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The information in this preliminary prospectus is not complete and may be changed. A registration statement relating to these securities has become effective upon filing with the Securities and Exchange Commission. We are not using this prospectus supplement or the attached prospectus to offer to sell these securities or to solicit offers to buy these securities in any place where the offer or sale is not permitted.
PROSPECTUS SUPPLEMENT | Filed pursuant to Rule 424(b)(5) | |
(To prospectus dated May 19, 2009) | Registration Statement Nos. 333-159335 and | |
333-159335-01 |
Per Note | Total | |||||||
Public Offering Price1 | % | $ | ||||||
Underwriting Discount | % | $ | ||||||
Proceeds, before expenses, to Total Capital | % | $ |
1 | Plus accrued interest from , , if settlement occurs after that date |
BofA Merrill Lynch | Deutsche Bank Securities |
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• | incorporated documents are considered part of this prospectus supplement and the attached prospectus; | ||
• | we can disclose important information to you by referring to those documents; and | ||
• | information filed with the SEC in the future will automatically update and supersede this prospectus supplement and the attached prospectus. |
• | TOTAL’s Annual Report on Form 20-F for the year ended December 31, 2008, filed with the SEC on April 3, 2009; | ||
• | TOTAL’s Reports on Form 6-K, furnished to the SEC on May 19, 2009, August 10, 2009 and September 25, 2009. |
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(Unaudited)
At June 30, 2009 | ||||||||
(in millions of euros) | Actual | As Adjusted(1) | ||||||
Current financial debt, including current portion of non-current financial debt | ||||||||
Current portion of non-current financial debt | 1,668 | 1,668 | ||||||
Current financial debt | 6,248 | 6,248 | ||||||
Current portion of financial instruments for interest rate swaps liabilities | — | — | ||||||
Other current financial instruments — liabilities | 94 | 94 | ||||||
Total current financial debt | 8,010 | 8,010 | ||||||
Non-current financial debt | 19,640 | |||||||
Minority interests | 963 | 963 | ||||||
Shareholders’ equity(2) | ||||||||
Common shares | 5,931 | 5,931 | ||||||
Paid-in surplus and retained earnings | 55,031 | 55,031 | ||||||
Currency translation adjustment | (4,656 | ) | (4,656 | ) | ||||
Treasury shares | (5,007 | ) | (5,007 | ) | ||||
Total shareholders’ equity | 51,299 | 51,299 | ||||||
Total capitalization and non-current indebtedness | 71,902 | |||||||
(1) | As adjusted to reflect the issuance of debt securities offered pursuant to this prospectus, after deducting underwriting discounts and commissions, translated from U.S. dollars into euro using the September 24, 2009, European Central Bank reference exchange rate of€1 = $1.48 for a total amount of€ . | |
(2) | At its July 30, 2009 meeting, TOTAL’s Board of Directors approved the cancellation of 24,800,000 shares bought in 2008, adjusting the share capital to€5,867,520,185 based on 2,347,008,074 shares with a par value of€2.50 per share. As of July 31, 2009, TOTAL had an authorized share capital of 3,387,833,625 ordinary shares with a par value of€2.50 per share, and an issued share capital of 2,347,601,812 ordinary shares (including 115,907,896 treasury shares from shareholders’ equity). |
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• | Issuer:Total Capital. | ||
• | Guarantor:TOTAL S.A. | ||
• | Title: % Guaranteed Notes due . | ||
• | Total initial principal amount being issued: $ . | ||
• | Public Offering Price: %. | ||
• | Issuance date: , 2009. | ||
• | Maturity date: . | ||
• | Interest rate: % per annum. | ||
• | Day count:Interest will be calculated on the basis of a 360-day year consisting of twelve 30-day months. | ||
• | Date interest starts accruing: , . | ||
• | Interest due dates: Each and . | ||
• | First interest due date: , . | ||
• | Regular record dates for interest: Each and . | ||
• | Business Day: If any payment is due in respect of the notes on a day that is not a business day, it will be made on the next following business day, provided that no interest will accrue on the payment so deferred. A “business day” for these purposes is any weekday on which banking or trust institutions in the City of New York are not authorized generally or obligated by law, regulation or executive order to close. | ||
• | Guarantee:Payment of the principal of, premium, if any, and interest on the notes is guaranteed by TOTAL. For more information about the guarantee, you should read “Description of Debt Securities and Guarantee” beginning on page 11 of the attached prospectus. | ||
• | Ranking: The notes and the guarantees will constitute unsecured and unsubordinated indebtedness of Total Capital and TOTAL S.A., respectively, and will rank equally with all other unsecured and unsubordinated indebtedness from time to time outstanding. | ||
• | Name of depositary: The Depository Trust Company, commonly referred to as “DTC”. | ||
• | Form of notes: The notes will be issued as one or more global securities. You should read “Description of Debt Securities and Guarantee—Legal Ownership—Global Securities” beginning on page 13 of the attached prospectus for more information about global securities. The notes will be issued in the form of global securities deposited in DTC. Beneficial interests in the notes may be held through DTC, Clearstream or Euroclear. For more information about global securities held through DTC, Clearstream or Euroclear, you should read “Clearance and Settlement” beginning on page 24 of the prospectus. |
