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KELLOGG COMPANY
AMENDED RESTATED
CERTIFICATE OF
INCORPORATION
(WITH ALL AMENDMENTS THROUGH APRIL 21, 1995)
FIRST
The name of this corporation is KELLOGG COMPANY.
SECOND
Its registered office, in the State of Delaware, is located at No. 100 West
Tenth Street, in the City of Wilmington, County of New Castle. The name and
address of its registered agent is The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware.
THIRD
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be now or hereafter organized under the General
Corporation Law of Delaware.
FOURTH
The total number of shares of capital stock which this Corporation shall have
authority to issue is 330,000,000 shares of common stock of the par value of
$0.25 per share. Each share of common stock, $0.25 par value per share, of
this Corporation, issued and held of record at the close of business on
December 4, 1991, including shares held by this Corporation as treasury shares,
shall automatically be converted at such time into two validly issued, fully
paid and nonassessable shares of common stock, $0.25 par value per share. A
statement of the designations, dividend rights, voting powers, preferences and
rights, and the qualifications, limitations or restrictions thereof, of the
shares of stock which the corporation shall be authorized to issue, is as
follows:
COMMON STOCK
1. DIVIDENDS.
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Dividends may be paid upon the common stock as and when declared by the Board
of Directors out of funds legally available for the payment of dividends.
2. VOTING POWERS.
The holders of the common stock shall have the exclusive right to vote for
the election of Directors and for all other purposes, each holder of common
stock being entitled to one vote for each share thereof held.
3. PREEMPTIVE RIGHTS.
No holder of stock of the Corporation shall have any preemptive right to
subscribe for, purchase, or otherwise acquire shares of stock of the
Corporation of any class, whether now or hereafter authorized, nor shall any
holder of stock of the Corporation have any preemptive right to subscribe for,
purchase, or otherwise acquire bonds, notes or other securities, whether or not
convertible, into shares of stock of the Corporation of any class; and the
Board of Directors may, from time-to-time, and at any time, cause shares of
stock of the Corporation of any class to be issued, sold or otherwise disposed
of at such price or prices and upon such terms as the Board of Directors may
determine.
4. LIQUIDATION RIGHTS.
Upon dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, the net assets of the Corporation shall be
distributed ratably to the holders of the common stock.
5. LIABILITY TO FURTHER CALL OR ASSESSMENT.
The stock heretofore issued shall be fully paid and nonassessable.
6. FRACTIONAL SHARES.
No fractional shares of any class of stock shall be issued.
FIFTH
The number of shares with which this Corporation will commence business is
ten (10) shares of common stock, which shares are without nominal or par value.
SIXTH
This Corporation is to have perpetual existence.
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SEVENTH
The private property of the stockholders shall not be subject to the payment
of corporate debts to any extent whatever.
EIGHTH
The Corporation may, in its Bylaws, confer powers upon its Directors in
addition to the powers and authorities expressly conferred upon them by
statute.
NINTH
This Restated Certificate of Incorporation, as amended, shall be subject to
alteration, amendment or repeal, and new provisions thereof may be adopted by
the affirmative vote of the holders of not less than a majority of the
outstanding shares of capital stock entitled to vote generally in the election
of Directors (such outstanding shares hereinafter referred to collectively as
the "Voting Stock"), voting together as a single class, at any regular or
special meeting of the stockholders (but only if notice of the proposed change
be contained in the notice to the stockholders of the proposed meeting).
Notwithstanding the foregoing and in addition to any other requirements of
applicable law, the alteration, amendment or repeal of, or the adoption of any
provision inconsistent with, this Article NINTH or Article TENTH, ELEVENTH or
TWELFTH of this Restated Certificate of Incorporation, as amended, shall
require the affirmative vote of the holders of not less than two-thirds of the
voting power of all shares of the Voting Stock, voting together as a single
class, at any regular or special meeting of the stockholders.
