EXHIBIT 1.2
TOTAL FINA ELF S.A.
PURCHASE AGREEMENT STANDARD PROVISIONS
(2003 EDITION)
From time to time, Total Fina Elf S.A., a societe anonyme organized
under the laws of the Republic of France (the "Company"), may enter into one or
more purchase agreements that provide for the sale of designated securities to
the purchaser or purchasers named therein (each a "Purchaser"). The standard
provisions set forth herein may be incorporated by reference in any such
purchase agreement (each a "Purchase Agreement"). The Purchase Agreement
relating to any particular sale of Offered Securities, including the provisions
incorporated therein by reference, is herein referred to as this "Agreement".
Unless otherwise defined herein, terms defined in such Purchase Agreement are
used herein as defined in the Purchase Agreement.
I.
The Company proposes to issue debt securities (the "Securities")
from time to time pursuant to the provisions of an Indenture to be entered into
among the Company and JPMorgan Chase Bank, as Trustee, on 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.
The Company has filed with the U.S. Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Securities and has filed with the Commission, or transmitted to
the Commission for filing (or will so file promptly after the sale), a
prospectus supplement specifically relating to the Offered Securities pursuant
to Rule 424 under the U.S. Securities Act of 1933 (the "Securities Act"). The
term "Registration Statement" means the registration statement as amended to the
date of the Purchase Agreement (including information deemed to be a part
thereof by reason of Rule 430A(b) under the Securities Act). The term "Base
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Base Prospectus together with the prospectus
supplement specifically relating to the Offered Securities, as filed with, or
transmitted for filing to, the Commission pursuant to Rule 424. The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Securities together with the Base Prospectus. As used
herein, the terms "Registration Statement", "Base Prospectus", "Prospectus" and
"preliminary prospectus" shall include in each case the material, if any,
incorporated by reference therein.
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 and IX of this Agreement will
apply only to a Purchaser giving advice in accordance herewith (the "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 obligations of the Purchaser hereunder are subject to the following
conditions:
(a) The Registration Statement shall have become effective, and no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be pending
before or threatened by the Commission; 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 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.
(b) The Purchaser shall have received on the Closing Date an opinion
or opinions of the General Counsel or Associate General Counsel of the
Company or other counsel reasonably satisfactory to the Purchaser, as to
certain matters of French, New York and United States federal law, dated
the Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Purchaser shall have received on the Closing Date an opinion
of counsel for the Purchaser, dated the Closing Date, in form and
substance reasonably satisfactory to the Purchaser.
(d) The Purchaser shall have received on each of the date of pricing
of Offered Securities and the Closing Date a letter from the independent
auditors for the Company, dated the date of pricing of Offered Securities
and the Closing Date, respectively, to the effect set forth in Exhibit B
hereto.
(e) Since the date of the Purchase Agreement, no downgrading shall
have occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization" as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, and no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(f) If specified in the Purchase Agreement, at the Closing Date, the
Offered Securities shall have been approved for listing on the Luxembourg
Stock Exchange or application shall have been made therefore.
(h) 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.
V.
In further consideration of the agreements contained herein of any
Reselling Purchaser, the Company covenants to such Reselling Purchaser as
follows:
(a) To furnish the Reselling Purchaser, without charge, a copy of
the Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Reselling
Purchaser may reasonably request. The terms "supplement" and "amendment"
or "amend" as used in this Agreement shall include all documents or
reports filed or made by the Company with the Commission subsequent to the
date of the Base Prospectus, pursuant to the U.S. Securities Exchange Act
of 1934 (the "Exchange Act"), which are deemed to be incorporated by
reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish the
Reselling Purchaser a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of reselling of the
Offered Securities as in the opinion of counsel for the Reselling
Purchaser the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a subsequent
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
its own expense, to the Reselling Purchaser, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a subsequent purchaser, be misleading
or so that the Prospectus will comply with law.
(d) To qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions in the United States of
America as the Reselling Purchaser shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection with
such qualification and in connection with the determination of the
eligibility of the Offered Securities for investment under the laws of
such jurisdictions in the United States of America as the Reselling
Purchaser may designate.
(e) To make generally available to the Company's security holders,
as soon as reasonably practicable, a consolidated earning statement of the
Company and its subsidiaries covering a twelve month period beginning
after the date of this Agreement and ending at the end of a fiscal quarter
which shall satisfy the provisions of Section 11(a) of the Securities Act
(including Rule 158 thereunder).
(f) During the period beginning on the date of this Agreement and
terminating after the number of days, if any, indicated under "Restriction
on Additional Sales" in the Purchase Agreement, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Offered Securities, without the prior
written consent of the Reselling Purchaser.
VI.
