2009 AGM results
IGNACIO BENJUMEA CABEZA DE VACA, SECRETARY GENERAL AND SECRETARY OF THE BOARD OF 'BANCO SANTANDER, S.A.',
CERTIFY: That, in accordance with the minutes of the meeting of the Ordinary General Shareholders' Meeting of this entity, validly held on 19 June 2009, the following resolutions were passed:
''Item One
To approve the annual accounts (balance sheet, profit and loss statement, statements of changes in net assets and cash flows, and notes) and of the corporate management of Banco Santander, S.A. and its consolidated Group, all with respect to the Fiscal Year ended December 31, 2008.
Item Two
To approve the application of results obtained by the Bank during Fiscal Year 2008, which amount up to 4,826,218,088.75 euros, distributing them as follows:
|
Euros |
|
13,884,723.43 |
to increase the Voluntary Reserve. |
|
Euros |
|
4,812,333,365.32 |
for the payment of dividends, which have already been paid out prior to the date of the ordinary General Shareholders' Meeting. |
|
Euros |
|
4,826,218,088.75 |
in total. |
Item Three
With respect to the annual renewal of one-fifth of the Director positions provided by Article 55 of the Bylaws, and notwithstanding the effectiveness through 2010 of the positions of the gentlemen listed below:
THREE A: To re-elect Mr. Matías Rodríguez Inciarte as Director.
THREE B: To re-elect Mr. Manuel Soto Serrano as Director.
THREE C: To re-elect Mr. Guillermo de la Dehesa Romero as Director.
THREE D: To re-elect Mr. Abel Matutes Juan as Director.
Item Four
To re-appoint the firm Deloitte, S.L., with its registered office in Madrid, at Plaza Pablo Ruiz Picasso, 1, Torre Picasso, and Tax ID Code B-79104469, as Auditor of Accounts for verification of the annual accounts and management report of the Bank and of the consolidated Group for Fiscal Year 2009.
Item Five
I) To deprive of effect, to the extent of the unused amount, the authorization granted by the shareholders acting at the ordinary General Shareholders' Meeting of June 21, 2008 for the derivative acquisition of shares of the Bank by the Bank and the Subsidiaries comprising the Group.
II) To grant express authorization for the Bank and the subsidiaries comprising the Group to acquire shares representing the capital stock of the Bank for any valuable consideration permitted by Law, within the limits of and subject to any legal requirements, up to a maximum limit - including the shares they already hold - of a number of shares equivalent to 5 percent of the capital stock existing at any given time, or to such greater percentage as may be established by Law during the effectiveness of this authorization, which shares shall be fully paid-in, at a minimum price per share equal to the par value and a maximum price of up to 3 percent over the last listing price for transactions in which the Bank does not act for its own account on the Electronic Market of the Spanish Stock Exchanges (including the block market) prior to the acquisition in question. This authorization may only be exercised within 18 months from the date on which the General Shareholders' Meeting is held. The authorization includes the acquisition of shares, if any, that must be conveyed directly to the employees and management of the Company, or that must be conveyed as a result of the exercise of the options they hold.
Item Six
I) To deprive of effect the authorization granted by the shareholders at the ordinary General Shareholders' Meeting of June 21, 2008 by means of resolution EIGHT. II).
II) To delegate to the Board of Directors, pursuant to the provisions of Section 153.1.a) of the Business Corporations Law, the broadest powers to do the following within one year from the date on which this General Shareholders' Meeting is held: set the date and terms and conditions, as to all matters not provided for by the shareholders themselves acting at the General Shareholders' Meeting, for a capital increase approved at such General Shareholders' Meeting in the amount of FIVE HUNDRED MILLION EUROS.
In exercising these delegated powers, the Board of Directors shall (by way of example and not of limitation) determine if the capital increase shall be carried out by issuing new shares - with or without a premium and with or without voting rights - or by increasing the par value of existing shares through new cash contributions; determine the deadline for exercising pre-emptive rights where applicable in the event of the issuance of new shares; freely offer the shares not subscribed for by such deadline; establish that, in the event the issue is not fully subscribed for, the capital will be increased only by the amount of the actual subscriptions; and amend the article of the Company's Bylaws regarding share capital.
If the Board of Directors does not exercise the powers delegated to it within the period provided by the shareholders acting at the General Shareholders' Meeting for carrying out this resolution, such powers shall become void once the deadline has passed.
The Board of Directors is also authorized to delegate to the Executive Committee the delegable powers granted pursuant to this resolution.
Item Seven
I) To deprive of any and all effect, to the extent of the unused amount, the authorization granted by the shareholders at the extraordinary General Shareholders' Meeting of July 27, 2007 by means of resolution ONE. II).
