File No. 70-____
Filed with the Securities and Exchange Commission on January 27, 2004
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM U-1
APPLICATION OR DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
_________________________________________________________
E.ON AG
E.ON UK Holding GmbH
E.ON-Platz 1
40479 Dusseldorf
Germany
E.ON UK Ltd.
Powergen Limited
53 New Broad Street
London EC2M 1SL
United Kingdom
________________________________________________________
(Name of companies filing this statement and
Addresses of principal executive offices)
E.ON AG
(Name of top registered holding company)
________________________________________________________
Dr. Guntram Wurzberg
Vice President, General Legal Affairs
E.ON AG
E.ON-Platz 1
40479 Dusseldorf
Germany
Telephone: 011-49-211-4579-388
Facsimile: 011-49-211-4579-610
_________________________________
(Names and addresses of agents for service)
The Commission is also requested to send copies of any communications
in connection with this matter to:
Tia S. Barancik
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, NY 10019-5389
Telephone: (212) 424-8455
Facsimile: (212) 424-8500
Item 1. Description of the Proposed Transaction
A. Introduction
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By order dated June 14, 2002, the Securities and Exchange Commission
(the "Commission") authorized the acquisition of Powergen Limited (formerly
Powergen plc, "Powergen") by E.ON AG ("E.ON") and certain related transactions.
E.ON AG, et al., Holding Co. Act Release No. 27539 (Jun. 14, 2002) (the "2002
Order"). On February 21, 2003, the Commission approved the transfer of Powergen
US Investment Corp. from the Powergen chain of companies to E.ON US Holding GmbH
in Holding Co. Act Release No. 27654 (Feb. 21, 2003). In Holding Co. Act Release
No. 27745 (Oct. 28, 2003), the Commission issued a Supplemental Order releasing
jurisdiction over Powergen US Holdings Limited, Powergen US Investments,
Powergen Luxembourg Holdings sarl and Powergen Luxembourg sarl (the "Powergen
Intermediate Holding Companies"), and declaring that the registration of the
Powergen Intermediate Companies is no longer in effect.
B. General Request
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E.ON, E.ON UK Holding GmbH (a first tier subsidiary of E.ON, 1/UK
Holding"),1 E.ON UK Ltd. (a direct subsidiary of UK Holding, "UK Ltd.")2/ and
Powergen (a direct subsidiary of UK Ltd.) (collectively, "Applicants") submit
this Application-Declaration and request that the Commission issue an order
pursuant to Section 5(d) of the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), declaring that UK Holding, UK Ltd. and Powergen have
ceased to be holding companies and that upon effectiveness of the order, the
registration of UK Holding, UK Ltd. and Powergen will cease to be in effect
because since January 1, 2004 (i) Powergen no longer has control or exercises
any controlling influence over LG&E Energy Corporation ("LG&E Energy") and its
utility subsidiaries and (ii) UK Holding and UK Ltd. have ceased to be
intermediate holding companies of Powergen within the meaning of the 1935 Act.
As a result of E.ON's group-wide structure and strategy project to
optimize organizational structure, improve margins and achieve value-added
growth in its energy business, the management of LG&E Energy has been
transferred from Powergen to E.ON effective January 1, 2004. (See E.ON Press
Releases dated May 6, 2003 and August 14, 2003 at Exhibits A and B). This is
discussed further below.
C. Discussion
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In the 2002 Order, the SEC authorized E.ON to acquire all of the issued
and outstanding common stock of Powergen and, through the acquisition of
Powergen, LG&E Energy and its public utility subsidiaries, Louisville Gas and
Electric Company ("LG&E") and Kentucky Utilities Company ("KU") (the
________________________________
\1 E.ON UK Holding GmbH was formerly E.ON UK Verwaltungs GmbH.
\2 E.ON UK Ltd. was formerly E.ON UK plc.
"Acquisition"). On July 1, 2002, E.ON consummated the Acquisition and registered
as a holding company under Section 5 of the 1935 Act./3
In the 2002 Order, the Commission reserved jurisdiction over E.ON's
request to effect a reorganization (following the Acquisition) whereby the
ownership of E.ON US Investments Corps. (formerly, Powergen US Investments
Corps.), an intermediate holding company of Powergen and the immediate parent
company of LG&E Energy ("EUSIC"), would be transferred to E.ON U.S. Verwaltungs
GmbH, a direct subsidiary of E.ON, in exchange for cash or a note. The
Commission approved this transfer in Holding Co. Act Release No. 27654 (Feb. 21,
2003). Following the reorganization, the Powergen Intermediate Holding Companies
ceased to hold voting interests in LG&E Energy directly or indirectly and
thereby ceased to be holding companies of any public utility company.
