-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MUXj1JSjXxv1G9IiWevsPyXt5QOTgO9WgKsJK9Vgup8tvudntN5JzWVAS4sPEUIH xKCvri+GG2J6w/R9fPUHUw== 0000898080-06-000029.txt : 20060215 0000898080-06-000029.hdr.sgml : 20060215 20060215172736 ACCESSION NUMBER: 0000898080-06-000029 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060215 DATE AS OF CHANGE: 20060215 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TELEFONICA S A CENTRAL INDEX KEY: 0000814052 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 000000000 STATE OF INCORPORATION: U3 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48542 FILM NUMBER: 06622866 BUSINESS ADDRESS: STREET 1: GRAN VIA 28 CITY: 28013 MADRID STATE: U3 ZIP: 00000 BUSINESS PHONE: 00 34 91 584 0640 MAIL ADDRESS: STREET 1: GRAN VIA 28 CITY: 28013 MADRID STATE: U3 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: NATIONAL TELEPHONE COMPANY OF SPAIN DATE OF NAME CHANGE: 19880708 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CAJA DE AHORROS Y PENSIONES DE BARCELONA CENTRAL INDEX KEY: 0001071488 STATE OF INCORPORATION: U3 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: AVENIDA DIAGONAL 621 629 CITY: BARCELONA ZIP: 08028 MAIL ADDRESS: STREET 1: CAJA DE AHORROS Y PENSIONES DE BARCELONA STREET 2: AVENIDA DIAGONAL 621629 CITY: BARCELONA ZIP: 08028 SC 13D/A 1 sc13da.txt SCHEDULE 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d - 1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d - 2(a) Telefonica, S.A. - -------------------------------------------------------------------------------- (Name of Issuer) Ordinary shares, nominal value EUR 1.00 each American Depositary Shares, each representing the right to receive one ordinary share - -------------------------------------------------------------------------------- (Title of Class of Securities) 879382208 - -------------------------------------------------------------------------------- (CUSIP Number) Asesoria Juridica Caja de Ahorros y Pensiones de Barcelona Avenida Diagonal 621-629 Barcelona, Spain 08028 011-34-93 409 21 21 phone 011-34-93 404 69 96 fax - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 20, 1996 - -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e),13d-1(f) or 13d-1(g), check the following box. __ (continued on following pages) (Page 1 of 8 Pages) CUSIP No. 879382208 13D Page 2 of 8 - ------------ ------------------------------------------------------------------- 1. Name of Reporting Persons: I.R.S. Identification No. of Caja de Ahorros y Pensiones above person: de Barcelona ("la Caixa") Not Applicable - ------------ ------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (a) __ (b) __ - ------------ ------------------------------------------------------------------- 3. SEC Use Only: - ------------ ------------------------------------------------------------------- 4. Source of Funds: WC - ------------ ------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): __ - ------------ ------------------------------------------------------------------- 6. Citizenship or Place of Organization: The Kingdom of Spain - ------------ ------------------------------------------------------------------- Number of 7. Sole Voting Power: 249,095,736(1) Shares ------------------------------------------------------------------- Beneficially 8. Shared Voting Power: 0 Owned by ------------------------------------------------------------------- Each 9. Sole Dispositive Power: 249,095,736(1) Reporting ------------------------------------------------------------------- Person With 10. Shared Dispositive Power: 0 - ------------ ------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 249.095.736(1) (See also Item 5) - ------------ ------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares(2) (See also Item 5): _X_ - ------------ ------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): Approximately 5.06% - ------------ ------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions): CO(3) - -------------------------------------------------------------------------------- - ---------- (1) Included in this calculation are (i) 161,913,810 shares owned by Caixa Holding, S.A.U. ("Caixa Holding"), a fully owned subsidiary of la Caixa, (ii) 68,036,171 shares acquired through the la Caixa equity swap (see Item 4), and (iii) 19,145,755 shares held by Caixa de Barcelona Seguros de Vida, S.A. de Seguros y Reaseguros ("Caixa Vida"). Caixa Holding holds all the shares of Caixa Vida except for one share, which is held by Caixa Corp, S.A., a 99.9%-owned subsidiary of la Caixa. Excluded in this calculation are 1,370,330 shares acquired by la Caixa in execution of agreements for the establishment of an employees' stock options plan. La Caixa is not entitled to exercise any political or economic rights, nor to transfer or in any way dispose of these shares. (2) The amount in Row 11 excludes 1,370,330shares (which represents approximately 0.028% of the Issuer's share capital) acquired by la Caixa in execution of agreements for the establishment of an employees' stock options plan. La Caixa is not entitled to exercise any political or economic rights, nor to transfer or in any way dispose of these shares. (3) La Caixa is a savings bank formed under the laws of the Kingdom of Spain. - -------------------------------------------------------------------------------- CUSIP No. 879382208 13D Page 3 of 8 This amended and restated statement on Schedule 13D (this "Schedule 13D") amends the Schedule 13D filed with the Securities and Exchange Commission on January 30, 2006 (the "Initial Schedule 13D"). This Schedule 13D constitutes the first amendment to the Initial Schedule 13D. Item 1. Security and Issuer This filing relates to the Ordinary Shares, nominal value EUR1.00 each and American Depositary Shares, each representing the right to receive one Ordinary Share of Telefonica, S.A., a corporation organized under the laws of the Kingdom of Spain (the "Issuer"). The principal executive offices of the Issuer are located at Gran Via 28, 28013, Madrid, Spain. Item 2. Identity and Background This Schedule 13D is filed by Caja de Ahorros y Pensiones de Barcelona ("la Caixa"), a savings bank organized under the laws of the Kingdom of Spain. The principal business address for la Caixa is Avenida Diagonal 621-629, 08028 Barcelona, Spain. La Caixa's principal business is banking and financial services. During the last five years, neither la Caixa nor, to the knowledge of la Caixa, any person named in Schedule I, has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding were or are subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration La Caixa paid 971,584,551 Spanish Pesetas (EUR 5,839,340.75) from working capital for 488,187 Ordinary Shares acquired on March 20, 1996 (representing 0.05% of the Issuer's share capital as of that date). Below is a chart reflecting subsequent acquisitions by la Caixa in the Issuer's securities. - -------------------------------------------------------------------------------- Increase in Date of Number of Percentage of Acquisition Shares Acquired Price Paid Ownership - -------------------------------------------------------------------------------- March 19, 2004 37,500,000 As described 0.75% below in Item 4 - -------------------------------------------------------------------------------- March 23, 2004 37,500,000 As described 0.75% below in Item 4 - -------------------------------------------------------------------------------- Item 4. Purpose of Transaction For purposes of this Item 4, the