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• | Redemption:The notes are not redeemable, except (i) as described under “Description of Debt Securities and Guarantee – Optional Tax Redemption” beginning on page 20 of the attached prospectus; the provisions for optional tax redemption described therein will apply to changes in tax treatment occurring after the issuance date; at maturity, the notes will be repaid at par; and (ii) as described below under “Optional make-whole redemption”. | ||
• | Optional make-whole redemption:We have the right to redeem the notes, in whole or in part, at any time and from time to time at a redemption price equal to the greater of (i) 100% of the principal amount of the notes to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (not including any portion of payments of interest accrued to the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate plus basis points, plus accrued and unpaid interest to the date of redemption. | ||
For purposes of determining the optional make-whole redemption price, the following definitions are applicable. | |||
“Treasury rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the comparable treasury issue, assuming a price for the comparable treasury issue (expressed as a percentage of its principal amount) equal to the comparable treasury price for such redemption date. | |||
“Comparable treasury issue” means the U.S. Treasury security or securities selected by the quotation agent as having an actual or interpolated maturity comparable to the remaining term of the applicable series of notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such notes. | |||
“Comparable treasury price” means, with respect to any redemption date, the average of the reference treasury dealer quotations for such redemption date. | |||
“Quotation agent” means one of the reference treasury dealers appointed by us. “Reference treasury dealer” means Banc of America Securities LLC, Deutsche Bank Securities Inc. or their respective affiliates which are primary U.S. government securities dealers, and their respective successors, and three other primary U.S. government securities dealers selected by us, provided, however, that if any of the foregoing shall cease to be a primary U.S. government securities dealer in the United States (a “primary treasury dealer”), we shall substitute therefor another primary treasury dealer. | |||
“Reference treasury dealer quotations” means with respect to each reference treasury dealer and any redemption date, the average, as determined by the quotation agent, of the bid and asked prices for the comparable treasury issue (expressed in each case as a percentage of its principal amount) quoted in writing to the quotation agent by such reference treasury dealer at 3:30 p.m. New York time on the third business day preceding such redemption date. | |||
• | Additional Amounts: We will make payments on the notes without withholding any taxes unless otherwise required to do so by law. If the Republic of France or any tax authority therein requires Total Capital or TOTAL to withhold or deduct amounts from payment on a note or any amounts to be paid under the guarantee in respect of the notes or as additional amounts for or on account of taxes or any other governmental charges, or any other jurisdiction requires such withholding or deduction as a result of a merger or similar event, Total Capital or TOTAL may be required to pay you an additional amount so that the net amount you receive will be the amount specified in the note to which you are entitled as more fully described in the attached prospectus. | ||
• | Sinking fund: There is no sinking fund. | ||
• | Trustee: Total Capital will issue the notes under an indenture with The Bank of New York Mellon, as trustee, to be entered into on October , 2009, which is referred to on page 11 of the attached prospectus. | ||
• | Net proceeds: The net proceeds will be $ (before expenses). |
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• | Listing: We do not plan to have the notes listed on any securities exchange or included in any quotation system. | ||
• | Risk factors: You should read carefully all of the information in this prospectus supplement and the attached prospectus, which includes information incorporated by reference. In particular, you should evaluate the specific factors under “Risk Factors” beginning on page S-5 of this prospectus supplement, on page 5 of the attached prospectus and on page 4 of our Annual Report on Form 20-F for the fiscal year ended December 31, 2008 for risks involved with an investment in the notes. | ||
• | Further issues: We may issue notes of the same series as the notes offered hereby without the consent of holders of such notes. Any additional notes so issued will have the same terms as the existing notes in all respects (except for the first interest payment on the new notes, if any), so that such additional notes will be consolidated and form a single series with the existing notes. | ||
• | Governing law and jurisdiction: The indenture and the notes are governed by New York law. Any legal proceeding arising out of or based upon the indenture and the notes may be instituted in any state or federal court in the Borough of Manhattan in New York City, New York. | ||
• | Timing and delivery: We currently expect delivery of the notes to occur on or about , 2009, which will be the fifth business day following the initial date of trading of the notes (such settlement cycle being referred to as “T+5”). Under applicable rules and regulations, trades in the secondary market generally are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the initial trading date of the notes and the next succeeding business day will be required, by virtue of the fact that the notes initially will settle in T+5, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of notes who wish to trade notes on the initial date of trading of the notes or the next succeeding business day should consult their own advisor. | ||