The Bylaws of this Corporation shall be subject to alteration, amendment or
repeal, and new bylaws may be adopted (i) by the affirmative vote of the
holders of not less than a majority of the voting power of all shares of the
Voting Stock, voting together as a single class, at any regular or special
meeting of the stockholders (but only if notice of the proposed change be
contained in the notice to the stockholders of the proposed meeting), or (ii)
by the affirmative vote of not less than a majority of the members of the Board
of Directors at any meeting of the Board of Directors at which there is a
quorum present and voting; provided, that any alteration, amendment or repeal,
or the adoption of any provision inconsistent with Article II, Section 2 or
Section 6, or Article III, Section 1, Section 2 or Section 5, or Article XIV,
Section 1 of the Bylaws, shall require, in the case of clause (i), the
affirmative vote of the holders of not less than two-thirds of the voting power
of all shares of the Voting Stock, voting together as a single class, at any
regular or special meeting of the stockholders, or, in the case of clause (ii),
the affirmative vote of such number of Directors constituting not less than
two-
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thirds of the total number of directorships fixed by a resolution adopted by
the Board of Directors pursuant to Article TENTH of this Restated Certificate
of Incorporation, as amended, whether or not such directorships are filled at
the time (such total number of directorships hereinafter referred to as the
"Full Board").
TENTH
The number of Directors of this Corporation shall be not less than twelve
(12) nor more than eighteen (18). The exact number of Directors within such
limitations shall be fixed from time-to-time by a resolution adopted by not
less than two-thirds of the Full Board (as defined in Article NINTH). At the
1986 Annual Meeting of Stockholders, the Directors shall be divided into three
classes, as nearly equal in number as possible, with the term of office of the
first class to expire at the 1987 Annual Meeting of Stockholders, the term of
office of the second class to expire at the 1988 Annual Meeting of
Stockholders, and the term of office of the third class to expire at the 1989
Annual Meeting of Stockholders. At each Annual Meeting of Stockholders
following such initial classification and election, the class of Directors
whose terms of office shall expire at such time shall be elected to hold office
for terms expiring at the third succeeding Annual Meeting of Stockholders
following their election. Each Director shall hold office until his successor
shall be elected and shall qualify.
Subject to the rights of the holders of any particular class or series of
equity securities of this Corporation, (i) newly created directorships
resulting from any increase in the total number of authorized Directors may be
filled by the affirmative vote of not less than two-thirds of the Directors
then in office, although less than a quorum, or by a sole remaining Director,
at any regular or special meeting of the Board of Directors, or by the
stockholders, in accordance with the Bylaws, and (ii) any vacancies on the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled only by the
affirmative vote of not less than two-thirds of the Directors then in office,
although less than a quorum, or by a sole remaining Director, at any regular or
special meeting of the Board of Directors. Any Director so chosen shall hold
office for a term expiring at the Annual Meeting of Stockholders at which the
term of office of the class of Directors to which he or she has been elected
expires. No decrease in the total number of authorized Directors constituting
the Board of Directors shall shorten the term of office of any incumbent
Director.
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Subject to the rights of the holders of any particular class or series of
equity securities of this Corporation, any Director may be removed only for
cause and only by the affirmative vote of the holders of not less than
two-thirds of the voting power of all shares of Voting Stock, voting together
as a single class, at any regular or special meeting of the stockholders,
subject to any requirement for a larger vote contained in any applicable law,
this Corporation's Restated Certificate of Incorporation, as amended, or the
Bylaws.
ELEVENTH
Any action required or permitted to be taken by the stockholders of this
Corporation may be effected solely at an Annual or Special Meeting of
Stockholders duly called and held in accordance with law and this Corporation's
Restated Certificate of Incorporation, as amended, and may not be effected by
any consent in writing by such stockholders or any of them.
