
(A wholly-owned subsidiary of TOTAL SE)
$[●] [●]% Guaranteed Notes Due [●]
Guaranteed on an unsecured, unsubordinated basis by TOTAL SE
| Issuer | Total Capital International |
| Guarantee | Payment of the principal of, premium, if any, and interest on the notes is guaranteed by TOTAL SE |
| Format | SEC-registered global notes |
| Title | $[●] [●]% Notes Due [●] |
| 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 International and TOTAL SE 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 |
SC V
before purchasing the notes. Each rating should be evaluated independently of any other rating.
| |
| CUSIP / ISIN | [●]/[●] |
| Selling Restrictions | European Economic Area, France, United Kingdom, 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 at +[●].
SC V 2
ANNEX A TO THE PURCHASE AGREEMENT
TOTAL CAPITAL INTERNATIONAL
PURCHASE AGREEMENT STANDARD PROVISIONS
(2021 Edition)
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 (each a “Purchase Agreement”) 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. 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 SE (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 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
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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
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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 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 existing as a société anonyme, the Guarantor is validly existing as a societas europaea and each is 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, 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
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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.
(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 stamp, registration, issuance, transfer or other similar 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 creation, 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, (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 or (C) the execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated hereby and thereby (provided such sale and delivery is not recorded in a deed registered in France).
(r) 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-
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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 or as otherwise disclosed to the Reselling Purchasers, 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 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 in the Pricing Prospectus and the Prospectus or to the Reselling Purchasers, none of the Company, the Guarantor, or 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 subject to Sanctions, and neither the Company nor the Guarantor will directly 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, for the purpose of financing the activities of any person in a manner that would result in a violation of any Sanctions by any party to the Purchase Agreement or any subsidiary of the Company or the Guarantor, and the Company and the Guarantor have instituted and maintain policies and procedures reasonably designed to prevent violation of such 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”) or by any other U.S. state department or agency, (y) any United Nations economic sanctions or (z) any economic sanctions of the European Union or any Member State thereof, and (ii) which are applicable at the relevant time the representations and warranties under this Article IV(v) are made.
(w) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus or to the Reselling Purchasers, the operations of the Company, the Guarantor and their respective subsidiaries are and have been conducted in compliance with money laundering statutes of the applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental entity 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
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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.
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 Company and the Guarantor 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
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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 and disclosure letter from 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:
(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) To furnish the Reselling Purchasers 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
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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.
(c) 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.
(d) 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.
(e) 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
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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.
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 Company and the Guarantor agrees that any legal suit, action or proceeding brought by any Reselling Purchaser to enforce the indemnity and contribution agreements contained in this Article VIII (or otherwise to enforce this Agreement in respect of a matter resulting from a third-party claim), may be instituted in any state or Federal
SC VI 9
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 Company and the Guarantor has designated and appointed Corporation Service Company (or any successor corporation) as the authorized agent of each of the Company and the Guarantor 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 or the Guarantor, as applicable, may designate by written notice to you), shall be deemed in every respect effective service of process upon the Company or the Guarantor, as applicable, in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Company or the Guarantor, as applicable, whether or not the Company or the Guarantor, 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 Company and the Guarantor 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 and to the extent that such payments (i) are made to non-French tax resident persons that (x) are resident of a jurisdiction that has entered into a tax treaty with France containing a “Business Profits” clause similar to the “Business Profits” clause contained in the OECD Model Tax Convention on Income and on Capital and are fully entitled to the benefits of such treaty and (y) are neither incorporated, domiciled or, acting through a branch 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 (a “Non-Cooperative State”) and (ii) are not made and will not be made to an account held with a financial institution established in a Non-Cooperative State; 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. Any payments to any Payee shall be considered exclusive of any value added or similar taxes. Where the Company is obliged to pay value added or similar tax on any amount payable hereunder to a Payee, the Company shall in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax.
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
SC VI 10
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 (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:
(a) the Commission filing fees;
(b) the fees and disbursements of counsel to and the independent auditors of the Company and the 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.
SC VI 11
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.
