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As Of Filer Filing For·On·As Docs:Size Issuer Agent 3/20/07 Mediobanca - Banca di Credit… SpA SC 13D 7:679K Endesa SA Shearman & Sterl… LLP/FA |
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership HTML 89K
2: EX-1 Underwriting Agreement HTML 62K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, HTML 62K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws HTML 62K
-- exhibit3
5: EX-4 Instrument Defining the Rights of Security Holders HTML 52K
6: EX-5 Opinion re: Legality -- exhibit5 HTML 44K
7: EX-99 Exhibit 6 HTML 42K
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Date: |
1 March, 2007 |
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To: |
Enel Energy Europe Srl (“Counterparty”) |
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Fax No.: |
+39 06 83 05 92 75 |
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From: |
Mediobanca – Banca di Credito Finanziario S.p.A. (“Mediobanca”) |
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Re: |
Share Swap Transaction |
This agreement (this “Confirmation”) confirms the terms of a transaction that Mediobanca and Counterparty have agreed to enter on the Trade Date specified below (the “Transaction”). This Confirmation constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.
The 2000 ISDA Definitions (the “Swap Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and with the Swap Definitions, the “Definitions”), each as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. If there is any inconsistency between the Swap Definitions and the Equity Definitions, the Equity Definitions govern. If there is any inconsistency between the Definitions and this Confirmation, this Confirmation governs.
This Confirmation, together with all other documents referring to the ISDA Form (each a “Confirmation”) confirming transactions (each a “Transaction”) entered into between us (notwithstanding anything to the contrary in a Confirmation), shall supplement, form a part of, and be subject to an agreement in the form of the 1992 ISDA Master Agreement (Multicurrency-Cross Border), in standard printed form, but with (i) EUR as Termination Currency, (ii) Loss as the payment measure on early termination under Section 6(e), (iii) the guarantee issued to Mediobanca by Enel SpA in respect of the obligations of Counterparty under the Transaction constitutes a Credit Support Document in relation to Counterparty, (iv) the event of Counterparty ceasing to be majority controlled (directly or indirectly) by Enel SpA being an Additional Termination Event with Counterparty as the sole Affected Party, and (v) English law as Governing Law, as if we had executed an agreement in such form (with any elections and modifications specified below) (the “ISDA Form”) on Trade Date of the Transaction to which this Confirmation relates. In the event of any inconsistency between the this Confirmation and any other part of the ISDA Form, this Confirmation will prevail for the purpose of this Transaction.
The terms of the Transaction are:
General Terms
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Trade Date: |
1 March, 2007, or if such day is not an Exchange Business Day, the first Exchange Business Day thereafter. (Time of execution available upon request.) |
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Effective Date: |
The third Exchange Business Day after the Trade Date. |
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Termination Date: |
The Cash Settlement Payment Date, if Cash Settlement applies, and the Settlement Date, if Physical Settlement applies. |
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Shares: |
The common stock of Endesa S.A. (the “Issuer”) (ISIN:ES0130670112) |
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Exchange(s): |
Bolsa de Madrid |
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Related Exchange(s): |
All Exchanges |
Interim Payments
On the Effective Date, the Counterparty will pay Mediobanca an amount equal to 25% of the Equity Notional Amount
On the first Floating Amount Payment Date,
(i) if the Current Notional Amount is greater than the Equity Notional Amount, the Counterparty shall pay the difference between 25% of the Current Notional Amount and 25% of the Equity Notional Amount to Mediobanca; and
(ii) if the Current Notional Amount is less than the Equity Notional Amount, Mediobanca shall pay the difference between 25% of the Current Notional Amount and 25% of the Equity Notional Amount to the Counterparty
On the second Floating Amount Payment Date,
(i) if the Current Notional Amount with respect to the second Floating Amount Payment Date is greater than the Current Notional Amount with respect to the first Floating Amount Payment Date, the Counterparty shall pay to Mediobanca the difference between 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date and 25% of the Current Notional Amount with respect to the first Floating Amount Payment Date
(ii) if the Current Notional Amount with respect to the second Floating Amount Payment Date is less than the Current Notional Amount with respect to the first Floating Amount Payment Date, Mediobanca shall pay the difference between 25% of the Current Notional Amount with respect to the first Floating Amount Payment Date and 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date
On the third Floating Amount Payment Date,
(i) if the Counterparty has not elected to extend this Transaction in accordance with the Optional Maturity Extension provision below, Mediobanca shall pay to the Counterparty an amount equal to 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date; and
(ii) if the Counterparty has elected to extend this Transaction in accordance with the Optional Maturity Extension provision below,
(x) if 100% of the Current Notional Amount with respect to the third Floating Amount Payment Date is greater than 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date, then the Counterparty shall pay the difference between 100% of the Current Notional Amount with respect to the third Floating Amount Payment Date and 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date to Mediobanca; and
(y) if 100% of the Current Notional Amount with respect to the third Floating Amount is less than 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date, Mediobanca shall pay the difference between 100% of the Current Notional Amount with respect to the third Floating Amount Payment Date and 25% of the Current Notional Amount with respect to the second Floating Amount Payment Date to the Counterparty
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2 |
On each subsequent Floating Amount Payment Date,
(i) if the Current Notional Amount with respect to that Floating Amount Payment Date is greater than the Current Notional Amount with respect to the immediately preceding Floating Amount Payment Date, the Counterparty shall pay the difference to Mediobanca; and
(ii) if the Current Notional Amount with respect to that Floating Amount Payment Date is less than the Current Notional Amount with respect to the immediately preceding Floating Amount Payment Date, Mediobanca shall pay the difference to the Counterparty
On the Termination Date, Mediobanca shall pay to the Counterparty an amount equal to the sum of (a) all the amounts paid to Mediobanca by the Counterparty pursuant to this Interim Payments section on all previous Floating Amount Payment Date section less (b) all the amounts paid to the Counterparty by Mediobanca pursuant to this Interim Payments provision section on all previous Floating Amount Payment Date
