UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
ENDESA, S.A.
(Name of Subject Company (issuer))
ACCIONA, S.A.
ENEL SOCIETÀ PER AZIONI
ENEL ENERGY EUROPE SOCIETÀ A RESPONSABILITÀ LIMITATA
(Name of Persons Filing Statement)
Ordinary shares, nominal value €1.20 each
American Depositary Shares, each representing one ordinary share
(Title of Class of Securities)
Ordinary Shares, ISIN ES0130670112
American Depositary Shares, CUSIP 00029258N-10-7, ISIN US29258N1072
(CUSIP and ISIN Numbers of Class of Securities)
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Acciona, S.A.
Avenida de Europa, 18
Empresarial La Moraleja, Alcobendas
Madrid, Spain 28108
Attention: Jorge Vega-Penichet
+34 91 663 2850 | | ENEL Società per Azioni
Viale Regina Margherita 137
00198 Rome, Italy
Attention: Department of Corporate Affairs
+39 06830 52783 |
(Name, address and telephone number of person authorized to receive notices and communications on behalf of the filing persons)
With copies to:
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Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Adam O. Emmerich
(212) 403-1000 | | Simpson Thacher & Bartlett LLP
One Ropemaker Street
London EC2Y 9HU
Attention: Michael Wolfson
+44 207 275 6500 |
Calculation of Filing Fee
| | | | | | |
| Transaction Valuation(1) | | | Amount of Filing Fee(2) |
| 8,919,665,524.10 | | | | 273,834 | |
| | | | | | |
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| o | Check box if any part of the fee is offset as provided byRule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
| | | |
| Amount Previously Paid: N.A | | Filing Party: N.A. |
| Form or Registration No.: N.A | | Date Filed: N.A. |
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| o | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
þ third-party tender offer subject toRule 14d-1.
o issuer tender offer subject toRule 13e-4.
o going-private transaction subject toRule 13e-3.
þ amendment to Schedule 13D underRule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer:
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| (1) | | Estimated solely for the purpose of calculating the filing fee in accordance withRule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the transaction valuation is calculated by multiplying 161,989,074, which is the estimate of the number of ordinary shares of Endesa, S.A. (including ordinary shares represented by American depositary shares of Endesa, S.A.) subject to the U.S. offer, by the offer price of €40.16 in cash for each ordinary share of Endesa, S.A. and each American depositary share of Endesa, S.A., converted into U.S. dollars based on the exchange rate expressed in U.S. dollars per euro of $1.3711 = €1.00, the Federal Reserve Bank of New York noon buying rate on July 25, 2007. |
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| (2) | | Calculated at $30.70 per $1,000,000.00 of the transaction valuation. The amount of the filing fee was sent via wire transfer on July 26, 2007. |
This Tender Offer Statement on Schedule TO (the “Schedule TO”) relates to the joint tender offer by Acciona, S.A. (“Acciona”), a Spanish corporation, and Enel Energy Europe S.r.L. (“EEE” and, together with Acciona, the “Offerors”), an Italian limited liability company and a wholly-owned subsidiary of ENEL S.p.A. (“ENEL”), an Italian corporation, to acquire all the outstanding ordinary shares, par value €1.20 per share (the “ordinary shares”) and American depositary shares, each representing one ordinary share (the “ADSs”, and, together with the ordinary shares, the “Endesa securities”) of Endesa, S.A., a Spanish corporation (“Endesa”), pursuant to, and upon the terms and conditions set forth in the offer to purchase in the United States dated July 30, 2007 (the “U.S. Offer”). The Offerors are also making a separate, concurrent Spanish offer (the “Spanish Offer” and, together with the U.S. Offer, the “Offers”) for the ordinary shares.
As permitted by General Instruction F to the Schedule TO, the information set forth in the Offer to Purchase, the Share Form of Acceptance, the ADS Letter of Transmittal and the Notice of Guaranteed Delivery, copies of which are attached hereto as Exhibits (a)(1)(A), (a)(1)(B), (a)(1)(C) and (a)(1)(D), respectively, is hereby expressly incorporated by reference in response to Items 1 through 9 and Item 11 of this Schedule TO.
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| Item 10. | Financial Statements |
Not applicable.