SC VI 12
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 Company is validly existing as a société anonyme and the Guarantor is validly existing as a societas europaea each under the laws of France and each 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. |
| (8) | There are no stamp, registration, issuance, transfer or other similar 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 creation, 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, (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 or (C) the execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated hereby and thereby (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, |
A - 2
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.
| (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. |
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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. |
Exhibit B - 1
EXHIBIT C
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 (2021 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 PCAOB AS 4105 Review of Interim Financial Information, and other specified procedures not constituting an audit, that caused them to believe 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 International Accounting Standard 34 as issued by the International Accounting Standards Board, the standard of IFRS applicable to interim financial reporting. |
| (iv) | Nothing has come to the attention of such auditors, as a result of making certain inquiries of Company officials, and conducting certain other procedures referred to in the letter, that caused them to believe that there was any increase or decrease in certain financial statement items of the Company, except in all instances for increases or decreases that the Registration Statement discloses have occurred or may occur, as compared to the amounts shown on the consolidated financial statements mentioned in (ii) or (iii) above (as applicable), provided the letter is issued less than 135 days from the date of such financial statements. |
If 135 days or more have elapsed from the date 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 (iv) above.
| (v) | Such auditors have performed other procedures that are customary for auditors’ comfort letters in registered debt offerings as required by the Reselling Purchaser(s). |
Exhibit C - 1
Exhibit 5.1
Paris, April 30, 2021
TOTAL SE
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 SE, a European company (Societas Europaea or SE) 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) | TOTAL is a European company (Societas Europaea or SE) duly incorporated and validly existing under the laws of the Republic of France and each of 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 30, 2021, of Lycia Alderin, Group U.S. Securities Counsel to TOTAL, and as to matters governed by the laws of Canada upon the opinion dated April 30, 2021 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]
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/ AURELIEN HAMELLE | |
| Aurélien Hamelle | |
| General Counsel |
Exhibit 5.2
Paris, April 30, 2021
TOTAL SE
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 SE, a European company (Societas Europaea or SE) 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. Securities 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 30, 2021, of Aurélien Hamelle, General Counsel to TOTAL, and as to matters governed by the laws of Canada upon the opinion dated April 30, 2021, 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/ LYCIA ALDERIN | |
| Lycia Alderin | |
| Group U.S. Securities Counsel |
EXHIBIT 5.3
[Bennett Jones LLP Letterhead]
April 30, 2021
TOTAL SE
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:
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 SE, a European company (Societas Europaea or SE) 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 the 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 30, 2021, of Aurélien Hamelle, Group General Counsel to TOTAL, and as to all matters governed by the laws of the State of New York upon the opinion dated April 30, 2021, of Lycia Alderin, 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 |
2
Exhibit 23.1
| Ernst &Young | KPMG |
| Tour First TSA 14 444 | Tour EQHO, 2 avenue Gambetta |
| 92037 Paris-La Défense Cedex | CS 60055, 92923 Paris-La-Défense |
| France | France |
| TOTAL SE |
| Consent of Independent Registered Public Accounting Firms |
|
TOTAL SE 2, place Jean Millier - La Défense 6 |
| This report contains 2 pages |
1
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 17, 2021, with respect to the consolidated balance sheets of TOTAL SE and its subsidiaries as of December 31, 2020, 2019 and 2018, 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, 2020 , and the related notes (our report thereon refers to the change in TOTAL SE’s method of accounting for leases on January 1, 2019, due to the adoption of IFRS 16 “Leases”), and | ||
| (ii) | our report dated March 17, 2021, with respect to the effectiveness of TOTAL SE and its subsidiaries’ internal control over financial reporting as of December 31, 2020, |
which reports appear in the Annual Report on Form 20-F of TOTAL SE for the year ended December 31, 2020 filed with the Securities and Exchange Commission on March 31, 2021.
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 SE for the year ended December 31, 2020, which is incorporated by reference in this Registration Statement.
Paris-La Défense, April 30, 2021
|
KPMG Audit
A division of |
ERNST & YOUNG Audit | |||
| Represented by | ||||
| /s/ JACQUES-FRANÇOIS LETHU /s/ ERIC JACQUET | /s/ ERNST & YOUNG Audit |
| Jacques-François Lethu | Eric Jacquet |
| Partner | Partner |
EXHIBIT 23.2
DeGolyer and MacNaughton
5001 Spring Valley Road
Suite 800 East
Dallas, Texas 75244
April 30, 2021
TOTAL SE
2, place Jean Millier
La Défense 6
92400 Courbevoie
France
Ladies and Gentlemen:
We hereby consent to the reference to DeGolyer and MacNaughton under the heading “Experts” in the Registration Statement on Form F-3 and the incorporation by reference therein of our report of third party dated January 20, 2021, concerning our estimates of the net proved oil, condensate, and gas reserves, as of December 31, 2020, of certain fields attributable to or controlled by PAO Novatek, which is included as Exhibit 15.3 to the TOTAL SE Annual Report on Form 20-F for the year ended December 31, 2020, filed with the United States Securities and Exchange Commission on March 31, 2021.
