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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
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ENDESA, S.A.
(Name of Subject Company)
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ENDESA, S.A.
(Name of Person(s) Filing Statement)
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Ordinary shares, nominal value (euro)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(s) Filing Statement)
With a Copy to:
Sergio J. Galvis, Richard A. Pollack, Angel L. Saad
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
1 (212) 558-4000
|X| 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
The following document was made available to shareholdersof Endesa, S.A.
(the "Company" or "Endesa") on October 13th, 2005. Endesa shareholders are urged
to read Endesa's Solicitation/Recommendation Statement on Schedule 14D-9 when it
is filed by the Company with the U.S. Securities and Exchange Commission (the
"SEC"), as it will contain important information. The
Solicitation/Recommendation Statement and other public filings made from time to
time by the Company with the SEC are 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" within the meaning of the U.S. Private Securities
Litigation Reform Act of 1995. 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.
Forward-looking statements could 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. For all of these-forward looking statements,
Endesa claims the protection of the safe harbor for forward-looking statements
contained in the U.S. Private Securities Litigation Reform Act of 1995. Endesa
disclaims any obligation to revise or update any forward-looking statements in
this document.
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:
o 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.
o 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.
o Political/Governmental Factors: political conditions in Latin America
and changes in Spanish, European and foreign laws, regulations and
taxes.
o 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.
o Competitive Factors: the actions of competitors; changes in
competition and pricing environments; the entry of new competitors in
our markets.
RELEVANT FACT
New York, October 13, 2005.- Endesa (NYSE: ELE) has informed the U.S. Securities
and Exchange Commission (SEC) of La Caixa's possible failure to comply with
several obligations imposed by the U.S. federal securities laws as a result of
La Caixa's significant stakes in Endesa and Repsol YPF, including the obligation
to promptly report its plans with respect to those companies, whose shares are
listed in the form of ADRs on the New York Stock Exchange. In addition, La Caixa
may have neglected its obligations to the U.S. investor market by omitting to
file with the SEC its public statements with respect to the tender offer by Gas
Natural for Endesa with La Caixa's support.
Of particular interest is La Caixa's sale of a significant portion of its shares
in Endesa, which may have coincided with the preparatory phase for the tender
offer (two months prior to its public announcement), as this action could have
been perceived by the market as signaling a lack of interest on the part of La
Caixa (and hence Gas Natural) in seeking a business combination between Endesa
and Gas Natural.
Endesa has informed the SEC of the following matters that may constitute a
violation of the U.S. federal securities laws (Securities Exchange Act of 1934):
o La Caixa has never filed a report on Schedule 13D with the SEC, which it
was required to do in respect of its shares in Endesa and Repsol YPF, which
companies are listed in the form of ADRs on the New York Stock Exchange (NYSE)
and in which La Caixa owns or has owned an interest in excess of 5 percent.
o La Caixa has likewise failed to reveal by means of a Schedule 13D its plans
and intentions with respect to the above-mentioned companies, which may include
matters relating to the hostile tender offer by its investee Gas Natural for
Endesa and to the sale of assets of Endesa to Iberdrola the terms of which could
affect Endesa shareholders and remain unknown publicly.
o La Caixa also failed to report to the SEC its plans to take control of
Repsol and replace its chairman and senior management with the goal (as reported
by the press at the time) of supporting transactions set in motion by la Caixa,
among which a possible business combination between Gas Natural and Endesa.
o La Caixa has not informed the market through the SEC of its public
statements and communications with respect to the tender offer by means of
Schedule 14D-9, which is La Caixa is subject to by virtue of its status as a
shareholder of the offeror and its decisive role in the tender offer by Gas
Natural.
o La Caixa has taken significant actions publicly that are inconsistent with
a plan for a business combination between Gas Natural and Endesa, such as
statements by Gas Natural's president and La Caixa's vice president in April
2005 that no business combination with an electricity company was being
considered, as well as La Caixa's disposal of a significant portion of its stake
in Endesa only two months prior to the announcement of the tender offer, actions
that could have influenced third parties' investment decisions in Endesa based
on incorrect assumptions.