EXHIBIT 1.1
Corporate Bylaws
Regulation
of the meetings
of the shareholders
of Enel SpA
MAY 2003
Text of the bylaws approved by the extraordinary shareholders' meeting of
September 24, 1999, as amended by:
- - the extraordinary shareholders' meeting of December 18, 1999 (with the
inclusion of article 5.4, subsequently abrogated);
- - the extraordinary shareholders' meeting of May 26, 2000 (with the supplement
of article 17.5);
- - the Board of Directors on April 9, 2001 (through insertion of article 5.5, now
5.4);
- - the extraordinary shareholders' meeting of May 25, 2001 (through the amendment
of article 5 and the insertion of article 11.2);
- - the extraordinary shareholders' meeting of May 24, 2002 (through the amendment
of article 28);
- - the Board of Directors on April 10, 2003 (through insertion of article 5.7,
now 5.5);
- - the extraordinary shareholders' meeting of May 23, 2003 (through the amendment
of article 5).
Corporate Bylaws
CORPORATE BYLAWS
TITLE I
INCORPORATION, COMPANY NAME, REGISTERED OFFICE, TERM
ARTICLE 1
1.1 The Company shall be called "ENEL - Societa per azioni" and shall be
governed by the rules of the present bylaws.
ARTICLE 2
2.1 The registered office of the Company shall be located in Rome, at 137 Viale
Regina Margherita.
2.2 Local offices, branches and representative offices may be opened and/or
closed both in Italy and abroad in accordance with the law.
ARTICLE 3
3.1 The Company shall exist until December 31, 2100 and its term may be extended
one or more times by resolution of a shareholders' meeting.
TITLE II
CORPORATE PURPOSE
ARTICLE 4
4.1 The purpose of the Company shall be to acquire and manage equity holdings in
Italian or foreign companies and firms, as well as to provide such subsidiary
companies and firms with strategic guidelines and coordination with regard to
both their industrial organization and the business activities in which they
engage.
Through affiliates or subsidiaries the Company shall operate especially:
a) in the electricity industry, including the activities of production,
importation and exportation, distribution and sale, as well as transmission
within the limits of existing legislation;
b) in the energy industry in general, including fuels, and in the field of
environmental protection, as well as in the water sector;
c) in the communications, telematics and information-technology industries and
those of multimedia and interactive services;
d) in network-based sectors (electricity, water, gas, district heating,
telecommunications) or those which, in any case, provide urban services
locally;
e) in other sectors:
5
CORPORATE BYLAWS
- in any way related to or connected with the activities carried out in the
sectors mentioned above;
- allowing the facilities, resources and expertise employed in the sectors
mentioned above (such as, by way of example and without limitation:
publishing, real estate and services to firms) to be enhanced and better
utilized;
- allowing the profitable use of the goods produced and the services
provided in the sectors mentioned above;
f) in the carrying out of activities involving systems and installations
design, construction, maintenance and management; the production and sale of
equipment; research, consulting and assistance; as well as the acquisition,
sale, marketing and trading of goods and services, all activities connected
with the sectors mentioned above under a), b), c) and d).
4.2 In the interest of its affiliates or subsidiaries, the Company may also
carry out directly any activity connected with or instrumental to its own
business or that of its affiliates or subsidiaries themselves.
To this end, the Company shall in particular see to:
- - the coordination of the managerial resources of its affiliates or
subsidiaries, including the carrying out of appropriate training
initiatives;
- - the administrative and financial coordination of its affiliates or
subsidiaries, effecting in their favor all appropriate transactions,
including granting loans and, more in general, the framework and management
of their financial activities;
- - the supply of other services in favor of its affiliates or subsidiaries in
areas of specific business interest.
4.3 In order to attain its corporate purpose, the Company may also carry out any
transaction instrumentally necessary or useful or at any rate related, such as,
by way of example: the provision of collateral and/or personal guarantees for
both its own and third-party commitments; transactions involving movables and
real-estate and commercial operations; and anything else that is connected with
its corporate purpose or that allows better use of its own facilities and/or
resources or those of its affiliates or subsidiaries, with the exception of
accepting monetary deposits from the public and providing investment services as
defined by legislative decree n. 58 of February 24, 1998, as well as the
activities referred to in section 106 of legislative decree n. 385 of September
1, 1993 insofar as they are also exercised vis-a-vis the public.
TITLE III
CAPITAL STOCK - SHARES - BONDS
ARTICLE 5
5.1 The nominal value of the Company's share capital amounts to 6,063,075,189
euros, divided into 6,063,075,189 ordinary shares, each with a par value of 1
euro.
6
CORPORATE BYLAWS
5.2 The shares can not be divided and every share shall entitle the holder
to one vote.
5.3 The mere fact of being a shareholder shall constitute acceptance of
these bylaws.