| Very truly yours, | |
| /s/ DeGolyer and MacNaughton | |
| DeGOLYER and MacNAUGHTON | |
| Texas Registered Engineering Firm F-716 |
Exhibit 24.1
POWER OF ATTORNEY
Reference is hereby made to the registration by TOTAL SE under the U.S. Securities Act of 1933, as amended, of securities to be issued, from time to time, by TOTAL SE (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 Jean-Pierre Sbraire, Chief Financial Officer of TOTAL SE, 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 15, 2021 |
By: |
/s/ Patrick Pouyanné |
| Name: | Patrick Pouyanné | |
| Title: | Chairman and Chief Executive Officer | |
| Date: April 16, 2021 |
By: |
/s/ Patrick Artus |
| Name: | Patrick Artus | |
| Title: | Director | |
| Date: ______________________, 2021 |
By: |
|
| Name: | Patricia Barbizet | |
| Title: | Director | |
| Date: ______________________, 2021 | By: | |
| Name: | Marie-Christine Coisne-Roquette | |
| Title: | Director | |
| Date: April 15, 2021 | By: | /s/ Jérôme Contamine |
| Name: | Jérôme Contamine | |
| Title: | Director | |
| Date: April 16, 2021 |
By: |
/s/ Lise Croteau |
| Name: | Lise Croteau | |
| Title: | Director | |
| Date: April 16, 2021 |
By: |
/s/ Mark Cutifani |
| Name: | Mark Cutifani | |
| Title: | Director | |
|
Date: April 21, 2021 |
By: |
/s/ Valérie Della Puppa Tibi |
| Name: | Valérie Della Puppa Tibi | |
| Title: | Director | |
| Date: April 16, 2021 | By: | /s/ Romain Garcia-Ivaldi |
| Name: | Romain Garcia-Ivaldi | |
| Title | Director |
[Signature page of Form F-3 Power of Attorney TOTAL SE]
| Date: April 16, 2021 |
By: |
/s/ Maria van der Hoeven |
| Name: | Maria van der Hoeven | |
| Title: | Director | |
| Date: April 16, 2021 | By: | /s/ Anne-Marie Idrac |
| Name: | Anne-Marie Idrac | |
| Title: | Director | |
| Date: April 16, 2021 | By: | /s/ Jean Lemierre |
| Name: | Jean Lemierre | |
| Title: | Director | |
| Date: April 22, 2021 | By: | /s/ Angel Pobo |
| Name: | Angel Pobo | |
| Title: | Director |
| Date: April 19, 2021 |
By: |
/s/ Frédéric Agnès |
| Name: | Frédéric Agnès | |
| Title: | Chief Accounting Officer | |
| Date: April 20, 2021 |
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 SE]
EXHIBIT 24.2
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 SE 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 Antoine Larenaudie, Group Treasurer of TOTAL SE, 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 31, 2021 | By | /s/ Eric Bozec | ||
| Eric BOZEC | ||||
| Chairman and Chief Executive Officer (Principal | ||||
| Executive Officer), Director | ||||
| Date: March 29, 2021 | By: | /s/ Frédéric Agnes | ||
| Frédéric AGNES | ||||
| Chief Accounting Officer (Principal Financial | ||||
| and Accounting Officer), Director | ||||
| Date: April 22, 2021 | By: | /s/ Herve Jaskulke | ||
| Hervé JASKULKE | ||||
| Director | ||||
| Date: April 26, 2021 | By: | /s/ Jean-pierre Sbraire | ||
| Jean-Pierre SBRAIRE | ||||
| Director | ||||
| By: | /s/ Robert O. Hammond | |||
| Date: March 26, 2021 | Robert O. HAMMOND | |||
| Authorized Representative in the United States | ||||
[Signature page of Form F-3 Power of Attorney – Total Capital]
Exhibit 24.3
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 SE 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 Antoine Larenaudie, Group Treasurer of TOTAL SE, 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 5, 2021 | By: | /s/ jerome ponticq |
| Jerome PONTICQ | ||
| Chief Financial Officer (Principal Financial and | ||
| Accounting Officer), Director | ||
| Date: April 1, 2021 | By: | /s/ shawn hinch |
| Shawn HINCH | ||
| Director | ||
| Date: April 6, 2021 | By: | /s/ Dimitri lobadowsky |
| Dimitri LOBADOWSKY | ||
| Director | ||
| Date: April 22, 2021 | 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.]
