UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14D-9/A
SOLICITATION/RECOMMENDATION
STATEMENT UNDER
SECTION 14(d)(4) OF
THE SECURITIES EXCHANGE ACT OF 1934
ENDESA,
S.A.
(Name
of
Subject Company)
ENDESA,
S.A.
(Name
of
Person Filing Statement)
Ordinary
shares, nominal value
€
1.20
each
American
Depositary Shares, each representing the right to receive one ordinary
share
(Title
of
Class of Securities)
00029274F1
(CUSIP
Number of Class of Securities)
Alvaro
Perez de Lema
Authorized
Representative of Endesa, S.A.
410
Park Avenue, Suite 410
New
York, NY 10022
(212) 750-7200
(Name,
address and telephone number of person
authorized
to receive notices and communications on
behalf
of
the person filing statement)
With
a
Copy to:
Joseph
B. Frumkin
Sergio
J. Galvis
Richard
A. Pollack
Angel
L. Saad
Sullivan &
Cromwell LLP
125
Broad Street
New
York, NY 10004
(212) 558-4000
o
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Check
the box if the filing relates solely to preliminary communications
made
before the commencement of a tender
offer.
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IMPORTANT
LEGAL INFORMATION
This
document has been made available to shareholders of Endesa, S.A. (the "Company"
or "Endesa"). Investors are urged to read Endesa’s Solicitation/Recommendation
Statement on Schedule 14D-9, which was filed by the Company with the U.S.
Securities and Exchange Commission (the "SEC”) on August 3, 2007, as it contains
important information. The Solicitation/Recommendation Statement and other
public filings made from time to time by the Company with the SEC will be
available without charge from the SEC's website at www.sec.gov and at the
Company’s principal executive offices in Madrid, Spain.
Statements
in this document other than
factual or historical information are “forward-looking statements”.
Forward-looking statements regarding Endesa’s anticipated financial and
operating results and statistics are not guarantees of future performance and
are subject to material risks, uncertainties, changes and other factors which
may be beyond Endesa’s control or may be difficult to predict. No assurances can
be given that the forward-looking statements in this document will be
realized.
Forward-looking
statements may include,
but are not limited to, statements regarding: (1) estimated future earnings;
(2)
anticipated increases in wind and CCGTs generation and market share; (3)
expected increases in demand for gas and gas sourcing; (4) management strategy
and goals; (5) estimated cost reductions and increased efficiency; (6)
anticipated developments affecting tariffs, pricing structures and other
regulatory matters; (7) anticipated growth in Italy, France and elsewhere in
Europe; (8) estimated capital expenditures and other investments; (9) expected
asset disposals; (10) estimated increases in capacity and output and changes
in
capacity mix; (11) repowering of capacity; and (12) macroeconomic
conditions.
The
following important factors, in
addition to those discussed elsewhere in this document, could cause actual
financial and operating results and statistics to differ materially from those
expressed in our forward-looking statements:
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Economic
and Industry Conditions
: Materially adverse changes in economic or
industry conditions generally or in our markets; the effect of existing
regulations and regulatory changes; tariff reductions; the impact
of any
fluctuations in interest rates; the impact of fluctuations in exchange
rates; natural disasters; the impact of more stringent environmental
regulations and the inherent environmental risks relating to our
business
operations; and the potential liabilities relating to our nuclear
facilities.
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·
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Transaction
or Commercial Factors
: Any delays in or failure to obtain necessary
regulatory, antitrust and other approvals for our proposed acquisitions
or
asset disposals, or any conditions imposed in connection with such
approvals; our ability to integrate acquired businesses successfully;
the
challenges inherent in diverting management's focus and resources
from
other strategic opportunities and from operational matters during
the
process of integrating acquired businesses; the outcome of any
negotiations with partners and governments; any delays in or failure
to
obtain necessary regulatory approvals (including environmental) to
construct new facilities or repower or enhance our existing facilities;
shortages or changes in the price of equipment, materials or labor;
opposition of political and ethnic groups; adverse changes in the
political and regulatory environment in the countries where we and
our
related companies operate; adverse weather conditions, which may
delay the
completion of power plants or substations, or natural disasters,
accidents
or other unforeseen events; and the inability to obtain financing
at rates
that are satisfactory to us.
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·
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Political/Governmental
Factors
: Political conditions in Latin America and changes in
Spanish, European and foreign laws, regulations and
taxes.
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·
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Operating
Factors
: Technical difficulties; changes in operating conditions and
costs; the ability to implement cost reduction plans; the ability
to
maintain a stable supply of coal, fuel and gas and the impact of
fluctuations on fuel and gas prices; acquisitions or restructurings;
and
the ability to implement an international and diversification strategy
successfully.
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·
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Competitive
Factors
: the actions of competitors; changes in competition and
pricing environments; and the entry of new competitors in our
markets.
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Further
information about the reasons
why actual results and developments may differ materially from the expectations
disclosed or implied by our forward-looking statements can be found under “Risk
Factors” in our annual report on Form 20-F for the year ended December 31,
2006.
Except
as may be required by applicable
law, Endesa disclaims any obligation to revise or update any forward-looking
statements in this document.
This
Amendment to Schedule 14D-9 amends
and supplements the Solicitation/Recommendation Statement on Schedule 14D-9
originally filed by Endesa with the SEC on August 3, 2007 and amended from
time
to time thereafter. Except as otherwise indicated, the information
set forth in the original Schedule 14D-9 and previous amendments thereto
remains unchanged. Capitalized terms used but not defined herein have
the meanings ascribed to them in the original
Schedule 14D-9.
ITEM
9.EXHIBITS.
Exhibit No.
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(a)(2)(xli)
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Resolutions
approved by Bd. of Directors at EGSM on September 25,
2007.