• | CUSIP/ISIN: / |
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Year | Average Rate(a) | |||
2004 | 1.25 | |||
2005 | 1.24 | |||
2006 | 1.26 | |||
2007 | 1.37 | |||
2008 | 1.47 | |||
First six months of 2009 | 1.33 |
(a) | The average of the Noon Buying Rate expressed in dollars/euro on the last business day of each full month during the relevant year. |
Period | High | Low | ||||||
March 2009 | 1.37 | 1.26 | ||||||
April 2009 | 1.35 | 1.30 | ||||||
May 2009 | 1.41 | 1.33 | ||||||
June 2009 | 1.43 | 1.38 | ||||||
July 2009 | 1.43 | 1.39 | ||||||
August 2009 | 1.44 | 1.41 |
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Underwriter | Principal Amount of Notes | |
Banc of America Securities LLC | $ | |
Deutsche Bank Securities Inc. | $ | |
Total | $ | |
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by
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• | to effect service within the United States upon us or our directors and officers located outside the United States; | ||
• | to enforce in U.S. courts or outside the United States judgments obtained against us or those persons in the U.S. courts; | ||
• | to enforce in U.S. courts judgments obtained against us or those persons in courts in jurisdictions outside the United States; and |
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• | to enforce against us or those persons in France, whether in original actions or in actions for the enforcement of judgments of U.S. courts, civil liabilities based solely upon the U.S. federal securities laws. |
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• | the Annual Report on Form 20-F for the year ended December 31, 2008, filed with the SEC on April 3, 2009; and | ||
• | the Report on Form 6-K furnished to the SEC on May 19, 2009. |
2, place Jean Millier
La Défense 6
92078 Paris La Défense Cedex
France
(011) 331 4744 4546
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• | first, it can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, described under “Default and Related Matters — Events of Default — Remedies If an Event of Default Occurs” below; and | ||
• | second, the trustee performs administrative duties for us, such as sending you interest payments, transferring your debt securities to a new buyer if you sell your debt securities and sending you notices. |
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• | the title of the series of debt securities; | ||
• | any limit on the aggregate principal amount of the series of debt securities; | ||
• | any stock exchange, if any, on which we list the series of debt securities; | ||
• | the date or dates on which we will pay the principal of the series of debt securities; | ||
• | the rate or rates, which may be fixed or variable, per annum at which the series of debt securities will bear interest, if any, and the date or dates from which that interest, if any, will accrue; | ||
• | the dates on which interest, if any, on the series of debt securities will be payable and the regular record dates for the interest payment dates; | ||
• | any mandatory or optional sinking funds or analogous provisions or provisions for redemption at the option of the holder; | ||
• | the date, if any, after which and the price or prices at which the series of debt securities may, in accordance with any optional or mandatory redemption provisions that are not described in this prospectus, be redeemed and the other detailed terms and provisions of those optional or mandatory redemption provisions, if any; | ||
• | the denominations in which the series of debt securities will be issuable if other than denominations of $1,000 and any integral multiple of $1,000; | ||
• | the currency of payment of principal of, premium, if any, and interest on the series of debt securities if other than the currency of the United States of America and the manner of determining the equivalent amount in the currency of the United States of America, if applicable; | ||
• | any index used to determine the amount of payment of principal of, premium, if any, and interest on the series of debt securities; | ||
• | whether we will be required to pay additional amounts for withholding taxes or other governmental charges and, if applicable, a related right to an optional tax redemption for such a series; |
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• | whether the series of debt securities will be issuable in whole or in part in the form of a global security as described under “Legal Ownership — Global Securities”, and the depositary or its nominee with respect to the series of debt securities, and any special circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depositary or its nominee; and | ||
• | any other special features of the series of debt securities. |
• | how it handles securities payments and notices; | ||
• | whether it imposes fees or charges; | ||
• | how it would handle voting if it were ever required to vote; | ||
• | whether and how you can instruct it to send you securities registered in your own name so you can be a direct holder as described below; and | ||
• | how it would pursue rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests. |
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• | You cannot get securities registered in your own name. | ||
• | You cannot receive physical certificates for your interest in the securities. | ||
• | You will be a street name holder and must look to your own bank or broker for payments on the securities and protection of your legal rights relating to the securities, as explained earlier under “Street Name and Other Indirect Holders”. | ||