EXHIBIT 24.4
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 SE 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 Antoine Larenaudie, Group Treasurer of TOTAL SE, 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 26, 2021 | By: | /s/ Jean-Pierre Sbraire |
| Jean-Pierre SBRAIRE | ||
| Chairman and Chief Executive Officer | ||
| (Principal Executive Officer), Director | ||
| Date: March 29, 2021 | By: | /s/ Frédéric Agnes |
| Frédéric AGNES | ||
| Chief Accounting Officer (Principal Financial and Accounting Officer), Director | ||
| Date: March 31, 2021 | By: | /s/ Eric Bozec |
| Eric BOZEC | ||
| Director | ||
| Date: April 22, 2021 | By: | /s/ Herve Jaskulke |
| Hervé JASKULKE Director | ||
| Date: March 26, 2021 | 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]
Exhibit 25.1
UNITED STATES
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.) |
|||
| 240 Greenwich Street, New York, N.Y. (Address of principal executive offices) |
10286 (Zip code) |
TOTAL SE
(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) |
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 |
| The Clearing House Association L.L.C. | New York, N.Y. 10004 |
| (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 9th day of April, 2021.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Francine Kincaid | ||
| Name: | Francine Kincaid | ||
| Title: | Vice President | ||
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich 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, 2020, 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 | 5,412,000 | ||
| Interest-bearing balances | 155,123,000 | ||
| Securities: | |||
| Held-to-maturity securities | 47,940,000 | ||
| Available-for-sale debt securities | 105,304,000 | ||
| Equity securities with readily determinable fair values not held for trading | 64,000 | ||
| Federal funds sold and securities purchased under agreements to resell: | |||
| Federal funds sold in domestic offices | 0 | ||
| Securities purchased under agreements to resell | 12,902,000 | ||
| Loans and lease financing receivables: | |||
| Loans and leases held for sale | 0 | ||
| Loans and leases held for investment | 25,616,000 | ||
| LESS: Allowance for loan and lease losses | 320,000 | ||
| Loans and leases held for investment, net of allowance | 25,296,000 | ||
| Trading assets | 8,415,000 | ||
| Premises and fixed assets (including capitalized leases) | 3,099,000 | ||
| Other real estate owned | 1,000 | ||
| Investments in unconsolidated subsidiaries and associated companies | 1,690,000 | ||
| Direct and indirect investments in real estate ventures | 0 | ||
| Intangible assets | 7,030,000 | ||
| Other assets | 14,239,000 | ||
| Total assets | 386,515,000 | ||
| LIABILITIES | |||
| Deposits: | |||
| In domestic offices | 208,980,000 | ||
| Noninterest-bearing | 83,359,000 | ||
| Interest-bearing | 125,621,000 | ||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 133,019,000 | ||
| Noninterest-bearing | 6,242,000 | ||
| Interest-bearing | 126,777,000 | ||
| Federal funds purchased and securities sold under agreements to repurchase: | |||
| Federal funds purchased in domestic offices | 0 | ||
| Securities sold under agreements to repurchase | 2,381,000 | ||
| Trading liabilities | 3,644,000 | ||
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) | 325,000 | ||
| Not applicable | |||
| Not applicable | |||
| Subordinated notes and debentures | 0 | ||
| Other liabilities | 8,910,000 | ||
| Total liabilities | 357,259,000 | ||
| EQUITY CAPITAL | |||
| Perpetual preferred stock and related surplus | 0 | ||
| Common stock | 1,135,000 | ||
| Surplus (exclude all surplus related to preferred stock) | 11,571,000 | ||
| Retained earnings | 16,496,000 | ||
| Accumulated other comprehensive income | 54,000 | ||
| Other equity capital components | 0 | ||
| Total bank equity capital | 29,256,000 | ||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | ||
| Total equity capital | 29,256,000 | ||
| Total liabilities and equity capital | 386,515,000 | ||
I, Emily Portney, 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.
