UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Application of E.ON AG and Powergen CERTIFICATE PURSUANT TO RULE 24 UNDER THE
plc on Form U-1 (File No. 70-9961) PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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Pursuant to the requirements of Rule 24 under the Public Utility Holding
Company Act of 1935, as amended, E.ON AG ("E.ON"), certifies that on July 1,
2002 it acquired Powergen plc ("Powergen"), as proposed in the
Application/Declaration to the Commission on Form U-1 (File No. 70-9961) and
authorized by order of the Commission in Public Utility Holding Company Act
Release No. 27539, dated June 14, 2002. E.ON also certifies that the acquisition
has been carried out in accordance with the terms and conditions of and for the
purposes represented by the Application/Declaration and of the Commission's
order with respect thereto.
Exhibits
K-3 "Past Tense" Opinion of Counsel
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, E.ON has duly caused this Certificate to be signed on its behalf by the
undersigned hereunto duly authorized.
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Date: July 10, 2002 E.ON AG
By: /s/ Ulrich Huppe
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Name: Ulrich Huppe
Title: Executive Vice President
By: /s/ Dr. Guntram Wuerzberg
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Name: Dr. Guntram Wuerzberg
Title: Vice President General Legal Affairs
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EXHIBIT K-3
July 10, 2002
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Application-Declaration of E.ON AG and Powergen plc, File No. 70-9961
Dear Sirs:
In connection with the above-referenced Application-Declaration of E.ON AG
("E.ON") for authorization to acquire Powergen plc ("Powergen"), a registered
holding company, and its indirect public utility subsidiary companies,
Louisville Gas and Electric Company ("LG&E") and Kentucky Utilities Company
("KU") (the "Acquisition"), the Securities and Exchange Commission
("Commission") issued an order granting the Application-Declaration in E.ON AG
et al., Holding Co. Act Release No. 27539 (June 14, 2002) (the "Acquisition
Order"). The Acquisition was approved by orders of the Kentucky Public Service
Commission, the Virginia State Corporation Commission and the Tennessee
Regulatory Authority issued on August 6, 2001, October 5, 2001 and December 14,
2001, respectively. E.ON consummated the Acquisition on July 1, 2002 and
registered as a holding company under the Public Utility Holding Company Act of
1935 (the "Act") on that day. As counsel for E.ON and its subsidiary companies,
I deliver this past-tense opinion to you for filing as Exhibit K-3 to the
above-referenced Application-Declaration (the "Application").
The Acquisition was effected through a Scheme of Arrangement under Section
425 of the U.K. Companies Act 1985 ("Scheme"). Under the Scheme, E.ON paid
(pound)7.65 for each Powergen share and (pound)30.60 for each Powergen American
Depositary Share (representing four Powergen shares). In addition, E.ON UK plc,
an indirect wholly-owned subsidiary of E.ON, issued 60,970,815 GBP aggregate
principal amount of loan notes to certain Powergen shareholders seeking to defer
recognition of capital gain on the sale of their shares. The Acquisition is
described in greater detail in the Application.
I am authorized to practice law in the Federal Republic of Germany, the
place of incorporation of E.ON. I am not a member of the bar of any other
country, or any of the United States, states in which certain of E.ON's
subsidiaries are incorporated and doing business, and I do not hold myself out
as an expert in the laws of such states. Sara Vaughn, Director, Group Regulatory
& Sustainable Development of Powergen, is a member of the Law Society of England
and Wales, the place of incorporation of Powergen. John McCall, Executive Vice
President and General Counsel of LG&E Energy Corp., is a member of the bar of
Kentucky, where LG&E and KU are organized. LG&E Energy Corp. is the direct
parent company of LG&E and KU. For purposes of this opinion, to the extent
necessary, I have relied on Sara Vaughn and John McCall with regard to matters
of UK and Kentucky law, respectively. In addition, I have relied on advice from
counsel employed or retained by E.ON, including the firm LeBoeuf, Lamb, Greene &
MacRae, L.L.P. with respect to matters under the Public Utility Holding Company
Act of 1935.
In connection with this opinion, I or attorneys in whom I have confidence,
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such records and such other documents, certificates and
corporate or other records as we have deemed necessary or appropriate as a basis
for the opinions expressed in this letter. In our examination, we have assumed
the genuineness of all signatures, the legal capacity of all persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies. As to various
questions of fact material to such opinions, we have, when relevant facts were
not independently established, relied upon statements contained in the
Application.
The opinions expressed below are subject to the following assumptions,
qualifications, limitations, conditions and exceptions:
(1) The Commission duly entered an appropriate order with respect to the
Acquisition, as described in the Application, permitting the
Application to become effective under the Act and the rules and
regulations thereunder.
(2) No act or event other than as described herein shall have occurred
subsequent to the date hereof which would change the opinions
expressed below.
Based upon the foregoing and subject to the assumptions, qualifications,
limitations, conditions and exceptions set forth herein, I am of the opinion
that:
(a) The Acquisition was carried out in accordance with the Application,
(b) All state and federal laws applicable to the Acquisition were complied
with,
(c) E.ON UK plc, the issuer of the loan notes issued to certain Powergen
shareholders, was validly organized and is duly existing,
(d) Such securities are valid and binding obligations of the issuer and
are guaranteed by E.ON, as represented in the Application,
(e) E.ON UK plc legally acquired the Powergen shares, and
(f) The Acquisition did not violate the legal rights of the holders of any
securities issued by E.ON, or by any associate company thereof.
I hereby consent to the filing of this opinion as Exhibit K-3 to the
Application.
Very truly yours,
/s/ Dr. Guntram Wuerzberg
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Dr. Guntram Wuerzberg
Vice President General Legal Affairs
E.ON AG