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Current Notional Amount: |
Means, with respect to each Floating Amount Payment Date, the product of (i) the closing price per Share as of the last Exchange Business Day to occur during the period up to and including that Floating Amount Payment Date and (ii) the Number of Shares |
Equity Amounts
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Equity Amount Payer: |
Mediobanca |
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Number of Shares: |
The number of Shares in relation to which Mediobanca advises Counterparty on the Trade Date that it has been able to hedge its exposure under this Transaction, is equal to 48,488,949 |
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Equity Notional Amount: |
An amount in EUR equal to the product of (i) the Number of Shares and (ii) the Initial Price |
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Equity Notional Reset: |
Not applicable |
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Type of Return: |
Total Return |
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Multiplier: |
One |
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Initial Price: |
The execution price per Share at which Mediobanca actually established its Hedge Positions for this Transaction is equal to EUR 39.00 |
Dividends
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Dividend Period: |
The period from but excluding the Trade Date to and including the Valuation Date |
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Dividend Amount: |
With respect to each payment of cash dividends by the Issuer for which the ex-dividend date falls during the Dividend Period, the amount that would be payable to Mediobanca, net of any applicable taxes, if Mediobanca were a holder of a number of Shares equal to the Number of Shares |
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Re-investment of Dividends: |
Inapplicable |
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Dividend Payment Dates: |
With respect to each Dividend Amount, the date on which holders of the Shares receive the corresponding dividend from the Issuer |
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3 |
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Dividends: |
For the avoidance of doubt, subject to the provisions of this Transaction on Potential Adjustment Events, the parties acknowledge that “Dividends” includes dividends, extraordinary dividends and free cash distributions (non-cash distributions being dealt with under Potential Adjustment Events provisions, whereby the Calculation Agent is required to act in good faith and in a commercially reasonable manner to reflect, among other things, the economics of any non-cash distributions). |
Floating Amount 1
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Floating Amount Payer: |
Counterparty |
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Notional Amount: |
Equity Notional Amount |
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Floating Amount Payment Dates: |
The 1st day of each calendar month from, but excluding the Trade Date, to, and including, the Termination Date. |
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Floating Rate Option: |
EUR-EURIBOR-Telerate |
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Designated Maturity: |
1 Month |
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Spread: |
0.40 % |
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Floating Rate Day Count Fraction: |
Actual/360 |
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Reset Dates: |
The first day of each Calculation Period |
Floating Amount 2
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Floating Amount Payer: |
Mediobanca |
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Notional Amount: |
For the first Calculation Period, 25% of the Equity Notional Amount, for each of the second and third Calculation Periods, 25% of the Current Notional Amount for the Floating Amount Payment Date on which such second or third Calculation Period (as the case may be) begins, and for each subsequent Calculation Period, 100% of the Current Notional Amount for the Floating Amount Payment Date on which such Calculation Period begins. |
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Floating Amount Payment Dates: |
As for Floating Amount 1 |
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Floating Rate Option: |
EUR-EURIBOR-Telerate |
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Designated Maturity: |
1 Month |
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Spread: |
Zero |
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Floating Rate Day Count Fraction: |
Actual/360 |
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Reset Dates: |
The first day of each Calculation Period |
Settlement Terms
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Cash Settlement: |
Applicable, subject to the “Conditional Right to Elect Physical Settlement” provisions below. |
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4 |
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Cash Settlement Payment Date: |
Three Currency Business Days after the Valuation Date |
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Final Price: |
The arithmetic mean of the Relevant Prices for the Averaging Dates. |
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Relevant Price: |
For each Averaging Date, the Exchange-published daily volume-weighted average price per Share on that Averaging Date. |
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Valuation Time: |
Scheduled Closing Time of the Exchange |
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Valuation Date: |
1 June, 2007, subject to the Optional Maturity Extension and Optional Early Termination provisions below. |
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Averaging Dates: |
The Valuation Date and each of the 5 Exchange Business Days immediately prior to the Valuation Date |
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Averaging Date Disruption: |
Modified Postponement |
Conditional Right to Elect Physical Settlement
Counterparty may elect Physical Settlement in relation to this Transaction, but only if:
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(1) |
Counterparty gives Mediobanca notice of such election at least three Exchange Business Days’ prior to the first Averaging Date; |
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(2) |
no Event of Default has occurred and is continuing with respect to Counterparty at the time such notice is given; and |
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(3) |
Physical Settlement of this Transaction would be in compliance with all applicable laws and regulations (which includes, without limitation, any requirement there might be in Spain, or in Spanish law, for approval from the Spanish Comisión Nacional de Energía (“CNE”), prior approval of the CNE), and Counterparty confirms the same to Mediobanca. |
Where Physical Settlement has been elected in accordance with the foregoing, Cash Settlement shall no longer be applicable, but instead Physical Settlement shall be applicable, and the Settlement Date in relation to such Physical Settlement shall be the third Clearance System Business Day after the Valuation Date.