term "Relevant Date" shall mean each of March 20, 1996, March 19, 2004 and March 23, 2004, and the term "Relevant Dates" shall refer collectively to such dates. La Caixa owns Ordinary Shares of the Issuer for investment purposes. All information reported in this Schedule 13D is accurate as of each Relevant Date and as of the date hereof, unless otherwise indicated. At various points during the period beginning March 20, 1996 and ending on the date hereof,, information regarding la Caixa's ownership position in the shares of the Issuer was disclosed in the annual reports of the Issuer filed on Form 20-F and in the annual reports of la Caixa and in other filings of la Caixa with la Comision Nacional del Mercado de Valores (CNMV). CUSIP No. 879382208 13D Page 4 of 8 On March 20, 1996 la Caixa acquired 488,187 Ordinary Shares of the Issuer representing 0.05% of the Issuer's share capital as of that date, for investment purposes. In 1996 la Caixa followed its policy of investing in sectors not related with the financing business. At this time, la Caixa invested in real estate projects. However, as soon as inflation in Spain stabilised, the investment policy of la Caixa focused on other economic sectors; mainly services, energy and telecommunications. In this regard and, taking into account its security, stability and profitability criteria, la Caixa invested in companies such as Telefonica, S.A. As a result of such acquisition, on March 20, 1996 the direct and indirect interest of la Caixa in the share capital of the Issuer was 5.01%. During 2000, 2001, 2002 and 2003 the interest of la Caixa in the share capital of the Issuer was diluted mainly as a result of several capital increases approved by the General Shareholders' Meeting with exclusion of the pre-emption right to Ordinary Shares (during that period there were certain di minimus acquisition and transfer transactions). As a consequence thereof, its interest in the share capital of the Issuer decreased progressively from 5.01% to 4.989% on February 2000, and to 3.513% on March 2004. On March 19, 2004 and on March 23, 2004 la Caixa executed equity linked swap agreements with Morgan Stanley & Co. International Limited (the "Morgan Stanley Swap Agreement') and Societe Generale (the "Societe Generale Swap Agreement" and, together with the Morgan Stanley Swap Agreement, the "Swap Agreements"). A copy of the Morgan Stanley Swap Agreement is attached as Exhibits 1 hereto, and a copy of the Societe Generale Swap Agreement is attached as Exhibit 2 hereto. Any description contained in this Schedule 13D relating to the Swap Agreements does not purport to be complete and is qualified in its entirety by reference to Exhibit 1 hereto, with respect to the Morgan Stanley Swap Agreement, and Exhibit 2 hereto, with respect to the Societe Generale Swap Agreement. The Morgan Stanley Swap Agreement and the Societe Generale Swap Agreement carry maturity dates of May 2, 2005 (subsequently extended until May 2, 2006) and March 26, 2007, respectively, each of them relating to 37,500,000 ordinary shares of the Issuer (together representing 1.5% of the Issuer's share capital). By virtue of the Swap Agreements, la Caixa undertook to pay to Morgan Stanley & Co. International Limited and to Societe Generale, respectively, an amount equivalent to all economic rights derived from the ownership of 75,000,000 shares (37,500,000 and 37,500,000 shares, respectively). As a consequence of the execution of the Swap Agreements, on March 23, 2004 la Caixa increased its interest in the Issuer from 3.51% up to 5.026%. La Caixa is entitled to ask for the total or partial cancellation of each of the Swap Agreements, under normal market conditions and subject, however, to certain limitations concerning prior notice periods and except during certain days before actual date of dividend payments. Both Swap Agreements shall be automatically extended for additional successive annual periods subject, however, to the right for either la Caixa or Morgan Stanley & Co. International Limited and Societe Generale, respectively, to re-negotiate the terms of the transaction. On May 31, 2005 the General Shareholders' Meeting of the Issuer approved the distribution of the Share Premium Reserve among its shareholders by means of the assignment to its shareholders of treasury stock. As a consequence thereof, la Caixa received 9,963,829 shares of the Issuer. Additionally, the General Shareholders' Meeting approved the reduction of the Issuer's share capital by means of the redemption of 34,760,964 shares. As a consequence of these resolutions la Caixa increased its interest in the Issuer up to 5.264%. On July 25 and July 26, 2005 la Caixa partially cancelled the Swap Agreements executed with Morgan Stanley & Co. International Limited and Societe Generale, respectively, and physically delivered a number of shares of the Issuer equivalent to the shares assigned to la Caixa by virtue of the Share Premium Reserve distribution (i.e. 9,963,829 shares of the Issuer). After delivery of those shares to Morgan Stanley & Co. International Limited and to Societe Generale, the interest of la Caixa in Telefonica, S.A. was 5.062%. CUSIP No. 879382208 13D Page 5 of 8 Prior to May 8, 1996, two la Caixa representatives were appointed to the Board of Directors of the Issuer. Mr. Antonio Massanell was appointed on April 24,1995, and Mr. Isidro Faine was appointed on June 30, 1995. Since that time, and as of each Relevant Date, Mr. Antonio Massanell and Mr. Isidro Faine have remained on the Board of Directos of the Issuer. Except as set forth below, as of each of the Relevant Dates and as of the date hereof, la Caixa did not and does not have any plans or proposals that relate to the following: (a) the acquisition of additional securities of the Issuer or the disposition of securities of the Issuer, except with respect to la Caixa current intention to seek to acquire additional securities of the Issuer in order to maintain ownership of approximately 5% of the share capital of the Issuer, and except for the shares subject to delivery upon termination of the Swap Agreements (i.e. currently 68,036,171 shares representing 1.383% of the Issuer's share capital); (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) any change in the board of directors or management of the Issuer; (e) material changes in the present capitalization or dividend policy of the Issuer; (f) other material changes in the Issuer's business or corporate structure; (g) any changes in the Issuer's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; (j) or any actions similar to those enumerated above. Item 5. Interest in Securities of the Issuer As of the date hereof, la Caixa may be deemed the beneficial owner of 249,095,736 ordinary shares, comprised of (i) 161,913,810 shares owned by Caixa Holding, S.A.U., a fully owned subsidiary of la Caixa, (ii) 68,036,171 shares acquired through the Swap Agreements (see Item 4), and (iii) 19,145,755 shares held by Caixa de Barcelona Seguros de Vida, S.A. de Seguros y Reaseguros. Caixa Holding, S.A.U. holds all the shares of Caixa de Barcelona Seguros de Vida, S.A. de Seguros y Reaseguros except for one share, which is held by Caixa Corp, S.A., a 99.9%-owned subsidiary of la Caixa. This amount does not include 1,370,330 shares (representing 0.028% of the Issuer's total share capital) acquired by la Caixa in execution of agreements for the establishment of an employees' stock options plan. La Caixa is not entitled to exercise any political or economic rights, nor to transfer or in any way dispose of these shares. La Caixa and its subsidiaries Caixa Holding, S.A.U. and Caixa de Barcelona Seguros de Vida, S.A. de Seguros y Reaseguros may have engaged in di minimus transactions in the Ordinary Shares during the 60 days prior to March 23, 2004 and the 60 days prior to the date of this filing. No other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the ordinary shares directly and indirectly owned by la Caixa, without prejudice to the obligations assumed by la Caixa under the Swap Agreements, as described in Item 4 above. La Caixa hereby disclaims any beneficial ownership of the securities of the Issuer which are the topic of this Schedule 13D. