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EXHIBIT 3.01
KELLOGG COMPANY
AMENDED RESTATED
CERTIFICATE OF
INCORPORATION
(WITH ALL AMENDMENTS THROUGH APRIL 19, 1996)
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 500,000,000 shares of common stock of the par value
of $0.25 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:
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COMMON STOCK
1. DIVIDENDS.
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.
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SIXTH
This Corporation is to have perpetual existence.
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
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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-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 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). 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
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authorized Directors constituting the Board of Directors shall shorten the term
of office of any incumbent Director.
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
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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
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
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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.
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
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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 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.
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(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.
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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