<Page>
EXHIBIT 3.3
Form BCA-10.30 ARTICLES OF AMENDMENT
(Rev. Jan. 1991) File # 5350-363-2
George H. Ryan FILED SUBMIT IN DUPLICATE
Secretary of State
Department of Business DEC 12 1991 THIS SPACE FOR USE BY
Services SECRETARY OF STATE
Springfield, IL 62756
Telephone (217) 782-6961
GEORGE H. RYAN Date 12/12/91
SECRETARY OF STATE
Remit payment in check Franchise Tax $
or money order, payable to Filing Fee $100.00
"Secretary of State" PAID Penalty $
DEC 16 1991 Approved:
1. CORPORATE NAME: Solo Cup Company (f/k/a LJR Realty Company)
2. MANNER OF ADOPTION:
The following amendment of the Articles of Incorporation was adopted on
as of October 30, 1991, 1991 in the manner indicated below. ("X" one box
only)
/ / By a majority of the incorporators, provided no directors were names
in the articles of Incorporation and no directors have been elected;
or by a majority of the board of directors, in accordance with Section
10.10, the corporation having issued no shares as of the time of
adoption of this amendment;
(Note 2)
/X/ By a majority of the board of directors, in accordance with Section
10.15, shares having been issued by shareholder action not being
required for the adoption of the amendment;
(Note 3)
/ / By the shareholders, in accordance with Section 10.20, a resolution
of the board of directors having been duly adopted and submitted to
the shareholders. At a meeting of shareholders, not less than the
minimum number of votes required by statute and by the articles of
incorporation were voted in favor of the amendment;
(Note 4)
/ / By the shareholders, in accordance with Section 10.20 and 7.10, a
resolution of the board of directors having been duly adopted and
submitted to the shareholders. A consent in writing has been signed by
shareholders having not less than the minimum number of votes required
by statute and by the articles of incorporation. Shareholders who have
not consented in writing have been given notice in accordance with
Section 7.10;
(Note 4)
/ / By the shareholders, in accordance with Section 10.20 and 7.10, a
resolution of the board of directors having been duly adopted and
submitted to the shareholders. A consent in writing has been signed by
all the shareholders entitled to vote on this amendment.
(Note 4)
(INSERT AMENDMENT)
(ANY ARTICLE BEING AMENDED IS REQUIRED TO BE SET FORTH IN ITS ENTIRETY.)
(SUGGESTED LANGUAGE FOR AN AMENDMENT TO CHANGE THE CORPORATE NAME IS RESOLVED,
THAT THE ARTICLES OF INCORPORATION BE AMENDED TO READ AS FOLLOWS:)
- --------------------------------------------------------------------------------
(NEW NAME)
SEE ATTACHMENT A, ATTACHED HERETO AND MADE A PART HEREOF
All changes other than name, include on page 2
(over)
<Page>
3. The manner in which any exchange, reclassification or cancellation of
issued shares, or a reduction of the number of authorized shares of any
class below the number of issued shares of that class, provided for or
effected by this amendment, is as follows: (IF NOT APPLICABLE, INSERT "NO
CHANGE")
No Change
4. (a) The manner in which said amendment effects a change in the amount of
paid-in capital (Paid-in capital replaces the terms State Capital and
Paid-in Surplus and is equal to the total of these accounts) is as follows:
(IF NOT APPLICABLE, INSERT "NO CHANGE")
No Change
(b) The amount of Paid-in capital (Paid-in capital replaces the terms
Stated Capital and Paid-in Surplus and is equal to the total of these
accounts) as changed by this amendment is as follows: (IF NOT APPLICABLE,
INSERT "NO CHANGE")
No Change
<Table>
<Caption>
Before Amendment After Amendment
Paid-in Capital $_____________ $____________
</Table>
(COMPLETE EITHER ITEM 5 OR 6 BELOW)
5. The undersigned corporation has caused this statement to be signed by its
duly authorized officers, each of whom affirms, under penalties of perjury
that the facts stated herein are true.
DATED OCTOBER 30 , 1991 /s/ RONALD L. WHALEY
----------------- -------- ------------------------------------
/s/ E. LEO CARTER (EXACT NAME OF CORPORATION)
ATTESTED BY E. LEO CARTER, SECRETARY BY RONALD L. WHALEY, VICE PRESIDENT
------------------------------ --------------------------------
(SIGNATURE OF SECRETARY OR (SIGNATURE OF PRESIDENT
ASSISTANT SECRETARY) OR VICE PRESIDENT)
------------------------------ ------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
6. If amendment is authorized by the Incorporators, the incorporators must
sign below.
OR
If amendment is authorized by the directors and there are no officers, then
a majority of the directors of such directors as may be designated by the
board, must sign below.
The undersigned affirms, under the penalties of perjury, that the facts
stated herein are true.
DATED _________________ , 19 __
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
<Page>
ATTACHMENT A
RESOLVED, that the Articles of Incorporation of the Corporation be amended
(in Article Five, Paragraph 1) and restated in their entirety to read as
follows:
ARTICLE ONE: The name of the Corporation is Solo Cup Company. The
Corporation was incorporated on June 21, 1984 under the name LJR Realty Company
and its Articles of Incorporation were amended effective March 31, 1991 to
change its name to Solo Cup Company.
ARTICLE TWO: The name and address of the registered agent and registered
office as of the date of filing these Restated Articles of Incorporation are:
Shayle P. Fox
233 South Wacker Drive
Suite 7818
Chicago, Cook County, Illinois 60606
ARTICLE THREE: The duration of the Corporation is perpetual.
ARTICLE FOUR: The purposes for which the Corporation is organized are: to
engage in the ownership, purchase, sale and leasing of real estate, to do each
and every act necessary to fulfill such purposes, and to engage in the
transaction of any or all lawful business for which corporations may be
incorporated under the Business Corporation Act.