5.4 Partially exercising the delegation granted it by the shareholders'
meeting of December 18, 1999, on April 9, 2001 the Board of Directors resolved:
1. to proceed with the capital increase for the stock-option Plan for the
year 2000, to be carried out - taking into account the subsequent
amendments made by the shareholders' meeting of May 25, 2001 following
the conversion of the share capital into euros and the reverse stock
split approved by the aforesaid shareholders' meeting - as follows:
- increase of the share capital by payment by a maximum amount of
5,513,200 euros through the issue of a maximum number of 5,513,200 new
ordinary shares with a par value of 1 euro each, at the price of 8.6
euros, reserved for subscription to the executives of ENEL S.p.a.
and/or subsidiaries thereof, pursuant to section 2359 of the Civil
Code, who were selected on March 3, 2000 to participate in the
aforesaid Plan;
- the deadline set for completing the subscription of the increase is
December 31, 2004; and in the event the increase is not totally
subscribed by this date, the capital shall be increased by an amount
equal to the subscriptions received;
2. to proceed with the capital increase for the stock-option Plan for the
year 2001, to be carried out - taking into account the subsequent
amendments made by the shareholders' meeting of May 25, 2001 following
the conversion of the share capital into euros and the reverse stock
split approved by the aforesaid shareholders' meeting - as follows:
- increase of the share capital by payment by a maximum amount of
34,274,050 euros through the issue of a maximum number of 34,274,050
new ordinary shares with a par value of 1 euro each, at the price of
7.272 euros, reserved for subscription to the executives of ENEL S.p.a.
and/or subsidiaries thereof, pursuant to section 2359 of the Civil
Code, who were selected on April 9, 2001 to participate in the
aforesaid Plan;
- the deadline set for completing the subscription of the increase is
December 31, 2005; and in the event the increase is not totally
subscribed by this date, the capital shall be increased by an amount
equal to the subscriptions received.
5.5 Partially exercising the delegation granted it by the shareholder's
meeting of May 25, 2001, on April 10, 2003 the Board of Directors resolved to
proceed with the capital increase by payment for the stock-option Plan for the
year 2002 in the maximum total amount of 41,748,500 euros, to be carried out as
follows:
- - a maximum amount of 39,245,000 euros through the issue of a maximum number of
39,245,000 new ordinary shares with a par value of 1 euro each, at the price of
6.426 euros determined by the Board of Directors on March 28, 2002;
- - a maximum of 2,503,500 euros through the issue of a maximum number of
2,503,500 new ordinary shares with a par value of 1 euro each, at the price of
6.48 euros determined by the Board of Directors on September 12, 2002.
7
Corporate Bylaws
This capital increase is reserved for subscription to the executives of ENEL
S.p.a. and/or subsidiaries thereof, pursuant to section 2359 of the Civil Code,
who were selected on March 28, 2002 and September 12, 2002 to participate in the
aforesaid Plan.
The deadline set for completing the subscription of the increase is December 31,
2007; and in the event the increase is not totally subscribed by this date, the
capital shall be increased by an amount equal to the subscriptions received.
5.6 Pursuant to section 2443 of the Civil Code, the Board of Directors is
authorized, for a period of five years from the shareholders' resolution of May
23, 2003, to increase the share capital one or more times by a maximum total
amount of 47,624,005 euros, through the issue of a maximum of 47,624,005
ordinary shares with a par value of 1 euro each, which shall rank for dividend
pari passu, for the stock-option Plan for the year 2003 approved by the Board of
Directors at its meeting on April 10, 2003.
These shares shall be offered for subscription by payment to the executives of
ENEL S.p.a. and/or subsidiaries thereof pursuant to section 2359 of the Civil
Code who are the beneficiaries of the Plan, with the exclusion of preemptive
rights pursuant to the combined provisions of section 2441, last paragraph, of
the Civil Code and section 134, paragraphs 2 and 3, of legislative decree n. 58
of February 24, 1998.
The right to subscribe to these shares shall be personal and not transferable
inter vivos. Resolutions of the Board of Directors shall set deadlines for
subscription of the shares and shall provide that, in the event the increase
resolved upon is not subscribed by the deadline set each time for that purpose,
the share capital shall be increased by an amount equal to the subscriptions
received up to such deadline.
ARTICLE 6
6.1 Pursuant to section 3 of decree-law n. 332 of May 31, 1994, converted
with revisions by Law n. 474 of July 30, 1994, no one, in whatever capacity, may
own shares constituting more than 3% of the share capital, subject to the
provisions of the law.
This limit on share ownership shall be calculated taking into account the total
shareholding of a controlling entity, whether a natural or legal person or
corporation; of all directly or indirectly controlled entities, as well as of
the entities under a common control; of affiliates as well as natural persons
related by blood or marriage until the second decree, including his or her
spouse unless legally separated.
Control shall be deemed to exist, including with regard to persons or entities
other than companies, in the cases provided for by section 2359, paragraphs 1
and 2, of the Civil Code. Affiliation shall be deemed to exist in the situations
mentioned in section 2359, paragraph 3, of the Civil Code, as well as among
persons or entities that, directly or indirectly, through subsidiaries other
than investment management companies, enter into agreements - including those
with third parties - regarding the exercise of voting rights or the transfer of
shares of or interests in other companies, or any other agreements mentioned in
section 122
8
Corporate Bylaws
of legislative decree n. 58 of February 24, 1998 with respect to third-party
companies in the event that such agreements regard at least 10% of the voting
stock if the companies concerned are listed or 20% if the companies concerned
are not listed.
Calculation of the aforesaid limit on stock ownership (3%) shall also take into
account the shares held through fiduciaries and/or nominees, or in general
through intermediaries.
Voting rights attributable to shares held in excess of the aforesaid limit may
not be exercised and the voting rights of each of the parties concerned by the
ownership limit will be reduced pro rata, unless a different prior indication
has been jointly given by the shareholders concerned. A resolution passed with
the votes of shares held in violation of the limit may be challenged in court
under section 2377 of the Civil Code, provided that the resolution would not
have been passed without the votes relating to shares held in violation of the
limit.
