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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
USEC INC.
FIRST: The name of the corporation is USEC Inc. (hereinafter the
"Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle, 19801. The name of its registered
agent at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may now or hereafter be organized under the
Delaware General Corporation Law as set forth in Title 8 of the Delaware Code
(the "DGCL").
FOURTH: A. The total number of shares of stock of all classes that
the Corporation shall have authority to issue is 275,000,000 shares. The
authorized capital stock is divided into 25,000,000 shares of preferred stock,
each having a par value of $1.00 (the "Preferred Stock"), and 250,000,000 shares
of common stock, each having a par value of $.10 (the "Common Stock").
B. The shares of Preferred Stock of the Corporation may be issued from
time to time in one or more classes or series thereof, the shares of each class
or series thereof to have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions
thereof, as are stated and expressed herein or in the resolution or resolutions
providing for the issue of such class or series, adopted by the Board of
Directors as hereinafter provided.
Authority is hereby expressly granted to the Board of Directors of
the Corporation, subject to the provisions of this Article FOURTH and to the
limitations prescribed by the DGCL, to authorize the issue of one or more
classes, or series thereof, of Preferred Stock and with respect to each such
class or series to fix by resolution or resolutions providing for the issue of
such class or series the voting powers, full or limited, if any, of the shares
of such class or series and the designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof. The authority of the Board of Directors with respect to
each class or series thereof shall include, but not be limited to, the
determination or fixing of the following:
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(i) the maximum number of shares to constitute such class or series,
which may subsequently be increased or decreased by resolution of the Board of
Directors unless otherwise provided in the resolution providing for the issue of
such class or series, the distinctive designation thereof and the stated value
thereof if different than the par value thereof;
(ii) the dividend rate of such class or series, the conditions and dates
upon which such dividends shall be payable, the relation which such dividends
shall bear to the dividends payable on any other class or classes of stock or
any other series of any class of stock of the Corporation, and whether such
dividends shall be cumulative or noncumulative;
(iii) whether the shares of such class or series shall be subject to
redemption, in whole or in part, and, if made subject to such redemption, the
times, prices and other terms and conditions of such redemption, including
whether or not such redemption may occur at the option of the Corporation or at
the option of the holder or holders thereof or upon the happening of a specified
event;
(iv) the terms and amount of any sinking fund established for the
purchase or redemption of the shares of such class or series;
(v) whether or not the shares of such class or series shall be
convertible into or exchangeable for shares of any other class or classes of any
stock or any other series of any class of stock of the Corporation, and, if
provision is made for conversion or exchange, the times, prices, rates,
adjustments, and other terms and conditions of such conversion or exchange;
(vi) the extent, if any, to which the holders of shares of such class or
series shall be entitled to vote with respect to the election of directors or
otherwise;
(vii) the restrictions, if any, on the issue or reissue of any
additional Preferred Stock;
(viii) the rights of the holders of the shares of such class or series
upon the dissolution of, or upon the subsequent distribution of assets of, the
Corporation; and
(ix) the manner in which any facts ascertainable outside the resolution
or resolutions providing for the issue of such class or series shall operate
upon the voting powers, designations, preferences, rights and qualifications,
limitations or restrictions of such class or series.
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C. The shares of Common Stock of the Corporation shall be of one and
the same class. The holders of Common Stock shall have one vote per share of
Common Stock on all matters on which holders of Common Stock are entitled to
vote.
FIFTH: The name and mailing address of the Sole Incorporator is as
follows: Lynn Buckley, P.O. Box 636, Wilmington, DE 19899.
SIXTH: A. The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors. In furtherance, and
not in limitation, of the powers conferred by the laws of the State of Delaware,
the Board of Directors is expressly authorized to:
(i) adopt, amend, alter, change or repeal the By-Laws of the
Corporation; provided, however, that no By-Laws hereafter adopted shall
invalidate any prior act of the directors that would have been valid if such new
By-Laws had not been adopted;
(ii) determine the rights, powers, duties, rules and procedures that
affect the power of the Board of Directors to manage and direct the business and
affairs of the Corporation, including the power to designate and empower
committees of the Board of Directors, to elect, appoint and empower the officers
and other agents of the Corporation, and to determine the time and place of, and
the notice requirements for, Board meetings, as well as quorum and voting
requirements for, and the manner of taking, Board action; and
(iii) exercise all such powers and do all such acts as may be exercised
or done by the Corporation, subject to the provisions of the laws of the State
of Delaware, this Certificate of Incorporation, and the By-Laws of the
Corporation.