ARTICLE FIVE: Paragraph 1: The number of authorized shares shall be
amended to be as follows:
<Table>
<Caption>
NUMBER OF SHARES
CLASS PAR VALUE AUTHORIZED
----- --------- ----------
Class A Nonvoting Common Shares $ .01 12,000,000
Class B Voting Common Shares $ .01 100,000
</Table>
Paragraph 2: The preferences, qualifications, limitations, restrictions and
the special or relative rights in respect of each class are:
(a) The Class A Nonvoting Common shares and Class B Voting Common Shares
(collectively, the "Common Shares") shall participate share and share alike in
all dividends and distributions of assets upon liquidation or otherwise and
shall be identical in all other respects, except that the holders of the Class A
Nonvoting Common Shares shall have no voting power for any purpose whatsoever
(and no holder thereof shall be entitled to receive any notice of any meeting of
shareholders), save as otherwise provided by law, and the holders of the Class B
Voting Common Shares of the Corporation shall have full voting power for all
purposes, save as otherwise required by law. In case of any split-up or reverse
split of Common Shares, the number of Class A Nonvoting Common
<Page>
Shares and the number of Class B Voting Common Shares shall be increased or
decreased, as the case may be, in the same proportion, share and share alike.
ARTICLE SIX: The number of shares of each class issued on the date of
filing these Restated Articles of Incorporation is as follows:
<Table>
Class A Nonvoting Common 9,942,526
Class B Voting Common 57,474
</Table>
ARTICLE SEVEN: The paid-in capital of the Corporation as of the date of the
filing these Restated Articles of Incorporation is $132,165,279.
<Page>
Form BCA-10.30 ARTICLES OF AMENDMENT
(Rev. Jan. 1991) File # D5350-363-2
George H. Ryan FILED SUBMIT IN DUPLICATE
Secretary of State
Department of Business DEC 21 1991 THIS SPACE FOR USE BY
Services SECRETARY OF STATE
Springfield, IL 62756
Telephone (217) 782-6961
GEORGE H. RYAN Date 12/24/91
SECRETARY OF STATE
Remit payment in check Franchise Tax $
or money order, payable to Filing Fee $25
"Secretary of State" PAID Penalty $
DEC 30 1991 Approved:
1. CORPORATE NAME: Solo Cup Company (f/k/a LJR Realty Company)
2. MANNER OF ADOPTION:
The following amendment of the Articles of Incorporation was adopted on
as of December, 1991 in the manner indicated below. ("X" one box only)
/ / By a majority of the incorporators, provided no directors were named
in the articles of incorporation and no directors have been elected;
or by a majority of the board of directors, in accordance with Section
10.10, the corporation having issued no shares as of the time of
adoption of this amendment;
(Note 2)
/ / By a majority of the board of directors, in accordance with Section
10.15, shares having been issued by shareholder action not being
required for the adoption of the amendment;
(Note 3)
/X/ By the shareholders, in accordance with Section 10.20, a resolution
of the board of directors having been duly adopted and submitted to
the shareholders. At a meeting of shareholders, not less than the
minimum number of votes required by statute and by the articles of
incorporation were voted in favor of the amendment;
(Note 4)
/ / By the shareholders, in accordance with Section 10.20 and 7.10, a
resolution of the board of directors having been duly adopted and
submitted to the shareholders. A consent in writing has been signed by
shareholders having not less than the minimum number of votes required
by statute and by the articles of incorporation. Shareholders who have
not consented in writing have been given notice in accordance with
Section 7.10;
(Note 4)
/ / By the shareholders, in accordance with Section 10.20 and 7.10, a
resolution of the board of directors having been duly adopted and
submitted to the shareholders. A consent in writing has been signed by
all the shareholders entitled to vote on this amendment.
(Note 4)
(INSERT AMENDMENT)
(ANY ARTICLE BEING AMENDED IS REQUIRED TO BE SET FORTH IN ITS ENTIRETY.)
(SUGGESTED LANGUAGE FOR AN AMENDMENT TO CHANGE THE CORPORATE NAME IS RESOLVED,
THAT THE ARTICLES OF INCORPORATION BE AMENDED TO READ AS FOLLOWS:)
No change
- --------------------------------------------------------------------------------
(NEW NAME)
SEE ATTACHED A, ATTACHED HERETO AND MADE A PART HEREOF
All changes other than name, include on page 2
(over)
<Page>
3. The manner in which any exchange, reclassification or cancellation of
issued shares, or a reduction of the number of authorized shares of any
class below the number of issued shares of that class, provided for or
effected by this amendment, is as follows: (IF NOT APPLICABLE, INSERT "NO
CHANGE")
No change
4. (a) The manner in which said amendment effects a change in the amount of
paid-in capital (Paid-in capital replaces the terms Stated Capital and
Paid-in Surplus and is equal to the total of these accounts) is as follows:
(IF NOT APPLICABLE, INSERT "NO CHANGE")
No change
(b) The amount of Paid-in capital (Paid-in capital replaces the terms
Stated Capital and Paid-in Surplus and is equal to the total of these
accounts) as changed by this amendment is as follows: (IF NOT APPLICABLE,
INSERT "NO CHANGE")
No change
<Table>
<Caption>
Before Amendment After Amendment
Paid-in Capital $___________ $__________
</Table>
(COMPLETE EITHER ITEM 5 OR 6 BELOW)
5. The undersigned corporation has caused this statement to be signed by its
duly authorized officers, each of whom affirms, under penalties of perjury
that the facts stated herein are true.
DATED DECEMBER 20 , 1991 SOLO CUP COMPANY
--------------------- ----- -----------------------------------
(EXACT NAME OF CORPORATION)
ATTESTED BY /s/ E. LEO CARTER BY /s/ RONALD L. WHALEY
------------------------------ --------------------------------
(SIGNATURE OF SECRETARY OR (SIGNATURE OF PRESIDENT OR
ASSISTANT SECRETARY) VICE PRESIDENT)
E. LEO CARTER, SECRETARY RONALD L. WHALEY, VICE PRESIDENT
------------------------------ -----------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
6. If amendment is authorized by the incorporators, the incorporators must
sign below.