The Company represents and warrants to the Purchaser, as of the date of
the Purchase Agreement, that:
(a) (i) Each document or report, if any, filed or made or to be
filed or made pursuant to the Exchange Act and incorporated by reference
in the Prospectus complied when filed or made or will comply when so filed
or made in all material respects with the Exchange Act and the rules and
regulations thereunder, (ii) each part of the Registration Statement
(including the documents and reports incorporated by reference therein)
filed with the Commission pursuant to the Securities Act relating to the
Offered Securities, when such part became effective, did not contain
any untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (iii) each preliminary prospectus, if any, filed pursuant
to Rule 424 under the Securities Act when so filed complied in all
material respects with the Securities Act and the applicable rules and
regulations thereunder, (iv) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations thereunder and (v) the Registration Statement and the
Prospectus do not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that these representations and warranties do not apply to
statements or omissions in the Registration Statement, any preliminary
prospectus or the Prospectus based upon information furnished to the
Company in writing by any Reselling Purchaser expressly for use therein.
(b) The Company is validly existing as a societe anonyme and in good
standing under the laws of France and has all the requisite power and
authority to execute, deliver and perform its obligations under the
Offered Securities, the Purchase Agreement and the Indenture.
(c) The Company has taken all necessary corporate action required by
its statuts and by the laws of France to authorize the execution of the
Purchase Agreement and the Indenture and to authorize the issuance and
sale of the Offered Securities.
(d) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding obligation of
the Company, 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").
(f) The Offered Securities to be issued by the Company have been
duly authorized, and when issued, delivered and authenticated, as provided
in the Indenture, will be duly and validly issued and will constitute
legal, valid and binding obligations enforceable against the Company in
accordance with their terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(g) 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.
(h) 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 Securities
and Exchange 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.
(i) 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.
(j) Except as disclosed in 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.
(k) 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.
(l) The statements set forth in the Prospectus under the heading
"Taxation", to the extent that they purport to summarize certain
provisions of the United States federal income tax law and regulations, or
the French tax law and regulations, constitute a fair summary of such
provisions in all material respects.
(m) Except as described in the Prospectus, there are no withholding
taxes or stamp or other similar issuance or transfer taxes or duties
imposed or payable in France or the United States or any political
subdivision or taxing authority thereof or therein by or on behalf of the
Purchasers in connection with (A) the issuance, sale and delivery of the
Offered Securities to or for the account of the Reselling Purchasers in
the manner contemplated in the Purchase Agreement or (B) the issuance,
sale and delivery by the Purchasers of the Offered Securities to the
purchasers thereof in connection with the distribution of the Offered
Securities in the manner contemplated in the Purchase Agreement (provided
such sale and delivery is not made or settled in any manner in France).
(n) Interest payments made by the Company in respect of the Offered
Securities may be made 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.
VII.
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, any preliminary prospectus or the Prospectus (if
used within the period set forth in paragraph (c) of Article V 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,
provided, however, that the foregoing indemnity with respect to preliminary
prospectuses shall not inure to the benefit of any Reselling Purchaser (or to
the benefit of any person controlling such Reselling Purchaser) from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Offered Securities if a copy of the Prospectus had not been sent or given to
such person at or prior to the written confirmation of the sale of such Offered
Securities to such person and such Prospectus would have cured such deficiency
in the preliminary prospectus.
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, any
preliminary prospectus or the 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 VII is unavailable to
an indemnified party other than as a result of the proviso to the first
paragraph of Article VII or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Reselling Purchaser on
the other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Reselling Purchaser on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Reselling
Purchaser on the other in connection with the offering of the Offered Securities
shall be deemed to be in the same proportion as the total net proceeds from the
offering of such Offered Securities (before deducting expenses) received by the
Company bear to the total commissions, if any, received by the Reselling
Purchaser in respect thereof. If there are no
commissions allowed or paid by the Company to the Reselling Purchaser in respect
of the Offered Securities, the relative benefits received by the Reselling
Purchaser in the preceding sentence shall be the difference between the price
received by such Reselling Purchaser upon resale of the Offered Securities and
the price paid for such Offered Securities pursuant to the Purchase Agreement.
The relative fault of the Company on the one hand and of the Reselling Purchaser
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Reselling Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Reselling Purchaser agree that it would not be just
and equitable if contribution pursuant to this Article VII 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 VII, 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 VII
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by any Reselling Purchaser or on
behalf of any Reselling Purchaser or any person controlling any Reselling
Purchaser and (iii) acceptance of and payment for any of the Offered Securities.
The Company agrees that any legal suit, action or proceeding brought by
any Reselling Purchaser to enforce the indemnity agreements contained in this
Article VII 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 [-] (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 [-], attention of [-] (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 [-] 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.