Accordingly, the Powergen Intermediate Holding Companies filed an application
with the Commission seeking an order declaring that they are no longer holding
companies within the meaning of Section 2(a)(7) of the 1935 Act and, therefore,
their registration should cease to be in effect. The Commission approved the
deregistration of the Powergen Intermediate Holding Companies on October 28,
2003.
Following the reorganization, although Powergen ceased to own any
interest in LG&E Energy, Powergen remained a registered holding company under
the 1935 Act by virtue of its continuing role in the management of LG&E Energy
and its utility subsidiaries described in the Application in File No. 70-9961 at
pages 16 to 17 and in the 2002 Order at page 21. Specifically, Powergen, through
its board of directors, was responsible for the development and operation of
LG&E's and KU's utility businesses. UK Holding and UK Ltd. also are registered
holding companies as a result of their ownership of Powergen.
On May 6, 2003, E.ON announced the launch of its group-wide structure
and strategy project - onotop. (See E.ON Press Release dated May 6, 2003 at
Exhibit A). The onotop project would ultimately result in the transfer of
management of LG&E Energy and its utility subsidiaries from Powergen to E.ON.
Onotop is designed to allow E.ON to achieve optimal integration of its acquired
businesses through various initiatives and sustainable value-added growth in the
medium to long term. E.ON anticipates that the project's initiatives will result
in improved performance in all of its divisions. One of these initiatives is the
establishment of five target markets with consistent market units for E.ON's
energy business: Central Europe; Pan-European Gas; the United Kingdom; the
Nordic region; and the Midwestern United States. LG&E Energy has assumed
management and earnings responsibility as a market unit for the Midwestern U.S.
region while Powergen has similar responsibility for the United Kingdom.
Consequently, the corporate center of Powergen on the UK group holding level is
being closed and Powergen UK plc and its new board of directors will assume all
tasks and responsibilities for the UK market.
_______________________________________
\3 By order dated December 6, 2000, the Commission authorized Powergen
to acquire LG&E Energy. See Powergen plc, Holding Co. Act Release No. 27291
(Dec. 6, 2000). Subsequent to the issuance of this order, Powergen and the
Powergen Intermediate Holding Companies registered under the 1935 Act. Following
the Acquisition, Powergen and the Powergen Intermediate Holding Companies
remained registered pursuant to Section 5 of the 1935 Act and LG&E Energy
continued to claim exemption from registration under Section 3(a)(1).
Under this structure, Powergen will cease to have any responsibility
for the development and operation of LG&E Energy's utility businesses since LG&E
Energy will be managed directly by E.ON. (See E.ON Press Release dated August
14, 2003 at Exhibit B). Specifically, the Powergen board will cease to have any
role in the approval process with respect to LG&E Energy's business. Instead,
EUSIC's board will assume this role in accordance with new delegations of
authority as agreed with E.ON. Further, the Chief Executive Officer of LG&E
Energy will no longer be represented on the board of Powergen, but will be
represented on the board of EUSIC. In addition, there will be no Powergen
representative on the board of EUSIC, but there will be E.ON representatives on
this board. As a result of these organizational changes, Powergen will no longer
have responsibility for the management and operation of LG&E Energy.
Thus, Powergen has ceased to be a holding company under Section 2(a)(7)
of the 1935 Act effective January 1, 2004 and, consequently, UK Holding and UK
Ltd. have ceased to own the voting securities of, or exercise a controlling
influence over, a holding company within the meaning of the 1935 Act and,
therefore, have ceased to be holding companies within the meaning of the 1935
Act.
The Commission, therefore, should issue an order declaring that UK
Holding, UK Ltd. and Powergen are no longer holding companies within the meaning
of Section 2(a)(7) of the 1935 Act and that, upon effectiveness of the order,
their registration under the 1935 Act will cease to be in effect.
Item 2. Fees, Commission and Expenses
Applicants expect to pay or incur, directly or indirectly,
approximately $ 9,500 in connection with the request herein.