OR
If amendment is authorized by the directors and there are no officers, then
a majority of the directors or such directors as may be designated by the
board, must sign below.
The undersigned affirms, under the penalties of perjury, that the facts
stated herein are true.
DATED ______________ , 19 __
____________________________________ ________________________________________
____________________________________ ________________________________________
____________________________________ ________________________________________
____________________________________ ________________________________________
<Page>
ATTACHMENT A
RESOLVED, that the Article Five of the Articles of Incorporation be amended
in its entirety to read as follows:
ARTICLE FIVE: Paragraph 1: The number of authorized shares shall be
amended to be as follows:
<Table>
<Caption>
NUMBER OF SHARES
CLASS PAR VALUE AUTHORIZED
----- --------- ----------
Class A Nonvoting Common Shares $ .01 10,000,000
Class B Voting Common Shares $ .01 100,000
</Table>
Paragraph 2: The preferences, qualifications, limitations, restrictions and
the special or relative rights in respect of each class are:
(a) The Class A Nonvoting Common shares and Class B Voting Common Shares
(collectively, the "Common Shares") shall participate share and share alike in
all dividends and distributions of assets upon liquidation or otherwise and
shall be identical in all other respects, except that the holders of the Class A
Nonvoting Common Shares shall have no voting power for any purpose whatsoever
(and no holder thereof shall be entitled to receive any notice of any meeting of
shareholders), save as otherwise provided by law, and the holders of the Class B
Voting Common Shares of the Corporation shall have full voting power for all
purposes, save as otherwise required by law. In case of any split-up or reverse
split of Common Shares, the number of Class A Nonvoting Common Shares and the
number of Class B Voting Common Shares shall be increased or decreased, as the
case may be, in the same proportion, share and share alike.
PREPARED BY AND AFTER
RECORDING RETURN TO:
Robert M. Mintz
Fox and Grove, Chartered
Sears Tower - Suite 7818
233 South Wacker Drive
Chicago, Illinois 60606-6404
(312) 876-0500
<Page>
Form BCA-11.25
ARTICLES OF MERGER
(Rev. Jan. 1995) CONSOLIDATION OR EXCHANGE File # D5350-363-2
George H. Ryan eff 12/31/98
Secretary of State
Department of Business FILED THIS SPACE FOR USE BY
Services SECRETARY OF STATE
Springfield, IL 62756
Telephone (217) 782-6961 DEC 30 1998
http://www.sos.state.Il.us Date 12/30/98
DO NOT SEND CASH! GEORGE H. RYAN Filing Fee $150
Remit payment in check or SECRETARY OF STATE
money order, payable to Approved: RD
"Secretary of State."
Filing Fee is $100, but
if merger or consolidation PAID
of more than 2 corporations,
$50 each additional
corporation. JAN 05 1999
1. Names of corporations proposing to merge, and the state or country of their
incorporation:
<Table>
<Caption>
State or Country of Illinois Secretary of State File
Names of Corporation Incorporation Number
Solo Cup Company Illinois D5350-363-2
Atlas Enterprises, Inc. Illinois D4727-907-1
Quality Inks, Inc. Illinois D5212-788-2
__________________________ ______________________ _________________________________
</Table>
2. The laws of the state or country under which each corporation is
incorporated permit such merger, consolidation or exchange.
3. a. Name of the surviving corporation: Solo Cup Company
b. It shall be governed by the laws of: Illinois
4. Plan of merger is as follows: See Exhibit A Attached Hereto and Made a Part
Hereof
If not sufficient space to cover this point, add one or more
sheets of this size.
EXPEDITED
DEC 30 1998
SECRETARY OF STATE
<Page>
5. Plan of merger was approved, as to each corporation not organized in
Illinois, in compliance with the laws of the state under which it is
organized, and (b) as to each Illinois corporation, as follows:
(The following items are not applicable to mergers under Section 11.30 -90%
owned subsidiary provisions. See Article 7.)
(Only "X" one box for each Illinois corporation)
<Table>
<Caption>
By the shareholders, a
resolution of the board
directors having been By written consent of the
duly adopted and shareholders having not
submitted to a vote at a less than the minimum
meeting of shareholders. number of votes required
Not less than the by statute and by the
minimum number of articles of incorporation. By written consent
votes required by statute Shareholders who have of ALL the
and by the articles of not consented in writing shareholders entitled
incorporation voted in have been given notice in to vote on the action
favor of the action taken accordance with Section 7.10 in accordance with
Name of Corporation (Section 11.20) (Section 11.220) Section 7.10 and Section 11.20
- ------------------- ------------------------- ---------------------------- ------------------------------
Solo Cup Company / / / / /X/
Atlas Enterprises, Inc. / / / / /X/
Quality Inks, Inc. / / / / /X/
________________________ / / / / / /
________________________ / / / / / /
</Table>
6. (NOT APPLICABLE IF SURVIVING, NEW OR ACQUIRING CORPORATION IS AN ILLINOIS
CORPORATION)
It is agreed that, upon and after the issuance of a certificate of merger,
consolidation or exchange by the Secretary of State of the State of
Illinois:
a. The surviving, new or acquiring corporation may be served with process
in the State of Illinois in any proceeding for the enforcement of any
obligation of any corporation organized under the laws of the State of
Illinois which is a party to the merger, consolidation or exchange and
in any proceeding for the enforcement of the rights of the dissenting
shareholder of any such corporation organized under the laws of the
State of Illinois against the surviving, new or acquiring corporation.
b. The Secretary of State of the State of Illinois shall be and hereby is
irrevocably appointed as the agent of the surviving, new or acquiring
corporation to accept service of process in any such proceedings, and
c. The surviving, new, or acquiring corporation will promptly pay to the
dissenting shareholders of any corporation organized under the laws of
the State of Illinois which is a party to the merger, consolidation or
exchange the amount, if any, to which they shall be entitled under the
provisions of "The Business Corporation Act of 1983" of the State of
Illinois with respect to the rights of dissenting shareholders.