II) To re-authorize the Board of Directors, as broadly under the Law as may be necessary, so that, in accordance with the provisions of Section 153.1.b) of the Business Corporations Law, it may increase share capital on one or more occasions and at any time, within a period of three years from the date of this Meeting, in the maximum amount of 2,038,901,430.5 euros, by means of the issuance of new shares - with or without a premium and with or without voting rights -, with the consideration for such new shares consisting of cash contributions, and with the power to set the terms and conditions of the capital increase and the characteristics of the shares, as well as to freely offer the unsubscribed new shares within the pre-emptive subscription period or periods, to establish that, in the case of an incomplete subscription, the capital shall be increased only by the amount of subscriptions made, and to amend the article of the Bylaws regarding share capital. The amount of capital increases, if any, made to pay for the conversion of debentures under the provisions of the resolution adopted by the shareholders at this ordinary General Shareholders' Meeting under item NINE of the agenda or pursuant to any other resolution adopted in this connection by the shareholders at the General Meeting shall be deemed to be included within the limit of the aforementioned maximum amount available at any time. Furthermore, the Board is authorized to totally or partially exclude pre-emptive rights upon the terms of Section 159.2 of the Business Corporations Law. The Board of Directors is also authorized to delegate to the Executive Committee the delegable powers granted by virtue of this resolution.
Item Eight
Share capital increase in the amount determinable pursuant to the terms of the resolution through the issuance of new ordinary shares with a par value of fifty Euro cents (0.5), without issue premium, of the same class and series as those currently outstanding, to be entirely charged to voluntary reserves consisting of retained earnings. Express provision for the possibility of incomplete allotment. Delegation to the Board of Directors, with authority to delegate in turn to the Executive Committee, to establish the terms and conditions of the Increase as to all matters not provided for by this General Meeting, to take such actions as may be necessary to achieve its execution, to amend sub-sections 1 and 2 of Article 5 of the Bylaws to reflect the new share capital amount and to grant all private and publics documents needed for the execution of the Increase. Application to national and foreign competent bodies, as it may be required, for the admission to listing of the new shares on the Madrid, Barcelona, Bilbao and Valencia Stock Exchanges, through the Spanish Automated Quotation System, and on the foreign Stock Exchanges on which Banco Santander shares are traded (Lisbon, London, Milan, Buenos Aires, Mexico and, through ADSs, the New York Stock Exchange).
Capital increase free of charge
1.- Capital increase
It is resolved to increase the share capital in the amount resulting from multiplying (a) the par value of fifty Euro cents (0.5) per share of Banco Santander, S.A. ('Banco Santander' or the 'Bank') by (b) the number of new shares of Banco Santander resulting from the formula set out in section 2 below (the 'New Shares').
The capital increase is carried out through the issuance of the New Shares, which shall be ordinary shares with a par value of fifty Euro cents (0.5) each, of the same class and series as those currently outstanding, represented in book-entry form.
The capital increase will entirely be charged to the freely distributable reserve named voluntary reserves, consisting of retained earnings, which amounts to 2,479 million Euros as of 31 December 2008.
The New Shares are issued at par value, that is, for their par value of fifty Euro cents (0.5), without issuance premium, and will be allotted free of charge to the shareholders of the Bank.
In accordance with article 161 of the Spanish Business Corporations Law ('Ley de Sociedades Anónimas'), the possibility of incomplete allotment of the capital increase is foreseen in the event that Banco Santander, a company of its group or a third party waives all or part of their free allotment rights. Should such waiver occur, the share capital would be increased in the relevant amount.
2.- New Shares to be issued
The number of New Shares will be obtained by applying the following formula, rounded down to the nearest whole number:
|
NAN = NTAcc / Num. rights |
where,
NAN = Number of New Shares to be issued;
NTAcc = Number of Banco Santander shares outstanding on the date the Board of Directors or, by delegation therefrom, the Executive Committee agrees to execute the capital increase; and
Num. rights = Number of free allotment rights needed for the allotment of one New Share, which number will be obtained by applying the following formula, rounded up to the nearest whole number:
Num. rights = NTAcc / Num. provisional shares.
where,
Num. provisional shares = 1.000.000.000 / PreCot.
PreCot will be the average of the weighted average price of the shares of the Bank on the Spanish Stock Exchanges in the 5 business days prior to the resolution of the Board of Directors or, by delegation, the Executive Committee, to execute the capital increase, rounded up or down to the nearest Euro cent and, in case of a half Euro cent, rounded up to the nearest Euro cent.
3.- Free allotment rights
Each outstanding share of the Bank will grant a free allotment right.
The number of free allotment rights needed to receive a New Share will be automatically determined according to the proportion between the number of New Shares and the number of outstanding shares (NTAcc). In particular, shareholders will be entitled to receive one New Share for each number of free allotment rights, calculated in accordance with section 2 (Num. rights) held by them.
The holders of bonds convertible into shares of Banco Santander currently outstanding will not have free allotment rights; however, they will be entitled, if applicable, to the amendment of the conversion ratio of bonds per shares, in proportion to the amount of the capital increase.
In the event that (i) the number of free allotment rights needed for the allotment of one share (Num. rights) multiplied by the New Shares (NAN) result in a lower number than (ii) the number of outstanding shares (NTAcc), Banco Santander, or a company of its group, will waive a number of free allotment rights equal to the difference between both figures, for the sole purpose of having a whole number of New Shares and not a fraction.
