Securities and Exchange Act of 1934
E.ON Aktiengesellschaft's ("E.ON") offer for Endesa, S.A. ("Endesa")
Dear Messrs. Hall and Greene:
We are responding to your letter dated December 5, 2006 addressed to Brian V. Breheny and Christina Chalk, as supplemented by telephone conversations with the staff, with regard to your request for exemptive and no-action relief. Our response is attached to the enclosed photocopy of your letter to avoid having to recite or summarize the facts set forth in your letter. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter.
On the basis of your representations and the facts presented in your letter, the United States Securities and Exchange Commission ("Commission") hereby grants an exemption from the following rules:
On the basis of the representations made and the facts presented in your December 5, 2006 letter, the Division of Corporation Finance will not recommend that the Commission take enforcement action under Rule 14d-10(a)(2) or Rule 14e-1(b) of the Exchange Act if E.ON reduces the offer price paid in the U.S. Offer by the amount of any dividend paid by Endesa under the circumstances described in your letter and after the expiration of the U.S. Offer.
This no-action relief will allow E.ON to provide the equivalent economic value to shareholders tendering into both the Spanish and U.S. Offers, as required by Spanish law. We also note that E.ON has undertaken to provide shareholders with adequate notice of the potential of such a reduction in the amount of the offer price, through disclosure in the offer materials and through the use of a press release and an advertisement in a newspaper of national circulation in the United States, as described in your letter.
The foregoing exemptive and no-action relief is based solely on the representations and the facts presented in your letter dated December 5, 2006, as supplemented by telephone conversations with the staff. The relief is strictly limited to the application of the rules listed above to this transaction. You should discontinue this transaction pending further consultations with the staff if any of the facts or representations set forth in your letter change.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 10(b) and 14(e) of the Exchange Act, and Rule 10b-5 thereunder. The participants in this transaction must comply with these and any other applicable provisions of the federal securities laws. The Division of Corporation Finance expresses no view on any other questions that may be raised by the proposed transaction, including but not limited to, the adequacy of disclosure concerning and the applicability of any other federal or state laws to the proposed transaction.
For the Commission,
by the Division of Corporation Finance
pursuant to delegated authority
Brian V. Breheny
Office of Mergers and Acquisitions
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