<Page>
7. (COMPLETE THIS ITEM IF REPORTING A MERGER UNDER SECTION 11.30 - 90% OWNED
SUBSIDIARY PROVISIONS.)
a. The number of outstanding shares of each class of each merging
subsidiary corporation and the number of such shares of each class
owned immediately prior to the adoption of the plan of merger by the
parent corporation, are:
<Table>
<Caption>
Number of Shares of Each Class
Total Number of Shares Owned immediately Prior to
Name of Corporation Outstanding of Each Class Merger by the Parent Corporation
____________________________ _____________________________ _________________________________
NOT APPLICABLE _____________________________ _________________________________
____________________________ _____________________________ _________________________________
____________________________ _____________________________ _________________________________
</Table>
b. (Not applicable to 100% owned subsidiaries)
The date of mailing a copy of the plan of merger and notice of the
right to dissent to the shareholders of each merging subsidiary
corporation was _____________, 19____.
Was written consent for the merger or written waiver of the 30-day
period by the holders of all outstanding shares of all subsidiary
corporations received? / / Yes / / No
(IF THE ANSWER IS "NO," THE DUPLICATE COPIES OF THE ARTICLES OF MERGER
MAY NOT BE DELIVERED TO THE SECRETARY OF STATE UNTIL AFTER 30 DAYS
FOLLOWING THE MAILING OF A COPY OF THE PLAN OF MERGER AND OF THE
NOTICE OF THE RIGHT TO DISSENT TO THE SHAREHOLDERS OF EACH MERGING
SUBSIDIARY CORPORATION.)
8. The undersigned corporations have caused these articles to be signed by
their duly authorized officers, each of whom affirms, under penalties of
perjury, that the facts stated herein are true. (All signatures must be in
BLACK INK.)
<Table>
DATED DECEMBER 10 , 1998 SOLO CUP COMPANY
------------------------------------ ------------- -----------------------------------------------------
(EXACT NAME OF CORPORATION)
ATTESTED BY /s/ E. LEO CARTER BY /s/ ROBERT L. HULSEMAN
----------------------------------------------------- ------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
E. LEO CARTER, ASSISTANT SECRETARY ROBERT L. HULSEMAN, PRESIDENT
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED DECEMBER 10 , 1998 ATLAS ENTERPRISES, INC.
------------------------------------ ------------- -----------------------------------------------------
(EXACT NAME OF CORPORATION)
ATTESTED BY /s/ E. LEO CARTER BY /s/ ROBERT L. HULSEMAN
----------------------------------------------------- ------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
E. LEO CARTER, SECRETARY ROBERT L. HULSEMAN, PRESIDENT
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED DECEMBER 10 , 1998 QUALITY INKS, INC.
------------------------------------ ------------- -----------------------------------------------------
(EXACT NAME OF CORPORATION)
ATTESTED BY /s/ E. LEO CARTER BY /s/ ROBERT L. HULSEMAN
----------------------------------------------------- ------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
E. LEO CARTER, SECRETARY ROBERT L. HULSEMAN, EXECUTIVE VICE PRESIDENT
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
</Table>
<Page>
Form BCA-11.25
EXHIBIT A
TO
ARTICLES OF MERGER,
CONSOLIDATION OR EXCHANGE
OF
SOLO CUP COMPANY
FILE NO. D5330-363-2
SUMMARY OF AGREEMENT AND PLAN OF MERGER
This Summary of Agreement and Plan of Merger summarizes the terms and
conditions of the merger (the "Merger") that are more fully set out in that
certain Agreement and Plan of Merger ("Agreement") dated as of December 10,
1998, by and among Solo Cup Company, an Illinois corporation ("Solo" and
sometimes referred to as the "Surviving Corporation"), Atlas Enterprises, Inc.
("Atlas") and Quality Inks, Inc. ("Quality") each a corporation organized and
existing under the laws of the State of Illinois. Atlas and Quality are
sometimes hereinafter referred to as the "Merged Corporations."
RECITALS
Solo is a corporation duly organized, validly existing and in good standing
under the laws of the State of Illinois. Solo is authorized to issue an
aggregate of 100,100,000 shares of stock, consisting of 100,000,000 shares of
Class A Nonvoting Common Shares, $0.01 par value per share (the "Solo Class A
Nonvoting Stock"), and 100,000 shares of Class B Voting Common Shares, $0.01 par
value per share (the "Solo Class B Voting Common Stock"), of which 9,942,526
shares of Solo Class A Nonvoting Stock are issued and outstanding and 57,474
shares of Solo Class B Voting Stock are issued and outstanding.
Atlas is a corporation duly organized, validly existing and in good
standing under the laws of the State of Illinois. Atlas' authorized capital
stock consists of 100,000 shares of common stock, no par value per share (the
"Atlas Common Stock"), of which 100 are issued and outstanding.
Quality is a corporation duly organized, validly existing and in good
standing under the laws of the State of Illinois. Quality's authorized capital
stock consists of 100,000 shares of common stock, no par value per share (the
"Quality Common Stock"), of which 10,000 are issued and outstanding.
The respective shareholders and board of directors of Solo, Atlas and
Quality have adopted resolutions approving the Agreement.
<Page>
Form BCA-11.25
EXHIBIT A (CONTINUED)
TO
ARTICLES OF MERGER,
CONSOLIDATION OR EXCHANGE
OF
SOLO CUP COMPANY
FILE NO. D5330-363-2
SUMMARY OF AGREEMENT AND PLAN OF MERGER
1. PLAN OF MERGER. At the Effective Time (as hereinafter defined) and upon the
terms and subject to the conditions contained herein:
1.1 Atlas and Quality shall be merged with and into Solo in accordance
with the Business Corporation Act of Illinois, as amended (the "Act")
(the "Merger"), which shall be the surviving corporation.