The free allotment rights will be allotted to the shareholders of Banco Santander who appear as such in the book-entry registries of Sociedad de Gestión de los Sistemas de Registro, Compensación y Liquidación de Valores, S.A.U. (Iberclear) ('Iberclear') at 23:59 on the day of publication of the announcement of the capital increase in the Official Bulletin of the Commercial Registry (Boletín Oficial del Registro Mercantil). During the free allotment rights trading period, a sufficient number of free allotment rights may be acquired on the market in the proportion needed to subscribe for New Shares. The free allotment rights shall be traded on the market during the term determined by the Board of Directors or, by delegation therefrom, the Executive Committee, with a minimum term of fifteen calendar days, beginning on the first business day after the publication of the offer's announcement in the Official Bulletin of the Commercial Registry.
4.- Irrevocable undertaking to acquire free allotment rights
The Bank or, with the Bank's guarantee, the company of its group that shall be determined, will make an irrevocable undertaking to acquire the free allotment rights at the price indicated below. The Purchase Undertaking will be in force and may be accepted during the term, within the free allotment rights trading period, that will be determined by the Board of Directors, or by delegation therefrom, the Executive Committee. To this end, it is resolved to authorize the Bank, or the respective company of its group, to acquire such free allotment rights (as well as the shares corresponding to those rights), with the maximum limit of the total of the rights issued and having to comply at all times with the applicable legal requirements. The 'Purchase Price' of each free allotment right will be equal to the price resulting from the following formula, rounded up or down to the nearest Euro cent and, in case of a half Euro cent, rounded up to the nearest Euro cent:
Purchase Price = PreCot / (Num. rights+1)
5.- Balance sheet and reserve to which the share capital increase will be charged
The balance sheet used for purposes of this capital increase is that corresponding to 31 December 2008, duly audited and approved by this Ordinary General Shareholders' Meeting.
As indicated above, the capital increase will be charged entirely to the freely distributable reserve named voluntary reserves, consisting of retained earnings, which amounts to 2,479 million Euros as of 31 December 2008.
6.- Representation of the New Shares
The shares to be issued will be represented in book-entry form and the relevant records shall be kept by Sociedad de Gestión de los Sistemas de Registro, Compensación y Liquidación de Valores, S.A.U. (Iberclear) and its participant entities.
7.- Rights of the New Shares
The New Shares will confer the same voting and economic rights upon their holders as the currently outstanding ordinary shares of Banco Santander from the date on which the capital increase is declared to be subscribed and paid up.
8.- Shares in deposit
Once the free allotment rights trading period has ended, the New Shares that have not been capable of being allotted due to causes not attributable to Banco Santander will be maintained in deposit and available to whom who evidences lawful ownership over the relevant free allotment rights. Three years after the ending date of the free allotment rights trading period, the shares still pending to be allotted may be sold at the risk and expense of the interested parties in accordance with article 59 of the Spanish Business Corporation Law. The net amount of the sale will be deposited in the Bank of Spain or in the General Deposit Bank (Caja General de Depósitos) at the disposal of the interested parties.
9.- Application for the admission to listing
It is resolved to apply for the listing of the New Shares on the Madrid, Barcelona, Bilbao and Valencia Stock Exchanges through the Spanish Automated Quotation System, as well as to take the steps and actions that may be necessary and file the required documents with the competent bodies of the foreign Stock Exchanges on which Banco Santander shares are traded (currently Lisbon, London, Milan, Buenos Aires, Mexico and, through ADSs (American Depositary Shares), the New York Stock Exchange) in order for the New Shares issued under this capital increase to be admitted to trading, expressly stating Banco Santander's submission to such rules as may be in force or hereafter be issued on stock exchange matters and, especially, on trading, continued listing and delisting.
It is expressly stated that, if the delisting of the Banco Santander shares is subsequently requested, the delisting resolution will be adopted with the same formalities that may be applicable and, in such event, the interests of shareholders opposing the delisting resolution or not voting it will be safeguarded in compliance with the requirements established in the Spanish Business Corporation Law Act and related provisions, all in accordance with the provisions of Law 24/1988, of 28 July, on the Securities Market and its implementing provisions in force at the relevant time.
10.- Execution of the capital increase
Within one year from the date of this resolution, the Board of Directors or, by delegation therefrom, the Executive Committee, may resolve to execute the capital increase and to set forth the conditions of the capital increase regarding those matters not provided for in the current resolution. However, if the Board of Directors does not consider it advisable to execute the capital increase within such term, it may propose to the General Shareholders' Meeting that the capital increase be revoked.
Upon completion of the free allotment rights trading period:
(a) The New Shares will be allotted to those who, in accordance with the book-entry registry of Iberclear and its participant entities, are holders of free allotment rights in the proportion resulting from section 3 above.
(b) The Board of Directors or, by delegation therefrom, the Executive Committee will declare the closing of the free allotment rights trading period and will reflect in the Bank's accounts the application of the voluntary reserves to the capital increase in the relevant amount, thus fully paying-up the New Shares.
Likewise, upon the termination of the free allotment rights trading period, the Board of Directors or, by delegation therefrom, the Executive Committee, will pass the relevant resolutions amending the Bylaws in order to reflect the new share capital figure resulting from the capital increase and applying for the admission to listing of the New Shares on the Spanish and foreign Stock Exchanges on which shares of the Bank are listed.
