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As filed with the Securities and Exchange Commission on November 7, 2002
Registration No. 333-_________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
USEC INC.
(Exact name of registrant as specified in its charter)
Delaware 52-2107911
(State or jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2 Democracy Center 20817
6903 Rockledge Dr.
Bethesda, MD (Zip Code)
(Address of principal executive offices)
------------------------------------
USEC Savings Program
(Full title of the plan)
------------------------------------
Henry Z Shelton, Jr.
Senior Vice President and Chief Financial Officer
USEC Inc.
2 Democracy Center
6903 Rockledge Drive
Bethesda, MD 20817
(301) 564-3200
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
------------------------------------
Copies of communications to:
Stephen W. Hamilton, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, DC 20005-2111
(202) 371-7000
-----------------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Title of
Securities Amount Proposed Maximum Proposed Maximum Amount of
To Be To Be Offering Price Per Aggregate Offering Registration
Registered Registered Share(1) Price Fee
- --------------------------------------------------------------------------------
Common Stock, 200,000 $6.71 $1,342,000 $123.46
par value shares(2)(3)
$.10 per share
================================================================================
(1) Pursuant to Rule 457(h) of the Securities Act of 1933, and solely for the
purpose of calculating the registration fee, the proposed maximum offering price
per share is based on the average of the high and low sales prices of the Common
Stock on the New York Stock Exchange on November 5, 2002.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(3) If, as a result of stock splits, stock dividends or similar transactions,
the number of securities purported to be registered by this Registration
Statement changes, the provisions of Rule 416 under the Securities Act shall
apply to this Registration Statement, and this Registration Statement shall be
deemed to cover the additional securities resulting from the split of, or the
dividend on, the securities covered by this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The information specified by Item 1 and Item 2 of Part I of Form S-8
is omitted from this filing in accordance with the provisions of Rule 428 under
the Securities Act of 1933, as amended (the "Securities Act") and the
introductory note to Part I of Form S-8. The documents containing the
information specified in Part I will be delivered to the participants in the
plan covered by this registration statement as required by Rule 428(b).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission (the "SEC") allows us to
"incorporate by reference" the information we file with them, which means that
we can disclose important information to you by referring you to those
documents. The information incorporated by reference is an important part of
this registration statement, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), until such time as this registration
statement is no longer in effect.
(a) Our Annual Report on Form 10-K for the fiscal year ended June 30, 2002,
filed pursuant to the Exchange Act, and as amended by Amendment No. 1 on Form
10-K/A dated September 27, 2002;
(b) Our Quarterly Report on Form 10-Q for the quarter ended September 30,
2002, filed pursuant to the Exchange Act;
(c) Our Current Report on Form 8-K filed on October 4, 2002;
(d) All other reports filed by USEC Inc. pursuant to Section 13(a) or
15(d) of the Exchange Act since June 30, 2002; and
(e) The description of our Common Stock, par value $.10 per share,
contained in our Registration Statement No. 333-57955 on Form S-1 filed with the
SEC on June 29, 1998 and incorporated by reference in our Registration Statement
on Form 8-A dated July 8, 1998 (File No. 001-14287).
You may request a copy of any filings referred to above (excluding exhibits), at
no cost, by contacting us at the following address:
Investor Relations
USEC Inc.
2 Democracy Center
6903 Rockledge Drive
Bethesda, Maryland 20817
Telephone: (301) 564-3200
Risk relating to the lack of an updated consent of Arthur Andersen LLP:
The consolidated balance sheets of USEC Inc. as of June 30, 2001 and 2000
and the related consolidated statements of income, stockholders' equity and cash
flows for each of the three fiscal years in the period ended June 30, 2001,
included in the Report on Form 10-K, which is incorporated by reference herein,
was audited by Arthur Andersen LLP. Due to the status of Arthur Andersen LLP, we
have not been able to obtain, after reasonable efforts, the written consent of
Arthur Andersen LLP to the inclusion of their report in the Report on Form 10-K,
which is incorporated by reference herein, and we have dispensed with the
requirement to file their consent in reliance on Rule 437a promulgated under the
Securities Act. Because Arthur Andersen LLP has not consented to the inclusion
of its report in the Report on Form 10-K, which is incorporated by reference
herein, investors' ability to assert claims against Arthur Andersen LLP may be
limited. In particular, because of this lack of consent, investors will not be
able to sue Arthur Andersen under Section 11(a)(4) of the Securities Act for any
untrue statements of a material fact contained in, or an omission to state a
material fact required to be stated in, the financial statements audited by
Arthur Andersen LLP that are included in the Report on Form 10-K, which is
incorporated by reference herein.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") empowers a Delaware corporation to indemnify any person who was or
is a party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The indemnity may include
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
A Delaware corporation may indemnify directors, officers, employees and
other agents of such corporation in an action by or in the right of the
corporation under the same conditions, except that no indemnification shall be
made if such person is adjudged to be liable to the corporation. Where a
director, officer, employee or agent of the corporation is successful on the
merits or otherwise in the defense of any action, suit or proceeding referred to
in this Item 6 or in defense of any claim, issue or matter herein, the
corporation must indemnify such person against the expenses (including
attorney's fees) which he or she actually and reasonably incurred in connection
therewith.
