Annual Report of a Foreign Private Issuer — Form 20-F Filing Table of Contents
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Text approved by the extraordinary Shareholders’ Meeting of
May 21, 2004, as amended:
•
by the Board of Directors on October 21, 2004 (through the
amendment of articles 6.2, 15.1, 18.1, 21.1 and 22.2);
•
by the Board of Directors on March 30, 2005 (through
insertion of article 5.8, now 5.7);
•
by the extraordinary Shareholders’ Meeting of May 26,2005 (through the amendment of articles 5 and 14.3).
The amount of the share capital stated in article 5.1 takes into
account the partial execution of the resolutions regarding
increases of the share capital for the different stock-option
Plans adopted by the Board of Directors, as indicated in the
same article 5.
Title I
Incorporation, Company name, Registered office, Term
ARTICLE 1
1.1 The Company shall be called “ENEL —
Società 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.
ARTICLE 3
3.1 The Company shall exist until December 31, 2100
and its term shall be extendible 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.
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:
•
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 favour 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 all transactions that are 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-àvis the public.
Title III
Capital Stock — Shares —
Withdrawal — Bonds
ARTICLE 5
5.1 The nominal value of the Company’s share capital
amounts to 6,124,838,588 euro, divided into 6,124,838,588
ordinary shares, each with a par value of 1 euro.
5.2 The shares shall be registered 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
2
May 25, 2001 following the conversion of the share
capital into euro 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 euro 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 euro, 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 euro 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 euro 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 euro, 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
Shareholders’ 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
euro, to be carried out as follows:
•
a maximum amount of 39,245,000 euro 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 euro determined by
the Board of Directors on March 28, 2002;
•
a maximum of 2,503,500 euro 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 euro determined by the Board of
Directors on September 12, 2002.
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 Entirely exercising the delegation granted it by the
Shareholders’ Meeting of May 23, 2003, on
April 7, 2004 the Board of Directors resolved to proceed
with the capital increase for the stockoption Plan for the year
2003, to be carried out as follows:
•
increase of the share capital by payment by a maximum amount of
47,624,005 euro through the issue of a maximum number of
47,624,005 new ordinary shares with a par value of 1 euro each,
at the price of 5.240 euro, 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 10, 2003 to participate in the aforesaid Plan;
3
•
the deadline set for completing the subscription of the increase
is December 31, 2008; 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.
5.7 Entirely exercising the delegation granted it by the
Shareholders’ Meeting of May 21, 2004, on
March 30, 2005 the Board of Directors resolved to proceed
with the capital increase for the stock-option Plan for the year
2004, to be carried out as follows:
•
increase of the share capital by payment by a maximum amount of
38,527,550 euro through the issue of a maximum number of
38,527,550 new ordinary shares with a par value of 1 euro each,
at the price of 6.242 euro, 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 29, 2004 to participate in the aforesaid Plan;
•
the deadline set for completing the subscription of the increase
is December 31, 2009; 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.
5.8 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 26, 2005, to
increase the share capital one or more times by a maximum total
amount of 28,757,000 euro, through the issue of a maximum of
28,757,000 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 2005 approved by the Board of Directors at its
meeting on March 30, 2005.
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, paragraph 2, 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 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.
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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, as replaced by
section 4, paragraph 227 of Law n. 350 of
December 24, 2003, the Minister of the Economy and
Finance — in agreement with the Minister of Productive
Activities — shall hold the following special powers:
a) opposition to the acquisition by 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, of
significant holdings, by which is meant — as
established by a decree of the Minister of the Treasury, the
Budget and Economic Planning of September 17,1999 — those that represent at least 3% of the share
capital constituted by shares with voting rights at ordinary
Shareholders’ Meetings. The opposition must be expressed
within ten days from the date of notice to be given by the
Directors when the request is made for registration in the
shareholders’ register, in the event the Minister considers
the transaction to be detrimental to vital national interests.
