File No. 70-9985
Filed with the Securities and Exchange Commission on July 30, 2003
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 7
TO
FORM U-1
APPLICATION OR DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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E.ON AG
Powergen Ltd.
Powergen US Holdings Limited
Powergen US Investments
Powergen Luxembourg Holdings sarl
Powergen Luxembourg sarl
E.ON-Platz 1
40479 Dusseldorf
Germany
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(Name of companies filing this statement and
Addresses of principal executive offices)
E.ON AG
(Name of top registered holding company)
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Ulrich Hueppe
General Counsel, Executive Vice President
E.ON AG
E.ON-Platz 1
40479 Dusseldorf
Germany
Telephone: 011-49-211-4579-388
Facsimile: 011-49-211-4579-610
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(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 Ltd. (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 (June 14, 2002) ("2002
Order"). The 2002 Order granted the Form U-1 Application-Declaration, originally
filed in File No. 70-9961 on September 4, 2001, and subsequently amended by
Amendment No. 1 filed on October 23, 2001, Amendment No. 2 filed on December 21,
2001, Amendment No. 3 filed on June 11, 2002, and Amendment No. 4 filed on June
14, 2002 (the "Acquisition Application"), and the Form U-1
Application-Declaration, originally filed in File No. 70-9985 on October 2,
2001, and subsequently amended by Amendment No. 1 filed on October 23, 2001,
Amendment No. 2 filed on March 13, 2002, and Amendment No. 3 filed on June 11,
2002 (the "Original Financing Application"). Subsequently, the Original
Financing Application was amended by Post-Effective Amendment No. 1 filed on
December 30, 2002, Post-Effective Amendment No. 2 filed on February 4, 2002,
Post-Effective Amendment No. 3 filed on February 21, 2003, with respect to the
transfer of Powergen US Investment Corp. from the Powergen chain of companies to
E.ON US Holding GmbH (the "Transfer"), Post-Effective Amendment No. 4 filed on
April 10, 2003, Post-Effective Amendment No. 5 filed on April 18, 2003 and
Post-Effective Amendment No. 6 filed on July 18, 2003. The Commission approved
the Transfer in Holding Co. Act Release No. 27654 (Feb. 21, 2003) ("Transfer
Order").
B. General Request
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Applicants submit this Post-Effective Amendment No. 7 ("Amendment") to
request that the Commission unconditionally approve the deregistration of
Powergen US Holdings Limited, Powergen US Investments, Powergen Luxembourg
Holdings sarl and Powergen Luxembourg sarl (the "Powergen Intermediate Holding
Companies") and issue an order to such effect pursuant to Section 5(d) of the
Public Utility Holding Company Act of 1935, as amended (the "1935 Act").
C. Discussion
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Under 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 Corporation ("LG&E Energy") and its public utility
subsidiaries, Louisville Gas and Electric Company ("LG&E") and Kentucky
Utilities Company ("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.\1
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1/ 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 the 2002 Order, E.ON also was authorized to complete a
reorganization (following the Acquisition) whereby the ownership of E.ON US
Investments Corps. (formerly, Powergen US Investments Corps., "EUSIC"), an
intermediate holding company of Powergen and the immediate parent company of
LG&E Energy, would be transferred to E.ON U.S. Verwaltungs GmbH ("E.ON US"), a
direct subsidiary of E.ON, in exchange for cash or a note. Following the
reorganization, E.ON would hold all of the outstanding voting stock of LG&E
Energy through E.ON US and EUSIC, and E.ON US would register as a holding
company. EUSIC would remain a registered holding company under the Act by virtue
of its indirect ownership interest in LG&E and KU, both public utility
companies. Consequently, the Powergen Intermediate Holding Companies would cease
to hold voting interests in LG&E Energy directly or indirectly and thereby cease
to be holding companies of any public utility company. The Commission reserved
jurisdiction over the proposed deregistration of the Powergen Intermediate
Holding Companies until the completion of the reorganization.