Both our Bylaws and the Certificate of Incorporation require us to
indemnify each of our directors and officers to the fullest extent permitted by
law, subject to certain exceptions, in connection with any actual or threatened
action or proceeding arising out of his or her service to us or to other
organizations at our request.
As permitted by Section 102(b)(7) of the DGCL, our Certificate of
Incorporation also contains a provision eliminating the personal liability of a
director to USEC Inc. or our shareholders for monetary damages for breach of
fiduciary duty as a director, subject to certain exceptions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this Registration
Statement.
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation of USEC Inc. (incorporated herein by reference
to Exhibit 3.1 to the Registration Statement on Form S-1, No. 333-57955,
filed June 29, 1998).*
4.2 Amended and Restated Bylaws of USEC Inc. (incorporated herein by reference
to Exhibit 3.3 to the Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000).*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding legality of
the securities being registered.
5.2 Internal Revenue Service Determination Letter as to the Plan.
23.1 Consent of Independent Accountants.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in its
opinion filed as Exhibit 5.1 hereto).
24.1 Powers of Attorney (included on the signature page of this Registration
Statement).
- --------------------
* Incorporated by reference.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant with or
furnished to the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) That, for purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bethesda, State of Maryland, on this 6th day of
November, 2002.
USEC INC.
By: /s/ William H. Timbers
William H. Timbers
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below, acting in the capacity or capacities stated opposite their
respective names, hereby constitutes and appoints William H. Timbers, Henry Z
Shelton, Jr. and Timothy B. Hansen, and each of them, our true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, to do any and all acts and things and execute, in the name of
the undersigned, any and all instruments which said attorneys-in-fact and agents
may deem necessary or advisable in order to enable USEC Inc. to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing with the Securities and Exchange Commission of this Registration
Statement on Form S-8 under the Securities Act, including specifically but
without limitation, power and authority to sign the name of the undersigned to
such Registration Statement, and any amendments to such Registration Statement
(including post-effective amendments), and to file the same with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, to sign any and all applications, registration statements,
notices or other documents necessary or advisable to comply with applicable
state securities laws, and to file the same, together with other documents in
connection therewith with the appropriate state securities authorities, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and to perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully and to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 6th day of November, 2002.
SIGNATURE TITLE
- --------- -----
/s/ James R. Mellor Chairman of the Board and Director
- ---------------------------------
James R. Mellor
/s/ Michael H. Armacost Director
- ---------------------------------
Michael H. Armacost
/s/ Joyce F. Brown Director
- ---------------------------------
Joyce F. Brown
/s/ John R. Hall Director
- ---------------------------------
John R. Hall
/s/ W. Henson Moore Director
- ---------------------------------
W. Henson Moore
/s/ Joseph F. Paquette, Jr. Director
- ---------------------------------
Joseph F. Paquette, Jr.
/s/ William H. Timbers President, Chief Executive Officer
- --------------------------------- and Director (Principal Executive
William H. Timbers Officer)
/s/ James D. Woods Director
- ---------------------------------
James D. Woods
/s/ Henry Z Shelton, Jr. Senior Vice President and Chief
- --------------------------------- Financial Officer (Principal
Henry Z Shelton, Jr. Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Bethesda, state of
Maryland, on November 6, 2002.
USEC Savings Program
By:/s/ Dennis J. Blair
-------------------
Name: Dennis J. Blair
Title: V.P. HR Admin
Chair - Benefits Admin Committee
2
Exhibit Index
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation of USEC Inc. (incorporated herein by reference
to Exhibit 3.1 to the Registration Statement on Form S-1, No. 333-57955,
filed June 29, 1998).*
4.2 Amended and Restated Bylaws of USEC Inc. (incorporated herein by reference
to Exhibit 3.3 to the Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000).*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding legality of
the securities being registered.
5.2 Internal Revenue Service Determination Letter as to the Plan.
23.1 Consent of Independent Accountants.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in its
opinion filed as Exhibit 5.1 hereto).
24.1 Powers of Attorney (included on the signature page of this Registration
Statement).
- ----------------
* Incorporated by reference.
Exhibit 5.1
OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
November 7, 2002
USEC Inc.
2 Democracy Center
6903 Rockledge Drive
Bethesda, Maryland 20817
Ladies and Gentlemen:
We have acted as special counsel to USEC Inc., a Delaware corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8, which is being filed by the Company with the Securities and Exchange
Commission (the "Commission") on the date hereof (the "Registration Statement")
relating to the registration and issuance by the Company of up to 200,000 shares
(the "Shares") of the common stock, par value $0.10 per share (the "Common
Stock"), of the Company pursuant to the USEC Savings Program (the "Plan"), which
is administered by the Company through its plan administrator, and for which
Fidelity Management Trust Company acts as Trustee and recordkeeper.