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer The information set forth in Item 4 of this Schedule 13D is incorporated by reference herein. CUSIP No. 879382208 13D Page 6 of 8 Item 7. Material to Be Filed as Exhibits Exhibit 1. Morgan Stanley Swap Agreement Exhibit 2. Societe Generale Swap Agreement CUSIP No. 879382208 13D Page 7 of 8 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: February 15, 2006 CAJA DE AHORROS Y PENSIONES DE BARCELONA ("LA CAIXA") /s/ Marcelino Armenter Vidal ----------------------------------- By: Mr. Marcelino Armenter Vidal Its: Executive CUSIP No. 879382208 13D Page 8 of 8 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF CAJA DE AHORROS Y PENSIONES DE BARCELONA ("LA CAIXA") The directors and executive officers of la Caixa as of the date hereof are set forth below. The business address of each director or executive officer is that of la Caixa. Unless noted otherwise, each of the named individuals is a citizen of the Kingdom of Spain. Directors and officers of la Caixa: Members of the Board of Directors Ricardo Fornesa Ribo Avda. Diagonal 621-629, 08028 Barcelona Ramon Balaguero Ganet Avda. Diagonal 621-629, 08028 Barcelona Maria Amparo Camarasa Carrasco Avda. Diagonal 621-629, 08028 Barcelona Marta Domenech Sarda Avda. Diagonal 621-629, 08028 Barcelona Salvador Gabarro Serra Avda. Diagonal 621-629, 08028 Barcelona Manuel Garcia Biel Avda. Diagonal 621-629, 08028 Barcelona Javier Godo Muntanola Avda. Diagonal 621-629, 08028 Barcelona Immaculada Juan Franch Avda. Diagonal 621-629, 08028 Barcelona Juan Jose Lopez Burniol Avda. Diagonal 621-629, 08028 Barcelona Montserrat Lopez Ferreres Avda. Diagonal 621-629, 08028 Barcelona Jordi Mercader Miro Avda. Diagonal 621-629, 08028 Barcelona Miquel Noguer Planas Avda. Diagonal 621-629, 08028 Barcelona Justo Bienvenido Novella Martinez Avda. Diagonal 621-629, 08028 Barcelona Vicenc Oller Compan Avda. Diagonal 621-629, 08028 Barcelona Magi Pallares Morgades Avda. Diagonal 621-629, 08028 Barcelona Manuel Raventos Negra Avda. Diagonal 621-629, 08028 Barcelona Leopoldo Rodes Castane Avda. Diagonal 621-629, 08028 Barcelona Lluc Tomas Munar Avda. Diagonal 621-629, 08028 Barcelona Francesc Tutzo Bennasar Avda. Diagonal 621-629, 08028 Barcelona Nuria Esther Villalba Fernandez Avda. Diagonal 621-629, 08028 Barcelona Josep Francesc Zaragoza Alba Avda. Diagonal 621-629, 08028 Barcelona Executive officers Isidro Faine Casas Avda. Diagonal 621-629, 08028 Barcelona Antonio Massanell Lavilla Avda. Diagonal 621-629, 08028 Barcelona Tomas Muniesa Arantegui Avda. Diagonal 621-629, 08028 Barcelona EX-99 2 ex-1.txt EXHIBIT 1 EXHIBIT 1 ENGLISH TRANSLATION FOR INFORMATION PURPOSES ONLY Morgan Stanley MORGAN STANLEY & CO. INTERNATIONAL LIMITED 25 CABOT SQUARE CANARY WHARF LONDON E14 4QA, ENGLAND March 22, 2004 Equity Swap Transaction CAJA DE AHORROS Y PENSIONES DE BARCELONA - LA CAIXA AVENIDA DIAGONAL 621-629 08028 BARCELONA, SPA - -------------------------------------------------------------------------------- Dear Sir/Madam: The purpose of this letter agreement (this "Confirmation") is to confirm the terns and conditions of the Transaction entered into between Morgan Stanley & Co. International Limited ("MSIL") and you as counterparty ("Counterparty" and together with MSIL, the "Parties") on the Trade Date specified below (the "Transaction"). This Confirmation constitutes a "Confirmation" as referred to in the ISDA Master Agreement specified below. The definitions and provisions contained in the 2000 ISDA Definitions (other than Articles 10 through 17) (the "Swap Definitions") and in the 2002 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with the Swap Definitions, the "Definitions"), in each case as published by the International Swaps and Derivatives Association, Inc. ("ISDA") are incorporated into this Confirmation. In the event of any inconsistency between the Swap Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between either set of Definitions and this Confirmation, this Confirmation will govern. Any reference to a currency shall have the meaning contained in the 1998 ISDA FX and Currency Option Definitions, as published by ISDA. 1. This Confirmation supplements, forms part of, and is subject to, the ISDA Master Agreement dated as of 23 December, 1997, as amended and supplemented from time to time (the "Agreement"), between the Parties. All provisions in the Agreement govern this Confirmation except as expressly modified below. 2. The terms of the particular Transaction to which this Confirmation relates are as follows: General Terms: Trade Date: March 19, 2004 Effective Date. March 24, 2004 Termination Date: May 2, 2005 Settlement Currency: EUR Party A: Morgan Stanley & Co. International Limited ("MSRL") Party B: Caja de Ahorros y Pensiones de Barcelona ("La Caixa") Shares: TELEFONICA SA (Scdol "5732524") Number of Shares ("N") 37,500,000 (subject to adjustment following partial early termination) Exchange: Mercado Continuo Currency Business Day: TARGET Settlement Day Financial place for the Purpose of determining Business Day: TARGET Calculation Agent: MSIL acting in good faith and in a commercially reasonable manner. If the other party objects, by notice, to a determination made by the Calculation Agent within three Exchange Business Days of notice of that determination, the parties shall negotiate in good faith during a maximum period of five Exchange Business Days, commencing on the date of receipt of the objection notice, to agree on a determination. Falling such agreement, Party A and Party B will, on a best efforts basis, designate, within one Exchange Business Day from expiry of the above five Exchange Business Day period, a mutually acceptable independent leading dealer in options on the Share (the Substitute Calculation Agent). If they are unable to agree on the Substitute Calculation Agent, each of the parties shall promptly choose an independent leading dealer in options on the Share and instruct the parties so chosen to designate, within one Exchange Business Day from the date on which both independent leading dealers are chosen, a third independent leading dealer in options on the Share (the Substitute Calculation Agent). The determination of the Substitute Calculation Agent shall be binding upon the parties in the absence of manifest error. The costs of the Substitute Calculation Agent shall be borne equally by the Party A and Party B. 2 Reference Price ("RP"): EUR 12.39. Settlement Method: Physical Delivery or Cash Settlement at the option of Party B. Party B must notify its choice to Party A not later than 1 month prior to the Termination Date. In the absence of notification, Cash Settlement Method shall prevail. If Party B elects Cash Settlement, Party A will charge a Commission as defined below. (A) Physical Delivery Method: (i) On the Termination Date, Party B shall deliver to Party A the Number of Shares against payment by Party A of the Current Market Price ("CMP") as agreed between the parties multiplied by the Number of Shares. (a) Sections 9.4 and 9.8 of the Equity Definitions shall apply and the Termination Date shall be deemed to be the << Settlement Date >> as defined in Section 9.4. (b) Sections 9.9, 9.11 and 9.12 of the Equity Definitions shall also be applicable. (c) Failure to Deliver: Applicable. (d) Valuation Date: three Business Days before the Termination Date. (iii) The First Equity Amount Payer will pay on the Settlement Date the First Equity Amount determined in accordance with the following; First Equity Amount Payer: Party B. Equity Notional Reset: Not applicable. Settlement Date: The Termination Date, subject to adjustment in accordance with the Following Business Day Convention. First Equity Amount: If, on the Valuation Date, the Calculation Agent determines that the Current Market Price is greater than the Reference Price, then the First Equity Amount Payer shall pay the following amount: (CMP - RP) x N (ii) The Second Equity Amount Payer will pay on the Settlement Date the Second Equity Amount determined in accordance with the following: Second Equity Amount Payer: Party A. Equity Notional Reset: Not applicable. Settlement Date: The Termination Date, subject to adjustment in accordance 3 with the Following Business Day Convention. Second Equity Amount: If, on the Valuation Date, the Calculation Agent determines that the Current Market Price is lower than the Reference Price, then the Second Equity Amount Payer shall pay the following amount: (RP - CMP) x N (B) Cash Settlement Method: (i) Purchase Averaging Period: The 12 Days period ending on the third Business Day before the Termination Date. Before the beginning of this period, Parry A has the right to adjust this period in case the liquidity of the Shares has changed so that it does not need to purchase more than 10% of the Assumed Average Daily Volume of the Shares on any day during this period. Assumed Average Daily Volume: The average daily volume for the Shares over a period of one month prior to a purchase during the Purchase Averaging Period. Settlement Price ("SP"): The average price at which Party A acting in a commercially reasonable manner buys the Number of Shares in the market during the Purchase Averaging Period. Each daily average price will equal the Volume Weighted Average Price ("VWAP") as quoted on Bloomberg page AQR X for that day. Commission: 0,05% x Notional Amount Averaging Date Market Disruption: Postponement. Valuation Date: The last day of the Purchase Averaging Period. (ii) The First Equity Amount Payer will pay on the Cash Settlement Payment Date the First Equity Amount determined in accordance with the following: First Equity Amount Payer: Party B. Equity Notional Reset: Not applicable. Cash Settlement Payment Date: The Termination Date, subject to adjustment in accordance with the Following Business Day Convention. 4 First Equity Amount: If, on the Valuation Date, the Calculation Agent determines that the Settlement Price is greater than the Reference Price, then the First Equity Amount Payer shall pay the following amount: (SP -RP) x N (iii) The Second Equity Amount Payer will pay on the Cash Settlement Payment Date the Second Equity Amount determined in accordance with the following: Second Equity Amount Payer: Party A. Equity Notional Reset: Not applicable. Cash Settlement Payment Date: The Termination Date, subject to adjustment in accordance with the Following Business Day Convention. Second Equity Amount: If, on the Valuation Date, the Calculation Agent determines that the Settlement Price is lower than the Reference Price, then the Second Equity Amount Payer shall pay the following amount: (RP-SP) x N Floating Amount: The Floating Amount Payer pays on the Floating Payment Date a Floating Amount determined in accordance with the following: Floating Amount Payer: Party A. Notional Amount: 464,625,000 Euros. Floating Payment Dates: The 24th day of each month from, and including 24 April 2004, to and including the Termination Date, subject to adjustment in accordance with the Following Business Day Convention. Floating Rate Option: EUR-EONIA The average of the overnight daily EONIA for each Calculation Period (first day included, last day excluded). For non-Business Days, the fixing used shall be that of the prior Business Day. The average is calculated as follows: AVG = OvernightEONIAdaily fixings --------------------------- Numberofdays Designated Maturity: Average EONIA. 5 Floating rate for initial Calculation Period: To be determined on the day prior to the last day of the initial Calculation Period. Spread: -0.40%. Day Count Fraction: Actual/360. Reset Dates: The first day of each Calculation Period. Financial Place for Business Days for the purpose of determining the Floating Rate: TARGET Settlement Day. If Cash Settlement Method applies, Party B will pay to Party A at the Floating Payment Date the daily cost of financing of purchasing the Shares during the Purchase Averaging Period. The cost of financing will be calculated on the basis of the EONIA, of the number of shares bought at each date during the Purchasing Averaging Period and of the price of the purchases. The Dividend Amount Payer pays on the Dividend Payment Date a Dividend Amount determined in accordance with the following: Dividend Amount Payer: Party B. Dividend Amount: An amount equal to the product of the Ex Amount and the Number of Shares. Only if the Cash Settlement Method is applied and if a dividend is paid during the Purchase Averaging Period, Party A will pay back to Party B 100% of the gross dividend on the Number of Shares, which have been bought by Party A at the moment of the actual payment date of the Dividends. Dividend Payment Date: The third Business Day following the actual payment date of the dividends. Dividend Period: Means, in respect of the Dividend Amount Payer, a period from, and excluding, the Trade Date, to, but including the Termination Date. Reinvestment of Dividends: Not applicable. Early Termination: Party B has the right, under normal market conditions and except during a period of 15 business days before the actual date of a dividend payment, to ask for the total or partial early termination of the Transaction (the "Request"), specifying the selected Settlement Method. In the event that Physical Delivery is selected, the early termination date shall be the 4th Business Day following the receipt of the Request. In the event Cash Settlement is selected, the Calculation Agent will determine the early termination date (which will depend on the liquidity and volatility of the Shares at the time of the Request), and the definition of Purchase Averaging Period will be construed accordingly. In addition, the Calculation Agent will determine the cash amounts to be paid by Party A or Party B depending on the 6 Settlement Method. In case of a partial early termination, all the clauses included in this Confirmation will continue in force, except for the Number of Shares that must be diminished by the successive shares affected by partial early terminations. In case of a total or partial early termination: (a) (i) In case of a total early termination, Party A will pay Party B on the Early Termination Date a Floating Amount determined in accordance with the following: N x RP x (EONIA-0.40%) x (D/30) D = Number of days passed from the last