KELLOGG COMPANY

                                AMENDED RESTATED

                                 CERTIFICATE OF

                                  INCORPORATION

                  (WITH ALL AMENDMENTS THROUGH APRIL 28, 2000)

 

 

 

                                      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 1,000,000,000 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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<PAGE>   3

 

                                      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 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

 

 

 

 

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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). 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.

 

         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.

 

         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.

 

 

 

 

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<PAGE>   5

 

 

                                    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 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

 

 

 

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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.

 

         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

 

 

 

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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 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

 

 

 

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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.

 

         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.

 

 

[As Filed: 03-05-2001]