B. The number of directors constituting the Board of Directors shall
be as specified in the By-Laws or fixed in the manner provided therein. Whenever
the holders of any one or more classes or series of Preferred Stock issued by
the Corporation shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Certificate of Incorporation applicable
thereto, and such directors so elected shall not be divided into classes unless
expressly provided by such terms.
C. Any vacancies in the Board of Directors for any reason and any
newly created directorships resulting by reason of any increase in the number of
directors may be filled only by the Board of Directors, acting by a majority of
the remaining directors then in office, although less than a quorum, or by a
sole remaining director, and any directors so
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appointed shall hold office until the next election for which such directors
have been chosen and until their successors are elected and qualified or their
earlier resignation or removal.
D. Except as may be provided in a resolution or resolutions providing
for any class or series of Preferred Stock pursuant to Article FOURTH hereof
with respect to any directors elected by the holders of such class or series,
any director, or the entire Board of Directors, may be removed from office by
the stockholders at any time.
E. In connection with the exercise of its or their judgment in
determining what is in the best interests of the Corporation and its
stockholders, the Board of Directors of the Corporation, any committee of the
Board of Directors or any individual director may, but shall not be required to,
in addition to considering the long-term and short-term interests of the
stockholders, consider all of the following factors: provision for the
protection of the health and safety of the public and the common defense and
security of the United States of America, assurance that adequate enrichment
capacity will remain available to meet the demands of the domestic electric
utility industry, provision for the continuation by the Corporation of the
operation of the Department of Energy's gaseous diffusion plants, and provision
for the protection of the public interest in maintaining reliable and economical
uranium mining, enrichment and conversion services. The provisions of this
Section shall be deemed solely to grant discretionary authority to the directors
and shall not be deemed to provide to any constituency the right to be
considered.
SEVENTH: Except as may be provided in a resolution or resolutions
providing for any class or series of Preferred Stock pursuant to Article FOURTH
hereof, any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
Special meetings of stockholders of the Corporation may be called only by the
Chairman, if there be one, or the President, or pursuant to a resolution adopted
by (i) the Board of Directors or (ii) a committee of the Board of Directors that
has been designated by the Board of Directors and whose power and authority
include the power to call such meetings. Elections of directors need not be by
written ballot, unless otherwise provided in the By-Laws.
EIGHTH: A. The Corporation shall indemnify its directors and officers
to the fullest extent authorized or permitted by the DGCL, as the same exists or
may hereafter be amended, and such right to indemnification shall continue as
to a person who has ceased to be a director or officer of the Corporation and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except for successful proceedings to enforce rights to
indemnification, the Corporation shall not be obligated to indemnify any
director or officer (or his or her heirs, executors or administrators) in
connection with a proceeding (or part thereof) initiated by such person unless
such
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proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation. The right to indemnification conferred in this
Article EIGHTH shall include the right to be paid by the Corporation the
expenses incurred in defending or otherwise participating in any proceeding in
advance of its final disposition.
B. The Corporation may, to the extent authorized from time to time by
the Board of Directors, provide rights to indemnification and to the advancement
of expenses to employees and agents of the Corporation who are not directors or
officers similar to those conferred in this Article EIGHTH to directors and
officers of the Corporation.
C. The rights to indemnification and to the advancement of expenses
conferred in this Article EIGHTH shall not be exclusive of any other right which
any person may have or hereafter acquire under this Certificate of
Incorporation, the By-Laws, any statute, agreement, vote of stockholders or
disinterested directors, or otherwise.
D. Any repeal or modification of this Article EIGHTH by the stockholders
of the Corporation shall not adversely affect any rights to indemnification and
advancement of expenses of a director or officer of the Corporation existing
pursuant to this Article EIGHTH with respect to any acts or omissions occurring
prior to such repeal or modification.
NINTH: No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided, however, that the foregoing shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is amended hereafter to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended. Any amendment, repeal or modification of this Article NINTH shall
not adversely affect any right or protection of a director of the Corporation
existing at the time of such amendment, repeal or modification with respect to
any act or omission occurring prior to such amendment, repeal or modification.
TENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the DGCL or on the
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application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the DGCL
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ELEVENTH: A. Statutory Acquisition Restriction. For purposes of this
Article ELEVENTH, the term "Statutory Acquisition Restriction" shall mean the
acquisition, directly or indirectly, of beneficial ownership by a person or by
a number of persons acting together as a group, of securities of the Corporation
representing more than ten per cent (10%) of the total votes of all outstanding
voting securities of the Corporation after the Privatization Date and prior to
the third anniversary thereof; provided, however, such restriction shall not
apply to (i) any employee stock ownership plan of the Corporation, (ii) members
of the underwriting syndicate purchasing shares of Common Stock of the Corpo-
ration in stabilization transactions in connection with the privatization of the
Company through an initial public offering consummated on the Privatization Date
and (iii) in the case of securities beneficially held in the ordinary course of
business for others, any commercial bank, broker-dealer, or clearing agency;
provided no person for whom such bank, broker-dealer or clearing agency is
holding such securities has violated the Statutory Acquisition Restriction. For
purposes of this Article ELEVENTH, the term "Privatization Date" shall mean the
date of consummation of the initial public offering undertaken to privatize the
United States Enrichment Corporation, the government-owned corporation.
B. Foreign Ownership Restrictions. For purposes of this Article
ELEVENTH, the term "Foreign Ownership Restrictions" shall mean any one or more
of the following: (i) the beneficial ownership of more than ten percent (10%) of
the aggregate number of issued and outstanding shares of Common Stock of the
Corporation by or for the account of a foreign person or persons; (ii) the
beneficial ownership of any shares of Common Stock of the Corporation by or for
the account of a Contravening Person (as defined below); (iii) the acquisition
of control (direct or indirect) of the Company by a person or group of persons
acting together in any transaction or series of transactions in which the
arrangements for financing such person's or persons' acquisition of the
Corporation involve or will involve receipt of money, from borrowing or
otherwise, from one or more foreign persons in an amount in excess of ten
percent (10%) of the purchase price of the Corporation's securities
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purchased by such person or group of persons, whether such funds are to be used
for temporary or permanent financing; or (iv) any ownership of or exercise of
rights with respect to shares of Common Stock of the Corporation or other
exercise or attempt to exercise control of the Corporation that the Board of
Directors determines is inconsistent with or in violation of the regulations,
rules or restrictions of a governmental entity or agency which exercises
regulatory power over the Corporation, its business, operations or assets or
could jeopardize the continued operations of the Corporation's facilities.
C. Information Request. If the Corporation has reason to believe that
the ownership or proposed ownership of, or exercise of rights with respect to,
securities of the Corporation by any person, including record holders,
beneficial owners and any person presenting any securities of the Corporation
for transfer into its name (a "Proposed Transferee") may be inconsistent with,
or in violation of the Statutory Acquisition Restriction or the Foreign
Ownership Restrictions, the Corporation may request of such person and such
person shall furnish promptly to the Corporation such information (including,
without limitation, information with respect to citizenship, other ownership
interests and affiliations) as the Corporation shall reasonably request to
determine whether the ownership of, or the exercise of any rights with respect
to, securities of the Corporation by such person is inconsistent with, or in
violation of, the Statutory Acquisition Restriction or the Foreign Ownership
Restrictions. Any person who is or proposes to be a registered holder of
securities of the Corporation shall be obliged to disclose to the Corporation,
at the Corporation's request, the name and address of the beneficial owner of
the securities of the Corporation.
Any person that has filed a Schedule 13D or a Schedule 14D-1 (or in
either case, a successor form thereto required by the U.S. Securities and
Exchange Commission (the "SEC")) with respect to the Corporation's securities
and, in the case of the Schedule 13D, which filing indicates any plans or
proposals which relate to or would result in the occurrence of any of the events
described in Item 4 of Schedule 13D (or its equivalent, if and to the extent
that such Item is amended, modified or superseded by another Item or another
form of the SEC then in effect) may be requested by the Corporation to provide
to the Corporation such information as the Board of Directors may require to
confirm that such person's plans or proposals will not result in a violation of
the Statutory Acquisition Restriction or the Foreign Ownership Restrictions.
The Corporation may require that any information sought under this
Section C of Article ELEVENTH be given under oath. The Board of Directors shall
be entitled to rely and to act in reliance on any declaration and the
information contained therein.