• | You may not be able to sell interests in the securities to some insurance companies and other institutions that are required by law to own their securities in the form of physical certificates. | ||
• | The depositary’s policies will govern payments, transfers, exchange and other matters relating to your interest in the global security. We and the trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary in any way. |
• | When the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary. | ||
• | When an event of default on the securities has occurred and has not been cured. Defaults on debt securities are discussed below under “Description of Debt Securities and Guarantee — Default and Related Matters — Events of Default”. | ||
• | When the issuer or guarantor notifies the trustee that the global security is exchangeable for physical certificates. |
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• | Additional mechanicsrelevant to the debt securities under normal circumstances, such as how you transfer ownership and where we make payments. | ||
• | Your rights under severalspecial situations, such as if we merge with another company or if we want to change a term of the debt securities. | ||
• | Your rights to receivepayment of additional amountsdue to changes in French tax withholding or deduction requirements. | ||
• | Your rights if wedefaultor experience other financial difficulties. | ||
• | Our relationship with thetrustee. |
• | only in fully registered form; | ||
• | without interest coupons; and | ||
• | unless otherwise indicated in the prospectus supplement, in denominations that are even multiples of $1,000. |
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• | the obligations of Total Capital to TOTAL or any majority-owned subsidiary of TOTAL; and | ||
• | the obligations of TOTAL, as issuer of debt securities, to any majority-owned subsidiary of TOTAL, so long as the obligations of that subsidiary are guaranteed by TOTAL on the same terms as TOTAL’s guarantee of Total Capital’s debt securities. |
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• | a lower credit rating being assigned to the debt securities; or | ||
• | additional amounts becoming payable in respect of withholding tax. |
• | Where TOTAL or Total Capital merges out of existence or sells or leases substantially all of its assets, or transfers its obligations to a substitute obligor, the other entity must be duly organized and validly existing under the laws of the relevant jurisdiction. | ||
• | The merger, sale or lease of assets or other transaction, or the transfer of obligations to a substitute obligor, must not cause a default on the debt securities, and we must not already be in default. For purposes of this no-default test, a default would include an event of default that has occurred and not been cured, as described below under “Default and Related Matters — Events of Default — What is An Event of Default?” A default for this purpose would also include any event that would be an event of default if the requirements for giving us default notice or our default having to exist for a specific period of time were disregarded. | ||
• | If either TOTAL or Total Capital merges out of existence or sells or leases substantially all of its assets, or transfers its obligations to a substitute obligor, the other entity must assume its obligations under the applicable indenture, debt securities and guarantee, including TOTAL’s and Total Capital’s obligations to pay additional amounts described below under “— Payment of Additional Amounts”. In the event the jurisdiction of incorporation of the successor or substitute obligor is not the Republic of France, such successor or substitute obligor shall also agree to be bound to the obligations described below under “— Payment of Additional Amounts” and “— Optional Tax Redemption” but shall substitute the successor’s or substitute obligor’s jurisdiction of incorporation for the Republic of France. |
• | change the stated maturity of the principal or interest on a debt security; | ||
• | reduce any amounts due on a debt security; | ||
• | reduce the amount of principal payable upon acceleration of the maturity of a debt security following a default; | ||
• | change the place or currency of payment on a debt security; |
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• | impair your right to sue for payment; | ||
• | reduce the percentage of holders of debt securities whose consent is needed to modify or amend the applicable indenture; | ||
• | reduce the percentage of holders of debt securities whose consent is needed to waive compliance with various provisions of the applicable indenture or to waive various defaults; | ||
• | modify any other aspect of the provisions dealing with modification and waiver of the applicable indenture; and | ||
• | in the case of guaranteed debt securities, change in any manner adverse to the interests of holders the obligations of TOTAL to pay any principal, premium or interest under the guarantee. (Section 902) |
• | For original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of the debt securities were accelerated to that date because of a default. | ||
• | For debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special rule for that security described in the prospectus supplement. | ||
• | For debt securities denominated in one or more foreign currencies or currency units, we will use the U.S. dollar equivalent as of the date of original issuance. | ||
• | Debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust for you money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under “Covenants — Defeasance and Discharge”. (Section 101) | ||