Until the deadline for exercising the power of opposition has
passed, the right to vote and all other rights other than
economic ones pertaining to the shares that represent the
significant holding shall be suspended. In the event the power
of opposition is exercised — through an order duly
justified with regard to the concrete detriment the transaction
causes to vital national interests — the transferee
may not exercise the voting rights nor any other right other
than economic ones pertaining to the shares that represent the
significant holding and must dispose of the shares in question
within one year. In case of failure to comply, upon request by
the Minister of the Economy and Finance 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. The transferee may challenge the order
exercising the power of opposition within sixty days before the
regional administrative court of Lazio;
b) opposition to the agreements referred to in
section 122 of the consolidation law referred to in
legislative decree n. 58 of February 24, 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. For purposes of exercising the
power of opposition, the CONSOB shall inform the Minister of the
Economy and Finance 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 the
consolidation law referred to in legislative decree n. 58 of
1998. The power of opposition must be exercised within ten days
from the date of the notice given by the CONSOB. Until the
deadline for exercising the power of opposition has passed, the
right to vote and all other rights other than the economic ones
of the shareholders participating in the agreement shall be
suspended. In the event the order of opposition — duly
justified with regard to the concrete detriment the aforesaid
agreements cause to vital national interests — is
issued, such 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 or agreements
referred to in the above-mentioned section 122 of the
consolidation law referred to in legislative decree n. 58 of
1998, resolutions adopted with the decisive vote of the
aforesaid shareholders may be challenged in court. The order
exercising the power of opposition may be challenged within
sixty days by the shareholders participating in the agreements
before the regional administrative court of Lazio;
c) veto, duly justified with regard to the concrete
detriment caused to vital national interests, of the adoption of
resolutions regarding dissolution of the Company; transfer of
its business, merger or
5
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 the present
Article. The order exercising the power of veto may be
challenged within sixty days by the dissenting shareholders
before the regional administrative court of Lazio;
d) appointment of a Director without the right to vote. In
the event that the Director appointed in this way is terminated
from office, the Minister of the Economy and Finance, in
agreement with the Minister of Productive Activities, will
appoint a substitute.
The power of opposition referred to under a) and
b) above shall be exercisable with regard to the cases
specified in section 4, paragraph 228 of Law n. 350 of
December 24, 2003. The special powers referred to under a),
b), c) and d) above shall be exercisable in accordance
with the criteria specified by the Prime Minister’s
decree of June 10, 2004, which is here applicable in its
entirety.
ARTICLE 7
7.1 Each shareholder is entitled to withdraw from the
Company in the cases provided for by the law, except as
otherwise provided for by Article 7.2.
7.2 There shall be no right of withdrawal in case of:
b) introduction, modification or removal of limits on the
circulation of the shares.
ARTICLE 8
8.1 The issue of bonds shall be resolved by the Directors
in accordance with the law.
Title IV
Shareholders’ Meetings
ARTICLE 9
9.1 Ordinary and extraordinary Shareholders’ Meetings
shall normally be held in the municipality where the
Company’s registered office is located. The Board of
Directors may determine otherwise, provided the venue is in
Italy.
9.2 An ordinary Shareholders’ Meeting must be called
at least once a year, to approve the financial statements,
within one hundred and twenty days after the end of the
accounting period, or within one hundred and eighty days, the
Company being required to prepare the consolidated financial
statements, or in any case whenever required by particular needs
regarding the structure and purpose of the Company.
ARTICLE 10
10.1 Participation in Shareholders’ Meetings is
restricted to those who deposit their shares at least two days
prior to the date set for a given meeting and do not withdraw
them before the meeting has taken place.
ARTICLE 11
11.1 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. In order to
facilitate the collection of proxies from the shareholders who
are employees of the Company and its subsidiaries and members of
shareholder
6
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.
11.2 Shareholders’ Meetings shall be conducted
according to a special regulation approved by a resolution of an
ordinary Shareholders’ Meeting.
ARTICLE 12
12.1 Shareholders’ Meetings shall be chaired by the
Chairman of the Board of Directors or, if it happens that he or
she is not available, by the Deputy Chairman if one has been
appointed, or if both are absent, the meeting shall be chaired
by a person designated by the Board, failing which the meeting
shall elect its Chairman.
12.2 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 13
13.1 Excepting as provided for by Article 20.2,
meetings shall resolve on all matters authorized by law.
13.2 At both ordinary and extraordinary Shareholders’
Meetings, whether held on the first, second or third call,
resolutions shall be adopted by the majority required by law in
each case.
13.3 The resolutions approved by a Shareholders’
Meeting according to the law and these bylaws shall be binding
upon all shareholders, even if they did not attend or voted
against the resolution.
