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
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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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·
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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
4. THE SOLICITATION OR RECOMMENDATION.
Item
4 is
hereby amended and supplemented by adding the following:
At
a
meeting held on September 18, 2007, the members of the Board of Directors
who,
directly or indirectly, own Endesa Ordinary Shares indicated that they
intend to
tender all of their Endesa Ordinary Shares pursuant to the Offer.
Also,
on
September 17, 2007, Caja Madrid announced publicly that its board of directors
had resolved to vote all of the Endesa Ordinary Shares owned by it in favor
of
the amendments to Endesa’s articles of association required to be adopted as a
condition of the Offer and to tender all the Endesa Ordinary Shares owned
by it
pursuant to the Offer.
ITEM
8. ADDITIONAL INFORMATION TO BE FURNISHED.
Item
8 is
hereby amended and supplemented by adding the following:
(h)Information
Concerning Shareholder Approval of Changes to Endesa’s Articles of
Association
As
indicated in Item 2, the completion of the Offer is conditioned upon Endesa’s
shareholders having approved certain amendments to Endesa’s articles of
association. On September 18, 2007, Endesa filed a Material Fact with
the CNMV stating that, assuming that as expected the shareholders’ meeting
is held at first call, approval of these amendments will require votes
to be
cast in favor of the amendments corresponding to a majority of all shares
present or represented at the meeting and permitted to be cast (disregarding,
for this purpose, votes that cannot be cast by shareholders to whom the
voting
limitation contained in Article 32 in Endesa’s articles of association is
applied as a result of shareholdings in excess of 10% of Endesa’s total share
capital). Also, in accordance with Endesa’s articles of association,
approval of the amendment to Article 32 requires that, in
addition to approval by a majority of the votes permitted to be cast at the
meeting, shareholders casting votes in favor of the amendments own (for
this
purpose, the voting limitation referred to above having no effect) more
than 50%
of Endesa’s total share capital.
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.
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Date:
September 18, 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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