TWELFTH
Except as otherwise expressly provided in the immediately following paragraph:
(a) any merger or consolidation of this Corporation with or into any other
corporation other than a Subsidiary (as hereinafter defined); or
(b) any sale, lease, exchange or other disposition by this Corporation or
any Subsidiary of assets constituting all or substantially all of the
assets of this Corporation and its Subsidiaries taken as a whole, to
or with, any other person or entity in a single transaction or series
of related transactions; or
(c) any liquidation or dissolution of this Corporation;
shall require, in addition to any vote required by law or otherwise, the
affirmative approval of holders of not less than two-thirds of the voting power
of the Voting Stock.
The provisions of this Article TWELFTH shall not apply to any transaction
described in the immediately preceding paragraph if such transaction is
approved by a majority of the Continuing Directors (as hereinafter defined).
For purposes of this Article TWELFTH, (a) the term "Subsidiary" means any
corporation of which a majority of each class of equity security is
beneficially owned, directly or indirectly, by this Corporation; (b) the term
"Affiliate'', as used to indicate a relationship to a specified person, shall
mean a person who, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such specified
person, except
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that, notwithstanding the foregoing, a Director of this Corporation shall not
be deemed to be an Affiliate of a specified person if such Director, in the
absence of being a stockholder, Director or officer of this Corporation, or a
Director or officer of any Subsidiary, would not be an Affiliate of such
specified person; (c) the term "Associate", as used to indicate a relationship
with a specified person, shall mean (i) any corporation, partnership or other
organization of which such specified person is an officer or partner, or
beneficially owns, directly or indirectly, ten percent or more of any class of
equity securities; (ii) any trust or other estate in which such specified
person has a substantial beneficial interest, or as to which such specified
person serves as trustee or in a similar fiduciary duty; (iii) any relative or
spouse of such specified person, or any relative of such spouse who has the
same home as such specified person; and (iv) any person who is a Director or
officer of such specified person or any of its Affiliates, except that
notwithstanding clauses (i), (ii), (iii) and (iv) above, a Director of this
Corporation shall not be deemed to be an Associate of a specified person if
such Director, in the absence of being a stockholder, Director or officer of
this Corporation, or a Director or officer of any Subsidiary, would not be an
Associate of such specified person; (d) the term "Transacting Entity" shall
mean (i) a corporation with which this Corporation merges or consolidates in a
transaction described in clause (a) of the first paragraph of this Article
TWELFTH; (ii) a person or entity to which this Corporation sells, leases,
exchanges or otherwise disposes of assets in a transaction described in clause
(b) of the first paragraph of this Article TWELFTH; or (iii) a person, other
than the Chief Executive Officer of this Corporation, or entity, who shall
propose a liquidation or dissolution described in clause (c) of the first
paragraph of this Article TWELFTH; and (e) the term "Continuing Director" shall
mean a Director who is neither an Affiliate nor an Associate of the Transacting
Entity, provided that if there be no Transacting Entity, each Director is a
Continuing Director.
THIRTEENTH
SECTION 1.
No person who is or was at any time a Director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director; provided, however, that unless and
except to the extent otherwise permitted from time-to-time by applicable law,
the provisions of this Article 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 General Corporation Law of Delaware, (iv) for any
transaction from which the Director derived an improper personal benefit, or
(v) for any act or omission occurring prior to the date this Article becomes
effective.
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Any repeal or modification of the foregoing paragraph by the stockholders of
the Corporation shall not adversely affect any right or protection of a
Director of the Corporation existing at the time of such repeal or
modification.
SECTION 2.
(a). Right to Indemnification.