Since the Acquisition, ownership of EUSIC has been transferred from
Powergen Luxembourg Holdings sarl (10%) and Powergen Luxembourg Investments sarl
(90%) to Powergen Luxembourg sarl. In addition, Powergen Luxembourg Investments
sarl has been liquidated. On March 1, 2003, Powergen Luxembourg sarl transferred
99.5% of its shareholding in EUSIC to E.ON US for cash as proposed in the
Original Financing Application and approved in the Transfer Order. It retained
one (1) voting share that constitutes 0.5% of the ownership in EUSIC in order to
preserve certain tax efficiencies under the laws of Luxembourg.
Presently, E.ON indirectly owns LG&E Energy through E.ON US and EUSIC.
The Powergen Intermediate Holding Companies do not own any voting interest in
any U.S. public utility company except for the sole voting share held by
Powergen Luxembourg sarl in EUSIC. E.ON's indirect ownership of less than 1% of
the voting interest in EUSIC and, consequently, in LG&E Energy, is immaterial
and does not affect the U.S. utility operations of LG&E Energy.
Item 2. Fees, Commission and Expenses
Applicants expect to pay or incur, directly or indirectly,
approximately $25,000 in connection with the request herein.
Item 3. Applicable Statutory Provisions
Applicants request that the Commission issue an order declaring the
deregistration of the Powergen Intermediate Holding Companies pursuant to
Section 5(d) of the 1935 Act in light of the fact that the Powergen Intermediate
Holding Companies are no longer holding companies 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.
Upon completion of the Transfer, the Powergen Intermediate Holding
Companies ceased ownership, direct or indirect, of any significant or material
interests in EUSIC and LG&E Energy and its public utility subsidiaries. The
Powergen Intermediate Holding Companies were formed to effect Powergen's
acquisition of LG&E Energy on a tax efficient basis and continue to serve as
financing conduits, enabling E.ON and Powergen to preserve certain efficient
financing arrangements since the Acquisition. These intermediary companies,
including Powergen Luxembourg sarl which holds a residual 0.5% in EUSIC, (i)
cannot exert any influence over the management or policies of E.ON US, which
directly holds the ownership interests of LG&E Energy and its public utility
subsidiaries, and (ii) do not have authorization to issue securities externally.
Powergen Luxembourg sarl's indirect minority interest (through EUSIC) in a U.S.
public utility company does not warrant a finding that Powergen Luxembourg sarl
is a holding company within the meaning of Section 2(a)(7) of the 1935 Act.
Consequently, none of the Powergen Intermediate Holding Companies (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, or (ii) exercise any controlling influence over the
management or policies of any public utility or holding 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 the
Powergen Intermediate Holding Companies.
Item 5. Procedure
Applicants respectfully request that the Commission issue and publish
no later than August 8, 2003 the requisite notice under Rule 23 with respect to
the filing of this Amendment, such notice to specify a date not later than
September 2, 2003 as the date after which an order granting and permitting this
Amendment to become effective may be entered by the Commission and the
Commission enter not later than September 3, 2003, an appropriate order granting
and permitting this Amendment to become effective.
Applicants hereby waive a recommended decision by a hearing officer or
any other responsible officer of the Commission and consents that the Division
of Investment Management may assist in the preparation of the Commission's
decision and/or order. There should be no 30-day waiting period between the
issuance and the effective date of any order issued by the Commission in this
matter, and it is respectfully requested that such order be made effective
immediately upon the entry thereof.
Item 6. Exhibits and Financial Statements
A. Exhibits.
F-1 Preliminary Opinion of Counsel. (To be filed by amendment)
F-2 Past Tense Opinion of Counsel. (To be filed pursuant to Rule 24)
G-1 Proposed Form of Notice. (Filed herewith)
Item 7. Information as to Environmental Effects
The deregistration of the Powergen Intermediate Holding Companies 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/ Ulrich Hueppe
Name: Ulrich Hueppe
Title: General Counsel, Executive Vice President
Date: July 30, 2003
By: /s/ Patrick Wolff
Name: Patrick Wolff
Title: Counsel
Date: July 30, 2003
EXHIBIT INDEX
G-1 Proposed Form of Notice. (Filed herewith)