• | We will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding debt securities that are entitled to vote or take other action under the applicable indenture (or failing us in certain circumstances, the trustee). If we set a record date for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding debt securities of that series on the record date and must be taken within 90 days following the record date or another period that we may specify (or as the trustee may specify, if it set the record date). We may shorten or lengthen (but not beyond 90 days) this period from time to time. (Sections 501, 502, 512, 513 and 902) |
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• | The holder of the debt securities (or a third party holding on behalf of the holder) is subject to such tax or governmental charge by reason of having some connection to the Republic of France, or the other jurisdiction requiring such withholding or deduction, other than the mere holding of the debt security. | ||
• | The tax or governmental charge is imposed due to the presentation of a debt security, if presentation is required, for payment on a date more than 30 days after the security became due or after the payment was provided for, whichever occurs later. |
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• | The tax or governmental charge is on account of an estate, inheritance, gift, sale, transfer, personal property or similar tax or other governmental charge. | ||
• | The tax or governmental charge is for a tax or governmental charge that is payable in a manner that does not involve withholding or deduction. | ||
• | The tax or governmental charge is imposed or withheld because the holder or beneficial owner failed: |
• | to provide information about the nationality, residence or identity of the holder or beneficial owner; or | ||
• | to make a declaration or satisfy any information requirements that the statutes, treaties, regulations or administrative practices of the taxing jurisdiction require as a precondition to exemption from all or part of such tax or governmental charge. |
• | The withholding or deduction is imposed pursuant to the European Union Directive 2003/48/EC regarding the taxation of savings income or any other directive amending, supplementing or replacing such directive, or any law implementing or complying with, or introduced in order to conform to, such directive or directives. | ||
• | The withholding or deduction is imposed on a holder or beneficial owner who could have avoided such withholding or deduction by presenting its debt securities to another paying agent. | ||
• | The holder is a fiduciary or partnership or an entity that is not the sole beneficial owner of the payment of the principal of, or any interest on, any debt security, and the laws of the jurisdiction require the payment to be included in the income of a beneficiary or settlor for tax purposes with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the holder of such security. |
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• | to be discharged after 90 days from all our obligations (subject to limited exceptions) with respect to any series of debt securities then outstanding; and/or | ||
• | to be released from our obligations under some of the covenants and from the consequences of an event of default resulting from a breach of such covenants. |
• | We must deposit in trust for your benefit and the benefit of all other direct holders of the debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates. In addition, on the date of such deposit, we must not be in default. For purposes of this no-default test, a default would include an event of default that has occurred and not been cured, as described below under “Default and Related Matters — Events of Default — What is An Event of Default?” A default for this purpose would also include any event that would be an event of default if the requirements for giving us default notice or our default having to exist for a specific period of time were disregarded. | ||
• | We must deliver to the trustee a legal opinion of our counsel confirming that under current U.S. federal income tax law we may make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves in accordance with their terms. In the case of debt securities being discharged, we must deliver along with this opinion a private letter ruling from the U.S. Internal Revenue Service to this effect or a revenue ruling pertaining to a comparable form of transaction published by the U.S. Internal Revenue Service to the same effect. | ||
• | If the debt securities are listed on the New York Stock Exchange, we must deliver to the trustee a legal opinion of our counsel confirming that the deposit, defeasance and discharge will not cause the debt securities to be delisted. |
• | to register the transfer and exchange of debt securities; | ||
• | to replace mutilated, destroyed, lost or stolen debt securities; | ||
• | to maintain paying agencies; and | ||
• | to hold money for payment in trust. |
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• | We do not pay the principal or any premium on a debt security at maturity. | ||
• | We do not pay interest on a debt security within 30 days of its due date. | ||
• | We remain in breach of a covenant or any other term of the applicable indenture for 90 days after we receive a notice of default stating we are in breach. The notice must be sent by either the trustee or holders of 25% of the principal amount of debt securities of the affected series. | ||
• | We file for bankruptcy or certain other events in bankruptcy, insolvency or reorganization occur. | ||