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Exhibit | | Description |
| |
| | (a)(1)(A) | | | Offer to Purchase dated July 30, 2007 |
| | (a)(1)(B) | | | Form of Share Form of Acceptance |
| | (a)(1)(C) | | | Form of ADS Letter of Transmittal |
| | (a)(1)(D) | | | Form of Notice of Guaranteed Delivery |
| | (a)(1)(E) | | | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees |
| | (a)(1)(F) | | | Form of Letter to Holders of American Depositary Shares |
| | (a)(1)(G) | | | Form of Letter to Financial Intermediaries and Custodians |
| | (a)(1)(H) | | | Form of Letter to Holders of Ordinary Shares |
| | (a)(1)(I) | | | Guidelines for Certification of Taxpayer Identification Number on SubstituteForm W-9 |
| | (a)(5)(A) | | | Joint press release of ENEL S.p.A. and Acciona, S.A. dated April 11, 2007, announcing the tender offer (previously filed as Exhibit 99.46 to Amendment No. 18 to the statement on Schedule 13D filed on April 11, 2007 by Acciona, S.A. and Finanzas Dos, S.A. and incorporated herein by reference) |
| | (a)(5)(B) | | | Current report filed on April 11, 2007 by Enel Energy Europe S.r.L. and Acciona, S.A. with the SpanishComisión Nacional del Mercado de Valores— CNMV regarding the joint tender offer (previously filed as Exhibit 99.44 to Amendment No. 18 to the statement on Schedule 13D filed on April 11, 2007 by Acciona, S.A. and Finanzas Dos, S.A. and incorporated herein by reference) |
| | (a)(5)(C) | | | Current report filed on April 11, 2007 by Enel Energy Europe S.r.L. and Acciona, S.A. with the SpanishComisión Nacional del Mercado de Valores— CNMV regarding the bank guarantees filed with the CNMV for the joint tender offer (previously filed as Exhibit 99.45 to Amendment No. 18 to the statement on Schedule 13D filed on April 11, 2007 by Acciona, S.A. and Finanzas Dos, S.A. and incorporated herein by reference) |
| | (a)(5)(D) | | | Press release of ENEL S.p.A. dated April 19, 2007, announcing that seven more banks have joined the financing for the joint tender offer for Endesa, S.A (previously filed as Exhibit 99.24 to the statement onSchedule TO-C filed on April 11, 2007 by Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(E) | | | Press release of Acciona, S.A. dated April 24, 2007, reasserting the legality of its actions in connection with the proposed tender offer for Endesa (previously filed as Exhibit 99.47 to Amendment No. 19 to the statement on Schedule 13D filed on April 26, 2007 by Acciona, S.A. and Finanzas Dos, S.A. and incorporated herein by reference) |
| | (a)(5)(F) | | | Press release of ENEL S.p.A. dated April 27, 2007, announcing that the Spanish energy regulatory authority,Comisión Nacional de Energía, authorized Enel Energy Europe S.r.L. to acquire up to 24.99% of the share capital of Endesa, S.A. (previously filed as Exhibit 99.27 to the statement onSchedule TO-C filed on April 27, 2007 by Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(G) | | | Press release of ENEL S.p.A. dated May 3, 2007, announcing the request for authorization from the SpanishComisión Nacional del Mercado de Valores— CNMV to acquire the shares tendered from Endesa, S.A. resulting from the joint tender offer (previously filed as Exhibit 99.28 to the statement onSchedule TO-C filed on May 3, 2007 by Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(H) | | | Current report filed on May 3, 2007 by ENEL S.p.A. and Acciona S.A. with the SpanishComisión Nacional del Mercado de Valores — CNMV regarding the request for authorization to acquire the shares tendered from Endesa, S.A. resulting from the joint tender offer (previously filed as Exhibit 99.29 to the statement onSchedule TO-C filed on May 3, 2007 by Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
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Exhibit | | Description |