1.2 Following the Merger, the separate existence of Atlas and Quality
shall cease and the Surviving Corporation shall continue its corporate
existence under the laws of the State of Illinois.
1.3 At the Effective Time, by virtue of the Merger and without any action
on the part of the holders thereof.
(a) except as set forth in Section 1.3(c) below, each of the issued
and outstanding shares of the Atlas Common Stock shall be
converted and exchanged into the right to receive 816 shares of
authorized and unissued shares of the Solo Class A Nonvoting
Common Stock;
(b) except as set forth in Section 1.3(c) below, each of the issued
and outstanding shares of the Quality Common Stock shall be
converted and exchanged into the right to receive 12 shares of
the Solo Class A Nonvoting Common Stock;
(c) any of the Atlas Common Stock or the Quality Common Stock held by
shareholders who dissent from the Merger and require appraisal of
their shares in accordance with the Act ("Dissenting
Shareholders") shall not be converted as described in Section
1.3(a) or Section 1.3(b), but shall become the right to receive
such consideration as may be determined to be due to such
Dissenting Shareholder pursuant to the Act; provided, however,
that any of the Atlas Common Stock or the Quality Common Stock
outstanding at the Effective Time and held by a Dissenting
Shareholder who shall, after the Effective Time, withdraw
2
<Page>
Form BCA-11.25
EXHIBIT A (CONTINUED)
TO
ARTICLES OF MERGER,
CONSOLIDATION OR EXCHANGE
OF
SOLO CUP COMPANY
FILE NO. D5330-363-2
SUMMARY OF AGREEMENT AND PLAN OF MERGER
(d) his, her or its demand for appraisal or lose his, her or its
right of appraisal as provided by the Act, shall be deemed to be
converted, as of the Effective Time, into the right to receive
the number of shares of the Solo Class A Nonvoting Common Stock
specified in Section 1.3(a) or 1.3(b), as applicable;
(e) stock certificates for fractions of the Solo Class A Nonvoting
Common Stock shall not be issued in the Merger.
1.4 The "Effective Time" of the Merger shall be at 11:59 p.m., Central
Standard Time, on December 31, 1998, as permitted by the Act.
2. EFFECT OF MERGER. Upon and after the Effective Time.
2.1 The Surviving Corporation shall thereupon and thereafter possess all
the rights, privileges, franchises, patents, trademarks, licenses,
registrations and other assets of the Merged Corporations, and all
property, real, personal and mixed, and all debts due on whatever
account, and all choses in action, and all and every other interest of
or belonging to or due to the Merged Corporations shall be vested in
the Surviving Corporation and shall thereafter be the property of the
Surviving Corporation as they were of the Merged Corporations, without
further act or deed, and the title to any real estate, or any interest
herein, vested in the Merged Corporations shall not revert or be in
any way impaired by reason of the Merger.
2.2 The Surviving Corporation shall thence forth be responsible and liable
for all of the debts, liabilities and duties of the Merged
Corporations, and any claim existing or action nor proceeding pending
by or against the Merged Corporations may be prosecuted or defended to
judgment by the Surviving Corporation as if the Merger had not taken
place, or the Surviving Corporation may be substituted in place of the
Merged Corporations. Neither the rights of creditors nor any liens
upon the property of the Merged Corporations shall be impaired by the
Merger.
3
<Page>
Form BCA-11.25
EXHIBIT A (CONTINUED)
TO
ARTICLES OF MERGER,
CONSOLIDATION OR EXCHANGE
OF
SOLO CUP COMPANY
FILE NO. D5330-363-2
SUMMARY OF AGREEMENT AND PLAN OF MERGER
3. ARTICLES OF INCORPORATION AND BY-LAWS. From and after the Effective Time
until amended as provided by the Act, the Restated and Amended Articles of
Incorporation, as amended, and the Amended and Restated By-laws of Solo as
in effect immediately prior to the Merger shall be and continue to be the
Restated and Amended Articles of Incorporation, as amended, and the Amended
and Restated By-laws of the Surviving Corporation.
4. BOARD OF DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. From and
after the Effective Time, the members of the board of directors of Solo as
in effect immediately prior to the Merger shall be and continue to be the
board of directors of the Surviving Corporation, each of whom shall serve
and hold office in accordance with (i) the Act, (ii) the Restated and
Amended Articles of Incorporation, as amended, of the Surviving Corporation
and (iii) the Amended and Restated By-laws of the Surviving Corporation.
From and after the Effective Time, the officers of Solo as in effect
immediately prior to the Merger shall be and continue to be the officers of
the Surviving Corporation, each of whom shall serve and hold office in
accordance with (i) the Act, (ii) the Restated and Amended Articles of
Incorporation, as amended, of the Surviving Corporation and (iii) the
Amended and Restated By-laws of the Surviving Corporation.
4
<Page>
Form BCA-11.25
ARTICLES OF MERGER
(Rev. Jan. 1999) CONSOLIDATION OR EXCHANGE File # 5350-363-2
Jesse White SUBMIT IN DUPLICATE
Secretary of State
Department of Business FILED THIS SPACE FOR USE BY
Services SECRETARY OF STATE
Springfield, IL 62756
Telephone (217) 782-6961 JUN 25 1999 Date 6/25/99
http://www.sos.state.Il.us
DO NOT SEND CASH! JESSE WHITE Filing Fee $100.
Remit payment in check or SECRETARY OF STATE
money order, payable to
"Secretary of State."