The shares for which voting rights may not be exercised shall be counted,
however, for the purpose of determining the quorum at shareholders' meetings.
6.2 Pursuant to paragraph 1 of section 2 of decree-law n. 332 of May 31,
1994, converted with revisions by Law n. 474 of July 30, 1994, the Minister of
the Treasury, the Budget and Economic Planning - in agreement with the Minister
of Industry, Commerce and Crafts - shall hold the following special powers:
a) approval to be granted expressly when persons or entities affected by
the limit on stock ownership specified in section 3 of decree-law n.
332 of May 31, 1994, converted with revisions by Law n. 474 of July 30,
1994, acquire significant holdings, by which is meant - as established
by a decree of the Minister of the Treasury, the Budget and Economic
Planning - those equal to or exceeding 3% of the share capital
represented by shares with voting rights at ordinary shareholders'
meetings. The approval must be granted within sixty days from the date
of notice to be given by the Board of Directors when the request is
made for registration in the shareholders' register. Until approval is
granted and in any case after the deadline has passed without the
approval being granted, the transferee may not exercise the voting
rights - and any other right other than economic rights - attributable
to the shares that represent the significant holding. In the event that
approval is denied or the deadline expires without the approval being
granted, the transferee must dispose of the shares in question within
one year. In case of failure to comply, upon request by the Minister of
the Treasury, the Budget and Economic Planning a court will order the
sale of the shares that represent the significant holding according to
the procedures specified in section 2359-ter of the Civil Code;
b) approval to be granted expressly as a condition for the validity of the
agreements referred to in section 122 of legislative decree n. 58 of
1998 in the event that they regard at least one-twentieth of the
capital stock consisting of shares with voting rights at ordinary
shareholders' meetings or a lower percentage to be established by a
decree of the Minister of the Treasury, the Budget and Economic
Planning. Until approval is granted and in any case after the deadline
has passed without the approval being granted, the shareholders
participating in the agreement may not exercise the voting
9
Corporate Bylaws
rights and any other right other than economic rights. For purposes of
granting approval, the CONSOB shall inform the Minister of the
Treasury, the Budget and Economic Planning of the significant
agreements and pacts described in this Article of which it has received
notice in compliance with the above-mentioned section 122 of
legislative decree n. 58 of 1998. The power of approval must be
exercised within sixty days from the date of the notice given by the
CONSOB. In the event that approval is denied or the deadline expires
without the approval being granted, the agreements shall not be
effective.
If it can be inferred from their conduct at a shareholders' meeting
that the shareholders participating in the syndicate are keeping the
commitments made when they joined the pacts referred to in the
above-mentioned section 122 of legislative decree n. 58 of 1998,
resolutions adopted with the decisive vote of the aforesaid
shareholders may be challenged in court;
c) veto of the adoption of resolutions regarding dissolution of the
Company; transfer of its business, merger or demerger; transfer of the
registered office abroad; change in the corporate purpose; or
modification of the bylaws so as to abolish or modify the powers
specified under a), b), c) and d) of this clause;
d) appointment of a Director and a regular member of the Board of
Statutory Auditors. In the event that the Director or the member of the
Board of Statutory Auditors appointed in this way is terminated from
office, the Minister of the Treasury, the Budget and Economic Planning,
in agreement with the Minister of Industry, Commerce and Crafts, will
appoint a substitute.
The persistence of the reasons that justify the clause referred to in paragraph
1 of this Article 6.2 shall be subject to review after a period of five years
from its inclusion, partly in consideration of the progress made in the
liberalization of energy sources in Europe. Any revisions after the aforesaid
review shall be made by a decree of the Prime Minister upon proposal of the
Minister of the Treasury, the Budget and Economic Planning, in agreement with
the Minister of Industry, Commerce and Crafts.
ARTICLE 7
7.1 When fully paid, and if permitted by the law, shares may be to the
bearer. Bearer shares may be converted into registered shares and vice versa.
The cost of conversion shall be borne by the shareholder.
ARTICLE 8
8.1 When for any reason a share belongs to two or more persons, the rights
attributable to said share may be exercised by only one person or by one
representative of the joint holders.
ARTICLE 9
9.1 A shareholders' meeting may resolve on capital increases and shall
establish the terms, conditions and procedures thereof.
10
Corporate Bylaws
9.2 Shareholders' meetings may approve capital increases through issues of
shares, including issues of shares of special classes, to be allocated free of
charge pursuant to section 2349 of the Civil Code in favor of employees, or for
payment and excluding the preemptive rights pursuant to section 2441 of the
Civil Code in favor of parties indicated in a resolution of a shareholders'
meeting.
ARTICLE 10
10.1 Shares shall be paid for in one or more installments, as the Board of
Directors may require.
10.2 Subject to the provisions of section 2344 of the Civil Code, interest
shall be charged to shareholders in arrears at the official discount rate
determined on the basis of applicable law.
ARTICLE 11
11.1 In accordance with the law, the Company may issue bonds, including
convertible bonds or bonds with warrants.
11.2 Pursuant to section 2420 (b) of the Civil Code, the Board of Directors
is empowered for a period of five years as from the resolution of the
shareholders' meeting of May 25, 2001 to issue - one or more times and in one or
more tranches - bonds, including convertible ones, up to the amount of
4,000,000,000 euros.