Floating Payment Date. (ii) In case of a partial early termination, Party A will pay Party B on the next following Floating Payment Date (EONIA - 0.40%), on the original Notional Amount from the last Floating Payment Date (included) up to the early termination date (excluded) and (EONIA - 0.40%) on the new Notional Amount from the early termination date (included) up to the next Floating Payment Date (excluded). (b) In case of Cash Settlement Method, if the Settlement Price was higher than the Reference Price on the Early Termination Date, Party B will pay Party A the following amount: (SP-RP) x Number of Shares the subject of early termination (c) In case of Cash Settlement Method, if the Settlement Price was lower than the Reference Price on the Early Termination Date, Party A will pay Party B the following amount: (RP - SP) x Number of Shares the subject of early termination (d) In case of Physical Delivery Method, Party B will deliver to Party A the Number of Shares the subject of early termination against payment of the Current Market Price. If the Current Market Price was higher than the Reference Price on the Early Termination Date, Party B will pay to Party A the following amount: (CMP -RP) x Number of Shares the subject of early termination (e) In case of Physical Delivery Method, Party B will deliver to Party A the Number of Shares the subject of early termination against payment of the Current Market Price. If the Current Market Price was lower than the Reference Price on the Early Termination Date, Party A will pay Party B, the following amount: (RP - CMP) x Number of Shares the subject of early termination Prorogation: Automatic for additional periods of one year, subject to the right for either party to re-negotiate any terms 7 of the Transaction. Forty days prior to the Valuation Date, any Party may request the other Party not to postpone the Termination Date of the Transaction. After receiving this request, both Parties agree to negotiate in good faith to accommodate such request. Should the parties not reach an agreement, the Transaction shall terminate on the schedule Termination Date without any penalties. Adjustments: Notwithstanding anything to the contrary in the Agreement or elsewhere in this Confirmation, MSIL, shall be the Calculation Agent with respect to Merger Events, Tender Offers and Potential Adjustment Events. (i) Potential Adjustment Events: Adjusted as discussed between the parties, but failing agreement Calculation Agent Adjustment will prevail. (ii) Consequences of Merger Events and Tender Offers: (a) Share-for-Share: Adjusted as discussed between the parties, but failing agreement Modified Calculation Agent Adjustment will prevail. (b) Share-for-Other: Adjusted as discussed between the parties, but failing agreement Modified Calculation Agent Adjustment will prevail. (c) Share-for-Combined: Adjusted as discussed between the parties, but failing agreement Modified Calculation Agent Adjustment will prevail. Nationalisation or Insolvency or Delisting: Cancellation and Payment. Additional Disruption Events: (a) Change in Law: Applicable (b) Failure to Deliver: Not Applicable (c) Insolvency Filing: Not Applicable (d) Hedging Disruption: Applicable Hedging Party: MSIL (e) Loss of Stock Borrow: Applicable. Maximum Stock Loan Rate: 0.88% affecting at least 50% of the Number of Shares the subject of this Transaction. Party A will inform Party B when the Maximum Stock Loan Rate is affecting at least 10% of the Number of Shares the subject of this Transaction. Hedging Party: MSIL. 8 (f) Increased Cost of Stock Borrow: Not Applicable (g) Increased Cost of Hedging: Not Applicable Determining Party (Merger Events, Tender Offers and Additional Disruption Events: MSIL Where a Change in Law or Hedging Disruption or Loss of Stock Borrow has occurred as a result of which Party A decides to terminate the Transaction, Party A will pay Party B an indemnity equal to the following: 0.40% x Notional Amount x D where 'D' equals the number of days from Trade Date to Early Termination Date. Non-Reliance: Each party to this Transaction represents to the other that: (a) it is entering into this Transaction as principal (and not as agent or in any other capacity); (b) neither the other party nor any of its Affiliates or agents are acting as a fiduciary for it; (c) it is not relying upon any representations except those expressly set forth herein or in the ISDA Master Agreement (including this Confirmation); (d) it has consulted with its own legal, regulatory, tax, business, investments, financial, and accounting advisors to the extent that it has deemed necessary, and it has made its own investments, hedging and trading decisions based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the other party or any of its Affiliates or agents; and (e) it is entering into this Transaction with a full understanding of the terms, conditions and risks thereof and it is capable of and willing to assume such risks. Agreements and Acknowledgements Regarding Hedging Activities: Applicable Additional Acknowledgements: Applicable 9 3. Account Details: Account for payments to MSIL: Banque Paribas Paris (PARBFRPP) A/C MSIL 4427IX For further credit to Customer Account 06178BD9 Account for payments to Counterparty: To be provided by Counterparty 4. MSIL is not qualified to provide legal, accounting or tax advice and does not purport to provide such advice in this Confirmation. The Counterparty is not relying upon this Confirmation as providing legal, accounting or tax advice, as it is intended solely for the purpose of confirming an agreed transaction between the Counterparty and MSIL. MSIL recommends that clients always confer with their own legal, accounting and tax counsel when signing any Confirmation. Disclosures Party A and Party B represent and undertake that they have made and will make all applicable disclosures relevant to this Transaction. 5. Governing law: the laws of England (without reference to choice of law doctrine). 6. Collateral: The obligations of the parties ate subject to credit support requirements. The parties agree that any amounts delivered by one party to the other in order to secure obligations under this Transaction will be deemed to be held in accordance with and subject to the terms of an agreement in the form of an English law Credit Support Annex (the "Credit Support Agreement") which will constitute a Credit Support Document under the ISDA Master Agreement executed between the parties, as if we had executed an agreement in such form with the following elections on the Trade Date of this Transaction: Threshold: Zero Minimum Transfer Amount: EUR 125,000,000 Should any of the parties be downgraded below investment grade, by either S&P or Moody's, then the Minimum Transfer Amount in relation to such party will be reduced to zero. Eligible Collateral: EUR Cash Interest Rate: EONIA For the avoidance of doubt, following a partial or full termination of the Transaction, the exposure of the Transaction will go down, which will be reflected in a partial or full return of Eligible Collateral. 