CaixaBank, S.A. KPMG Auditores, S.A. March 6, [handwritten: M] 1

Transcription

1 CaixaBank, S.A. Special Report in issuance of mandatory convertible subordinated notes in the matter of articles 414, 417 and 511 of the Venture Capital Act KPMG Auditores, S.A. March 6, 2013 [handwritten: M] 1

2 KPMG Auditores, S.L. Torre Europa Building Paseo de la Castellana, Madrid Telephone Fax Internet Special Report on the modification of specific terms and conditions on the issuance of mandatory convertible subordinated notes in the matter of articles 414, 417 and 511 of the Venture Capital Act. To the General Meeting of Shareholders of CaixaBank, S.A. Dear Sirs: We issue this special report on the matter of modification of specific terms and conditions in the issuance of mandatory convertible subordinated notes on newly issued shares of CaixaBank, S.A. ( CaixaBank ) pursuant to the provisions of articles 414, 417 and 511 of the Venture Capital Act whose Consolidated Text was approved by Royal Legislative Decree 1/2010 of July (the LSC [Spanish acronym]), through designation of the Commerce Registrar of Barcelona, Mr. Luis Fernando del Pozo, corresponding to file number A 4880/13, and pursuant to our professional services proposal dated February 23, Background and objective of our work 1.1 Background Last May 12, 2011, CaixaBank issues a series of mandatory convertible subordinated notes Series I/2011 (the Debts ) that, according to the provisions of the Venture Capital Act, were subject to mandatory reporting by both the Board of Directors of CaixaBank and by KPMG Auditores, S.L. ( KPMG ), in compliance with articles 414, 417 and 511 of the Venture Capital Act ( LSC ). Said issue was documented in public instrument issued before the Notary of Barcelona, Mr. Jose Serna Masia on May 20, 2011, under number 776 of his notarial record, and was recorded in the Commerce Registry of Barcelona of May 30, 2011 in volume 41,283, file 113, page B , 100 th entry. Last January 31, 2013, the Board of Directors of CaixaBank agreed to the modification of specific terms and conditions in the issuance of the Debts and approved a report related to such modification (the Board of Directors Report ). According to the Board of Directors Report, such alterations and modifications would be the following: a.) Replacement, in accordance with the recent regulatory amendments, of the total current necessary conversion scenarios for emergency situations by total necessary conversion scenarios for contingency matters or invalidity. b.) modification of the voluntary conversion scenarios. c.) introduction of a necessary conversion scenario at the discretion of CaixaBank d.) elimination of the limitation on remuneration for ordinary shares; e.) extension of the maturity date of the Debts to June 30, 2015; and f.) other technical modifications for adaptation to the provisions of Circular 7/2012, of November 30, of Banco de Espana on minimum core capital requirements (Circular 7/2012). [handwritten: M] KPMG Auditores S.L., a Spanish limited liability Com. Reg. Madrid [illegible] company, is a subsidiary of KMPG Europe, LLP[illegible] [illegible] member of the KPMG network of independent firms affiliated NIF B with KPMG International Cooperative ( KPMG International ) a Swiss company.

3 On February 7, 2013, CaixaBank requested that the Commerce Registry of Barcelona appoint an independent expert to issue a special report on the modifications of the terms and conditions of the Debts pursuant to the provisions of articles 414, 417 and 511 of the LSC. Therefore, last February 11, 2013, the Commerce Registry of Barcelona, Mr. Luis Fernando del Pozo, appointed KPMG to issue said report. Such appointment was accepted by KPMG on February 14, Objective of our work The purpose of our work has not been to certify the issue or conversion price of the Debts. The objectives of our work have been the following: a.) To state, by application of the procedures established in the Technical Standards for preparing special reports on the Issuance of Convertible Notes in the matter of article 292 of the Consolidated Text of the Stock Corporations Law (replaced by article 414 of the LSC), whether the Board of Directors Report contains the information required in the cited Regulation, which includes the explanation of the conversion basis and modalities corresponding to the Debts. b.) To issue an opinion on the reasonability of the information contained in the Board of Directors Report and on the suitability of the conversion ratio for the Debts, and, as applicable, its adjustment formulae, to compensate a potential dilution of economic shares of the shareholders, pursuant to the provisions of article 417 of the LSC. Procedures used in our work The following procedures were used to perform our work: 2.1 Obtaining and analysis of the following information: Document requesting appointment of account auditor to prepare the report on modifications in the terms and conditions for issuance of subordinate Notes submitted to the Commerce Registry of Barcelona by CaixaBank on February 7, Appointment of KPMG Auditores, S.L. by the Commerce Registry of Barcelona dated February 11, 2013 for the preparation of said Report. Report drafted by the Board of Directors in relation to the proposed modifications to issuance of the Debts dated January 31, Annual consolidated audited accounts corresponding to fiscal years ending December 31, 2011 and 2012 of CaixaBank. Relevant facts related to operations reported to the CNMV. Information and explanations of the CaixaBank Department related to the above facts mainly on the following aspects: [handwritten: M] 2