11.- Delegation for the execution
In accordance with article 153.1.a) of the Spanish Business Corporations Law, it is resolved to empower the Board of Directors with express authority to empower in turn the Executive Committee, to establish the conditions of the capital increase as to all matters not provided for in the current resolution. For illustrative purposes only, the Board of Directors is empowered, with express authorisation to empower the Executive Committee:
1.- To determine the date on which the agreed resolution of capital increase will be executed, which must in any event occur within one year from its approval.
2.- To determine the exact amount of the capital increase, the number of New Shares and the free allotment rights needed for the allotment of New Shares in accordance with the rules established by this General Shareholders' Meeting.
3.- To determine the duration of the free allotment rights trading period.
4.- To declare the capital increase closed and executed.
5.- To amend sub-sections 1 and 2 of article 5 of Banco Santander's Bylaws regarding share capital.
6.- To waive the new shares corresponding to the free allotment rights owned by the Bank at the end of the trading period of such rights.
7.- To take such actions as may be necessary to have the New Shares issued in the capital increase registered in the book-entry registry of Iberclear and admitted to listing on the national and international Stock Exchanges on which the shares of the Bank are listed, in accordance with the applicable requirements for each of the aforementioned Stock Exchanges.
8.- To carry out all actions as may be necessary or convenient to achieve the execution and formalisation of the capital increase before any entities and public or private authorities, Spanish or foreign, including actions of statement, supplement or remedy of defects or omissions that may prevent or hinder the full effect of the preceding resolutions.
In consideration of the foregoing, the shareholders are requested to approve the proposal submitted by the Board of Directors.
Item Nine
I) To rescind and deprive of any effect resolution NINE II) of the ordinary General Shareholders' Meeting of June 21, 2008.
II) To delegate to the Board of Directors, in accordance with the general regulations on the issuance of debentures and pursuant to the provisions of Section 319 of the Regulations of the Commercial Registry, the power to issue, on one or more occasions, debentures, bonds and other simple fixed-income securities or debt instruments of a similar nature (including certificates, promissory notes or warrants) as well as fixed-income securities that are convertible into and/or exchangeable for shares of the Company, all in accordance with the following conditions:
1. Securities to be issued. The securities covered by this delegation may be debentures, bonds and other simple fixed-income securities or debt instruments of a similar nature in any of the forms admitted by Law, including certificates, promissory notes or warrants or similar securities that might give the holders thereof, directly or indirectly, the right to subscribe or purchase newly-issued shares of the Company or shares that are already outstanding, payable by means of physical delivery or set-off. The delegated powers also cover fixed-income securities that are convertible into and/or exchangeable for shares of the Company.
2. Period of the delegation. The securities may be issued on one or more occasions, at any time, within a maximum period of five (5) years from the date of adoption of this resolution.
3. Maximum amount. The aggregate maximum amount of the issuance or issuances of securities to be made under this delegation is FORTY-TWO THOUSAND MILLION EUROS or the equivalent thereof in another currency. This limit, in turn, is divided into the following two limits:
(i) The total maximum amount of the issuance or issuances of convertible and/or exchangeable fixed-income securities to be approved pursuant to this delegation shall be SEVEN THOUSAND MILLION EUROS or the equivalent thereof in another currency.
(ii) The maximum total amount of the issuance or issuances of securities other than those described under (i) above to be made in reliance on this delegation is THIRTY-FIVE THOUSAND MILLION EUROS or the equivalent thereof in another currency.
For purposes of calculating the above-mentioned limit, in the case of warrants there shall be taken into account the sum of the premiums and exercise prices of the warrants of each issuance approved pursuant to the powers delegated hereby. In the case of promissory notes or similar securities, the outstanding limit of those issued in reliance on this delegation shall be calculated for purposes of the above-mentioned limit.
It is stated for the record that, as provided in Section 111 bis of Law 24/1988 of July 28 and the Fourth Additional Provision of Law 26/1988 of July 29, the limitation relating to the issuance of debentures established in subsection 1 of Section 282 of the Business Corporations Law does not apply to the Bank.
4. Scope of the delegation. In the exercise of the delegated powers granted herein, and by way of example and not limitation, the Board of Directors shall be responsible for determining the amount of each issuance, always within the stated overall quantitative limit; the place of issuance (domestic or foreign) and the currency, and, if it is foreign, the equivalent thereof in euros; the denomination, whether bonds or debentures or any other denomination permitted by Law (including those that are subordinated, if any, and included in sub-section 1 of Article 7 of Law 13/1985 of May 25 and in Section 20.1 of Royal Decree 1343/1992 of November 6); the issuance date(s); if the securities are not convertible, the possibility of their being exchangeable, in whole or in part, for outstanding shares of the issuing Company or other entities -and, if exchangeable, the circumstance permitting their mandatory or voluntary exchange, and, in the latter case, at the option of the holder of the securities or of the issuer- or including a call option on the above-mentioned shares; the interest rate, dates, and procedures for payment of the coupon; whether they are to be permanent or callable, and, in the latter case, the repayment period and maturity date; the type of repayment, premiums and tranches; guarantees, including mortgages; form of representation, whether certificated or via book-entry; the number of securities and the nominal value thereof which, in the case of convertible and/or exchangeable securities, shall not be less than the nominal value of the shares; pre-emptive rights, if any, and subscription procedure; applicable law, whether domestic or foreign; the request, if any, for admission to trading on official or unofficial, organized or unorganized, domestic or foreign secondary markets of the securities that are issued in compliance with the requirements in each case established by applicable laws and regulations; and, in general, any other condition to issuance, and, if appropriate, appointing the Examiner [Comisario], and approving the basic rules that are to govern the legal relations between the Bank and the Syndicate, if any, of holders of the securities that are issued.