VIII.
Any payments to any Purchaser hereunder or to any holder (each Purchaser
and holder is hereinafter referred to in this Article VIII as a "Payee") from
time to time with respect to the Offered Securities 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; 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: (A) 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 (a "Foreign Jurisdiction")
other than the mere ownership of, or receipt of payment under, the Offered
Securities; (B) presented such Offered Securities for payment in any Foreign
Jurisdiction unless such Offered Securities could not have been presented for
payment elsewhere; or (C) presented an Offered Security for payment more than
fifteen (15) days after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for, whichever occurs later;
(ii) any estate, inheritance, gift, sale, transfer, personal property or similar
tax, assessment or other governmental charge; or (iii) any Foreign Taxes which
are payable otherwise than by withholding or deduction.
The Company agrees to indemnity each Purchaser and each holder from time
to time of Offered Securities against any loss incurred by any such Purchaser as
holder 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.
IX.
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.
X.
If this Agreement shall be terminated by the Purchaser 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 for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by such Purchaser 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.
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, to the effect that:
(1) The Company is validly existing as a societe anonyme 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.
(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 and the
laws of the Republic of France for the issuance, sale and delivery
of the Offered Securities by the Company to the Purchasers have been
obtained or made. Such counsel may state that it expresses no
opinion with respect to the securities or Blue Sky laws of any
State.
(6) 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.
(7) Except for French timbres de dimension, the non-payment of which
would not affect the validity or enforceability of the Offered
Securities, the Indenture or the Purchase Agreement, there are no
stamp or other similar issuance or transfer taxes or duties imposed
or payable in France or the United States or any political
subdivision or taxing authority thereof or therein by or on behalf
of the Purchasers in connection with (A) the issuance, sale and
delivery of the Offered Securities to or for the account of the
Reselling Purchasers in the manner contemplated in the Purchase
Agreement or (B) the sale and delivery by the Reselling
Purchasers of the Offered Securities to the purchasers thereof in
connection with the distribution of the Offered Securities in the
manner contemplated in the Purchase Agreement (provided such sale
and delivery is not recorded or referred to in any manner whatsoever
in a written document executed in France).
(8) The choice of the law of the State of New York to govern the
Purchase Agreement, the Indenture and the Offered Securities is
valid under the laws of the Republic of France, and a French court
would uphold such choice of law in any proceedings on the Purchase
Agreement, the Indenture and 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
laws 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 (lois de police), (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 public policy (ordre public).
(9) Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section VII of the
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 Agreement or the transactions contemplated hereby.
(10) Subject to the rules governing international litis pendens under
French private international law, a final, conclusive and
enforceable judgment obtained in the United States District Court
for the Southern District of New York or any court from the State of
New York under the Purchase Agreement, the Indenture or the Offered
Securities and in respect of which the parties to such action either
(i) have mutually agreed to submit to the jurisdiction of such court
or (ii) have waived their rights to the exclusive jurisdiction of
the French courts under article 15 of the French Civil code, would
be capable of recognition and enforcement in France, without a
review of the merits, by competent French courts (Exequatur)
provided that the requirements imposed by case law for the
enforcement of foreign judgments are satisfied, in particular that:
(a) the courts of New York had jurisdiction over the matter in
accordance with French private international law; (b) the court that
rendered the judgment applied the law that is applicable under
French private international law; (c) the procedure followed by the
court that rendered the judgment does not conflict with fundamental
procedural rights applicable in France or with French international
public policy (ordre public international francais) ; and (d) the
judgment rendered by the foreign court does not conflict with French
international public policy and is not tainted with fraud (fraude a
la loi).
(11) Such counsel shall also state that they have reviewed the
Registration Statement and the Prospectus and participated in
discussions with representatives of the Company and the accountants
for the Company and representatives of the Purchasers and their
counsel; and on the basis of the information that they gained in the
course of the performance of such services, considered in the light
of the experience they have gained through their practice in this
field, such counsel shall confirm to the Purchasers that the
Registration Statement, when it became effective, and the Prospectus
appeared on their face to be appropriately responsive in all
material respects relevant to the offering of the Offered 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; and nothing that has come to the
attention of such counsel has caused them to believe that, insofar
as relevant to the offering of the Offered Securities, the
Registration Statement, when it became effective, 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 or that the Prospectus contained
any untrue statement of material fact or omitted to state any
material fact necessary in order to make the statements therein, in
light of the circumstances in which they were made, not misleading.