The Board of Directors is invested with all powers in this regard, including the
power to establish the yield, maturity and regulations of the issues.
TITLE IV
SHAREHOLDERS' MEETINGS
ARTICLE 12
12.1 Ordinary and extraordinary shareholders' meetings shall normally be
held at the Company's registered office. The Board of Directors may determine
otherwise, provided the venue is in Italy.
12.2 An ordinary shareholders' meeting must be called at least once a year,
to approve the financial statements, within six months after the end of the
accounting period, in view of the nature of the business carried out pursuant to
Article 4 hereof.
ARTICLE 13
13.1 The procedures and formalities for participating in shareholders'
meetings shall be regulated by the provisions of applicable law.
11
Corporate Bylaws
ARTICLE 14
14.1 Any shareholder entitled to participate in a meeting may appoint a
representative to act in his behalf according to the provisions of law by means
of a written proxy. Duly formed legal persons may participate in a shareholders'
meeting through a person (who need not be a shareholder) designated by written
proxy. In order to facilitate the collection of proxies from the shareholders
who are employees of the Company and its subsidiaries and members of shareholder
associations satisfying the requirements set by the regulations in force,
facilities for communication and for the collection of proxies shall be made
available to the aforesaid associations according to the terms and procedures
agreed upon each time with their legal representatives.
14.2 It shall be the responsibility of the chairman of a shareholders'
meeting to verify the validity of the single proxies and, in general, the right
to participate in the meeting.
14.3 Shareholders' meetings shall be conducted according to a Regulation
approved by a resolution of an ordinary shareholders' meeting.
ARTICLE 15
15.1 Shareholders' meetings shall be chaired by the Chairman of the Board of
Directors or, if he or she is not available, by the Deputy Chairman if one has
been appointed. In the absence of both, the meeting shall be chaired by a person
designated by the Board, failing which the meeting shall elect its chairman.
15.2 The chairman of a shareholders' meeting shall be assisted by a
secretary (who need not be a shareholder) designated by the participants in the
meeting, and may appoint one or more tellers.
ARTICLE 16
16.1 Ordinary meetings shall resolve on all matters authorized by law.
16.2 At both ordinary and extraordinary shareholders' meetings, whether held
on the first, second or third call, resolutions must be adopted by the majority
required by law in each case.
16.3 The resolutions approved by a shareholders' meeting in accordance with
the law and these bylaws shall be binding upon all shareholders, even if they
did not attend or voted against the resolution.
16.4 The minutes of ordinary meetings must be signed by the chairman and the
secretary.
16.5 The minutes of extraordinary meetings must be drawn up by a notary
public.
12
Corporate Bylaws
TITLE V
BOARD OF DIRECTORS
ARTICLE 17
17.1 The Company shall be managed by a Board of Directors composed of no
fewer than three and no more than nine members. A shareholders' meeting shall
determine their number within the aforesaid limits.
17.2 The Board of Directors shall serve for a term of up to three years and
its members shall be eligible for re-election pursuant to section 2383 of the
Civil Code.
17.3 With the exception of the one appointed under Article 6.2, d) of these
bylaws, the Directors shall be elected by a shareholders' meeting on the basis
of slates presented by the shareholders and by the outgoing Board of Directors.
Within each slate, the candidates must be numbered progressively.
In the event the outgoing Board of Directors presents a slate of its own, the
same must be lodged at the registered office and published in at least three
Italian daily newspapers with nationwide circulation, including two financial
ones, at least twenty days before the first meeting date.
The slates presented by the shareholders must be lodged at the registered office
and published in the same way as indicated above at least ten days before the
first meeting date. Each shareholder shall present or participate in presenting
only one slate and each candidate shall be presented on only one slate under
pain of ineligibility.
Only those shareholders who, alone or together with other shareholders,
represent at least 1% of the shares with voting rights at ordinary shareholders'
meetings shall be entitled to present slates. In order to prove ownership of the
number of shares necessary for the presentation of slates, at least five days
prior to the first meeting date shareholders must present and/or deliver to the
registered office a copy of the documentation proving the right to participate
in the meeting.
The declarations of the individual candidates, in which they accept their
candidacies and certify, under their own responsibility, the inexistence of any
cause of ineligibility or incompatibility, as well as the satisfaction of the
requirements prescribed by applicable law for their respective offices, must be
lodged together with each slate by the respective deadlines specified above.
All those entitled to vote shall vote for only one slate.
The procedure for electing the Directors shall be as follows:
a) four-fifths of the Directors to be elected, rounding down any fraction
to the unit, will be drawn from the slate that obtains a majority of
the votes cast by the shareholders in the order in which they are
listed on the slate;
b) the remaining Directors will be drawn from the other slates; for this
purpose, the votes obtained by these slates will be divided
successively by one, two, three and so forth
13
CORPORATE BYLAWS
according to the progressive numbers of the Directors to be elected.
The numbers obtained in this way will be attributed to the candidates
of such slates in the order in which they rank in the slate. The
numbers thus attributed to the candidates of the various slates will be
arranged in decreasing order in a single ranking. The candidates who
obtain the highest numbers will become Directors.
In the event that more than one candidate has obtained the same number,
the candidate of the slate that has not yet elected a Director or that
has elected the fewest Directors will be appointed Director.