Emily Portney
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.
| Thomas P. Gibbons Samuel C. Scott Joseph J. Echevarria |
 |
Directors |
Exhibit 25.2
UNITED STATES
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.) |
|||
| 240 Greenwich Street, New York, N.Y. (Address of principal executive offices) |
10286 (Zip code) |
TOTAL CAPITAL
(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 SE
(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 |
| The Clearing House Association L.L.C. | New York, N.Y. 10004 |
| (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 9th day of April, 2021.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Francine Kincaid | ||
| Name: | Francine Kincaid | ||
| Title: | Vice President | ||
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich 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, 2020, 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 | 5,412,000 | ||
| Interest-bearing balances | 155,123,000 | ||
| Securities: | |||
| Held-to-maturity securities | 47,940,000 | ||
| Available-for-sale debt securities | 105,304,000 | ||
| Equity securities with readily determinable fair values not held for trading | 64,000 | ||
| Federal funds sold and securities purchased under agreements to resell: | |||
| Federal funds sold in domestic offices | 0 | ||
| Securities purchased under agreements to resell | 12,902,000 | ||
| Loans and lease financing receivables: | |||
| Loans and leases held for sale | 0 | ||
| Loans and leases held for investment | 25,616,000 | ||
| LESS: Allowance for loan and lease losses | 320,000 | ||
| Loans and leases held for investment, net of allowance | 25,296,000 | ||
| Trading assets | 8,415,000 | ||
| Premises and fixed assets (including capitalized leases) | 3,099,000 | ||
| Other real estate owned | 1,000 | ||
| Investments in unconsolidated subsidiaries and associated companies | 1,690,000 | ||
| Direct and indirect investments in real estate ventures | 0 | ||
| Intangible assets | 7,030,000 | ||
| Other assets | 14,239,000 | ||
| Total assets | 386,515,000 | ||
| LIABILITIES | |||
| Deposits: | |||
| In domestic offices | 208,980,000 | ||
| Noninterest-bearing | 83,359,000 | ||
| Interest-bearing | 125,621,000 | ||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 133,019,000 | ||
| Noninterest-bearing | 6,242,000 | ||
| Interest-bearing | 126,777,000 | ||
| Federal funds purchased and securities sold under agreements to repurchase: | |||
| Federal funds purchased in domestic offices | 0 | ||
| Securities sold under agreements to repurchase | 2,381,000 | ||
| Trading liabilities | 3,644,000 | ||
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) | 325,000 | ||
| Not applicable | |||
| Not applicable | |||
| Subordinated notes and debentures | 0 | ||
| Other liabilities | 8,910,000 | ||
| Total liabilities | 357,259,000 | ||
| EQUITY CAPITAL | |||
| Perpetual preferred stock and related surplus | 0 | ||
| Common stock | 1,135,000 | ||
| Surplus (exclude all surplus related to preferred stock) | 11,571,000 | ||
| Retained earnings | 16,496,000 | ||
| Accumulated other comprehensive income | 54,000 | ||
| Other equity capital components | 0 | ||
| Total bank equity capital | 29,256,000 | ||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | ||
| Total equity capital | 29,256,000 | ||
| Total liabilities and equity capital | 386,515,000 | ||
I, Emily Portney, 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.
Emily Portney
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.
| Thomas P. Gibbons Samuel C. Scott Joseph J. Echevarria |
|
Directors |
Exhibit 25.3
UNITED STATES
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.) |
|||
| 240 Greenwich 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 SE
(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 |
| The Clearing House Association L.L.C. | New York, N.Y. 10004 |
| (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 9th day of April, 2021.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Francine Kincaid | ||
| Name: | Francine Kincaid | ||
| Title: | Vice President | ||
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich 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, 2020, 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 | 5,412,000 | ||
| Interest-bearing balances | 155,123,000 | ||
| Securities: | |||
| Held-to-maturity securities | 47,940,000 | ||
| Available-for-sale debt securities | 105,304,000 | ||
| Equity securities with readily determinable fair values not held for trading | 64,000 | ||
| Federal funds sold and securities purchased under agreements to resell: | |||
| Federal funds sold in domestic offices | 0 | ||
| Securities purchased under agreements to resell | 12,902,000 | ||
| Loans and lease financing receivables: | |||
| Loans and leases held for sale | 0 | ||
| Loans and leases held for investment | 25,616,000 | ||
| LESS: Allowance for loan and lease losses | 320,000 | ||
| Loans and leases held for investment, net of allowance | 25,296,000 | ||
| Trading assets | 8,415,000 | ||
| Premises and fixed assets (including capitalized leases) | 3,099,000 | ||
| Other real estate owned | 1,000 | ||
| Investments in unconsolidated subsidiaries and associated companies | 1,690,000 | ||
| Direct and indirect investments in real estate ventures | 0 | ||
| Intangible assets | 7,030,000 | ||
| Other assets | 14,239,000 | ||
| Total assets | 386,515,000 | ||
| LIABILITIES | |||
| Deposits: | |||
| In domestic offices | 208,980,000 | ||
| Noninterest-bearing | 83,359,000 | ||
| Interest-bearing | 125,621,000 | ||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 133,019,000 | ||
| Noninterest-bearing | 6,242,000 | ||
| Interest-bearing | 126,777,000 | ||
| Federal funds purchased and securities sold under agreements to repurchase: | |||
| Federal funds purchased in domestic offices | 0 | ||
| Securities sold under agreements to repurchase | 2,381,000 | ||
| Trading liabilities | 3,644,000 | ||
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) | 325,000 | ||
| Not applicable | |||
| Not applicable | |||
| Subordinated notes and debentures | 0 | ||
| Other liabilities | 8,910,000 | ||
| Total liabilities | 357,259,000 | ||
| EQUITY CAPITAL | |||
| Perpetual preferred stock and related surplus | 0 | ||
| Common stock | 1,135,000 | ||
| Surplus (exclude all surplus related to preferred stock) | 11,571,000 | ||
| Retained earnings | 16,496,000 | ||
| Accumulated other comprehensive income | 54,000 | ||
| Other equity capital components | 0 | ||
| Total bank equity capital | 29,256,000 | ||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | ||
| Total equity capital | 29,256,000 | ||
| Total liabilities and equity capital | 386,515,000 | ||
I, Emily Portney, 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.