Filing Fee is $100, but if Approved:
merger or consolidation PAID
involves more than 2
corporations, $50 each
additional corporation. JUN 30 1999
1. Names of corporations proposing to merge, and the state or country of their
incorporation:
<Table>
<Caption>
State or Country of Illinois Secretary of State File
Names of Corporation Incorporation Number
Solo Cup Company Illinois D 5350-363-2
Solo N.M., Inc. Illinois D-5539-571-3
_________________________ ___________________ ________________________________
_________________________ ___________________ ________________________________
</Table>
2. The laws of the state or country under which each corporation is
incorporated permit such merger, consolidation or exchange.
3. a. Name of the surviving corporation: Solo Cup Company
b. It shall be governed by the laws of: Illinois
If not sufficient space to cover this point,
add one or more sheets of this size.
4. Plan of merger is as follows:
See attached Agreement and Plan of Merger.
EXPEDITED
JUN 25, 1999
SECRETARY OF STATE
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5. Plan of merger was approved, as to each corporation not organized in
Illinois, in compliance with the laws of the state under which it is
organized, and (b) as to each Illinois corporation, as follows:
(The following items are not applicable to mergers under Section 11.30 -
90% owned subsidiary provisions. See Article 7.)
(Only "X" one box for each Illinois corporation)
<Table>
<Caption>
By the shareholders, a
resolution of the board
directors having been By written consent of the
duly adopted and shareholders having not
submitted to a vote at a less than the minimum
meeting of shareholders. number of votes required
Not less than the by statute and by the
minimum number of articles of incorporation. By written consent
votes required by statute Shareholders who have of ALL the
and by the articles of not consented in writing shareholders entitled
incorporation voted in have been given notice in to vote on the action
favor of the action taken accordance with Section 7.10 in accordance with
Name of Corporation (Section 11.20) (Section 11.220) Section 7.10 and Section 11.20
- ------------------- ------------------------- ---------------------------- ------------------------------
Solo N.M., Inc. / / / / /X/
Solo Cup Company / / / / /X/
___________________ / / / / / /
- -------------------
___________________ / / / / / /
___________________ / / / / / /
</Table>
6. (NOT APPLICABLE IF SURVIVING, NEW OR ACQUIRING CORPORATION IS AN ILLINOIS
CORPORATION)
It is agreed that, upon and after the issuance of a certificate of merger,
consolidation or exchange by the Secretary of State of the State of
Illinois:
a. The surviving, new or acquiring corporation may be served with process
in the State of Illinois in any proceeding for the enforcement of any
obligation of any corporation organized under the laws of the State of
Illinois which is a party to the merger, consolidation or exchange and
in any proceeding for the enforcement of the rights of the dissenting
shareholder of any such corporation organized under the laws of the
State of Illinois against the surviving, new or acquiring corporation.
b. The Secretary of State of the State of Illinois shall be and hereby is
irrevocably appointed as the agent of the surviving, new or acquiring
corporation to accept service of process in any such proceedings, and
c. The surviving, new, or acquiring corporation will promptly pay to the
dissenting shareholders of any corporation organized under the laws of
the State of Illinois which is a party to the merger, consolidation or
exchange the amount, if any, to which they shall be entitled under the
provisions of "The Business Corporation Act of 1983" of the State of
Illinois with respect to the rights of dissenting shareholders.
<Page>
7. (COMPLETE THIS ITEM IF REPORTING A MERGER UNDER SECTION 11.30 - 90% OWNED
SUBSIDIARY PROVISIONS.)
a. The number of outstanding shares of each class of each merging
subsidiary corporation and the number of such shares of each class
owned immediately prior to the adoption of the plan of merger by the
parent corporation, are:
<Table>
<Caption>
Number of Shares of Each Class
Total Number of Shares Owned immediately Prior to
Name of Corporation Outstanding of Each Class Merger by the Parent Corporation
____________________________ _______________________________ ________________________________
____________________________ _______________________________ ________________________________
____________________________ _______________________________ ________________________________
____________________________ _______________________________ ________________________________
____________________________ _______________________________ ________________________________
</Table>
b. (Not applicable to 100% owned subsidiaries)
The date of mailing a copy of the plan of merger and notice of the
right to dissent to the shareholders of each merging subsidiary
corporation was ______________, ______.
(MONTH & DAY) (YEAR)
Was written consent for the merger or written waiver of the 30-day
period by the holders of all outstanding shares of all subsidiary
corporations received? / / Yes / / No
(IF THE ANSWER IS "NO," THE DUPLICATE COPIES OF THE ARTICLES OF MERGER
MAY NOT BE DELIVERED TO THE SECRETARY OF STATE UNTIL AFTER 30 DAYS
FOLLOWING THE MAILING OF A COPY OF THE PLAN OF MERGER AND OF THE
NOTICE OF THE RIGHT TO DISSENT TO THE SHAREHOLDERS OF EACH MERGING
SUBSIDIARY CORPORATION.)
8. The undersigned corporations have caused these articles to be signed by
their duly authorized officers, each of whom affirms, under penalties of
perjury, that the facts stated herein are true. (All signatures must be in
BLACK INK.)
<Table>
DATED JUNE 24, , 1999 SOLO CUP COMPANY
----------------------------- -------- -----------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY /s/ E. LEO CARTER BY /s/ ROBERT L. HULSEMAN
----------------------------------------------------- -------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
E. LEO CARTER, ASSISTANT SECRETARY ROBERT L. HULSEMAN, CHAIRMAN/CEO
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED JUNE 24 , 1999 SOLO N.M., INC.
----------------------------- -------- -----------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY /s/ E. LEO CARTER BY /s/ ROBERT L. HULSEMAN
----------------------------------------------------- -------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
E. LEO CARTER, SECRETARY ROBERT L. HULSEMAN, EXECUTIVE VICE PRESIDENT
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED ,
----------------------------- -------- -----------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY BY
----------------------------------------------------- -------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
</Table>
<Page>
AGREEMENT AND PLAN OF MERGER
BETWEEN
SOLO CUP COMPANY AND
SOLO N.M., INC
This Agreement and Plan of Merger is made as of the 24th day of June, 1999,
between Solo N.M., Inc. an Illinois corporation (herein called "Merged
Corporation" or "Solo N.M."), and Solo Cup Company an Illinois corporation
(herein called "Surviving Corporation" or "Solo"). The Merged Corporation and
the Surviving corporation are referred to collectively herein as "the Parties".
