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EXHIBIT 3.12
State of Delaware
Secretary of State
Division of Corporations
Delivered 05:21 PM 05/19/2004
FILED 05:21 PM 05/19/2004
SRV 040369464 - 0920662 FILE
CERTIFICATE OF OWNERSHIP AND MERGER
OF
SWEETHEART HOLDINGS INC.
WITH AND INTO
SWEETHEART CUP COMPANY INC.
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Pursuant to Section 253 of the General
Corporation Law of the State of Delaware
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Sweetheart Holdings Inc. ("Parent"), pursuant to Section 253 of the
General Corporation Law of the State of Delaware (the "DGCL"), hereby certifies
as follows:
FIRST: That the name and state of incorporation of each of the
constituent corporations to the merger are as follows:
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NAME STATE OF INCORPORATION
Sweetheart Holdings Inc. Delaware
Sweetheart Cup Company Inc. Delaware
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(Sweetheart Cup Company Inc., a Delaware corporation, is referred to herein as
"Subsidiary".)
SECOND: That Parent owns all of the outstanding shares of the common
stock of Subsidiary, par value $.05 per share, which is the only outstanding
class of capital stock of Subsidiary.
THIRD: That the Board of Directors of Parent, by unanimous written
consent dated May 17, 2004 pursuant to Section 141(f) of the DGCL, duly
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adopted resolutions authorizing the merger of Parent with and into Subsidiary,
which shall be the surviving corporation (the "Surviving Corporation"), pursuant
to Section 253 of the DGCL (the "Merger"). A true copy of such resolutions is
annexed hereto as EXHIBIT A. Such resolutions have not been modified or
rescinded and are in full force and effect on the date hereof.
FOURTH: That the sole stockholder of Parent, in accordance with
Section 228 of the DGCL, has approved the Merger pursuant to Section 253 of the
DGCL.
FIFTH: That the name of Surviving Corporation shall be "Sweetheart
Cup Company Inc."
SIXTH: That the Amended and Restated Certificate of Incorporation
of the Surviving Corporation shall be amended in its entirety to read as set
forth on ANNEX A-1 hereto.
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IN WITNESS WHEREOF, Parent has caused this Certificate of Ownership
and Merger to be executed in its corporate name as of this 17 day of MAY, 2004.
SWEETHEART HOLDINGS INC.
By: /s/ Ronald L. Whaley
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Name: Ronald L. Whaley
Title: President and Chief Operating
Officer
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EXHIBIT A
RESOLVED, that Parent, a Delaware corporation, merge itself (the "Merger")
with and into Sweetheart Cup Company Inc., a Delaware corporation and
wholly-owned subsidiary of Parent ("Subsidiary"), which shall be the
surviving corporation (the "Surviving Corporation"), pursuant to Section
253 of the General Corporation Law of the State of Delaware (the "DGCL");
and
FURTHER RESOLVED, that by virtue of the Merger, each share of Common Stock,
par value $.05 per share, of Subsidiary shall be cancelled and retired and
shall cease to exist and no consideration shall be delivered in exchange
therefor; and
FURTHER RESOLVED, that by virtue of the Merger, each share of Class A
Common Stock, par value $0.01 per share, of Parent ("Class A Shares") and
each share of Class B Common Stock, par value $0.01 per share, of Parent
("Class B Shares" and, together with Class A Shares, "Shares") held in
treasury by Parent shall be cancelled and retired and shall cease to exist
and no consideration shall be delivered in exchange therefor; and
FURTHER RESOLVED, that by virtue of the Merger, each issued and outstanding
Share shall be converted into and become 1/54,392 of a fully paid and
nonassessable share of common stock of the Surviving Corporation; and
FURTHER RESOLVED, that the Amended and Restated Certificate of
Incorporation of the Surviving Corporation shall be amended in its entirety
to read as set forth on Annex A-1 hereto; and
FURTHER RESOLVED, that the By-Laws of Parent shall be the By-Laws of the
Surviving Corporation; and
FURTHER RESOLVED, that the directors of Subsidiary immediately prior to the
Merger shall be the directors of the Surviving Corporation, and the
officers of Subsidiary immediately prior to the Merger shall be the
officers of the Surviving Corporation, in each case until their respective
successors shall have been duly elected, designated or qualified, or until
their earlier death, resignation or removal in accordance with the
Surviving Corporation's Certificate of Incorporation and By-Laws; and
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FURTHER RESOLVED, that the President or any Vice President of Parent,
acting individually, and the Secretary of Parent be, and each of them
hereby is, authorized and directed to execute and acknowledge in the name
of and on behalf of Parent a Certificate of Ownership and Merger setting
forth, among other things, a copy of these resolutions and the date of
their adoption; and that such officers are hereby authorized and directed
to cause such executed Certificate of Ownership and Merger to be filed in
the Office of the Secretary of State of the State of Delaware and to cause
a certified copy of such Certificate to be recorded in the Office of the
Recorder of Deeds of New Castle County, all in accordance with Sections 103
and 253 of the DGCL; and
FURTHER RESOLVED, that the appropriate officers of Parent be, and each of
them hereby is, authorized and directed to take or cause to be taken all
such further actions and to execute and deliver or cause to be delivered
all such further instruments and documents in the name and on behalf of
Parent, and to incur all such fees and expenses as in their judgment shall
be necessary or advisable in order to carry out fully the intent and
purposes of the foregoing resolutions; and
FURTHER RESOLVED, that all actions previously taken by the officers and
directors of Parent in connection with the transactions contemplated by
these resolutions are hereby adopted, ratified, confirmed and approved in
all respects.
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ANNEX A-1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SWEETHEART CUP COMPANY INC.
FIRST: The name of the Corporation is Sweetheart Cup Company Inc.
(hereinafter the "CORPORATION").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle. The name of its registered agent at that
address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL").
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 1,000 shares of Common Stock, each having a par
value of one penny ($.01).
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as from time
to time fixed by, or in the manner provided in, the By-Laws of the Corporation.
Election of directors need not be by written ballot unless the By-Laws so
provide.
(4) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (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
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misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
GCL or (iv) for any transaction from which the director derived an improper
personal benefit. Any repeal or modification of this Article FIFTH 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 with respect to acts or omissions occurring prior to such repeal
or modification.
(5) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions of the GCL, this
Amended and Restated Certificate of Incorporation, and any By-Laws adopted by
the stockholders; provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which would have
been valid if such By-Laws had not been adopted.
SIXTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
SEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.