Share Adjustments
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Method of Adjustment: |
Calculation Agent Adjustment |
Extraordinary Events
Notwithstanding anything below, Sections 12.2 and 12.3 of the Equity Definitions do not apply to any Merger Event or Tender Offer the Announcement Date for which is before the Trade Date, but, for the avoidance of doubt, such Sections do apply to any other Merger Event or Tender Offer.
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Consequences of Merger Events |
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Share-for-Share: |
Modified Calculation Agent Adjustment |
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Share-for-Other: |
Modified Calculation Agent Adjustment |
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Share-for-Combined: |
Modified Calculation Agent Adjustment |
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5 |
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Tender Offer: |
Applicable (subject to the foregoing) |
Consequences of Tender Offers:
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Share-for-Share: |
Modified Calculation Agent Adjustment |
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Share-for-Other: |
Modified Calculation Agent Adjustment |
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Share-for-Combined: |
Modified Calculation Agent Adjustment |
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Determining Party: |
Mediobanca |
Composition of
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Combined Consideration: |
Inapplicable |
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Nationalisation or Insolvency: |
Negotiated Close-Out |
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Delisting: |
Cancellation and Payment |
Additional Disruption Events
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Failure to Deliver: |
Inapplicable |
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Change in Law: |
Applicable |
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Insolvency Filing: |
Inapplicable |
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Hedging Disruption: |
Applicable |
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Increased Cost of Hedging: |
Inapplicable |
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Increased Cost of Stock Borrow: |
Inapplicable |
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Hedging Party: |
Mediobanca |
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Determining Party: |
Mediobanca |
Optional Early Termination
The Counterparty may terminate this Transaction as at any Exchange Business Day (prior to the Valuation Date) designated by the Counterparty (the day so designated, the “Optional Termination Date”) by giving not less than 7 Exchange Business Days’ notice to Mediobanca, in which case, and notwithstanding any other provision of this Confirmation, the Valuation Date is brought forward to the Optional Termination Date, and :
(1) If Cash Settlement applies, then, in addition to any Equity Amount, Floating Amounts or Dividend Amount payable,
(i) the Counterparty must pay to Mediobanca an amount, determined by the Calculation Agent, equal to any loss to Mediobanca; and
(ii) Mediobanca must pay to the Counterparty an amount, determined by the Calculation Agent, equal to any gain to Mediobanca
in either case arising from movements in interest rates between the Optional Termination Date and the Reset Date falling immediately prior to the Optional Termination Date, and
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(2) if Physical Settlement applies, then, in addition to any Floating Amounts, Equity Notional Amount and any Dividend Amounts payable, and the obligation to deliver the Number of Shares to be Delivered,
(i) the Counterparty must pay to Mediobanca an amount, determined by the Calculation Agent, equal to any loss to Mediobanca; and
(ii) Mediobanca must pay to the Counterparty an amount, determined by the Calculation Agent, equal to any gain to Mediobanca,
in either case arising from movements in interest rates between the Optional Termination Date and the Reset Date falling immediately prior to the Optional Termination Date.