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| | (a)(5)(I) | | | English translation of the current report filed on May 17, 2007 by ENEL S.p.A. with the SpanishComisión Nacional del Mercado de Valores— CNMV announcing the authorization from the Spanish Cabinet of Ministers to exercise voting rights to the maximum of 24.99% of the share capital of Endesa, S.A. (previously filed as Exhibit 99.32 to the statement onSchedule TO-C filed on May 17, 2007 by Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(J) | | | Press release of ENEL S.p.A. dated May 17, 2007, announcing the authorization from the Spanish Cabinet of Ministers to exercise voting rights to a maximum of 24.99% of the share capital of Endesa, S.A. (previously filed as Exhibit 99.33 to the statement onSchedule TO-C filed on May 17, 2007 by Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(K) | | | English translation of the current report filed on June 1, 2007 by ENEL S.p.A. with the SpanishComisión Nacional del Mercado de Valores— CNMV announcing the termination of the share swap transactions with UBS Limited and Mediobanca — Banca di Credito Finanziario S.p.A. (previously filed as Exhibit 99.38 to Amendment No. 13 to the statement on Schedule 13D filed on June 1, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(L) | | | Press release of ENEL S.p.A. dated June 1, 2007, announcing the termination of the share swap transactions with UBS Limited and Mediobanca — Banca di Credito Finanziario S.p.A. (previously filed as Exhibit 99.39 to Amendment No. 13 to the statement on Schedule 13D filed on June 1, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(M) | | | Current report filed on June 11, 2007 by ENEL S.p.A. with the SpanishComisión Nacional del Mercado de Valoresannouncing deposit with the Madrid Mercantile Registry of regulations relating to the free transferability of ordinary shares of Endesa S.A. by ENEL S.p.A. and Acciona S.A. (previously filed as Exhibit 99.40 to Amendment No. 15 to the statement on Schedule 13D, filed on June 11, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(N) | | | Press release of ENEL S.p.A. dated June 11, 2007, announcing deposit of covenants regarding the free transferability of ordinary shares of Endesa S.A. by ENEL S.p.A. and Acciona S.A. (previously filed as Exhibit 99.41 to Amendment No. 15 to the statement on Schedule 13D, filed on June 11, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(O) | | | Current report filed on July 2, 2007 by Acciona, S.A and ENEL S.p.A. with the SpanishComisión Nacional del Mercado de Valores— CNMV relating to notification regarding the reduction of consideration being offered in the proposed joint tender offer by Acciona, S.A. and Enel Energy Europe S.r.L. for the ordinary shares, including ordinary shares represented by ADSs, from €41.30 per ordinary share to €40.16 per ordinary share to reflect the €1.14 per ordinary share dividend that Endesa general shareholders meeting approved on June 20, 2007 (previously filed as Exhibit 99.50 to Amendment No. 23 to the statement on Schedule 13D filed on July 2, 2007 by Acciona, S.A. and Finanzas Dos, S.A. and incorporated herein by reference) |
| | (a)(5)(P) | | | Press release of ENEL S.p.A. dated July 2, 2007 regarding the reduction of consideration being offered in the proposed joint tender offer by Acciona and Enel Energy Europe S.r.L. for the ordinary shares, including ordinary shares represented by ADSs, from €41.30 per ordinary share to €40.16 per ordinary share to reflect the €1.14 per ordinary share dividend that Endesa general shareholders meeting approved on June 20, 2007 (previously filed as Exhibit 99.43 to Amendment No. 16 to the statement on Schedule 13D filed on July 2, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(Q) | | | Current report filed on July 5, 2007 by ENEL S.p.A. and Acciona, S.A. with the SpanishComisión Nacional del Mercado de Valores — CNMV announcing approval by the European Commission of the acquisition of joint control through a public takeover bid for Endesa, S.A. by ENEL S.p.A. and Acciona, S.A. (previously filed as Exhibit 99.46 to Amendment No. 17 to the statement on Schedule 13D filed on July 5, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(R) | | | Press release of ENEL S.p.A. dated July 5, 2007 announcing approval by the European Commission of the acquisition of joint control through a public takeover bid for Endesa, S.A. by ENEL S.p.A. and Acciona, S.A. (previously filed as Exhibit 99.47 to Amendment No. 17 to the statement on Schedule 13D filed on July 5, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(S) | | | Joint press release of ENEL S.p.A. and Acciona, S.A. dated July 25, 2007 announcing approval by the SpanishComisión Nacional del Mercado de Valores to launch a joint tender offer for Endesa, S.A. (previously filed as Exhibit 99.48 to Amendment No. 19 to the statement on Schedule 13D filed on July 25, 2004 by ENEL S.p.A and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(T) | | | Current report filed on July 27, 2007 by ENEL S.p.A. with the SpanishComisión Nacional del Mercado de Valoresannouncing the authorization by the Spanish Cabinet of Ministers for Enel Energy Europe S.r.L. to exercise its voting rights over all the ordinary shares and ADSs of Endesa, S.A. acquired in the joint tender offer with Acciona, S.A. (previously filed as Exhibit 99.49 to Amendment No. 20 to the statement on Schedule 13D filed on July 27, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