• | In respect of guaranteed debt securities issued by Total Capital, the guarantee is not (or is claimed by TOTAL or Total Capital not to be) in full force and effect. | ||
• | Any other event of default described in the prospectus supplement occurs. (Section 501) |
• | You must give the trustee written notice that an event of default has occurred and remains uncured. | ||
• | The holders of 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default, and must offer reasonable indemnity to the trustee against the cost and other liabilities of taking that action. | ||
• | The trustee must have not taken action for 60 days after receipt of the above notice and offer of indemnity. | ||
• | No direction inconsistent with such written request must have been given to the trustee during such 60-day period by holders of a majority in principal amount of all outstanding debt securities of that series. (Section 507) |
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• | DTC is: |
• | a limited purpose trust company organized under the laws of the State of New York; | ||
• | a member of the Federal Reserve System; | ||
• | a “clearing corporation” within the meaning of the Uniform Commercial Code; and | ||
• | a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. |
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• | DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes to accounts of its participants. This eliminates the need for physical movement of certificates. | ||
• | Participants in DTC include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations. DTC is partially owned by some of these participants or their representatives. | ||
• | Indirect access to the DTC system is also available to banks, brokers, dealers and trust companies that have relationships with participants. | ||
• | The rules applicable to DTC and DTC participants are on file with the SEC. |
• | Clearstream is a duly licensed bank organized as asociété anonymeincorporated under the laws of Luxembourg and is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector (Commission de Surveillance du Secteur Financier). | ||
• | Clearstream holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through electronic book-entry changes to the accounts of its customers. This eliminates the need for physical movement of certificates. | ||
• | Clearstream provides other services to its participants, including safekeeping, administration, clearance and settlement of internationally traded securities and lending and borrowing of securities. It interfaces with the domestic markets in over 30 countries through established depositary and custodial relationships. | ||
• | Clearstream’s customers include worldwide securities brokers and dealers, banks, trust companies and clearing corporations and may include professional financial intermediaries. Its U.S. customers are limited to securities brokers and dealers and banks. | ||
• | Indirect access to the Clearstream system is also available to others that clear through Clearstream customers or that have custodial relationships with its customers, such as banks, brokers, dealers and trust companies. |
• | Euroclear is incorporated under the laws of Belgium as a bank and is subject to regulation by the Belgian Banking and Finance Commission (Commission Bancaire et Financière) and the National Bank of Belgium (Banque Nationale de Belgique). | ||
• | Euroclear holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates. | ||
• | Euroclear provides other services to its customers, including credit custody, lending and borrowing of securities and tri-party collateral management. It interfaces with the domestic markets of several other countries. |
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• | Euroclear customers include banks, including central banks, securities brokers and dealers, trust companies and clearing corporations and may include certain other professional financial intermediaries. | ||
• | Indirect access to the Euroclear system is also available to others that clear through Euroclear customers or that have relationships with Euroclear customers. | ||
• | All securities in Euroclear are held on a fungible basis. This means that specific certificates are not matched to specific securities clearance accounts. |
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• | a dealer in securities or currencies; | ||
• | a trader in securities that elects to use a mark-to-market method of accounting for its securities holdings; | ||
• | a bank; | ||
• | a life insurance company; | ||
• | a tax-exempt organization; | ||
• | a person that owns debt securities that are a hedge or that are hedged against interest rate or currency risks; | ||
• | a person that owns debt securities as part of a straddle or conversion transaction for tax purposes; or | ||
• | a United States holder (as defined below) whose functional currency for tax purposes is not the U.S. dollar. |
• | a citizen or resident, for United States federal income tax purposes, of the United States; | ||
• | a domestic corporation; |
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• | an estate whose income is subject to United States federal income tax regardless of its source; or | ||
• | a trust if a United States court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control all substantial decisions of the trust. |
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• | the amount of the principal payment made |
• | the stated principal amount of the debt security. |
• | multiplying your discount debt security’s adjusted issue price at the beginning of the accrual period by your debt security’s yield to maturity, and then | ||
• | subtracting from this figure the sum of the payments of qualified stated interest on your debt security allocable to the accrual period. |
