| UNITED STATES |
| SECURITIES AND EXCHANGE COMMISSION |
| Washington, D.C. 20549 |
| ---------------------------- |
| SCHEDULE 14D-9 |
| Solicitation/Recommendation Statement Under Section 14(d)(4) |
| of the Securities Exchange Act of 1934 |
| (Amendment No. 5) |
| ------------------- |
| ENDESA, S.A. |
| (Name of Subject Company) |
| ACCIONA, S.A. |
| FINANZAS DOS, 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) |
| ------------------- |
| Acciona, S.A. |
| Avenida de Europa, 18 |
| Empresarial La Moraleja, Alcobendas |
| Madrid, Spain 28108 |
| Attention: Jorge Vega-Penichet |
| +34 91 663 2850 |
| (Name, address and telephone number of person authorized to receive |
| notices and communications on behalf of the person filing statement) |
| With a copy to: |
| Wachtell, Lipton, Rosen & Katz |
| 51 West 52nd Street |
| New York, New York 10019 |
| Attention: Adam O. Emmerich |
| (212) 403-1000 |
¨ Check the box if the filing relates solely to preliminary communications made before thecommencement of a tender offer.
| INTRODUCTION |
This Amendment No. 5 (“Amendment No. 5”) amends and supplements the Schedule 14D-9 (as amended, the “Schedule 14D-9”) previously filed by Acciona, S.A. (“Acciona”) and Finanzas Dos, S.A. (“Finanzas” and together with Acciona, the “Filing Persons”), relating to the tender offer (the “E.ON Offer”) by E.ON Zwölfte Verwaltungs GmbH, a wholly owned subsidiary of E.ON AG (collectively, “E.ON”), for all of the outstanding ordinary shares of Endesa, S.A., a Spanishsociedad anónima (“Endesa”), nominal value €1.20 each (the “Shares”), and for all of the outstanding American Depositary Shares of Endesa, each representing the right to receive one Share (the “ADSs” ). Capitalized terms used and not defined in this Amendment have the meanings set forth in the Schedule 14D-9. Except as specifically provided herein, this Amendment does not modify any of the information previously reported in the Schedule 14D-9.
Statements made or referred to in this report as to the Filing Persons’ intentions and/or plans reflect only the Filing Persons’ intentions and/or plans at this time based on the information available to them and current circumstances. As new information becomes available and/or circumstances change, the Filing Persons may reevaluate their intentions and/or plans.
| Forward-Looking Statements |
Statements made or referred to in this report other than factual or historical information are “forward-looking statements.” Forward-looking statements regarding Endesa’s or Acciona’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 Acciona’s control or may be difficult to predict. No assurances can be given that the forward-looking statements made or referred to in this document will be realized.
In some cases, you can identify these statements by forward-looking words such as “may,” “might,” “will,” “should,” “expect,” “plan,” “intend,” “anticipate,” “believe,” “estimate,” “predict,” “potential” or “continue,” and the negative of these terms and other comparable terminology. These forward-looking statements, which are subject to known and unknown risks, uncertainties and assumptions, may include projections of Endesa’s, E.ON’s, Enel’s and Acciona’s future financial performance based on their growth strategies and anticipated trends in their businesses and industry. These statements are only predictions based on Acciona’s current expectations and projections about future ev ents. There are important factors that could cause Endesa’s, E.ON’s, Enel’s and Acciona’s actual results, level of activity, performance, achievements or other events to differ materially from the results, level of activity, performance, achievements or events expressed or implied by the forward-looking statements.
Although Acciona believes the expectations reflected in the forward-looking statements are reasonable, it cannot guarantee future results, level of activity, performance, achievements or events. Moreover, neither Acciona nor any other person assumes responsibility for the accuracy or completeness of any of these forward-looking statements. You should not rely upon forward-looking statements as predictions of future events.
Forward-looking statements include, but are not limited to, statements about:
• possible or assumed future results of operations and operating cash flows;
• strategies and investment policies;
• financing plans and the availability of capital;
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• competitive position;
• potential growth opportunities available to Acciona, Endesa, Enel or E.ON;
• the risks associated with potential acquisitions or alliances;
• actions that may be taken by Acciona, E.ON, Enel or other persons with regard to the ownership of securities of Endesa; and
• actions that may be taken by regulatory authorities with regard to control of, or investment in, Endesa.
Except as may be required by applicable law, Acciona undertakes no obligation to revise or update any forward-looking statements in this document.
Acciona reserves the right to claim that the Tier I exemption under Rule 14d-1 promulgated by the SEC under the U.S. Securities Exchange Act of 1934, as amended, applies to any tender offer for Endesa securities.
ITEM 4. THE SOLICITATION OR RECOMMENDATION.
Item 4 is hereby amended to add the following supplemental information:
The information contained in Amendment No. 16 to the Filing Persons’ statement on Schedule 13D filed April 2, 2007 is incorporated herein by reference.
ITEM 8. ADDITIONAL INFORMATION.
Item 8 is hereby amended to add the following supplemental information:
The information contained in Amendment No. 16 to the Filing Persons’ statement on Schedule 13D filed April 2, 2007 is incorporated herein by reference.
| ITEM 9. EXHIBITS. |
Item 9 is hereby amended and supplemented to add the following exhibit:
| 10.2 | Agreement by and among ENEL S.p.A., Acciona, S.A. and E.ON AG, dated April 2, 2007 (the “Settlement Agreement”) (previously filed as Exhibit 10.17 to Amendment No. 16 to the Schedule 13D filed on April 2, 2007 by Acciona, S.A. and Finanzas Dos, S.A. with respect to Shares and the ADSs and incorporated herein by reference) |
| 10.3 | English Translation of Amendment, dated April 2, 2007, to the Cooperation Agreement, dated March 26, 2007, regarding the development of a joint ownership project for Endesa, by and between Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L.(previously filed as Exhibit 10.18 to Amendment No. 16 to the Schedule 13D filed on April 2, 2007 by Acciona and Finanzas with respect to Shares and the ADSs and incorporated herein by reference) |
| 99.12 | Amendment No. 16 to the Schedule 13D filed on April 2, 2007 by Acciona, S.A. and Finanzas Dos, S.A. with respect to Shares and the ADSs (previously filed and incorporated herein by reference) |
| 99.13 | Joint Press Release of Acciona, S.A. and ENEL S.p.A. announcing the Settlement Agreement, dated April 2, 2007 (previously filed as Exhibit 99.41 to Amendment No. 16 to the |
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| Schedule 13D filed on April 2, 2007 by Acciona, S.A. and Finanzas Dos, S.A. with respect to Shares and the ADSs, and incorporated herein by reference) | |
| 99.14 | Hecho Relevante(No. 78775) filed on April 2, 2007 by Acciona, S.A. with the SpanishComisión Nacional del Mercado de Valores(Notice related to the Settlement Agreement attached as Exhibit 10.2 hereto) (previously filed as Exhibit 99.42 to Amendment No. 16 to the Schedule 13D filed on April 2, 2007 by Acciona, S.A. and Finanzas Dos, S.A. with respect to Shares and the ADSs, and incorporated herein by reference) |
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| SIGNATURE |
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: April 2, 2007 |
| ACCIONA, S.A. |
| By:/s/ Jorge Vega-Penichet |
| Name: Jorge Vega-Penichet |
| Title: Company Secretary |
| FINANZAS DOS, S.A. |
| By:/s/ Vicente Santamaria de Paredes Castillo |
| Name: Vicente Santamaria |
| de Paredes Castillo |
| Title: Company Secretary |
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