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Exhibit | | Description |
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| | (a)(5)(U) | | | Press release of ENEL S.p.A. dated July 27, 2007 announcing the authorization by the Spanish Cabinet of Ministers for Enel Energy Europe S.r.L. to exercise its voting rights over all the ordinary shares and ADSs of Endesa, S.A. acquired in the joint tender offer with Acciona, S.A. (previously filed as Exhibit 99.50 to Amendment No. 20 to the statement on Schedule 13D filed on July 27, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (a)(5)(V) | | | Joint press release of Acciona, S.A. and ENEL S.p.A. dated July 30, 2007 announcing the commencement of the joint tender offer |
| | (a)(5)(W) | | | English translation of the content of the Endesa offer section of the website www.enel.com |
| | (a)(5)(X) | | | English translation of the content of the Endesa offer section of the website www.acciona.es |
| | (a)(5)(Y) | | | Form of Summary Advertisement, published in the Wall Street Journal on July 30, 2007 |
| | (b)(1) | | | English Translation of the €1,800,000,000 Syndicated Credit Facility among Acciona, S.A., The Royal Bank of Scotland, plc, Banco Santander Central Hispano, S.A., Banco Bilbao Vizcaya Argentaria, S.A., Caylon, Spanish Branch and Natixis S.A., Spanish Branch dated April 11, 2007 |
| | (b)(2) | | | €35,000,000,000 Credit Facility Agreement among ENEL S.p.A., Enel Finance International S.A., Banco Santander Central Hispano, S.A., Bayerische Hypo-und Vereinsbanks AG, Milan Branch, Intesa Sanpaolo S.p.A., Mediobanca — Banca di Credito Finanziario S.p.A. and UBS Limited dated April 10, 2007 (previously filed as Exhibit 99.31 to Amendment No. 9 to the statement on Schedule 13D filed on April 13, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
| | (d)(1) | | | English Translation of Agreement by and between Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L., dated March 26, 2007, regarding the development of a joint ownership project for Endesa, S.A. (previously filed as Exhibit 10.16 to Amendment No. 15 to the statement on Schedule 13D filed on March 28, 2007 by Acciona, S.A. and Finanzas Dos, S.A. and incorporated herein by reference) |
| | (d)(2) | | | English Translation of Amendment, dated April 2, 2007, to the Agreement by and between Acciona, S.A., Finanzas Dos, S.A., ENEL S.p.A. and Enel Energy Europe S.r.L., dated March 26, 2007, regarding the development of a joint ownership project for Endesa, (previously filed as Exhibit 10.18 to Amendment No. 16 to the statement on Schedule 13D filed on April 2, 2007 by Acciona, S.A. and Finanzas Dos, S.A. and incorporated herein by reference) |
| | (d)(3) | | | Agreement by and among ENEL S.p.A., Acciona, S.A. and E.ON AG, dated April 2, 2007 (previously filed as Exhibit 10.17 to Amendment No. 16 to the statement on 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) |
| | (d)(4) | | | Confidentiality Agreement dated June 15, 2007, between Acciona, S.A. and Endesa, S.A. (previously filed as Exhibit 10.19 to Amendment No. 23 to the statement on Schedule 13D filed on July 2, 2007 by Acciona, S.A. and Finanzas Dos, S.A. and incorporated herein by reference) |
| | (d)(5) | | | Confidentiality Agreement dated June 15, 2007, between Enel S.p.A. and Endesa, S.A. (previously filed as Exhibit 99.44 to Amendment No. 16 to the statement on Schedule 13D filed on July 2, 2007 by ENEL S.p.A. and Enel Energy Europe S.r.L. and incorporated herein by reference) |
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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.
Acciona, S.A.
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| | By: | /s/ Jorge Vega Penichet |
Name: Jorge Vega Penichet
ENEL Società per Azioni
Name: Fulvio Conti
| | |
| | Title: | Chief Executive Officer |
Enel Energy Europe Società a Responsabilità Limitata
Name: Claudio Machetti
Dated: July 30, 2007
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