• | adding your discount debt security’s issue price and any accrued OID for each prior accrual period, and then | ||
• | subtracting any payments previously made on your discount debt security that were not qualified stated interest payments. |
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• | the amount payable at the maturity of your debt security, other than any payment of qualified stated interest; and | ||
• | your debt security’s adjusted issue price as of the beginning of the final accrual period. |
• | the excess of your adjusted basis in the debt security immediately after purchase over the adjusted issue price of the debt security, divided by, | ||
• | the excess of the sum of all amounts payable, other than qualified stated interest, on the debt security after the purchase date over the debt security’s adjusted issue price. |
• | a portion of the initial purchase price of your debt security is attributable to pre-issuance accrued interest; | ||
• | the first stated interest payment on your debt security is to be made within one year of your debt security’s issue date; and | ||
• | the payment will equal or exceed the amount of pre-issuance accrued interest. |
• | the timing and amounts of the payments that comprise each payment schedule are known as of the issue date; and | ||
• | one of such schedules is significantly more likely than not to occur. |
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• | in the case of an option or options that we may exercise, we will be deemed to exercise or not to exercise an option or combination of options in the manner that minimizes the yield on your debt security; and | ||
• | in the case of an option or options that you may exercise, you will be deemed to exercise or not to exercise an option or combination of options in the manner that maximizes the yield on your debt security. |
• | the issue price of your debt security will equal your cost; | ||
• | the issue date of your debt security will be the date you acquired it; and | ||
• | no payments on your debt security will be treated as payments of qualified stated interest. |
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• | your debt security’s issue price does not exceed the total noncontingent principal payments by more than the lesser of: |
• | 1.5 percent of the product of the total noncontingent principal payments and the number of complete years to maturity from the issue date; or | ||
• | 15 percent of the total noncontingent principal payments; and |
• | your debt security provides for stated interest, compounded or paid at least annually, only at: |
• | one or more qualified floating rates; | ||
• | a single fixed rate and one or more qualified floating rates; | ||
• | a single objective rate; or | ||
• | a single fixed rate and a single objective rate that is a qualified inverse floating rate. |
• | variations in the value of the rate can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in the currency in which your debt security is denominated; or | ||
• | the rate is equal to such a rate multiplied by either: |
• | a fixed multiple that is greater than 0.65 but not more than 1.35; or | ||
• | a fixed multiple greater than 0.65 but not more than 1.35, increased or decreased by a fixed rate; and |
• | the value of the rate on any date during the term of your debt security is set no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day. |
• | the rate is not a qualified floating rate; | ||
• | the rate is determined using a single, fixed formula that is based on objective financial or economic information that is not within the control of, or unique to the circumstances of, the issuer or a related party; and | ||
• | the value of the rate on any date during the term of your debt security is set no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day. |
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• | the rate is equal to a fixed rate minus a qualified floating rate; and | ||
• | the variations in the rate can reasonably be expected to inversely reflect contemporaneous variations in the cost of newly borrowed funds. |
• | the fixed rate and the qualified floating rate or objective rate have values on the issue date of the debt security that do not differ by more than 0.25 percentage points; or | ||
• | the value of the qualified floating rate or objective rate is intended to approximate the fixed rate. |
• | determining a fixed rate substitute for each variable rate provided under your variable rate debt security; | ||
• | constructing the equivalent fixed rate debt instrument, using the fixed rate substitute described above; | ||
• | determining the amount of qualified stated interest and OID with respect to the equivalent fixed rate debt instrument; and | ||
• | adjusting for actual variable rates during the applicable accrual period. |
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• | you purchase your debt security for less than its issue price as determined above under “Original Issue Discount”; and | ||
• | the difference between the debt security’s stated redemption price at maturity or, in the case of a discount debt security, the debt security’s revised issue price, and the price you paid for your debt security is equal to greater than 1/4 of one percent of your debt security’s stated redemption price at maturity or revised issue price, respectively, multiplied by the number of complete years to the debt security’s maturity. To determine the revised issue price of your debt security for these purposes, you generally add any OID that has accrued on your debt security to its issue price. |
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• | adding any amounts that you are required to include in income under the rules governing OID and market discount (the rules governing these amounts are discussed above); and then | ||