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After
due 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.
Date:
September 25, 2007.
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Endesa,
S.A.
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By:
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/s/
Álvaro Pérez de Lema
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Name:
Álvaro Pérez de Lema
Title:
Manager of North America Investor
Relations
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Exhibit
(a)(2)(xli)
EXTRAORDINARY
GENERAL SHAREHOLDERS’ MEETING
SEPTEMBER
25, 2007 (FIRST CALL)
RESOLUTIONS
APPROVED BY THE BOARD OF DIRECTORS IN RELATION TO EACH ONE OF THE AGENDA
ITEMS
Madrid,
September 25, 2007
EXTRAORDINARY
GENERAL MEETING
SEPTEMBER
25, 2007 (FIRST CALL)
RESOLUTIONS
APPROVED BY THE BOARD OF DIRECTORS IN RELATION TO EACH AGENDA
ITEM
ONE. Amendment
of article 32 of the Corporate Bylaws (Limitation of voting
rights).
a)
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To
amend the present article 32 (Limitation of voting rights) of the
Corporate Bylaws, by re-wording it in the following
terms:
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Article
32: Voting rights
The
shareholders shall be entitled to one vote for each share they own or represent,
except for non-voting shares, which shall be governed by the provisions of
article 8 of these Bylaws.
b)
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This
bylaw amendment shall be effective as from the time it is registered
with
the Mercantile Registry.
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TWO. Amendment
of article 37 of the Corporate Bylaws (Number and types of
Directors).
a)
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To
amend the present article 37 (Number and types of Directors) of the
Corporate Bylaws, by re-wording it in the following
terms:
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Article
37: Number of Directors
The
Board
of Directors shall be formed by nine members minimum and fifteen
maximum. The General Meeting shall be responsible for both the
appointment and the removal of the members of the Board of
Directors. The position of Director is eligible for resignation,
revocation and re-election.
b)
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This
bylaw amendment shall be effective as from the time it is registered
with
the Mercantile Registry.
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THREE. Amendment
of article 38 of the Corporate Bylaws (Term of office of
Director).
a)
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To
amend the present article 38 (Term of Office) of the Corporate Bylaws,
by
re-wording it in the following
terms:
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Article
38: Term of Office of Director
The
term
of office of Directors shall be four years. They may be re-elected
for periods of like duration. For the purpose of computing the term
of office of the mandate of Directors, the year shall be deemed to begin and
end
on the date on which the Annual General Meeting is held, or the last day
possible on which it should have been held. If during the term to
which the directors were appointed vacancies should take place, the Board may
appoint, from among the shareholders, those persons to fill them until the
first
General Meeting meets.
b)
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This
bylaw amendment shall be effective as from the time it is registered
with
the Mercantile Registry.
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FOUR. Amendment
of article 42 of the Corporate Bylaws (Incompatibilities of
Directors).
a)
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To
amend the present article 42 (Incompatibilities) of the Corporate
Bylaws,
by re-wording it in the following
terms:
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Article
42: Incompatibilities of Directors
Those
persons subject to the prohibitions of article 124 of the Spanish Corporations
Law (
Ley de Sociedades Anónimas
) and other legal provisions may not be
appointed as directors.
b)
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This
bylaw amendment shall be effective as from the time it is registered
with
the Mercantile Registry.
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FIFTH.
Authorization to the Board of Directors for the execution and implementation
of
the resolutions adopted by the General Meeting, as well as to substitute the
authorities it receives from the General meeting, and granting of authorities
for registration and processing of the said resolutions as a public instrument
and for correction thereof, as appropriate.
"1.
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To
delegate to the Company’s Board of Directors the broadest authorities to
adopt such resolutions as may be necessary or appropriate for the
execution, implementation, effectiveness and successful conclusion
of the
General Meeting resolutions and, in particular, for the following
acts,
without limitation:
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(i)
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clarify,
specify and complete the resolutions of this General Meeting and
resolve
such doubts or aspects as are presented, remedying and completing
such
defects or omissions as may prevent or impair the effectiveness or
registration of the pertinent
resolutions;
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(ii)
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execute
such public and/or private documents and carry out such acts, legal
businesses, contracts, declarations and transactions as may be necessary
or appropriate for the execution and implementation of the resolutions
adopted at this General Meeting;
and
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(iii)
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delegate,
in turn, to the Executive Committee or to one or more directors,
who may
act severally and indistinctly, the powers conferred in the preceding
paragraphs.
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2.
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To
empower the Chairman of the Board of Directors, Mr. Manuel Pizarro
Moreno,
the Chief Executive Officer (CEO) Mr. Rafael Miranda Robredo and
the
Secretary of the Board of Directors and Secretary General Mr. Salvador
Montejo Velilla, in order that, any of them, indistinctly,
may:
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(i)
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carry
out such acts, legal businesses, contracts and transactions as may
be
appropriate in order to register the preceding resolutions with the
Mercantile Registry, including, in particular,
inter alia
, the
powers to appear before a Notary Public in order to execute the public
deeds or notarial records which are necessary or appropriate for
such
purpose, to publish the pertinent legal notices and formalize any
other
public or private documents which may be necessary or appropriate
for the
registration of such resolutions, with the express power to remedy
them,
without altering their nature, scope or meaning;
and
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(ii)
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appear
before the competent administrative authorities, in particular, the
Ministries of Economy and Finance and Industry, Tourism and Commerce,
as
well as before other authorities, administrations and institutions,
especially the Spanish Securities Market Commission (“Comisión Nacional
del Mercado de Valores”), the Securities Exchange Governing Companies and
any other which may be competent in relation to any of the resolutions
adopted, in order to carry out the necessary formalities and actions
for
the most complete implementation and effectiveness
thereof.
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