In the event that no Director has been elected yet from any of these
slates or that the same number of Directors has been elected from each
slate, the candidate of the slate that has obtained the most votes will
be appointed Director. If there is a tie in terms of both numbers
assigned and votes obtained by each slate, the entire shareholders'
meeting will vote again and the candidate who obtains a simple majority
of the votes will be appointed Director;
c) when less than the entire Board of Directors is being elected, the
shareholders' meeting will resolve according to the majorities provided
for by the law, without following the procedure specified above.
17.4 Even during a Board's term, a shareholders' meeting may change the
number of the members of the Board of Directors within the limit referred to in
the first paragraph of this Article and proceed to elect them. The term of the
Directors so elected shall end at the same time as that of the Directors in
office.
17.5 Should one or more vacancies occur on the Board during the accounting
period, steps shall be taken in accordance with section 2386 of the Civil Code,
except with regard to the Director appointed pursuant to Article 6.2, d) of
these bylaws. If one or more of the Directors leaving their offices vacant were
drawn from a slate also containing unelected candidates, they shall be replaced
by appointing, in progressive order, persons drawn from the slate to which the
Director in question belonged, provided that said persons are still eligible and
willing to accept the directorship. In the event that the majority of the
Directors' offices becomes vacant, the entire Board shall be deemed to have
resigned and must promptly call a meeting of the shareholders to elect a new
Board.
ARTICLE 18
18.1 If a shareholders' meeting has not elected a Chairman of the Board, the
Board shall elect one of its members to that position. It may elect a Deputy
Chairman, who shall stand in for the Chairman in the event of his or her
unavailability.
18.2 Upon the Chairman's proposal, the Board shall appoint a Secretary, who
need not have any connection with the Company.
14
CORPORATE BYLAWS
ARTICLE 19
19.1 The Board shall meet at the place designated in the notice whenever the
Chairman or, in the event the latter is unavailable, the Deputy Chairman deems
necessary or a majority of its members so requests in writing. The Board may
also be convened in the ways provided for in Article 28.4 of these bylaws.
19.2 Board meetings may also be held by audio/video conference or
teleconference provided that all the participants can be identified and such
identification is acknowledged in the minutes of the meeting, and that they are
allowed to follow and participate in real time in the discussion of the matters
considered; in such case, the Board of Directors shall be deemed held in the
place where the Chairman is and where the Secretary must also be in order to
allow the related minutes to be drawn up and signed.
19.3 The Board shall normally be called at least five days before the date
on which the meeting is to be held. This period may be shorter in urgent cases.
The Board of Directors shall decide the procedures for convening its own
meetings.
19.4 The Board of Directors must also be convened if at least two Directors
(or one if the Board is composed of three members) so request to resolve on a
specific matter concerning the management of the Company which they consider of
particular importance and which is to be indicated in the request itself.
In such an event, if the Board of Directors is not convened within fifteen days
or does not adopt a resolution because a quorum is lacking or a meeting is not
held within thirty days, the decision in question must be entrusted to a meeting
of the shareholders if two Directors, or one if the Board is composed of three
members, so request.
Such meeting shall be called promptly by the Board of Directors or, should it
fail to do so, by the Board of Statutory Auditors.
ARTICLE 20
20.1 Board meetings shall be chaired by the Chairman and, in his or her
absence, by the Deputy Chairman if one has been appointed. If the latter is also
absent, they shall be chaired by the oldest Director.
ARTICLE 21
21.1 The quorum for meetings of the Board shall be a majority of the
Directors in office.
21.2 Resolutions shall be adopted by a majority of the votes of the
Directors present; in case of a tie, the vote of the person chairing the meeting
shall be decisive.
ARTICLE 22
22.1 The resolutions of the Board of Directors shall appear in minutes
which, transcribed in a book kept according to law for the purpose, shall be
signed by the chairman of the
15
CORPORATE BYLAWS
meeting or whoever acts in his or her behalf, and by the Secretary.
22.2 Copies of the minutes shall be fully certified if signed by the
Chairman or whoever acts in his or her behalf, and by the Secretary.
ARTICLE 23
23.1 The Board of Directors shall be vested with the broadest powers for
conducting both the day-to-day and the extraordinary business of the Company
and, in particular, shall have the authority to take all actions it deems
advisable in order to carry out and attain the corporate purpose, excepting only
the actions that the law and these bylaws reserve to shareholders' meetings.
23.2 The Board of Directors, or the Chief Executive Officer for it, shall
promptly report to the Board of Statutory Auditors - at least once every three
months and in any case upon a meeting of the Board of Directors - on the
activities carried out and the most important transactions affecting the results
of operations and financial condition of the Company and its subsidiaries. It
reports in particular on transactions involving a potential conflict of
interest.
ARTICLE 24
24.1 Within the limits set forth in section 2381 of the Civil Code, the
Board of Directors may delegate powers to one of its members, determining the
limits of the delegation. Upon proposal by the Chairman and in agreement with
the Chief Executive Officer, the Board may delegate powers to others among its
members for single acts or classes of acts.
24.2 Within the limits of the authority conferred on him, the Chief
Executive Officer shall have the power to delegate single acts or classes of
acts to employees of the Company or to third parties, authorizing subdelegation.