WHEREAS, the Parties contemplate a tax-free-merger of Solo N.M. with and
into Solo in a reorganization pursuant to Internal Revenue Code Section 368 (a)
(1) (A) ;
WHEREAS, the stockholders of Solo N.M. will receive capital stock in Solo
in exchange for their capital stock in Solo N.M.; and
WHEREAS, the Parties expect that the merger will further certain of their
business objectives;
NOW THEREFORE, the Parties agree as follows:
1. BASIC TRANSACTION:
A. THE MERGER: On and subject to the terms and conditions of this
Agreement. Solo N.M. will merge with and into Solo (the "Merger") at
the Effective Time (hereinafter defined). Solo shall be the
corporation surviving the Merger. All of the property, real, personal
and mixed, of each of the Parties, and all debts due to either of
them, shall be transferred to and vested in the Surviving Corporation,
without further act or deed, as of the Effective Time. As of the
Effective Time, the Surviving Corporation shall be responsible and
liable for all of the liabilities and obligations of both the Merged
Corporation and the Surviving Corporation, and any claim or judgment
against either Party.
B. THE CLOSING: The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Fox and
Grove, Chartered on the second business day following the satisfaction
or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions
with respect to actions the respective Parties will take at the
Closing itself) or such other date as the Parties may mutually
determine (the "Closing Date").
C. ACTIONS AT THE CLOSING: At the Closing, (i) Solo N.M. will deliver to
Solo all of its issued and outstanding stock certificates and copies
of all
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corporate resolutions and consents which are necessary to consummate
the Merger, (ii) Solo will deliver to Solo N. M. copies of all of its
corporate resolutions and consents necessary to consummate the Merger,
and (iii) the Merged Corporation and the Surviving corporation will
file with the Secretary of State of the State of Illinois Articles of
Merger in the form attached hereto as Exhibit A (the "Articles of
Merger").
D. EFFECT OF MERGER:
(1) GENERAL: The Merger, shall become effective at the time (the
"Effective Time") that the Parties file the Articles of Merger
with the Secretary of State of the State of Illinois. The Merger
shall have the effect set forth in the Illinois Business
Corporation Act of 1983. The Surviving corporation may, at any
time after the Effective Time, take any action (including
executing and delivering any document) in the name and an behalf
of either the Merged Corporation or the Surviving corporation in
order to carry out and effectuate the transactions contemplated
by this Agreement.
(2) ARTICLES OF INCORPORATION: The Articles of Incorporation of the
Surviving Corporation in effect as of the date of this Agreement
and as of the Effective Time will remain the Articles of
Incorporation of the Surviving Corporation without any
modification or Amendment in the Merger.
(3) BYLAWS: The Bylaws of the Surviving Corporation in effect as of
the date of this Agreement and as of the Effective Time will
remain the Bylaws of the Surviving Corporation.
(4) DIRECTORS AND OFFICERS: The Directors and Officers of the
Surviving Corporation as of the date of this Agreement and as of
the Effective Time shall continue to serve until their respective
successors are duly elected and qualified pursuant to the Bylaws
of the Surviving Corporation.
(5) CONVERSION OF SOLO N.M SHARES: At and as of the Effective Time,
(i) each share of Solo N.M. shall be converted into the right to
receive 33 shares of Class A non-voting stock in Surviving
Corporation ( the ratio of 33 shares of the Surviving Corporation
to one share of Solo N.M. is referred to herein as the
"Conversion Ratio"), and (ii) each share of Solo N.M. shall be
cancelled.
(6) SURVIVING CORPORATION SHARES: Each share of the Surviving
Corporation issued and outstanding at and as of the Effective
Time will remain issued and outstanding.
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E. PROCEDURE FOR EXCHANGE: Immediately after the Effective Time, the
Surviving Corporation shall furnish to each shareholder of the Merged
corporation a stock certificate issued in the name of the Surviving
Corporation representing the number of Class A non-voting shares of
the Surviving Corporation equal to the product of (i) the Conversion
Ratio times (ii) the number of outstanding shares of the Merged
Corporation owned by each shareholder thereof.
2. REPRESENTATIONS AND WARRANTIES OF THE MERGED CORPORATION: The Merged
Corporation represents and warrants to the surviving Corporation that the
statements contained in this Section 2 are correct and complete as of the
date of this Agreement, and will be correct and complete as of the Closing
Date.
A. ORGANIZATION, QUALIFICATION AND CORPORATE POWER: The Merged
Corporation is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Illinois. The Merged
Corporation is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of the
Merged Corporation taken as a whole or the ability of the Parties to
consummate the transactions contemplated by this Agreement. The Merged
Corporation has full corporate power and authority to carry on the
businesses in which it is engaged, and to own and use the properties
owned and used by it.
B. CAPITALIZATION: The entire authorized capital stock of the Merged
Corporation consists of 10,000 common shares of no par value stock, of
which 1,000 shares of the Merged corporation are issued and
outstanding. All of the issued and outstanding shares of the Merged
Corporation have been duly authorized and are validly issued, fully
paid, and nonassessable. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that could
require the Merged Corporation to issue, sell, or otherwise cause to
become outstanding any of its capital stock. There are no outstanding
or authorized stock appreciation, phantom stock, profit participation,
or similar rights with respect to the Merged Corporation.
C. AUTHORIZATION OF TRANSACTION: The Merged Corporation has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder; provided, however, that the Merged Corporation cannot
consummate the Merger unless and until it receives the approval of all
of its shareholders. This Agreement constitutes the valid and legally
binding obligation of the Merged Corporation, enforceable in
accordance with its terms and conditions.