The delegation also includes the grant to the Board of Directors of the power, in each case, to decide the conditions for repayment of the fixed-income securities issued in reliance on this authorization, and it may use the means of withdrawal referred to in sub-sections a), b), and c) of Section 306 of the Business Corporations Law. In addition, the Board of Directors is authorized, whenever it deems appropriate, and subject to the necessary official authorizations being obtained as well as, if required, the approval of the Meetings of the respective Syndicates of Holders of the securities, to amend the conditions for repayment of the fixed-income securities issued and the maturity thereof, as well as the interest rate, if any, of those included in each of the issuances made pursuant to this authorization.
5. Basis and methods for conversion and/or exchange. In the event of issuances of fixed-income securities that are convertible into and/or exchangeable for shares and for purposes of determining the basis and methods for the conversion and/or exchange, the following standards are hereby approved:
Upon approval of an issuance of convertible debentures pursuant to the authorization granted by the shareholders at the Meeting, the Board of Directors shall issue a directors' report further developing and specifying the basis and methods for the conversion that are specifically applicable to such issuance, based on the above-described standards. This report shall be accompanied by the corresponding auditors' report referred to in Section 292 of the Business Corporations Law.
6. Rights of the holders of convertible securities. To the extent that the conversion and/or exchange into shares of the fixed-income securities that may be issued is possible, the holders thereof shall have such rights as are attributed thereto by the legislation in force and especially, if applicable, and as long as provided by law, those relating to pre-emptive rights (for convertible debentures) and the anti-dilution clause in all instances where they are contemplated by law, unless the shareholders acting at a General Shareholders' Meeting or the Board of Directors, upon the terms and in accordance with the requirements of Section 159 of the Business Corporations Law in force, may decide to totally or partially exclude the pre-emptive rights of the shareholders and, as long as such right is granted by current legal provisions, of the holders of convertible debentures.
7. Capital increase and exclusion of pre-emptive rights in connection with convertible securities. The delegation to the Board of Directors shall also include, by way of example and not of limitation, the following powers:
(i) The power for the Board of Directors, within the scope of the provisions of Section 159 of the Business Corporations Law, to totally or partially exclude the pre-emptive rights of shareholders and, as long as such right is granted to them by applicable law, of holders of convertible debentures, when such exclusion is required to obtain capital in the international markets, for the use of bookbuilding techniques, or when in any other manner justified by the Company's interest. In any event, if the Board decides to eliminate pre-emptive rights with respect to a specific issuance of convertible debentures that it may decide to make in reliance on this authorization, at the time of approving the issuance and in accordance with applicable laws and regulations, it shall issue a report detailing the specific reasons of corporate interest that justify such measure, which shall be the subject of the corresponding auditor's report referred to in Section 159.2 of the Business Corporations Law. Such reports shall be made available to the shareholders and to the debenture-holders if required by the rules and regulations in effect from time to time, and shall be communicated to the shareholders at the first General Shareholders' Meeting to be held after the adoption of the issuance resolution.
(ii) The power to increase capital by the amount necessary to handle the requests for conversion. Such power may only be exercised to the extent that the Board, adding together the capital that is increased in order to cover the issuance of convertible debentures and the remaining capital increases that have been approved within the scope of authorizations granted by the shareholders at the General Shareholders' Meeting, does not exceed the limit of one-half of the share capital amount specified in Section 153.1.b) of the Business Corporations Law. This authorization to increase capital includes authorization to issue and place into circulation, on one or more occasions, the shares representing such capital that are necessary to implement the conversion, and authorization to revise the text of the article of the Bylaws relating to the amount of the share capital and, if applicable, to nullify the portion of such capital increase that was not needed for conversion into shares.
(iii) The power to further develop and specify the basis and methods for the conversion and/or exchange, taking into account the standard set forth in item 5 above and, in general and as broadly as possible, the determination of all matters and conditions that may be necessary or appropriate for the issuance.
At subsequent General Shareholders' Meetings held by the Company, the Board of Directors shall inform the shareholders on the use, if any, that has been made through such time of the delegated power to issue convertible and/or exchangeable debentures.
8. Convertible warrants: The rules set forth in sub-sections 5 through 7 above shall apply, mutatis mutandi, in the event that warrants or other similar securities are issued that might entitle the holders thereof, directly or indirectly, to subscribe newly-issued shares of the Company; the delegation includes full powers, with the same scope as in the previous paragraphs, to decide on all matters it deems appropriate in connection with that kind of securities.