ARTICLE 25
25.1 The legal authority to represent the Company and sign documents on its
behalf is vested in both the Chairman of the Board of Directors and the Chief
Executive Officer and, in the event that the former is unavailable, the Deputy
Chairman if one has been appointed. The signature of the Deputy Chairman shall
attest vis-a-vis third parties the Chairman's unavailability.
25.2 The above legal representatives shall be authorized to delegate the
power to represent the Company, including in court, to third parties, who may
also be authorized to subdelegate.
ARTICLE 26
26.1 The Chairman and the members of the Board of Directors shall be
entitled to compensation in an amount to be determined by an ordinary meeting of
the shareholders. Once adopted, the resolution shall apply during subsequent
accounting periods until a shareholders' meeting determines otherwise.
16
CORPORATE BYLAWS
ARTICLE 27
27.1 The Chairman shall:
a) have the power to represent the Company pursuant to Article 25.1;
b) preside at meetings of the shareholders pursuant to Article 15.1;
c) call and preside at meetings of the Board of Directors pursuant to
Articles 19 and 20.1;
d) ascertain that the resolutions of the Board are carried out.
TITLE VI
BOARD OF STATUTORY AUDITORS
ARTICLE 28
28.1 A shareholders' meeting shall elect the Board of Statutory Auditors,
which is to be composed of three regular members, and shall determine their
compensation. Two alternate members shall also be elected by a shareholders'
meeting.
The members of the Board of Statutory Auditors must possess the requisites of
professionalism and honorableness specified in the Ministry of Justice's decree
n. 162 of March 30, 2000. For the purposes of the provisions of section 1,
paragraph 2, b) and c) of this decree, the following are considered closely
connected with the scope of the Company's business activities: subjects
pertaining to commercial law and tax law, business economics and business
finance, as well as subjects and fields of activity pertaining to energy in
general, communications, telematics and information technology, and network
structures.
In addition to the situations of ineligibility specified by the law, those who
are regular members of the Board of Statutory Auditors in five or more companies
not controlled by ENEL S.p.a. issuing securities in the regulated markets may
not be elected to the Board of Statutory Auditors, and if elected shall be
debarred from office.
28.2 With the exception of the member appointed pursuant to Article 6.2, d)
of these bylaws, regular members of the Board of Statutory Auditors and
alternate members shall be elected by shareholders' meetings on the basis of the
slates presented by the shareholders, on which the candidates must be numbered
progressively.
The procedures of Article 17.3 of these bylaws shall apply to the presentation,
lodgment and publication of the slates.
The slates are to be divided into two sections: one for the candidates for the
office of regular auditor and the other for candidates for the office of
alternate auditor. The first candidate in each section must be a registered
auditor and have practiced the profession of legal auditor for a period of no
less than three years.
A regular member of the Board of Statutory Auditors and an alternate member
shall be drawn in order from the slate that obtains a majority of votes. The
remaining regular member and the remaining alternate shall be elected according
to the procedures specified in Article 17.3, b), to be applied separately to
each of the sections in which the other slates are divided.
When less than the entire Board is being elected, the shareholders' meeting
shall resolve according to the majorities provided for by the law, without
following the procedure speci-
17
CORPORATE BYLAWS
fied above, but in any case in such a way as to ensure that the composition of
the Board of Statutory Auditors is in accordance with the provisions of section
1, paragraph 1, of the Ministry of Justice's decree n. 162 of March 30, 2000.
The member appointed pursuant to Article 6.2, d) of these bylaws shall be
Chairman of the Board. In the event that the member drawn from the slate that
obtained a majority of the votes is substituted, his or her place shall be taken
by the alternate member drawn from the same slate. In the event that the member
drawn from other slates is substituted, his or her place shall be taken by the
alternate member elected according to the procedure specified by Article 17.3,
b). Article 6.2, d) of these bylaws shall apply with regard to the substitution
of the Chairman of the Board of Statutory Auditors.
28.3 Auditors whose term has expired shall be eligible for re-election.
28.4 Upon notice to the Chairman of the Board of Directors, the Board of
Statutory Auditors may call a shareholders' meeting and a Board of Directors'
meeting. The power of calling a meeting may also be exercised by at least two
members of the Board of Statutory Auditors.
TITLE VII
FINANCIAL STATEMENTS AND EARNINGS
ARTICLE 29
29.1 The accounting period shall end on December 31 of every year.
29.2 At the end of each accounting period, the Board of Directors shall draw
up the Company's financial statements as required by law.
29.3 The Board of Directors may distribute interim dividends to shareholders
during the course of the year.
ARTICLE 30
30.1 Dividends not collected within five years from the day they become
payable shall be forfeited to the Company and posted directly to reserves.
18
CORPORATE BYLAWS
TITLE VIII
DISSOLUTION AND LIQUIDATION OF THE COMPANY
ARTICLE 31
31.1 Should the Company be dissolved, a shareholders' meeting shall
determine the liquidation procedures and appoint one or more liquidators,
establishing their powers and compensation.
TITLE IX
TRANSITORY AND GENERAL RULES
ARTICLE 32
32.1 Any matters not expressly provided for herein shall be governed by the
provisions of the Civil Code and applicable statutes.
ARTICLE 33
33.1 The Company shall continue to carry out all the activities that - under
legislative decree n. 79 of March 16, 1999, published in the Gazzetta Ufficiale,
issue 75 of March 31, 1999 -have been temporarily entrusted to it pending their
award to other entities according to the provisions of the legislative decree.