• | subtracting any payments (except for payments in respect of de minimis market discount that was not required to be included in income) on your debt security that are not qualified stated interest payments and any amortizable bond premium applied to reduce interest on your debt security. |
• | described above under “— Short-Term Debt Securities” or “— Market Discount”; | ||
• | attributable to accrued but unpaid interest; | ||
• | the rules governing contingent payment obligations apply; or | ||
• | attributable to changes in exchange rates as described below. |
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• | a non-resident alien individual; | ||
• | a foreign corporation; | ||
• | a foreign partnership; or | ||
• | an estate or trust that in either case is not subject to United States federal income tax on a net income basis on income or gain from the debt security. |
• | you are an insurance company carrying on a United States insurance business to which the interest is attributable, within the meaning of the Internal Revenue Code, or | ||
• | you have an office or other fixed place of business in the United States to which the interest is attributable and derive the interest in the active conduct of a banking, financing or similar business within the United States. |
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• | the gain is effectively connected with your conduct of a trade or business in the United States and, if required by an applicable income tax treaty as a condition for subjecting you to United States taxation on a net income basis, attributable to a permanent establishment that you maintain in the United States; or | ||
• | you are an individual, you are present in the United States for 183 or more days during the taxable year in which the gain is realized and certain other conditions exist. |
• | payments of principal and interest within the United States, including payments made by wire transfer from outside the United States to an account you maintain in the United States; and | ||
• | the payment of the proceeds from the sale of a debt security effected at a United States office of a broker. |
• | you fail to provide an accurate taxpayer identification number; | ||
• | you are notified by the Internal Revenue Service that you have failed to report all interest and dividends required to be shown on your federal income tax returns; or | ||
• | in certain circumstances, you fail to comply with applicable certification requirements. |
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• | payments of principal and interest made to you outside the United States by us or another non-United States payor; and | ||
• | other payments of principal, interest and proceeds from the sale of a debt security effected at a United States office of a broker, as long as the income associated with such payments is otherwise exempt from United States federal income tax, and: | ||
• | the payor or broker does not have actual knowledge or reason to know that you are a United States person and you have furnished to the payor or broker: |
• | an Internal Revenue Service Form W-8BEN or an acceptable substitute form upon which you certify, under penalties of perjury, that you are (or, in the case of a United States alien holder that is a partnership or an estate or trust, such forms certifying that each partner in the partnership or beneficiary of the estate or trust is) a non-United States person; or | ||
• | other documentation upon which it may rely to treat the payments as made to a non-United States person in accordance with U.S. Treasury regulations, or |
• | you otherwise establish an exemption. |
• | the proceeds are transferred to an account maintained by you in the United States; | ||
• | the payment of proceeds or the confirmation of the sale is mailed to you at a United States address; or | ||
• | the sale has some other specified connection with the United States as provided in U.S. Treasury regulations, |
• | a United States person; | ||
• | a controlled foreign corporation for United States tax purposes; | ||
• | a foreign person 50% or more of whose gross income was effectively connected with the conduct of a United States trade or business for a specified three-year period; or | ||
• | a foreign partnership, if at any time during its tax year: |
• | one or more of its partners are “U.S. persons”, as defined in U.S. Treasury regulations, who in the aggregate hold more than 50% of the income or capital interest in the partnership; or | ||
• | such foreign partnership is engaged in the conduct of a United States trade or business, |
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• | through underwriters; | ||
• | through dealers; | ||
• | through agents; or | ||
• | directly to purchasers. |
• | any underwriter, dealers or agents; | ||
• | their compensation; | ||
• | the net proceeds to us; | ||
• | the purchase price of the securities; | ||
• | the initial public offering price of the securities; and | ||
• | any exchange on which the securities will be listed, if applicable. |
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• | commercial and savings banks; | ||
• | insurance companies; | ||
• | pension funds; | ||
• | investment companies; | ||
• | educational and charitable institutions; and | ||
• | other similar institutions as we may approve. |
• | the validity of the arrangements; or | ||
• | the performance by us or the institutional investor. |
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(A wholly-owned subsidiary of Total S.A.)
Prospectus Supplement
September , 2009
BofA Merrill Lynch | Deutsche Bank Securities |