Title V
Board of Directors
ARTICLE 14
14.1 The Company shall be managed by a Board of Directors
composed of no fewer than three and no more than nine members,
to which may be added a Director appointed pursuant to
Article 6.2, letter d) of these bylaws. A
Shareholders’ Meeting shall determine their number within
the aforesaid limits.
14.2 The Board of Directors shall serve for a term of up to
three accounting periods and its members shall be eligible for
re-election.
14.3 With the exception of the one who may be 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 are to be
numbered progressively.
In the event the outgoing Board of Directors presents a slate of
its own, the same is to 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 are to 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 may present or participate in presenting only
one slate and each candidate may 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 in the Shareholders’ Meeting are entitled to present
slates. In order to prove their right to present slates, at
least five days prior to the first meeting date shareholders are
obliged to present
7
and/or deliver to the registered office a copy of the
documentation proving ownership of the number of shares required.
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, are
to be lodged together with each slate by the respective
deadlines specified above.
All those entitled to vote may vote for only one slate.
The procedure for electing the Directors is to be as follows:
a) seven-tenths of the Directors to be elected, rounding
down any fraction to the unit, shall be drawn from the slate
that has obtained the most votes cast by the shareholders in the
order in which they are listed on the slate;
b) the remaining Directors shall be drawn from the other
slates; for this purpose, the votes obtained by these slates
shall be divided successively by one, two, three and so forth
according to the number of Directors to be elected. The numbers
obtained in this way shall 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
shall be arranged in decreasing order in a single ranking. The
candidates who have obtained the highest numbers shall 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 shall 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 shall be appointed Director. If there is
a tie in terms of both numbers assigned and votes obtained by
each slate, the entire Shareholders’ Meeting shall 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.
14.4 Even during a Board’s term, a Shareholders’
Meeting may change the number of the members of the Board of
Directors within the limits referred to in 14.1 above and
proceed to elect them. The term of the Directors so elected is
to end at the same time as that of the Directors in office.
14.5 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 who may be 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 offices of the Directors elected
by the shareholders becomes vacant, the entire Board is to be
deemed to have resigned and the Directors still in office must
promptly call a meeting of the shareholders to elect a new Board.
ARTICLE 15
15.1 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. In no case shall the office of Chairman or
Deputy Chairman be held by the Director who may be appointed
pursuant to Article 6.2, d) of these bylaws.
15.2 Upon the Chairman’s proposal, the Board shall
appoint a Secretary, who need not have any connection with the
Company.
8
ARTICLE 16
16.1 The Board shall meet at the place designated in the
notice whenever the Chairman or, in case the latter is
unavailable, the Deputy Chairman deems necessary. The Board may
also be convened in the ways provided for in Article 25.5
of these bylaws.
The Board of Directors must also be convened when at least two
Directors — or one if the Board consists of three
members — so request in writing to resolve on a
specific matter (to be indicated in the aforesaid request)
regarding the management of the Company that they consider to be
of particular importance.
16.2 Board meetings may also be held by means of
telecommunications 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, exchanging documents if need be; in such case, the
meeting of the Board of Directors shall be deemed held in the
place where whoever chairs the meeting is and where the
Secretary must also be in order to allow the related minutes to
be drawn up and signed.
16.3 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.
ARTICLE 17
17.1 Board meetings shall be chaired by the Chairman or, if
the latter is absent or detained, by the Deputy Chairman if one
has been appointed. If the latter is also absent, they are to be
chaired by the oldest Director entitled to vote.
ARTICLE 18
18.1 The quorum for meetings of the Board shall be a
majority of the Directors in office who are entitled to vote.
18.2 Resolutions shall be adopted by an absolute majority
of the Directors present who are entitled to vote; in case of a
tie, the vote of the person chairing the meeting shall be
decisive.
ARTICLE 19
19.1 The resolutions of the Board of Directors shall appear
in minutes which, signed by whoever chairs the meeting and by
the Secretary, are to be transcribed in a book kept according to
the law for this purpose.
19.2 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 20
20.1 Management of the Company is the exclusive
responsibility of the Directors, who shall carry out the actions
necessary to achieve the corporate purpose.
20.2 In addition to exercising the powers entrusted to it
by the law, the Board of Directors shall have the power to adopt
resolutions concerning:
a) mergers and demergers in the cases provided for by the
law;
b) the establishment or elimination of secondary
headquarters;
9
c) which of the Directors shall represent the Company;
d) the reduction of the share capital in case of the
withdrawal of one or more shareholders;
e) the harmonization of the bylaws with provisions of the
law;
f) the transfer of the registered office within Italy.