Item 3. Applicable Statutory Provisions
Applicants request that the Commission issue an order declaring the
deregistration of Powergen pursuant to Section 5(d) of the 1935 Act in light of
the fact that Powergen is no longer a holding company within the meaning of
Section 2(a)(7) of the 1935 Act. Section 5(d) provides that
Whenever the Commission, upon application, finds that a
registered holding company has ceased to be a holding company,
it shall so declare by order and upon the taking effect of
such order the registration of such company shall, upon such
terms and conditions as the Commission finds and in such order
prescribes as necessary for the protection of investors, cease
to be in effect.
Section 2(a)(7) of the 1935 Act defines a "holding company" as
(A) any company which directly or indirectly owns, controls,
or holds with power to vote, 10 per centum or more of the
outstanding voting securities of a public-utility company or
of a company which is a holding company by virtue of this
clause or clause (B), unless the Commission, as hereinafter
provided, by order declares such company not to be a holding
company; and
(B) any person which the Commission determines, after notice
and opportunity for hearing, directly or indirectly to
exercise (either alone or pursuant to an arrangement or
understanding with one or more persons) such a controlling
influence over the management or policies of any
public-utility or holding company as to make it necessary or
appropriate in the public interest or for the protection of
investors or consumers that such person be subject to the
obligations, duties, and liabilities imposed in this title
upon holding companies.
Presently, and since January 1, 2004, Powergen does not hold any
ownership interest in LG&E Energy and its utility subsidiaries and does not
exercise any controlling influence over the management or policies of LG&E
Energy and its subsidiaries. As a result of the organizational changes resulting
from the onotop project referred to above, members of Powergen's UK Group will
no longer provide management services to LG&E Energy and its utility
subsidiaries.
Consequently, Powergen does not (i) directly or indirectly own, control
or hold with the power to vote 10% or more of the outstanding voting securities
of any public utility company or any company that is a holding company by virtue
of clause (A) or (B) of Section 2(a)(7) of the 1935 Act, nor does it (ii)
exercise any controlling influence over the management or policies of any public
utility or holding company from January 1, 2004. Thus, UK Holding and UK Ltd.,
by virtue of their ownership of Powergen, have also ceased to hold any ownership
interests in a public utility company.
Item 4. Regulatory Approvals
No federal or state regulatory approval, other than the authorization
of the Commission, is required in connection with the deregistration of UK
Holding, UK Ltd. and Powergen.
Item 5. Procedure
Applicants respectfully request that the Commission issue an order
declaring, that UK Holding, UK Ltd. and Powergen have ceased to be holding
companies and that upon effectiveness of the order, the registration of UK
Holding, UK Ltd. and Powergen will cease to be in effect.
Item 6. Exhibits and Financial Statements
A. Exhibits.
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A E.ON Press Release dated May 6, 2003.
B E.ON Press Release dated August 14, 2003.
C Preliminary Opinion of Counsel (To be filed by amendment).
D Past Tense Opinion (To be filed by amendment).
E Proposed Form of Notice.
B. Financial Statements.
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Not applicable.
Item 7. Information as to Environmental Effects
The deregistration of UK Holding, UK Ltd. and Powergen as proposed
herein neither involves a "major federal action" nor "significantly affects the
quality of the human environment" as those terms are used in Section 102(2)(C)
of the National Environmental Policy Act. No federal agency is preparing an
environmental impact statement in connection with Applicants' request herein.
SIGNATURE
Pursuant to the Public Utility Holding Company Act of 1935, Applicants
have duly caused this Application-Declaration to be signed on their behalf by
the undersigned thereunto duly authorized.
E.ON AG
By: /s/ Karl-Heinz Feldmann
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Name: Karl-Heinz Feldmann
Title: General Counsel, Executive Vice President,
Legal Affairs
Date: January 27, 2004
By: /s/ Dr. Guntram Wurzberg
------------------------
Name: Dr. Guntram Wurzberg
Title: Vice President, General Legal Affairs
Date: January 27, 2004
EXHIBIT INDEX
A E.ON Press Release dated May 6, 2003.
B E.ON Press Release dated August 14, 2003.
C Opinion of Counsel (To be filed by amendment).
D Past Tense Opinion of counsel (To be filed by amendment).
E Proposed Form of Notice.