10 7. If, in the case of (i) a partial or full early termination or (ii) scheduled termination on the Termination Date, Party B has elected Cash Settlement Method and consequently Purchase Averaging Period applies, Party A will advise Party B on a daily basis of the Number of Shams that have been bought in relation to such Transaction. Confirmed as of the date first written above: CAJA DE AHORROS Y PENSIONES DE MORGAN STANLEY & CO. INTERNATIONAL BARCELONA LIMITED /s/ Mr. Antonio Brufau Niubo /s/ Roy Martins By: Mr. Antonio Brufau Niubo By: Roy Martins Its: Director General Its: Executive 11 EX-99 3 ex-2.txt EXHIBIT 2 EXHIBIT 2 ENGLISH TRANSLATION FOR INFORMATION PURPOSES ONLY From: SOCIETE GENERALE Attention: Mr. Olivier RENOULT Department: OPER/DAJ/BAC/OTC/SUP Address: 17, COURS VALMY, 92987 PARIS LA DEFENSE Tel: +33 1 42 13 63 75 Fax: +33 1 42 14 71 43 To: CAJA DE AHORROS Y PENSIONES DE BARCELONA Attention: Mr. Antonio BRUFAU NIUBO DIRECTOR GENERAL Address: AV. DIAGONAL 621-629, TORRE I Tel: +34 93 404 71 21 Fax: +34 93 404 75.85 Date: March 23th, 2004 Our reference: TAU637425 Dear Sir, The purpose of this letter (this "Confirmation") is to confirm the terms and conditions of the transaction entered into between SOCIETE GENERALE ("SG") and CAJA DE AHORROS Y PENSIONES DE BARCELONA ("La Caixa") on the Trade Date specified below (the "Transaction"). This confirmation constitutes a Confirmation as referred to in the ISDA Master Agreement specified below. Master: The definitions and provisions contained in the 2000 ISDA Definitions (the <<2000 Definitions>>) and in the 1996 ISDA Equity Derivatives Definitions (the <>), (together <>), in each case as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern. This Confirmation supplements, forms part of, and is subject to, the ISDA Master Agreement dated as of August 10th, 1995 as amended and supplemented from time to time (the "Agreement"), between you and us. All provisions contained in the Agreement govern this Confirmation except as expressly modified below. It is expressly confirmed that this transaction shall be excluded from the scope of the CSA dated June 12th 2003. Terms: The terms of the Transaction to which this Confirmation relates are as follows: General Terms: Trade Date: March 23rd, 2004 Effective Date: March 26th, 2004 Termination Date: March 26th, 2007 Party A: Societe Generale Party B: Caja de Ahorros y Pensiones de Barcelona (La Caixa) Share: TELEFONICA SA ("Codigo ISIN ES0178430E18"). Clearance System; The principal domestic clearance system customarily used for settling trades in the relevant Shares Number of Shares ("N"): 37.500.000 Currency Unit: EUR. Exchange: Mercado Continuo Espanol. Related Exchange: Mercado Oficial de Futuros y Opciones Financieros (MEFF). Currency Business Day: TARGET Settlement Day. Currency Unit: EUR. Financial place for the Purpose of determining business Day: TARGET. Calculation Agent: Societe Generale acting in good faith and in a commercially reasonable manner. If the other party 2 objects, by notice, to a determination made by the Calculation Agent within three Exchange Business Days of notice of that determination, the parties shall negotiate in good faith during a maximum period of five Exchange Business Days, commencing on the date of receipt of the objection notice, to agree on a determination. Failing such agreement, Party A and Party B will, on a best efforts basis, designate, within one Exchange Business Day from expiry of the above five Exchange Business Day period, a mutually acceptable independent leading dealer in options on the Share (the Substitute Calculation Agent). If they are unable to agree on the Substitute Calculation Agent, each of the parties shall promptly choose an independent leading dealer in options on the Shares and instruct the parties so chosen to designate, within one Exchange Business Day from the date on which both independent leading dealers are chosen, a third independent leading dealer in options on the Share (the Substitute Calculation Agent). The determination of the Substitute Calculation Agent shall be binding upon the parties in the absence of manifest error. The costs of the Substitute Calculation Agent shall be borne equally by the Party A and Party B. Reference Price ("RP"): 12,07 euros. Settlement Method: Physical Delivery or Cash Settlement at the option of Party B. Party B must notify its choice to Party A not later than 35 days prior to the Termination Date. In the absence of notification, Cash Settlement Method shall prevail. (A) Physical Delivery Method: (i) On the Termination Date, Party B shall deliver to Party A the Number of Shares against payment by Party A of the Current Market Price (CMP) as agreed between the parties on the Valuation Date multiplied by the Number of Shares. (a) Sections 6.2 and 6.5 of the Equity Definitions shall apply and the termination Date shall be deemed to be the << Settlement Date >> as defined in Section 6.2. 3 (b) Sections 6.6, 6.8 and 6.9 of the Equity Definitions shall also be applicable. (c) Failure to Deliver: Applicable. (d) Valuation Date: three Business Days before the Termination Date. (ii) The First Equity Amount Payer will pay on the Settlement Date, the First Equity Amount determined in accordance with the following: First Equity Amount Payer: Party B. Equity Notional Reset: Not applicable. Settlement Date: The Termination Date, subject to adjustment in accordance with the Following Business Day Convention. First Equity Amount: If, on the Valuation Date, the Calculation Agent determines that the Current Market Price is greater than the Reference Price, then the First Equity Amount Payer shall pay the following amount: (CMP - RP) x N (iii) The Second Equity Amount Payer will pay on the Settlement Date, the Second Equity Amount determined in accordance with the following: Second Equity Amount Payer: Party A. Equity Notional Reset: Not applicable. Settlement Date: The Termination Date, subject to adjustment in accordance with the Following Business Day Convention. Second Equity Amount: If, on the Valuation Date, the Calculation Agent determines that the Current Market Price is lower than the reference Price, then the Second Equity Amount Payer shall pay the following amount: (RP - CMP) x N (B) Cash Settlement Method: (i) Purchase Averaging Period: The 12 Exchange Business Days period ending on the third Business Day before the Termination Date. Before the beginning of this period, Party A has the right to adjust this period in case the liquidity of the Shares has changed, provided that in no event the Purchase Averaging Period will exceed 18 Exchange 4 Business Days. Settlement Price ("SP"): The average price at which Party A buys the Number of Shares in the market during the Purchase Averaging Period. This price will not be 0.15% higher (the "Cost") than the average of the daily VWAP during the Purchase Averaging Period. The VWAP is the "Volume Weighted Average Price" of the Telefonica, S.A. Share as defined on Bloomberg in the column "CUSTOM" on the "TEF SM AQR" page, once selecting the "NORMAL" and "OFFICIAL CLOSE" condition codes. If Party B finds a financial institution offering a lower Cost, then Party A will either calculate the Settlement Price at this Cost or will accept to buy the Shares through this financial institution on the conditions under which Party A will buy the Shares during the purchase Averaging Period from this financial institution. Averaging Date Market Disruption: Postponement. Valuation Date: First Business Day following the last day of the Purchase Averaging Period. (ii) The First Equity Amount Payer pays on the Cash Settlement Payment date the First Equity Amount determined in accordance with the following: First Equity Amount Payer: Party B. Equity Notional Reset: Not applicable. Cash Settlement Payment Date: The Termination Date, subject to adjustment in accordance with the Following Business Day Convention. First Equity Amount: If, on the Valuation Date, the Calculation Agent determines that the Settlement Price is greater than the Reference Price, then the First Equity Amount Payer shall pay the following amount: (SP - RP) x N 5 (iii) The Second Equity Amount Payer pays on the Cash Settlement Payment Date, the Second Equity Amount determined in accordance with the following: Second Equity Amount Payer: Party A. Equity Notional Reset: Not applicable. Cash Settlement Payment Date: The Termination Date, subject to adjustment in accordance with the Following Business Day Convention. Second Equity Amount: If, on the Valuation Date, the Calculation Agent determines that the Settlement Price is lower than the Reference Price, then the Second Equity Amount Payer shall pay the following amount: (RP - SP) x N Floating Amount: The Floating Amount Payer pays on the Floating Payment Date a Floating Amount determined in accordance with the following: Floating Amount Payer: Party A. Notional Amount: 452.625.000 euros. Floating Payment Date: - ------------------------------------ ---------------------------------- Beginning of the calculation End of the calculation period and period Floating Payment Date - ------------------------------------ ---------------------------------- 26-mars-04 26-avr-04 - ------------------------------------ ---------------------------------- 26-avr-04 26-mai-04 - ------------------------------------ ---------------------------------- 26-mai-04 25-juin-04 - ------------------------------------ ---------------------------------- 25-juin-04 26-juil-04 - ------------------------------------ ---------------------------------- 26-juil-04 26-aout-04 - ------------------------------------ ---------------------------------- 26-aout-04 27-sept-04 - ------------------------------------ ---------------------------------- 27-sept-04 26-oct-04 - ------------------------------------ ---------------------------------- 26-oct-04 26-nov-04 - ------------------------------------ ---------------------------------- 26-nov-04 27-dec-04 - ------------------------------------ ---------------------------------- 27-dec-04 27-janv-05 - ------------------------------------ ---------------------------------- 27-janv-05 28-fevr-05 - ------------------------------------ ---------------------------------- 6 - ------------------------------------ ---------------------------------- 28-fevr-05 29-mars-05 - ------------------------------------ ---------------------------------- 29-mars-05 26-avr-05 - ------------------------------------ ---------------------------------- 26-avr-05 26-mai-05 - ------------------------------------ ---------------------------------- 26-mai-05 27-juin-05 - ------------------------------------ ---------------------------------- 27-juin-05 26-juil-05 - ------------------------------------ ---------------------------------- 26-juil-05 28-aout-05 - ------------------------------------ ---------------------------------- 28-aout-05 26-sept-05 - ------------------------------------ ---------------------------------- 26-sept-05 26-oct-05 - ------------------------------------ ---------------------------------- 26-oct-05 25-nov-05 - ------------------------------------ ---------------------------------- 25-nov-05 27-dec-05 - ------------------------------------ ---------------------------------- 27-dec-05 26-janv-06 - ------------------------------------ ---------------------------------- 26-janv-06 27-fevr-06 - ------------------------------------ ---------------------------------- 27-fevr-06 27-mars-06 - ------------------------------------ ---------------------------------- 27-mars-06 26-avr-06 - ------------------------------------ ---------------------------------- 26-avr-06 26-mai-06 - ------------------------------------ ---------------------------------- 26-mai-06 26-juin-06 - ------------------------------------ ---------------------------------- 26-juin-06 26-juil-06 - ------------------------------------ ---------------------------------- 26-juil-06 25-aout-06 - ------------------------------------ ---------------------------------- 25-aout-06 26-sept-06 - ------------------------------------ ---------------------------------- 26-sept-06 26-oct-06 - ------------------------------------ ---------------------------------- 26-oct-06 27-nov-06 - ------------------------------------ ---------------------------------- 27-nov-06 27-dec-06 - ------------------------------------ ---------------------------------- 27-dec-06 26-janv-07 - ------------------------------------ ---------------------------------- 26-janv-07 26-fevr-07 - ------------------------------------ ---------------------------------- 26-fevr-07 26-mars-07 - ------------------------------------ ---------------------------------- Floating Rate Option: EUR-EONIA The average of the overnight daily EONIA for each calendar day of each Calculation Period (first day included, last day excluded). For non-Business Days, the fixing used shall be that of the prior Business Day. The average is calculated as follows: AVG =OvernightEONIAdailyfixings ------------------------------- Numberofdays 7 Designated Maturity: Average EONIA Calculation Period: Period between two Floating Payment Dates Spread: -0,43% Count Fraction: Actual/360. Financial Place for Business Days for the purpose of determining the Floating Rate: TARGET Settlement Day. If Cash Settlement Method applies, Party B will pay to Party A at the Floating Payment Date the daily cost of financing of purchasing the Shares during the Purchase Averaging Period. The cost of financing will be calculated on the basis of the EONIA, of the number of shares bought at each date during the Purchasing Averaging Period and of the price of the purchases. The Dividend Amount Payer pays on the Dividend Payment Date a Dividend Amount determined in accordance with the following: Dividend Amount Payer: Party B. Dividend Amount: An amount, if any, expressed in the Currency Unit, and equal to 100% of all gross dividends paid during the Dividend Period by the Issues of the Share multiplied by the Number of Shares. Only if the Cash Settlement Method is applied and if a dividend is paid during the Purchase Averaging Period, Party A will pay to Party B 100% of the gross dividend on the Number of Shares, which have been bought by Party A at the moment of the actual payment date of the Dividends. Dividend Payment Date: The Dividend Payment Date scheduled to be the third Business day following the actual payment date of the Dividends. Dividend Period: means, in respect of the Dividend Amount Payer, a period from, and excluding, the Effective Date to, but including the Termination Date. Re-investment of Dividends: Not applicable. Adjustments: Method of Adjustment: Calculation Agent Adjustment. 