4 Evolution of contingent liabilities or significant commitments at the date of the last audited account statements and the existence of contingent liabilities or significant commitments at the date of the report, as applicable. Modifications to corporate stock or significant changes in long term debt or circulating capital that may have arisen between the date of the last audited account statements and the current date. The existence of facts that may significantly affect the financial statements. Other information considered useful for the performance of our work. 2.2 Verification that the Board of Directors Report contains the information considered necessary and sufficient for adequate interpretation and understanding by the recipients thereof in their role as decision makers. 2.3 Verification of the calculations in the valuation methods used by the Board of Directors to analyze the conversion basis and modalities and other rights, if any, guaranteed to subscribers of the Debts, keeping in mind the proposed modifications. 2.4 Analysis of the suitability of the conversion ratio and its adjustment formulae, to compensate a potential dilution of economic shares of shareholders. 2.5 Verification that the accounting information contained in the Board of Directors Report agrees with the accounting information of the entity that served as a basis to prepare the audited annual statements. 2.6 Record that the Board of Directors Report mentions significant subsequent facts that may affect the proposed investment. 2.7 Reading of the available minutes of the General Shareholders Meetings and Board of Directors meetings held in the previous year and through the date of this report. 2.8 Holding of meetings with the Management of CaixaBank in order to obtain clarification on various questions arising during the performance of our work, and to compile other information that was considered useful. 2.9 Obtaining a letter signed by the Managers or Directors with sufficient representative authority to represent CaixaBank, which confirms to us, among other items, that we have been provided with all information necessary to prepare our report, and that no events have occurred through the date of this report that have not been reported to us and that may have a significant effect on the results of our work. Relevant items to consider in the interpretation of the results of our work Both the interpretation of the requirements of articles 414, 417 and 511 of the LSC, and the opinions expressed in this report, involve, in addition to objective factors, other [handwritten: M] 3

5 subjective factors that involve judgment and, therefore, it is not possible to ensure that third parties may not necessarily agree with the interpretation and opinions expressed in this report. The information required for the preparation of our report has been provided by the Management of CaixaBank, or has been obtained from public sources. In relation to such information, our work did not include comparing the same with external evidence, notwithstanding that, to the degree possible, we have confirmed that the information submitted is consistent with other information obtained during the course of our work. We are not required to update our report due to facts that may have occurred after this report was issued. The contents of this report must be understood in reference to all information received related to events that occurred prior to the date of the report. Based on the procedures applied, we have confirmed that the conversion and/or exchange price of the Debts does not correspond to the current quote value of the Company s shares on the modification date proposed by the Board of Directors. However, it was so at the time of the instrument subscription was closed. In accordance with the Board of Directors Report, said conversion ratio has not been modified. Finally, it is important to note that our work is independent and does not assume any recommendation from the Management of CaixaBank, its shareholders or third parties in relation to the position that should have been taken in relation to the Debts. Conclusion Based on the work performed and subject to the relevant aspects to consider in the interpretation of the results of our work, described in the foregoing paragraphs, and for the exclusive purpose of complying with the requirements established in articles 414, 417 and 511 of the LSC, it is our professional opinion that: a.) The attached CaixaBank Board of Directors Report on the proposed modification of specific terms and conditions in the issuance of mandatory convertible subordinate notes in shares of CaixaBank contains the information required by the Technical Standard for preparation of special reports on the issuance of Convertible Notes in the scenario of article 292 of the Consolidated Text of the Stock Corporations Law (replaced by article 414 of the LSC), and the information contained in the aforementioned Board of Directors Report is adequately documented and presented, and b.) having analyzed the proposed modifications, the conversion ratio and its adjustment formulae for Debts on shares of CaixaBank, excluding the right of preferential subscription to compensate a potential dilution of the economic shares of shareholders, it remains suitable. * * * * [handwritten: M] 4

6 This special report and the information contained herein have been prepared only for the purposes provided in articles 414, 417 and 511 of the LSC, therefore it should not be used for any other purpose. [signature] Amparo Solis Partner KPMG Auditores, S.L. March 6, 2013 [handwritten: M] 5