Each person who was or is made a party, or is threatened to be made a party
to, or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "Proceeding"), by
reason of the fact that he or she is or was a Director or officer of the
Corporation, where the basis of such Proceeding is an alleged action or
omission in an official capacity as such, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to amendment) against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes, or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith, and such indemnification
shall continue as to an indemnitee who has ceased to be a Director or officer,
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however. that except as provided in paragraph (b)
hereof with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a Proceeding
(or part thereof) initiated by such indemnitee only if such Proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The
right to indemnification conferred in this section shall be a contract right
and shall include the right to be paid by the Corporation the expenses incurred
in defending any such Proceeding in advance of its final disposition
(hereinafter an "Advancement of Expenses"); provided, however, that if the
Delaware General Corporation Law requires, an Advancement of Expenses incurred
by an indemnitee in his or her capacity as a Director or officer shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision, from which there is no further right to
appeal, that such indemnitee is not entitled to be indemnified for such
expenses under this section or otherwise (hereinafter an "Undertaking").
(b). Right of Indemnitee to Bring Suit.
If a claim under paragraph (a) of this section is not paid in full by the
Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an Advancement of Expenses, in
which case the applicable period shall be twenty days, the indemnitee
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may, at any time thereafter, bring suit against the Corporation to recover the
unpaid amount of the claim. If successful, in whole or in part, in any suit,
or in a suit brought by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In (i), any suit
brought by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an Advancement of
Expenses), it shall be a defense that, and (ii) any suit by the Corporation to
recover an Advancement of Expenses pursuant to the terms of an Undertaking, the
Corporation shall be entitled to recover such expenses upon a final
adjudication that the indemnitee has not met the applicable standard of conduct
set forth in the Delaware General Corporation Law. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct, or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right hereunder, or by the Corporation to recover an Advancement
of Expenses pursuant to the terms of an Undertaking, the burden of proving that
the indemnitee is not entitled to be indemnified or to such Advancement of
Expenses under this section or otherwise, shall be on the Corporation.
(c). Non-Exclusivity of Rights.
The rights to indemnification and to the Advancement of Expenses conferred in
this section shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, this Certificate of Incorporation,
bylaw agreement, vote of stockholders or disinterested Directors, or otherwise.
(d). Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and
any Director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
(e). Other Indemnification.
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The Corporation may, to the extent authorized from time-to-time by the Board
of Directors, grant rights to indemnification and to the Advancement of
Expenses to any Director, officer, employee or agent of the Corporation,
whether or not acting in his or her capacity as such, or at the request of the
Corporation, to the fullest extent of the provisions of this section with
respect to the indemnification and Advancement of Expenses of Directors and
officers of the Corporation.
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CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Kellogg Company, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the corporation at a meeting
duly held October 21, 1994 adopted a resolution proposing and declaring the
amendment set forth below to the Corporation's Amended and Restated Certificate
of Incorporation to be advisable and calling for submission thereof to the
stockholders of the corporation at its next Annual Meeting. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, That the Amended and Restated Certificate of
Incorporation of this Corporation be amended by changing the first
paragraph of Article TENTH thereof so that, as amended, said Article
shall be and read as follows:
TENTH
The number of Directors of this Corporation shall be
not less than seven (7) nor more than fifteen (15). The exact
number of Directors within such limitations shall be fixed
from time-to-time by a resolution adopted by not less than
two-thirds of the Full Board (as defined in Article NINTH).
The Directors shall be divided into three classes, as nearly
equal in number as possible, with a term of office of three
years, one class to expire each year. At each Annual Meeting
of Stockholders, the class of Directors whose terms of office
shall expire at such time shall be elected to hold office for
terms expiring at the third succeeding Annual Meeting of
Stockholders following their election. Each Director shall
hold office until his successor shall be elected and shall
qualify.
SECOND: That thereafter, at the Annual Meeting held April 21, 1995,
the necessary number of shares as required by the Certificate of Incorporation
and applicable bylaw were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 222 and 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Kellogg Company has caused this certificate
to be signed by Richard M. Clark, its Senior Vice President, General Counsel
and Secretary, this 8th day of May, 1995.
Kellogg Company
By /s/ Richard M. Clark
--------------------------
Richard M. Clark
Senior Vice President,
Attest: General Counsel and Secretary
/s/ Edward J. Gildea
-----------------------------------
Edward J. Gildea
Assistant Secretary
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