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Securities Act").
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as facsimile, electronic, certified or photostatic
copies, and the authenticity of the originals of such copies. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties had or will have the power, corporate
or other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other, and
the execution and delivery by such parties of such documents and the validity
and binding effect thereof on such parties. As to any facts material to the
opinion expressed herein that we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of the Company and others and of public officials.
In rendering the opinion set forth herein, we have examined and relied
on originals or copies of the following: (i) the Registration Statement of the
Company on Form S-8 filed with the Commission on the date hereof, (ii) a
specimen certificate evidencing the Common Stock, (iii) the Plan, (iv) the
Certificate of Incorporation of the Company, as certified by the Secretary of
State of the State of Delaware, (v) the By-laws of the Company, as currently in
effect, and (vi) certain resolutions adopted by the Board of Directors of the
Company relating to the Registration Statement and related matters. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements, certificates
and receipts of public officials, certificates of officers or other
representatives of the Company and others, and such other documents as we have
deemed necessary or appropriate as a basis for the opinion set forth below.
In rendering the opinion set forth below, we have assumed that the
certificates evidencing the Shares will be manually signed by one of the
authorized officers of the transfer agent and registrar for the Common Stock and
registered by such transfer agent and registrar and will conform to the specimen
certificate examined by us evidencing the Common Stock.
Members of our firm are admitted to the bar in the State of Delaware,
and we do not express any opinion as to the laws of any other jurisdiction other
than the Delaware General Corporation Law. The opinion expressed herein is based
on laws in effect on the date hereof, which laws are subject to change with
possible retroactive effect.
Based upon and subject to the foregoing, we are of the opinion that
when certificates representing the Shares have been delivered and paid for in
accordance with the terms and conditions of the Plan, the issuance and sale of
the Shares will have been duly authorized and, subject to any restrictions
imposed by the Plan, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are included in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 5.2
IRS DETERMINATION LETTER AS TO THE PLAN
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
P.O. BOX 2508
CINCINNATI, OH 45201
Employer Identification Number:
52-2107911
Date: FEB 15 2002 DLN:
17007277000021
USEC INC Person to Contact: ID# 11205
C/O TERRA CASTALDI BRIAN HOHLER
MORGAN LEWIS & BOCKIUS LLP Contact Telephone Number:
1111 PENNSYLVANIA AVENUE NW (877) 829-5500
WASHINGTON, DC 20004 Plan Name:
USEC SAVINGS PROGRAM
Plan Number: 001
Dear Applicant:
We have made a favorable determination on the plan identified above based
on the information you have supplied. Please keep this letter, the application
forms submitted to request this letter and all correspondence with the Internal
Revenue Service regarding your application for a determination letter in your
permanent records. You must retain this information to preserve your reliance on
this letter.
Continued qualification of the plan under its present form will depend on
its effect in operation. See section 1.401-1(b)(3) of the Income Tax
Regulations. We will review the status of the plan in operation periodically.
The enclosed Publication 794 explains the significance and the scope of
this favorable determination letter based on the determination requests selected
on your application forms. Publication 794 describes the information that must
be retained to have reliance on this favorable determination letter. The
publication also provide examples of the effect of a plan's operation on its
qualified status and discusses the reporting requirements for qualified plans.
Please read Publication 794.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination is subject to your adoption of the proposed amendments
submitted in your letter dated February 13, 2002. The proposed amendments should
be adopted on or before the date prescribed by the regulations under Code
section 401(b).
This determination letter is applicable for the amendment(s) executed on
December 28, 2000.
Based on the information supplied, we have determined that your plan meets
the requirements of section 401(k) of the Internal Revenue Code.
This letter considers the changes in qualification requirements made by the
Uruguay Round Agreements Act, Pub. L. 103-465, the Small Business Job Protection
Act of 1996, Pub. L. 104-188, the Uniformed Services Employment and Reemployment
Rights Act of 1994, Pub. L. 103-353, the Taxpayer Relief Act of 1997, Pub. L.
105-34, the Internal Revenue Service Restructuring and Reform Act of 1998, Pub.
L. 105-206, and the Community Renewal Tax Relief Act of 2000, Pub. L. 106-554.
This letter may not be relied on with respect to whether the plan satisfies
the requirements of section 401(a) of the Code, as amended by the Economic
Growth and Tax Relief Reconciliation Act of 2001, Pub. L. 107-16.
This requirement for employee benefits plans to file summary plan
descriptions (SPD) with the U.S. Department of Labor was eliminated effective
August 5, 1997. For more details, call 1-800-998-7542 for a free copy of the SPD
card.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Paul T. Shultz
Paul T. Shultz
Director,
Employee Plans Rulings & Agreements
Enclosures:
Publication 794
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 26, 2002 relating to the
consolidated financial statements of USEC Inc., which appears in USEC Inc.'s
Annual Report on Form 10-K for the year ended June 30, 2002.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
McLean, Virginia
November 7, 2002