Emily Portney
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.
| Thomas P. Gibbons Samuel C. Scott Joseph J. Echevarria |
|
Directors |
Exhibit 25.4
UNITED STATES
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.) |
|||
| 240 Greenwich 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 SE
(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 |
| The Clearing House Association L.L.C. | New York, N.Y. 10004 |
| (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 9th day of April, 2021.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Francine Kincaid | ||
| Name: | Francine Kincaid | ||
| Title: | Vice President | ||
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich 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, 2020, 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 | 5,412,000 | ||
| Interest-bearing balances | 155,123,000 | ||
| Securities: | |||
| Held-to-maturity securities | 47,940,000 | ||
| Available-for-sale debt securities | 105,304,000 | ||
| Equity securities with readily determinable fair values not held for trading | 64,000 | ||
| Federal funds sold and securities purchased under agreements to resell: | |||
| Federal funds sold in domestic offices | 0 | ||
| Securities purchased under agreements to resell | 12,902,000 | ||
| Loans and lease financing receivables: | |||
| Loans and leases held for sale | 0 | ||
| Loans and leases held for investment | 25,616,000 | ||
| LESS: Allowance for loan and lease losses | 320,000 | ||
| Loans and leases held for investment, net of allowance | 25,296,000 | ||
| Trading assets | 8,415,000 | ||
| Premises and fixed assets (including capitalized leases) | 3,099,000 | ||
| Other real estate owned | 1,000 | ||
| Investments in unconsolidated subsidiaries and associated companies | 1,690,000 | ||
| Direct and indirect investments in real estate ventures | 0 | ||
| Intangible assets | 7,030,000 | ||
| Other assets | 14,239,000 | ||
| Total assets | 386,515,000 | ||
| LIABILITIES | |||
| Deposits: | |||
| In domestic offices | 208,980,000 | ||
| Noninterest-bearing | 83,359,000 | ||
| Interest-bearing | 125,621,000 | ||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 133,019,000 | ||
| Noninterest-bearing | 6,242,000 | ||
| Interest-bearing | 126,777,000 | ||
| Federal funds purchased and securities sold under agreements to repurchase: | |||
| Federal funds purchased in domestic offices | 0 | ||
| Securities sold under agreements to repurchase | 2,381,000 | ||
| Trading liabilities | 3,644,000 | ||
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) | 325,000 | ||
| Not applicable | |||
| Not applicable | |||
| Subordinated notes and debentures | 0 | ||
| Other liabilities | 8,910,000 | ||
| Total liabilities | 357,259,000 | ||
| EQUITY CAPITAL | |||
| Perpetual preferred stock and related surplus | 0 | ||
| Common stock | 1,135,000 | ||
| Surplus (exclude all surplus related to preferred stock) | 11,571,000 | ||
| Retained earnings | 16,496,000 | ||
| Accumulated other comprehensive income | 54,000 | ||
| Other equity capital components | 0 | ||
| Total bank equity capital | 29,256,000 | ||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | ||
| Total equity capital | 29,256,000 | ||
| Total liabilities and equity capital | 386,515,000 | ||
I, Emily Portney, 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.
Emily Portney
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.
| Thomas P. Gibbons Samuel C. Scott Joseph J. Echevarria |
|
Directors |