D. Suspension of Voting Rights; Refusal to Transfer. If any person,
including a Proposed Transferee, from whom information is requested should fail
to respond to the Corporation's request pursuant to Section C of this Article
ELEVENTH or if the Corpora-
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tion shall conclude that the ownership of, or the exercise of any rights of
ownership with respect to, securities of the Corporation by any person,
including a Proposed Transferee, could result in any inconsistency with, or
violation of, the Statutory Acquisition Restriction or the Foreign Ownership
Restrictions, the Corporation may (i) refuse to permit the transfer of
securities of the Corporation to such Proposed Transferee; and/or (ii) suspend
or limit voting rights associated with stock ownership by such person or
Proposed Transferee if the Board of Directors in good faith believes that the
exercise of such voting rights would result in any inconsistency with, or
violation of, the Statutory Acquisition Restriction or the Foreign Ownership
Restrictions. If the Board of Directors determines that the foregoing measures
are not sufficient to ensure compliance with the Statutory Acquisition
Restriction or the Foreign Ownership Restrictions, the Corporation may take such
action as may be authorized under this Article ELEVENTH. Any action by the
Corporation pursuant to the foregoing with respect to the Statutory Acquisition
Restriction or the Foreign Ownership Restrictions may remain in effect for as
long as the Corporation determines is necessary to comply with the Statutory
Acquisition Restriction or the Foreign Ownership Restrictions.
E. Legends. The Corporation may note on the certificates of its
securities that the shares represented by such certificates are subject to the
restrictions set forth in this Article TWELFTH.
F. Joint Ownership. For purposes of this Article ELEVENTH, where the
same shares of Common Stock of the Corporation are held or beneficially owned by
one or more persons, and any one of such persons is a foreign person or a
Contravening Person, then such shares of Common Stock shall be deemed to be held
or beneficially owned by a foreign person or Contravening Person, as applicable.
G. Additional Provisions. The Corporation is hereby authorized to take
any other action it may deem necessary or appropriate to ensure compliance with
the provisions of this Article ELEVENTH, including, without limitation,
suspending or limiting any and all rights of stock ownership which may violate
or be inconsistent with the Statutory Acquisition Restriction or the applicable
Foreign Ownership Restrictions (other than the right to transfer stock ownership
in a transaction consistent with the Statutory Acquisition Restriction and the
Foreign Ownership Restrictions). Further, the Corporation may exercise any and
all appropriate remedies, at law or in equity in any court of competent
jurisdiction, against any holder of its securities or rights with respect
thereto or any Proposed Transferee, with a view towards obtaining the
information set forth in Section C or preventing or curing any situation which
would cause any inconsistency with, or violation of, the Statutory Acquisition
Restriction or the Foreign Ownership Restrictions.
H. Redemption and Exchange. Without limiting the generality of the
foregoing and notwithstanding any other provision of this Certificate of
Incorporation to the
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contrary, any shares held or beneficially owned by a foreign person or a
Contravening Person shall always be subject to redemption or exchange by the
Corporation by action of the Board of Directors, pursuant to Section 151 of the
DGCL or any other applicable provision of law, to the extent necessary in the
judgment of the Board of Directors to comply with the Foreign Ownership
Restrictions. As used in this Certificate of Incorporation, "redemption" and
"exchange" are hereinafter collectively referred to as "redemption", references
to shares being "redeemed" shall be deemed to include shares which are being
"exchanged", and references to "redemption price" shall be deemed to include the
amount and kind of securities for which any such shares are exchanged. The terms
and conditions of such redemption shall be as follows:
(a) the redemption price of the shares to be redeemed
pursuant to this Article ELEVENTH shall be equal to the fair
market value of the shares to be redeemed, as determined by the
Board of Directors in good faith unless the Board determines in
good faith that the holder of such shares knew or should have
known its ownership or beneficial ownership would constitute a
violation of the Foreign Ownership Restrictions, in which case
the redemption price shall be equal to the lower of (i) the fair
market value of the shares to be redeemed and (ii) such foreign
person's or Contravening Person's purchase price for such
shares;
(b) the redemption price of such shares may be paid in
cash, securities or any combination thereof and the value of any
securities constituting all or any part of the redemption price
shall be determined by the Board in good faith;
(c) if less than all the shares held or beneficially
owned by foreign persons are to be redeemed, the shares to be
redeemed shall be selected in any manner determined by the Board
of Directors to be fair and equitable;
(d) at least 30 days' written notice of the redemption
date shall be given to the record holders of the shares selected
to be redeemed (unless waived in writing by any such holder),
provided that the redemption date may be the date on which
written notice shall be given to record holders if the cash or
redemption securities necessary to effect the redemption shall
have been deposited in trust for the benefit of such record
holders and subject to immediate withdrawal by them upon
surrender of the stock certificates for their shares to be
redeemed, duly endorsed in blank or accompanied by duly executed
proper instruments of transfer;
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(e) from and after the redemption date, the shares to be
redeemed shall cease to be regarded as outstanding and any and
all rights attaching to such shares of whatever nature
(including without limitation any rights to vote or participate
in dividends declared on stock of the same class or series as
such shares) shall cease and terminate, and the holders thereof
thenceforth shall be entitled only to receive the cash or
securities payable upon redemption; and
(f) the redemption shall be subject to such other terms
and conditions as the Board of Directors shall determine.