20.3 The delegated bodies shall promptly report to the
Board of Directors and the Board of Statutory
Auditors — or, absent the delegated bodies, the
Directors shall promptly report to the Board of Statutory
Auditors — at least quarterly, and in any case during
the meetings of the Board of Directors, on the activity carried
out, the management of the Company in general and the prospects
for the future, as well as the most important transactions
affecting the income statement, cash flow and the balance sheet,
or in any case that are most important because of their size or
characteristics carried out by the Company and its subsidiaries;
they shall specifically report on transactions in which they
have an interest themselves or on behalf of third parties or
that are influenced by the entity — if there is
one — who directs and coordinates the Company.
ARTICLE 21
21.1 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 content, the limits and any
procedures of exercise 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. No powers or particular offices, even
on a supplementary or temporary basis, may be assigned to the
Director who may be appointed pursuant to Article 6.2,
d) of these bylaws.
21.2 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 sub-delegation.
ARTICLE 22
22.1 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-à-vis third parties the Chairman’s
unavailability.
22.2 The above legal representatives may delegate the power
to represent the Company, including in court, to third parties,
who may also be authorized to sub-delegate. In no case, even
with regard to single matters, shall the legal authority to
represent the Company be assigned to the Director who may be
appointed pursuant to Article 6.2, d) of these bylaws.
ARTICLE 23
23.1 The members of the Board of Directors shall be
entitled to compensation in an amount to be determined by a
meeting of the shareholders. Once adopted, the resolution shall
apply during subsequent accounting periods until a
Shareholders’ Meeting determines otherwise.
23.2 The compensation of Directors entrusted with specific
tasks in accordance with the bylaws shall be established by the
Board of Directors after receiving the opinion of the Board of
Statutory Auditors.
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ARTICLE 24
24.1 The Chairman shall:
a) have the power to represent the Company pursuant to
Article 22.1;
b) preside at meetings of the shareholders pursuant to
Article 12.1;
c) call and preside at meetings of the Board of Directors
pursuant to Articles 16 and 17.1, establish the agenda,
coordinate the proceedings, and see that adequate information on
the matters on the agenda is provided to all the Directors;
d) ascertain that the resolutions of the Board are carried
out.
Title VI
Board of Statutory Auditors
ARTICLE 25
25.1 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.
25.2 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 are to be numbered
progressively.
The procedures of Article 14.3 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.
Two regular members of the Board of Statutory Auditors and an
alternate member are to be drawn, in the numerical order in
which they were listed in each section, from the slate that has
obtained the most votes. The remaining regular member and the
remaining alternate are to be elected according to the
procedures specified in Article 14.3, 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 specified 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.
In the event that one of the members drawn from the slate that
obtained the most 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
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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 14.3, b).
The chairmanship of the Board of Statutory Auditors shall fall
to the first candidate on the slate that has obtained the most
votes. In the event the Chairman is substituted, this office
shall be filled by the other regular Auditor drawn from the same
slate.
25.3 Auditors whose term has expired shall be eligible for
re-election.
25.4 The meetings of the Board of Statutory Auditors may
also be held by means of telecommunications 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, exchanging documents if need be; in
such case, the meeting of the Board of Statutory Auditors shall
be deemed held in the place where whoever chairs the meeting is.
25.5 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 26
26.1 The accounting period shall end on December 31 of
every year.
26.2 At the end of each accounting period, the Board of
Directors shall draw up the Company’s financial statements
as required by law.
26.3 The Board of Directors is authorized to distribute
interim dividends to shareholders during the course of the year.
ARTICLE 27
27.1 Dividends not collected within five years from the day
they become payable shall lapse in favor of the Company and be
posted directly to reserves.
28.1 Should the Company be dissolved, a Shareholders’
Meeting is to determine the liquidation procedures and appoint
one or more liquidators, establishing their powers and
compensation.
Title IX
Transitory and General Rules
ARTICLE 29
29.1 Any matters not expressly provided for herein shall be
governed by the provisions of the Civil Code and applicable
statutes.
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ARTICLE 30
30.1 The Company is to 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.
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Dates Referenced Herein and Documents Incorporated by Reference