NOTE
THE ENTE NAZIONALE PER L'ENERGIA ELETTRICA, A PUBLIC STATUTORY BODY ESTABLISHED
BY LAW N. 1643 OF DECEMBER 6, 1962, WAS TRANSFORMED INTO A JOINT STOCK COMPANY
BY DECREE-LAW N. 333 OF JULY 11, 1992, CONVERTED BY LAW N. 359 OF AUGUST 8,
1992. A RESOLUTION ADOPTED BY THE EXTRAORDINARY SHAREHOLDERS' MEETING OF AUGUST
7, 1992, CHANGED THE COMPANY'S NAME TO ENEL S.P.A. THE COMPANY IS ENTERED UNDER
N. 00811720580 AT THE COMPANY REGISTER OF ROME AND IS REGISTERED AT THE ROME
R.E.A. UNDER N. 756032.
19
REGULATION OF THE MEETINGS
OF THE SHAREHOLDERS OF ENEL SPA
(Text of the Regulation approved
by the ordinary shareholders' meeting
of May 25, 2001)
REGULATION OF THE MEETINGS OF THE SHAREHOLDERS OF ENEL SPA
SECTION I - PRELIMINARY PROVISIONS
OBJECT
ARTICLE 1
1.1 This regulation shall govern the ordinary and extraordinary meetings
(the "Meeting" or the "Meetings") of the shareholders and, when compatible, the
meetings of the bondholders, of ENEL S.p.a. ("ENEL").
1.2 This regulation shall be made available to the shareholders at ENEL's
registered office and at the venues where the Meetings are to be held.
SECTION II - QUORUM
PARTICIPATION AND ATTENDANCE
ARTICLE 2
2.1 Shareholders and others entitled to vote may participate in Meetings.
2.2 Executives and other employees of ENEL or Group companies may
participate in Meetings, as well as other persons whose participation the
chairman considers useful in connection with the matters to be discussed or for
conducting the Meeting.
2.3 Experts, financial analysts and accredited journalists may attend the
Meetings with the consent of the chairman.
2.4 Before introducing the matters on the agenda, the chairman shall inform
the shareholders of the persons indicated in paragraphs 2 and 3 of this article
who are participating or are merely attending.
VERIFICATION OF THE RIGHT TO PARTICIPATE IN MEETINGS AND ACCESS TO MEETING
PREMISES
ARTICLE 3
3.1 Verification of the right to participate in Meetings and vote shall
begin at the venue where a Meeting is to be held at least one hour before the
Meeting is to begin, unless a different time is indicated in the Meeting notice.
3.2 Those entitled to participate in Meetings and vote must show
identification and the certification indicated in the Meeting notice to the
auxiliary personnel at the entrance to the premises where the Meeting is to take
place. The auxiliary personnel shall issue a special document, which is to be
kept for as long as the Meeting lasts.
3.3 Such participants who for any reason leave the premises where the
Meeting is being held must notify the auxiliary personnel.
3.4 In order to facilitate verification of their right to participate in a
Meeting, shareholders
21
REGULATION OF THE MEETINGS OF THE SHAREHOLDERS OF ENEL SPA
and others entitled to vote may have the documentation confirming such right
delivered to ENEL's Department of Corporate Affairs according to the procedures
and by the deadlines contained in the Meeting notice.
3.5 In order to facilitate verification of their representative powers,
those intending to participate in a Meeting as the representatives of
shareholders or of other persons entitled to vote may have the documentation
confirming such powers delivered to ENEL's Department of Corporate Affairs
according to the procedures and by the deadlines contained in the Meeting
notice.
3.6 Unless the chairman decides otherwise, no cameras, video equipment or
similar devices, or recording instruments of any kind, may be used on the
premises where a Meeting is being held. In the event the chairman authorizes the
use of such devices, he or she shall determine the conditions and limits
thereof.
QUORUM AND CALL TO ORDER
ARTICLE 4
4.1 At the time stated in the Meeting notice, the person specified by the
Bylaws shall take the chair of the Meeting.
4.2 The chairman shall be assisted by a secretary, who may be a person
other than a shareholder, appointed by the shareholders upon the chairman's
proposal. The chairman may request the assistance of the secretary even when the
drafting of the minutes is entrusted to a notary public. The secretary and the
notary public may appoint assistants and may make use of audio and/or video
recording devices only as personal aids in preparing the minutes.
4.3 The chairman may appoint one or more tellers, not necessarily
shareholders, and set up a chair's staff.
4.4 To maintain order, the chairman shall make use of specially designated
auxiliary personnel provided with special identification badges.
4.5 The chairman may call for assistance on the persons authorized to
participate in the Meeting, including instructing them to introduce the matters
on the agenda and to reply to questions regarding determined matters.
4.6 The chairman may also call for assistance on specially invited external
experts.
4.7 The chairman shall resolve any disputes regarding the right to
participate and vote, including cases brought to his attention by the auxiliary
personnel.
4.8 The chairman shall announce how many shareholders and other persons
entitled to vote are present, as well as the capital share they represent.
Having ascertained that there is a quorum, the chairman shall call the meeting
to order.
22
REGULATION OF THE MEETINGS OF THE SHAREHOLDERS OF ENEL SPA
4.9 If a quorum is not reached after no less than one hour has passed from
the time set for the Meeting to begin, the chairman shall announce the fact and
postpone consideration of the matters on the agenda until the subsequent call.