8 Early Termination: Party B has the right, under normal market conditions and except during a period of 15 business days before the actual date of a dividend payment, upon a 3 Business Days notice to Party A to ask for the total or partial early termination of the Transaction. In such case, Party B has to notify to Party A the selected Settlement Method. In such a case, the Calculation Agent will determine (i) the applicable termination date (which will depend on the selected Settlement Method and the liquidity and volatility of the Shares on such date), and (ii) the cash amounts to be paid by party A or Party B depending on the method of settlement. In case of a total or partial early termination at the proposal of Party B, in accordance with the preceding paragraph, during the first two years, Party B will pay to Party A an early termination fee of the following amount: 0,05% x (Number of shares subject to the early termination x RP) In case of a partial early termination, all the clauses included in this Confirmation will continue in force, except for the Number of Shares that must be diminished by the successive Shares affected by partial early termination/s. In case of a total or partial early termination and if Party B chooses the Cash Settlement Method, the provisions regarding the Cash Settlement Method of this confirmation shall apply for the determination of the termination amount for the number of Shares subject to the early termination. In case of a total or partial early termination and if Party B chooses the Physical Delivery Method, the provisions regarding the Physical Delivery Method of this confirmation shall apply for the determination for the Current Market Prices and of the termination amount for the number of shares subject to the early termination. In case of a total or partial early termination, Party A will pay Party B the Floating Amount at the next Floating Payment Date without considering the effects of the early termination. Party B will pay to Party A at the next Floating Payment Date a cash amount equal to the capitalized EONIA on the number of Shares subject to the early termination x RP between the value date of the Early Termination and the next Floating Payment Date. From the Trade Date to the Termination Date, any of the Parties may request the termination of the Transaction in case of Change in Law or Hedging Disruption or Loss of Stock Borrow as such terms are defined in the 2002 ISDA Equity Derivatives Definitions. For the purpose of this clause, Party A shall be deemed the Hedging Party and the Maximum Stock Loan Rate shall be deemed to be equal to 5% for at least ten consecutive Business Days. In this case, the Parties will negotiate in good faith the basis for the early termination of the Transaction. If the termination of the Transaction is requested by Party A during the initial period of this confirmation (1 year), Party A will pay Party B an indemnity equal to the following: (0.43%) x Notional Amount x D where "D" equals the number of days from Trade Date to Early Termination Date. 9 Prorogation: Forty days prior to the Termination Date, Party B may request Party A to postpone the Termination Date of the Transaction so as to roll-over the Transaction for successive periods of one year. Within ten days after receiving this request, Party A will notify Party B if it is possible to postpone the Termination Date and it will negotiate in good faith with Party B to accommodate such request. Extraordinary Events: Consequences of Merger Events and tender offers: (a) Share-for-Share: To be negotiated by both parties in good faith. (b) Share-for-Other: To be negotiated by both parties in good faith. (c) Share-for-Combined: To be negotiated by both parties in good faith. o Nationalization or Insolvency: Cancellation and Payment o Upon the occurrence of any event affecting the Share which is not provided for in this Confirmation, the Agreement or the 1996 Equity Definitions, the Calculation Agent shall (a) determine the effect and consequence (including the cancellation for the Transaction) of such event and (b) calculate, as the case may be, the corresponding cancellation amount (according to section 9.7 of the 1996 ISDA Equity Definitions) or adjustment, if any, to be made to the Shares and any other variable of this Transaction. 10 Address for Notice: - -Notice to SG SOCIETE GENERALE, PARIS. Attention Philippe PARMENON Address: TOUR SOCIETE GENERALE, 17 COURS VALMY, 92987 PARIS LA DEFENSE CEDEX Tel: +33 1 42 14 78 45 Fax: +33 1 42 13 47 70. - --Notice to CAJA DE AHORROS Y PENSIONES DE BARCELONA ("La Caixa") Attention Mr. Jose COLMENERO GOMEZ Address Avda. DIAGONAL 621-629, TORRE I, PTA 13, 08028 BARCELONA Tel: +34 93 404 63 15 Fax: +34 93 404 70 87 Account details: - -Payments to: SOCIETE GENERALE Beneficiary: OPER/DAI/BAC/OTC/SLS - -Payments to: CAJA DE AHORROS Y PENSIONES DE BARCELONA ("La Caixa"): Beneficiary Bank: CAJA DE AHORROS Y PENSIONES DE BARCELONA ("La Caixa") Account Number: SWIFT: CAIXESBBXXX Beneficiary: CAJA DE AHORROS Y PENSIONES DE BARCELONA ("La Caixa") Account Number: (IBAN) ES40 2100 0555 3902 0017 7517 Governing Law: English Law Other provisions: Both "La Caixa" and SG declare and warrant that they will provide to each other with all and any information that may be required to comply with "RD 377/1991 de 26 de marzo de participaciones significativas". Relationship Between parties: Each party represents to the other party: (a) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction; it being 11 understood that information and explanations related to the terms and conditions of this transaction shall not be considered investment advice or a recommendation to enter into this Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of this Transaction. (b) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of this Transaction. It is also capable of assuming, and assumes, the risks of this Transaction. (c) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of this Transaction. ----------------------------------------------------------- Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Confirmation and returning it to us. Very truly yours We are very pleased to have executed this Transaction with you. SOCIETE GENERALE CAJA DE AHORROS Y PENSIONES DE BARCELONA /s/ Olivier Renoult /s/ Mr. Antonio Brufau Niubo By: Olivier Renoult By: Mr. Antonio Brufau Niubo Its: Head of OTC Equity Derivatives Its: Director General 12 ------------I the undersigned Pierre-Yves DEMOURES, Head of Operations for SG Corporate and Investment Banking (SGCIB) of SOCIETE GENERALE, a French banking corporation registered as a societe anonyme in the Registre du Commerce et des Societes under number RCS Paris 552 120 222, ------------------------------------acting pursuant to powers granted to me on January 17th, 2003 by Mr. Jean-Pierre MUSTIER, Chief Executive Officer of SGIB SOCIETE GENERALE,--------------------------------------------hereby appoint Mr. Olivier RENOULT, Head of OTC Equity Derivatives Documentation Back-Office of SOCIETE GENERALE, without right of substitution, in its name and on its behalf, in order: --------------------------------------------------to sign confirmations of transactions and derivative transactions in securities, security indices, units of funds, bonds, including lending and borrowing, and confirmation of insurance derivative transactions including, but not limited to, catastrophe-linked or weather derivative transactions; ------------------------------ ------------------to execute assignment and novation agreements, side letters or amendment agreements related to the transactions described above; ------------------------------------------------------------ to sign acknowledgements of debt in favour of SGA Societe Generale Acceptance SA/NV and all documents related to such acknowledgements of debt; --------------------------------to execute and deliver all agreements and other documents that are necessary to perform this power of attorney.------ ------------In addition, I certify that the signature below is the true signature of Mr. Olivier RENOULT. -------- SOCIETE GENERALE /s/ Olivier Renoult By: Olivier Renoult Its: Head of OTC Equity Derivatives Executed in Paris, this __ day of October 2003 -----END PRIVACY-ENHANCED MESSAGE-----