Such opinion may state (1) that such counsel do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, or the
Prospectus except for those made under the captions "Description of
Debt Securities and Guarantee" and "Tax Considerations" in the
Prospectus insofar as they relate to the provisions of documents or
of French or United States federal tax law therein described and (2)
that they do not express any opinion or belief as to the financial
statements or other financial data contained in the Registration
Statement, or the Prospectus or as to the statement of the
eligibility and qualification of the Trustee under the Indenture
under which the Designated 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 or
the Indenture.
EXHIBIT B
LETTER OF INDEPENDENT AUDITORS
The letter of the independent auditors for the Company, to be delivered
pursuant to Article IV, paragraph (e) of the document entitled Purchase
Agreement Standard Provisions (2003 Edition) (the "Standard Provisions") shall
be to the effect that:
(i) such auditors are independent public accountants with respect to the
Company within the meaning of the Securities Act of 1933 and the
Securities Exchange Act of 1934 and the applicable published rules
and regulations thereunder;
(ii) in the opinion of such auditors, the consolidated financial
statements and schedules 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 Exchange Act of 1934 and the published rules and
regulations thereunder;
(iii) nothing has come to the attention of such auditors, as a result of
specified procedures not constituting an audit, that caused them to
believe
a. that the unaudited financial statements, if any, incorporated
by reference into the Registration Statement, do not comply in
all material respects with the applicable accounting
requirements of the Securities Exchange Act of 1934 and the
applicable published rules and regulations thereunder, or that
such financial statements are not stated on a basis
substantially consistent with that of the audited financial
statements referred to above,
b. that, except as set forth in such letter or disclosed in the
Registration Statement, there was any change in the share
capital, long-term debt, consolidated non-current assets or
shareholders' equity of the Company from the date of the
latest balance sheet included or incorporated by reference in
the Registration Statement to a date not more than __ days
from the date of such letter, or
c. that, except as set forth in such letter or disclosed in the
Registration Statement, there was any change in consolidated
sales or in the total or per share amounts of consolidated net
income of the Company from the date of the latest income
statement included or incorporated by reference in the
Registration Statement to a date not more than __ days from
the date of such letter.
[FORM OF PURCHASE AGREEMENT]
PURCHASE AGREEMENT
[-], 2003
Total Fina Elf S.A.
2, place de la Coupole
92078 Paris La Defense Cedex
France
Ladies and Gentlemen:
The underwriter(s) named below (such underwriter(s) being herein called
the "Reselling Purchaser(s)") understand(s) that Total Fina Elf S.A. (the
"Company") proposes to issue and sell $[-] aggregate principal amount of [-]%
Notes due [-], [-] (the "Offered Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the Company agrees to
sell, and the Reselling Purchaser(s) agree(s) to purchase, the aggregate
principal amount of the Offered Securities set forth opposite its name below at
[-]% of their principal amount and accrued interest, if any, from [-], 2003 to
the date of payment and delivery:
PRINCIPAL
AMOUNT OF
FIXED RATE
RESELLING PURCHASER NOTES
[Underwriter(s)] ............................... $[-]
The Reselling Purchaser(s) will pay for such Offered Securities upon
delivery thereof at the offices of Sullivan & Cromwell LLP, 125 Broad Street,
New York, New York, 10004 or through the facilities of The Depository Trust
Company at 10:00 A.M. (New York time) on [-], 2003 (the "Closing Date"), or at
such other time as shall be agreed upon between us.
The Offered Securities shall have the following additional terms(1):
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates for
Interest:
Sinking Fund:
CUSIP Number:
Each Reselling Purchaser agrees to comply with the following selling
restrictions:
(a) It agrees that it has not offered or sold and will not offer or sell,
directly or indirectly, the Offered Securities to the public in France, and has
not distributed or caused to be distributed and will not distribute or cause to
be distributed to the public in France, the Prospectus or any other offering
material relating to the Offered Securities, and that such offers, sales and
distributions have been and shall only be made in France to (i) qualified
investors (investisseurs qualifies) and/or (ii) a restricted group of investors
(cercle restreint d'investisseurs) all as defined in, and in accordance with,
Articles L.411-1 and L.411-2 of the French Code monetaire et financier and
decret no. 98-880 dated October 1, 1998.
(b)(i) It has not offered or sold and, prior to the expiry of a period of
six months from the Closing Date, will not offer or sell any Offered Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has only communicated and caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 ("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 (iii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Offered Securities
in, from or otherwise involving the United Kingdom.
[Add other selling restrictions, if appropriate.]
- ----------
(1) These terms assume that the Offered Securities will be fixed rate notes.
All the provisions contained in the document entitled Total Fina Elf S.A.
Purchase Agreement Standard Provisions (2003 Edition) attached 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.
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 FINA ELF S.A.
By:________________________
Name:
Title:
[UNDERWRITER(S)]
___________________________
[Underwriter(s)]