9. Admission to trading. When appropriate, the Company shall request that the debentures issued pursuant to this delegation be admitted to trading on official or unofficial, organized or unorganized, domestic or foreign markets of the securities issued pursuant to the powers delegated hereby, with the Board of Directors being authorized to carry out the procedures and activities before the competent bodies of the various domestic or foreign securities markets that may be necessary for admission to listing.
10. Delegation. In turn, the Board of Directors is hereby authorized to delegate to the Executive Committee those powers conferred pursuant to this resolution that may be delegated.
Item Ten
Ten A:
Within the framework of approval by the Board of Directors of the Bank, after a report from the Appointments and Remuneration Committee, of the long-term incentive policy and the plans that make up such policy, the following resolutions are adopted with respect to the matters for the implementation of which the decision of the shareholders at the General Shareholders' Meeting is required.
- Approval of the fourth cycle of the Performance Shares Plan.
To approve the fourth share delivery cycle linked to the attainment of objectives, which is subject to the following rules:
(i) Beneficiaries: The executive Directors, other members of Senior Management as well as such other managers of the Santander Group (excluding Banesto) as determined by the Board of Directors, or the Executive Committee by delegation therefrom. The overall number of participants is expected to be approximately 6,500, although the Board of Directors, or the Executive Committee by delegation therefrom, may decide to include (by promotion or addition to the Group) or exclude other participants, without changing the maximum overall number of shares to be delivered that is authorized at any time.
(ii) Objectives: The objectives used to determine the number of shares for distribution (the 'Objectives') are linked to Total Shareholder Return ('TSR').
For the purposes hereof, TSR shall mean the difference (expressed as a percentage) between the final value of an investment in common shares in each of the compared institutions at the end of the period and the value of the same investment at the beginning of the period, taking into account that dividends or other similar items received by the shareholders for such investment during the corresponding period of time will be considered for the calculation of such final value as if they had been invested in more shares of the same kind on the first date on which the dividend or similar item was due to the shareholders and at the average weighted listing price on such date. The determination of such initial and final values will be based on the listing prices indicated in sub-section (iii) below.
At the end of the respective cycle, the TSR for Santander and each of the entities of the group identified below (the 'Reference Group') will be calculated and will be listed in descending order. The application of the TSR indicator will determine the percentage of shares to be distributed, based on the following scale and on the relative position of Santander within the Reference Group:
|
Santander's position in the TSR ranking |
Percentage of shares earned over maximum |
|
1st to 5th |
100.0% |
|
6th |
82.5% |
|
7th |
65.0% |
|
8th |
47.5% |
|
9th |
30.0% |
|
10th onwards |
0% |
The Reference Group will be made up of the following 16 entities:
|
Bank |
Country |
|
Itaú Unibanco Banco Múltiplo |
Brazil |
|
BBVA |
Spain |
|
BNP Paribas |
France |
|
Credit Suisse |
Switzerland |
|
HSBC Holdings |
United Kingdom |
|
ING Group |
The Netherlands |
|
Intesa Sanpaolo |
Italy |
|
JP Morgan Chase & Co. |
United States of America |
|
Mitsubishi UFJ Financial Group |
Japan |
|
Nordea Bank |
Sweden |
|
Royal Bank of Canada |
Canada |
|
Société Générale |
France |
|
Standard Chartered |
United Kingdom |
|
UBS |
Switzerland |
|
UniCredit |
Italy |
|
Wells Fargo & Co. |
United States of America |
The Board, or the Executive Committee by delegation therefrom, will, after a report from the Appointments and Remuneration Committee, have the power to adapt, if appropriate, the composition of the Reference Group in the event of unforeseen circumstances that may affect the entities initially comprised in such Group. In such cases, no shares will be earned if Santander ranks below the mean (50%ile) of the Reference Group; the maximum percentage of shares will be earned if Santander is included in the first quartile (including the 25%ile) of the Reference Group; 30% of the maximum number of shares will be earned at the mean (50%ile); and, for intermediate positions between (but excluding) the mean and the first quartile (excluding the 25%ile), it will be calculated by linear interpolation.
(iii) Duration: This fourth cycle will comprise 2009, 2010 and 2011. For purposes of the objective related to TSR, the average weighted by daily volume of the average weighted listing prices of the fifteen trading sessions immediately preceding (but not including) April 1, 2009 will be taken into account (to calculate the value at the beginning of the period) and that of the fifteen trading sessions immediately preceding (but not including) April 1, 2012 (to calculate the value at the end of the period). To receive the shares, the beneficiary in question will be required to have been in active service with the Group, except in the event of death or disability, through June 30, 2012. Delivery of the shares, if appropriate, will be made not later than July 31, 2012, on the date determined by the Board of Directors, or by the Executive Committee by delegation therefrom.
The shares will be delivered by the Bank or by another company of the Group, as the case may be.
(iv) Maximum number of shares to be delivered:
The number of shares to be delivered to each executive Director shall not exceed the following:
|
Executive Directors |
Maximum number of shares |
|
Mr. Emilio Botín-Sanz de Sautuola |
82,941 |
|
Mr. Alfredo Sáenz Abad |
228,445 |
|
Mr. Matías Rodríguez Inciarte |
105,520 |
|
Mr. Francisco Luzón López |
92,862 |
|
Ms. Ana Patricia Botín-Sanz de Sautuola y O'Shea |
56,447 |
|
Mr. Juan Rodríguez Inciarte |
60,904 |
Without prejudice to the Banesto shares that might correspond to Ms. Patricia Botín-Sanz de Sautuola y O'Shea under the plans that might be approved at Banesto's General Shareholders' Meeting, the maximum number of shares referred to in the preceding table corresponding to such executive Director must be submitted for approval at such Meeting.