I. Board Action. The Board of Directors shall have the exclusive right
to interpret all issues arising under this Article ELEVENTH (including but not
limited to determining whether a person is a foreign person or a Contravening
Person, whether a person is an Affiliate of another person, whether a person
controls or is controlled by another person and whether a person is the
beneficial owner of the securities of the Corporation) and the determination of
the Board under this Article shall be final and binding. The Bylaws of the
Corporation may make appropriate provisions to effectuate the requirements of
this Article ELEVENTH to the extent set forth herein and the Board may, at any
time and from time to time, adopt such other or additional reasonable procedures
as the Board may deem desirable or necessary to comply with the Statutory
Acquisition Restriction or the Foreign Ownership Restrictions or to carry out
the provisions of this Article ELEVENTH.
J. Certain Definitions. For purposes of this Article ELEVENTH,
"Affiliate" and "Affiliated" shall have the meaning set forth in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended.
"Contravening Person" shall mean (i) a person having a significant
commercial relationship with a Foreign Enrichment Provider with respect to
uranium or uranium products or (ii) a Foreign Competitor.
"Foreign Competitor" shall mean a Foreign Enrichment Provider or a
person Affiliated with a Foreign Enrichment Provider in such a manner as to
warrant application of the Foreign Ownership Restrictions to such person.
"Foreign Enrichment Provider" shall mean any person incorporated,
organized or having its principal place of business outside of the United States
which is in the business of enriching uranium for use by nuclear reactors or any
person incorporated, organized or having its principal place of business outside
of the United States which is in the business of
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creating a fissile product capable of use as a fuel source for nuclear reactors
in lieu of enriched uranium.
"foreign person" shall mean (i) an individual who is not a citizen of
the United States of America; (ii) a partnership in which any general partner is
a foreign person or the partner or partners having a majority interest in
partnership profits are foreign persons; (iii) a foreign government or
representative thereof; (iv) a corporation, partnership, trust, company,
association or other entity organized or incorporated under the laws of a
jurisdiction outside of the United States and (v) a corporation, partnership,
trust, company, association or other entity that is controlled directly or
indirectly by any one or more of the foregoing.
"person" shall include natural persons, corporations, partnerships,
companies, associations, trusts, joint ventures and other entities.
K. Amendment. Any amendment, alteration, change or repeal of this
Article ELEVENTH shall require the affirmative vote of both (a) a majority of
the members of the Board of Directors then in office and (b) the affirmative
vote of holders of at least two-thirds of the voting power of all the shares of
capital stock of the Corporation entitled to vote generally in the election of
directors voting together as a single class.
TWELFTH: The Corporation hereby reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation.
Except as may be provided in a resolution or resolutions providing for any class
or series of Preferred Stock pursuant to Article FOURTH hereof and which relate
to such class or series of Preferred Stock, any such amendment, alteration,
change or repeal shall require the affirmative vote of both (a) a majority of
the members of the Board of Directors then in office and (b) a majority of the
voting power of all of the shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class.
THIRTEENTH: In the event that any of the provisions of this
Certificate of Incorporation (including any provision within a single Section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, the remaining provisions are severable
and shall remain enforceable to the full extent permitted by law.
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I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the DGCL do make this
Certificate, hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto set my hand this
29th day of June, 1998.
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Lynn Buckley
Sole Incorporator
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