File No. 70-10196
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT No. 1
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 Holding Company Ltd.
Powergen Limited
Westwood Way
Westwood Business Park
Coventry CV4 8LG
United Kingdom
________________________________________________________
(Name of companies filing this statement and
Addresses of principal executive offices)
E.ON AG
(Name of top registered holding company)
________________________________________________________
Karl-Heinz Feldmann
General Counsel, Senior 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:
Markian M. W. Melnyk
Serena N. Minott
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
1875 Connecticut Ave., N.W.
Suite 1200
Washington, D.C. 20009
(202) 986-8000
This Pre-Effective Amendment Number 1 amends and restates in its entirety
the application on Form U-1 in File No. 70-10196.
Item 1. Description of the Proposed Transaction
A. Introduction
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. ("PUSIC") from the Powergen chain of companies to E.ON US
Holding GmbH in Holding Co. Act Release No. 27654 (Feb. 21, 2003). PUSIC
indirectly held, through LG&E Energy Corporation ("LG&E Energy"),\1 E.ON's
interest in two U.S. public utility company subsidiaries, Louisville Gas and
Electric Company ("LG&E") and Kentucky Utilities Company ("KU"). In Holding Co.
Act Release No. 27745 (Oct. 28, 2003), the Commission issued a Supplemental
Order releasing jurisdiction over a request by Powergen US Holdings Limited,
Powergen US Investments, Powergen Luxembourg Holdings sarl and Powergen
Luxembourg sarl (the "Powergen Intermediate Holding Companies") to deregister,
and declaring that the registration of the Powergen Intermediate Holding
Companies is no longer in effect.
B. General Request
E.ON, E.ON UK Holding GmbH (a first tier subsidiary of E.ON, "UK
Holding"),\2 E.ON UK Holding Company Ltd. (a direct subsidiary of UK Holding,
"UK Ltd.")\3 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 issuance of
the order, the registration of UK Holding, UK Ltd. and Powergen will cease to be
in effect. Powergen no longer owns voting securities in any company that
controls or exerts a controlling influence over LG&E Energy and its utility
subsidiaries, and Powergen does not otherwise control or exercise a controlling
influence over LG&E Energy and its public utility company subsidiaries. If, as
Applicants contend, Powergen is no longer a holding company, then UK Holding
and UK Ltd. are no longer holding companies as defined under the 1935 Act.
----------------------------
1/ LG&E Energy Corporation is now LG&E Energy LLC. See E.ON AG, Holding Co. Act
Release No. 27785 (Dec. 29, 2003). Following the change in its corporate form
and ownership structure, as described further herein, LG&E Energy ceased to rely
on an exemption from registration under Section 3(a)(1) of the 1935 Act and
registered as a holding company pursuant to Section 5 of the 1935 Act on March
29, 2004.
2/ E.ON UK Holding GmbH was formerly E.ON UK Verwaltungs GmbH.
3/ E.ON UK Holding Company Ltd. was formerly E.ON UK Ltd., formerly E.ON UK plc.
C. Discussion
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 LG&E and KU (the "Acquisition"). On July 1, 2002, E.ON
consummated the Acquisition and registered as a holding company under Section 5
of the 1935 Act.\4
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 Corp. ("EUSIC" formerly PUSIC), an indirect intermediate
holding company subsidiary of Powergen and the immediate parent company of LG&E
Energy, 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) and E.ON subsequently
completed the transaction. Following the reorganization, the Powergen
Intermediate Holding Companies ceased to hold voting interests in or exercise
control over 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 of effect. The Commission approved the deregistration of the Powergen
Intermediate Holding Companies on October 28, 2003.
Although Powergen ceased to own any direct or indirect voting security
interest in LG&E Energy after the reorganization, 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. have remained registered holding companies as a result of their
ownership of Powergen.
On May 6, 2003, E.ON commenced its group-wide structure and strategy
project - on*top. (See E.ON Press Release dated May 6, 2003 at Exhibit A). The
on*top project has resulted in the transfer of management of LG&E Energy and its
utility subsidiaries from Powergen to E.ON. On*top is designed to allow E.ON to
achieve optimal integration of its acquired businesses through various
initiatives to promote 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 the on*top initiatives is the establishment of
five target markets and management groups for E.ON's energy business: Central
Europe; Pan-European Gas; the United Kingdom; the Nordic region; and the
Midwestern United States (See E.ON Press Release dated August 14, 2003 at
Exhibit B).
As a result of the on*top corporate restructuring, LG&E Energy assumed
management and earnings responsibility as a market unit for the Midwestern U.S.
region while Powergen
----------------------------
4 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.
assumed similar responsibility for the United Kingdom. This new organizational
structure has resulted in the transfer of management of LG&E Energy and its
utility subsidiaries from Powergen to E.ON. Specifically, until early 2004, the
LG&E Energy group operated under a Delegation of Authority ("DOA") document
issued by the Powergen Board which memorialized the management and oversight
role of Powergen over the LG&E Energy group. On February 11, 2004, EUSIC issued
a replacement DOA document, pursuant to which the EUSIC board assumed the
management and oversight functions previously exercised by the Powergen board.
Consequently, the corporate center of Powergen at the UK group holding company
level has been closed and Powergen UK plc and its new board of directors have
assumed all tasks and responsibilities for the UK market.
Under this structure, the Powergen board has ceased to have any
responsibility for the development and operation of LG&E Energy's utility
businesses and no longer controls or exercises a controlling influence over LG&E
Energy. As of January 31, 2004, changes on the U.S. company boards became
effective which ended Powergen's representation on these boards. Specifically,
EUSIC's board membership was changed to have predominantly E.ON representation
and no Powergen representatives. Also at that time, the Chief Executive Officer
of LG&E Energy was no longer represented on the board of Powergen, but obtained
representation on the board of EUSIC. As a result of these organizational
changes, Powergen is no longer responsible for the management and operation of
LG&E Energy.
Accordingly, none of Powergen, UK Holding or UK Ltd. own voting securities
of, or exercise a controlling influence over the management or policies of any
public utility or holding company. They have therefore ceased to be holding
companies within the meaning of the 1935 Act.
Based on these facts and circumstances, Applicants request that the
Commission 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 immediately upon the issuance 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.
Powergen no longer holds any ownership interest, voting or non-voting, 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 on*top project
referred to above, Powergen, UK Holding and UK Ltd. no longer provide management
services to LG&E Energy and its utility subsidiaries.
Consequently, Powergen, UK Holding and UK Ltd. do 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 do they (ii) exercise any controlling influence over the
management or policies of any public utility or holding company from January 1,
2004. Each of them has ceased to be a public utility holding company as defined
under the 1935 Act.
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 issuance of the order, the registration of UK Holding,
UK Ltd. and Powergen will cease to be in effect. Rule 23 does not require the
Commission to publish notice of this application, and Applicants request that no
notice be published and issue an order granting the Applicants' requests
forthwith.
Item 6. Exhibits and Financial Statements
A. Exhibits.
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).
B. Financial Statements.
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 Amendment No. 1 to be signed on their behalf by the undersigned
thereunto duly authorized.
E.ON AG
By: /s/ Karl-Heinz Feldmann
-----------------------
Name: Karl-Heinz Feldmann
Title: General Counsel, Senior Vice
President, Legal Affairs
Date: September 21, 2004
By: /s/ Michael C. Wilhelm
----------------------
Name: Michael C. Wilhelm
Title: Senior Vice President, Accountant
Date: September 21, 2004
EXHIBIT INDEX
Exhibit A E.ON Press Release dated May 6, 2003.
Exhibit B E.ON Press Release dated August 14, 2003.