- Approval of the third cycle (2010-2012) of the Obligatory Investment Plan with Matched Deferred Bonus in Shares.
To approve the third cycle of delivery of shares related to mandatory investment of variable compensation, which is subject to the following rules:
The beneficiaries of the plan shall be entitled to receive from the Bank or from another company of the Group, as the case may be, the same number of Santander shares as that initially purchased on a mandatory basis, i.e., at the rate of one share for each share acquired in the Mandatory Investment, so long as the following conditions are fulfilled during a period of three years as from the Mandatory Investment:
The Mandatory Investment of each executive Director shall be the result of applying sub-
section (ii) above, with the following maximum limits:
|
Executive Directors |
Maximum no. of shares |
|
Mr. Emilio Botín-Sanz de Sautuola |
44,359 |
|
Mr. Alfredo Sáenz Abad |
105,950 |
|
Mr. Matías Rodríguez Inciarte |
55,893 |
|
Mr. Francisco Luzón López |
61,482 |
|
Ms. Ana Patricia Botín-Sanz de Sautuola y O'Shea |
39,885 |
|
Mr. Juan Rodríguez Inciarte |
32,742 |
The maximum number of shares for Ms. Ana Patricia Botín-Sanz de Sautuola y O'Shea will also be submitted to the shareholders at the Banesto General Shareholders' Meeting for approval.
- Approval of the maximum limit of shares of the Restricted Shares Plan.
To authorize the delivery of Bank shares up to a maximum of 2,478,000 shares to be used selectively as an instrument to retain or hire managers or employees of the Bank or of other companies of the Group, with the exception of the executive Directors. The Board of Directors, or the Executive Committee by delegation therefrom, shall make all decisions regarding the use of this instrument. The overall limit established in this resolution shall also be observed.
A minimum period of permanence with the Group of 3 to 4 years will be required of each participant. At the end of the minimum period established in each case, the participant will be entitled to delivery of the shares.
The authorization granted herein may be used to make commitments to deliver shares for 12 months following the date on which such authorization is granted.
- Other rules
The aggregate maximum number of shares to be delivered pursuant to this resolution shall be 26,027,580, representing 0.32% of the share capital as of the date hereof (the 'Total Limit').
In the event of a change in the number of shares due to a decrease or increase in the par value of the shares or a transaction with an equivalent effect, the number of shares to be delivered shall be modified so as to maintain the percentage of the total share capital represented by them and the corresponding adjustments shall be made in order for the calculation of TSR to be correct.
Information from the stock exchange with the largest trading volume or, in case of doubt, from the stock exchange of the place where the registered office is located, shall be used to determine the listing price of each share.
If necessary or appropriate for legal, regulatory or similar reasons, the delivery mechanisms provided for herein may be adapted in specific cases without altering the maximum number of shares linked to the plan or the basic conditions upon which the delivery thereof is made contingent. Such adaptations may include the substitution of the delivery of shares for the delivery of equivalent amounts in cash.
The shares to be delivered may be owned by the Bank or by any of its subsidiaries, be newly-issued shares, or be obtained from third parties that have signed agreements to ensure that the commitments made will be met.
- Authorization
Without prejudice to the general provisions of item Eleven or the foregoing paragraphs of this item Ten A, the Bank's Board of Directors is hereby authorized to put its previous resolutions into practice, with powers to elaborate on the rules set forth herein, as required, and on the content of the agreements and other documentation to be used. Specifically, and only by way of example, the Board of Directors shall have the following powers:
The Board of Directors may delegate to the Executive Committee all the powers conferred in this resolution Ten A.
The provisions of this resolution are deemed to be without prejudice to the exercise of such powers by the Bank's subsidiaries as may be appropriate in each case to implement the incentive policy, the plans and cycles thereof with respect to their own managers.
Ten B:
Approval of an incentive plan for employees of Abbey National plc. and of other Group companies in the United Kingdom by means of options on shares of the Bank and linked to the contribution of periodic cash amounts and to certain permanence requirements
To approve a voluntary savings plan applicable to the employees of Abbey National plc., of companies within the subgroup thereof and of the other companies of the Santander Group registered in the United Kingdom (and in which the Group directly or indirectly holds at least 90% of the capital), including employees at United Kingdom branches of Banco Santander, S.A. or of companies within its Group (in which the Group directly or indirectly holds at least 90% of the capital). Each of the subgroups and companies will finally decide whether or not to apply this plan to its employees. The characteristics of this plan ('sharesave scheme') are as follows:
A plan in which between 5 and 250 pounds Sterling is deducted from the employee's net salary every month, as chosen by the employee, who may, at the end of the chosen period (3 or 5 years), choose between collecting the amount contributed, the interest accrued and a bonus (tax-exempt in the United Kingdom), or exercising options on shares of Banco Santander, S.A. in an amount equal to the sum of such three amounts at a fixed price. In case of voluntary resignation, the employee will recover the amount contributed to that time, without interest, and will receive a slightly reduced bonus, but will forfeit the right to exercise the options.