SECTION III - DISCUSSION
AGENDA
ARTICLE 5
5.1 The chairman and, at his or her request, those who assist him or her in
accordance with article 4, paragraph 5 of this regulation, shall introduce the
matters on the agenda and the proposals submitted to the shareholders for
approval. Unless the Meeting is opposed, the chairman may have the aforesaid
matters and proposals considered in a different order from the one stated in the
Meeting notice and may have all or some of the matters on the agenda discussed
at the same time.
SPEAKING FROM THE FLOOR AND REJOINDERS
ARTICLE 6
6.1 The chairman shall conduct the discussion, giving the floor to the
Directors, the Statutory Auditors and those who request it in accordance with
this article.
6.2 All those entitled to vote and the common representative of the
bondholders may request the floor to speak on the matters under discussion only
once, making observations and requesting information. Those entitled to vote may
also make proposals. Requests for the floor may be presented from the time the
quorum is determined until the chairman closes the discussion of the matter
concerned. In order to ensure the orderly conduct of the Meeting, the chairman
shall have the power to set, at the beginning of or during the discussion of
each matter, a deadline for the presentation of requests for the floor.
6.3 The chairman shall establish the rules for requesting and using the
floor, as well as the order in which participants obtain the floor.
6.4 The chairman and, at his or her request, those who assist him or her in
accordance with article 4, paragraph 5 of this regulation, shall reply to
participants who speak on matters being discussed after all of them have spoken
or after each one has spoken.
6.5 Those who have requested the floor shall be entitled to a brief
rejoinder.
6.6 Taking into account the nature and the importance of the specific
matters under discussion, as well as the number of those requesting the floor,
the chairman shall predetermine the time limits for speaking from the floor and
for rejoinders - normally no more than ten minutes for the former and five
minutes for the latter - in order to ensure that the Meeting be able to conclude
its business at one sitting. When such time is about to run out, the chairman
shall request whoever has the floor to conclude.
23
Regulation of the meetings of the shareholders of Enel SpA
6.7 When all participants requesting the floor have spoken and the replies
and, if any, the rejoinders are over, the chairman shall declare the discussion
closed.
SUSPENSION AND ADJOURNMENT OF MEETINGS
ARTICLE 7
7.1 While the Meeting is in progress, the chairman may briefly suspend the
same if he or she deems it advisable and explains his or her decision.
7.2 Subject to the provisions of section 2374 of the Civil Code, by a
resolution of the majority of the share capital represented, adopted upon
proposal of the chairman of or participants representing at least 1% of the
share capital, the shareholders may decide to adjourn the Meeting, setting the
venue, date and time for the continuation thereof within a period that is
appropriate with respect to the reasons for the adjournment and, in any event,
is no longer than thirty days.
POWERS OF THE CHAIRMAN
ARTICLE 8
8.1 In order to guarantee the proper conduct of business and the exercise
of participants' rights, the chairman may deny the floor in the event a
participant speaks without being entitled to do so or continues to speak after
the predetermined time limit has expired.
8.2 After calling the speaker to order, the chairman may deny the floor to
the former in cases of manifest irrelevance of what is being said to the matter
under discussion.
8.3 The chairman may deny the floor in all cases in which the participant
speaking utters unbecoming or offensive expressions, behaves similarly, makes
threats, or instigates violence and disorder.
8.4 In the event one or more participants prevent others from discussing or
by their behavior create a situation that clearly hinders the regular conduct of
the Meeting, the chairman shall call them to order and to observance of the
regulation. In case such call is to no avail, the chairman may expel previously
warned persons from the Meeting premises for the entire duration of the
discussion.
SECTION IV - VOTING
PRELIMINARY OPERATIONS
ARTICLE 9
9.1 Before calling for a vote, the chairman shall allow any participants
who may have been expelled under article 8 of this regulation to return to the
Meeting.
24
Regulation of the meetings of the shareholders of Enel SpA
9.2 The chairman may instruct the entitled participants to vote on the
matters on the agenda at the end of the discussion of each matter or at the end
of the discussion of all or several of the matters.
VOTING
ARTICLE 10
10.1 The chairman shall decide the order in which proposed resolutions on
the separate matters on the agenda are put to a vote, normally giving precedence
to those proposed, if any, by the Board of Directors.
10.2 The chairman shall decide the procedure for expressing, recording and
counting votes and may set a time limit by which votes must be expressed.
10.3 Votes expressed with procedures other than those indicated by the
chairman shall be null and void.
10.4 Shareholders who vote against or abstain must give their name to the
auxiliary personnel.
10.5 When voting is over, the votes shall be counted, after which the
chairman - who may be assisted by the secretary or the notary public - shall
inform the Meeting of the results thereof.
SECTION V - TERMINATION
TERMINATION OF THE MEETING
ARTICLE 11
11.1 When all the matters on the agenda have been discussed and voted upon,
the chairman shall terminate the Meeting.
SECTION VI - FINAL PROVISIONS
FINAL PROVISIONS
ARTICLE 12
12.1 In addition to the provisions of this regulation, the chairman may
adopt all measures deemed advisable in order to guarantee the proper conduct of
the Meeting and the exercise of participants' rights.
12.2 All matters not provided for in this regulation shall be subject to the
provisions of the Civil Code, applicable statutes and ENEL's bylaws.
25