Optional Maturity Extension
At any time before the day that is two Exchange Business Days before what would otherwise be the first Averaging Date, Counterparty may by notice to Mediobanca elect to extend the maturity of this Transaction by three months, so that the Valuation Date is, subject to the Following Business Day Convention, deferred to the 1st day of the calendar month that is three calendar months after what would otherwise have been the Valuation Date, provided however that the Valuation Date cannot be deferred beyond 1 March, 2010
Relationship Between Parties
Each party will be deemed to represent to the other party on the date on which it enters into this Transaction that (in the absence of any written agreement between the parties which expressly imposes affirmative obligations to the contrary for this Transaction):-
(A) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction, it being understood that information and explanations related to the terms and conditions of this Transaction will not be considered investment advice or a recommendation to enter into this Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of this Transaction.
(B) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of this Transaction. It is also capable of assuming, and assumes, the risks of this Transaction.
(C) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of this Transaction.
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Non-Reliance: |
Applicable |
Agreements and Acknowledgements
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Regarding Hedging Activities: |
Applicable |
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Additional Acknowledgements: |
Applicable |
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Calculation Agent: |
Mediobanca |
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Representation and Warranties by Counterparty
Counterparty represents, warrants and agrees to and with Mediobanca that:
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(1) |
it is not aware of any material change or any development involving a material change in the condition (financial or otherwise) of the Issuer and its subsidiaries or any other material information in the context of the Transaction, including any unpublished price-sensitive information with respect to the Shares; |
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(2) |
all internal consents and authorisations required by it in connection with this Transaction have been obtained and all policies and procedures complied with; |
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(3) |
it understands that, subject to the “Conditional Right to Elect Physical Settlement” provisions above, this Transaction is a cash settled instrument, and that it does not, by virtue of this Transaction alone obtain any beneficial or other ownership rights as to Shares (including, without limitation, as to voting and disposition, so that, for the avoidance of doubt, if, and to the extent that, Mediobanca holds any Shares as a Hedge Position in relation this Transaction, Mediobanca is not obliged to exercise voting rights it may have by reason of such shareholding in accordance with the wishes of Counterparty); |
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(4) |
it has not made, and will not make, any representations or warranties to other parties (including, without limitation, the Issuer and the Issuer’s representatives or management) that it has, by virtue of this Transaction, any ownership or voting rights of a type contemplated by (3) above; |
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(5) |
it intends to, and will, make any and all required disclosures regarding any exposure it obtains to Shares under this Transaction; |
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(6) |
Without, for avoidance of doubt, prejudice to any obligation Mediobanca in relation to Physical Settlement, Mediobanca has no obligation to establish or maintain any particular type of Hedge Positions in relation to this Transaction, including, without limitation, any purchase or ownership of Shares; |
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(7) |
it has not reached any decision to launch a takeover bid for the Issuer; and |
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(8) |
it is not acting in concert with any other shareholder of the Issuer in relation to the Shares or the Issuer, nor has it entered into any agreement to do so. |
Account Details
Payments to Mediobanca:
Intesa Sanpaolo (Ex Banca Intesa)
ABI 03069
CAB 12711
C/C 103596/41
BBAN: T0306912711000010359641
IBAN: IT74T0306912711000010359641
(SWIFT CODE: BAMEITMMXXX)
Payments to Counterparty:
To be provided
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Please indicate your agreement to the foregoing by signing a copy of this Confirmation and returning it to us by fax to +39 028829589 or in pdf to the following email address francesco.carloni@mediobanca.it
Signed on behalf of
MEDIOBANCA – BANCA DI CREDITO FINANZIARIO S.P.A.
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By: ______________________ |
By:____________________ |
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Name: |
Name: |
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Title: |
Title: |
Agreed and accepted as of the first date written above
ENEL ENERGY EUROPE SRL
By: ______________________
Name:
Title:
This information is communicated by Mediobanca. Mediobanca may from time to time, as principal or agent, have positions in, or may buy or sell, or make a market in any securities, currencies, financial instruments or other assets underlying the transaction to which the termsheet relates. Mediobanca may provide investment banking and other services to and/or have officers who serve as directors of the companies referred to in this term sheet. Mediobanca may pay or receive brokerage or retrocession fees in connection with this transaction. Mediobanca ‘s hedging activities related to this transaction may have an impact on the price of the underlying asset and may affect the likelihood that any relevant barrier is crossed.
Structured transactions are complex and may involve a high risk of loss. Prior to entering into a transaction you should consult with your own legal, regulatory, tax, financial and accounting advisors to the extent you consider it necessary, and make your own investment, hedging and trading decisions (including decisions regarding the suitability of this transaction) based upon your own judgement and advice from those advisers you consider necessary. Save as otherwise expressly agreed, Mediobanca is not acting as your financial adviser or fiduciary in any transaction.
This document is for information purposes only and should not be construed as an offer, recommendation or solicitation to conclude a transaction and should not be treated as giving investment advice. The terms of an OTC derivative transaction will be subject to the detailed provisions of the final confirmation.
Mediobanca makes no representation or warranty relating to any information herein which is derived from independent sources. This document shall not be copied or reproduced without Mmediobanca’s prior written permission.
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