The exercise price in pounds Sterling shall be the result of reducing by up to a maximum of 20% the average of the purchase and sale prices at the close of trading in London for the 3 trading days prior to the reference date. In the event that these listing prices are unavailable for any reason, such reduction shall be applied to the average price weighted by average traded volumes on the Spanish Continuous Market for the 15 trading days prior to the reference date. This amount shall be converted into pounds Sterling for each day of listing at the average exchange rate for that day as published in the Financial Times, London edition, on the following day. The reference day shall be set as the day of final approval of the plan by the British Tax Authority ('invitation date') and shall occur between 21 and 41 days following the date of publication of the consolidated results of Banco Santander, S.A. for the first half of 2009.
The employees must decide upon their participation in the plan within the period between 42 and 63 days following the publication of the consolidated results of Banco Santander, S.A. for the first half of 2009.
The maximum monthly amount that each employee may assign to all voluntary savings plans subscribed by him/her (whether for the plan referred to in this resolution or other past or future 'sharesave' plans) is 250 pounds Sterling.
The maximum number of shares of Banco Santander, S.A. to deliver under this plan, approved for 2009 is 10,692,804, equal to 0.13% of the share capital as of the date hereof.
The plan is subject to the approval of the Tax Authority of the United Kingdom.
Without prejudice to the generality of the provisions of resolution ELEVEN below, the Board of Directors is authorized, to the broadest extent permitted by law and with the express power of delegation to the Executive Committee, to carry out any acts that may be necessary or merely appropriate in order to implement the above-mentioned plan, as well as to further develop and explicate, to the extent required, the rules set forth herein. All of the foregoing shall be deemed to be without prejudice to the acts that the decision-making bodies of Abbey National Plc., of companies within the subgroup thereof, and of the other companies of the Santander Group registered in the United Kingdom or having branches therein and referred to in the first paragraph above, have already performed or may hereafter perform in the exercise of their powers within the framework defined by this resolution of the shareholders acting at the Meeting, in order to implement the plan and to establish, develop and explicate the rules applicable thereto.
Ten C:
Authorization for the delivery of 100 shares of the Bank to each of the employees of the Sovereign subgroup.
Within the framework of the acquisition of Sovereign Bancorp, Inc. by the Bank (the 'Acquisition'), authorization is given for the delivery of one hundred (100) shares of the Bank to each of the employees of the Sovereign subgroup as of the date of consummation of the Acquisition (January 30, 2009), , without payment of any kind by the beneficiary. The shares to be delivered will be outstanding shares of the Bank, whether acquired on the market or treasury stock. The shares may be delivered directly by the Bank, by Sovereign or by any subsidiary of the group.
The Board of Directors is authorized, to the broadest extent permitted by Law and with the express power of delegation to the Executive Committee, to carry out any acts that may be necessary or merely appropriate in order to implement the delivery of shares to which this resolution refers, including, by way of example and not of limitation, (i) the determination of the manner in which or the plan under which the shares must be delivered, and (ii) the authorization of any public and private documents required for such purpose.
Item Eleven
Without prejudice to the delegations contained in the foregoing resolutions, it is hereby resolved:
A) To authorize the Board of Directors to interpret, cure, supplement, carry out and develop the foregoing resolutions, including the adaptation thereof to verbal or written evaluations of the Commercial Registry or of any other authorities, officials or institutions which are competent to do so, as well as to comply with any requirements that may legally need to be satisfied for the effectiveness thereof, and in particular, to delegate to the Executive Committee all or any of the powers received from the shareholders at this General Shareholders' Meeting by virtue of the foregoing resolutions as well as this resolution ELEVEN.
B) To authorize Mr. Emilio Botín-Sanz de Sautuola y García de los Ríos, Mr. Alfredo Sáenz Abad, Mr. Matías Rodríguez Inciarte, Mr. Ignacio Benjumea Cabeza de Vaca and Mr. Jaime Pérez Renovales so that any of them, acting severally and without prejudice to any other existing power of attorney whereby authority is granted to record the corporate resolutions in a public instrument, may appear before a Notary Public and execute, on behalf of the Bank, any public instruments that may be required or appropriate in connection with the resolutions adopted by the shareholders at this General Shareholders' Meeting. In addition, the aforementioned gentlemen are also severally empowered to carry out the required filing of the annual accounts and other documentation with the Commercial Registry.''
CERTIFY also that, pursuant to the resolution of the Board of Directors to request the presence of a Notary Public, Mr. José María de Prada Díez, Notary belonging to the Ilustre Colegio of Burgos and with residence in the city of Santander, attended the Shareholders' Meeting. The minutes of the meeting prepared by the Notary Public are the minutes of the Shareholders' Meeting.
AND to leave record, I sign this certification with the approval of Mr. Matías Rodríguez Inciarte, Third Vice Chairman, in Santander on 19 June 2009.
Reviewed
Third Vice Chairman
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