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D. NONCONTRAVENTION: To the best knowledge of any director or officer of
the Merged Corporation, neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
the Merged Corporation is subject, or any provision of the charter of
bylaws of the Merged Corporation, or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument or other arrangement to which any of the Merged
Corporation is a party or by which it is bound, or to which any of its
assets is subject (or result in the imposition of any security
interest upon any of its assets), except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, failure to give notice, or security interest would not
have a material adverse effect on the financial condition of the
Merged Corporation taken as a whole or on the ability of the Parties
to consummate the transactions contemplated by this Agreement.
E. FINANCIAL STATEMENTS: The financial statements of the Merged
Corporation which have been delivered by the Merged Corporation to the
Surviving Corporation, fairly present the financial condition of the
Merged Corporation as set forth in such statements.
F. ABSENCE OF UNDISCLOSED LIABILITIES: Except to the extent reflected or
reserved against in the financial statements of the Merged
Corporation, which have been delivered to the Surviving Corporation,
the Merged Corporation did not have at that date any liabilities or
obligations (secured, unsecured, contingent or otherwise) of a nature
customarily reflected in such statements.
G. CONTINUITY OF BUSINESS ENTERPRISE: The Merged Corporation operates at
least one significant historic business line, and owns or leases all
of its historic business assets, in each case within the meaning of
Treas. Reg. Sec. 1.368-1(d). Such business line and business assets
shall be merged into the Surviving Corporation.
H. The Merged Corporation does not have any subsidiaries.
3. REPRESENTATIONS AND WARRANTIES OF THE SURVIVING CORPORATION: The
Surviving corporation represents and warrants to the Merged Corporation
that the statements contained in this Section 3 are correct and complete as
of the date, of this Agreement and will be correct and complete as of the
Closing Date.
A. ORGANIZATION, QUALIFICATION AND CORPORATE POWER: The Surviving
Corporation is a corporation duly organized, validly existing, and in
good
4
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standing under the laws of the State of Illinois. The Surviving
Corporation is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of the
Surviving Corporation taken as a whole or the ability of the Parties
to consummate the transactions contemplated by this Agreement. The
Surviving Corporation has full corporate power and authority to carry
on the businesses in which it is engaged and to own and use the
properties owned and used by it.
B. CAPITALIZATION: The entire authorized capital stock of the Surviving
Corporation consists of 100,100,000 common shares of $.01 par value
stock, of which 10,201,600 shares of the Surviving Corporation are
issued and outstanding. Of the 10,201,600 shares outstanding
10,144,126 are Class A Non-voting common shares and 57,474 are Class B
Voting common shares. All of the issued and outstanding shares of the
Surviving Corporation have been duly authorized and are validly
issued, fully paid, and nonassessable. There are no outstanding or
authorized options, warrants, purchase rights, subscription rights,
conversion rights, exchange rights, or other contracts or commitments
that could require the Surviving Corporation to issue, sell, or
otherwise cause to become outstanding any of its capital stock. There
are no outstanding or authorized stock appreciation, phantom stock,
profit participation, or similar rights with respect to the Surviving
Corporation.
C. AUTHORIZATION OF TRANSACTION: The Surviving Corporation has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder; provided, however, that the Surviving Corporation cannot
consummate the Merger unless and until it receives the approval of all
of its shareholders. This Agreement constitutes the valid and legally
binding obligation of the surviving Corporation, enforceable in
accordance with its terms and conditions.
D. NONCONTRAVENTION: To the best knowledge of any director or officer of
the Surviving Corporation, neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
the surviving corporation is subject or any provision of the charter
or bylaws of the surviving Corporation, or (ii) conflict with,
result-in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other arrangement
to which any of the Surviving Corporation is a party, or by which it
is bound, or to which any of its assets is subject (or result in the
imposition of any
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Security Interest upon any of its assets), except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, failure to give notice, or Security Interest would not
have a material adverse effect on the financial condition of the
Surviving Corporation taken as a whole or on the ability of the
Parties to consummate the transactions contemplated by this Agreement.
E. FINANCIAL STATEMENTS: The financial statements of the Surviving
Corporation which have been delivered by the Surviving Corporation to
the Merged Corporation, fairly present the financial condition of the
Surviving Corporation as set forth in such statements.
F. ABSENCE OF UNDISCLOSED LIABILITIES: Except to the extent reflected or
reserved against in the financial statements of the Surviving
Corporation, which have been delivered to the Merged Corporation, the
Surviving Corporation did not have at that date any liabilities or
obligations (secured, unsecured, contingent or otherwise) of a nature
customarily reflected in such statements.
G. CONTINUITY OF BUSINESS ENTERPRISE: It is the present intention of the
Surviving Corporation to continue at least one historic business line
of the Merged Corporation and to use all of the Merged Corporation's
historic business assets in its business, in each case within the
meaning of Treas. Reg. Sec. 1.368-1(d). Such business line and
business assets of the Merged Corporation shall be merged into the
Surviving Corporation.
H. SHARES ISSUED IN MERGER: All of the shares of the Surviving
Corporation which are to be delivered to the shareholders of the
Merged Corporation pursuant to this Agreement will, when so delivered,
be validly issued and outstanding, fully paid and nonassessable.
4. COVENANTS OF THE PARTIES: The Parties agree as follows with respect to
the period from and after the date of this Agreement:
A. GENERAL: Each of the parties will use its best efforts to take all
action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement.
B. ILLINOIS BUSINESS CORPORATION ACT: The Merged Corporation will call a
special meeting of its stockholders as soon as practicable in order
that the stockholders may consider and vote upon the adoption of this
Agreement and the approval of the Merger in accordance with the
Illinois Business Corporation Act. The Surviving Corporation will call
a special meeting of its stockholders as soon as practicable in order
that the stockholders may consider and vote upon the adoption of this
Agreement and the approval of the Merger in accordance with the
Illinois Business Corporation Act.
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C. ARTICLES OF INCORPORATION AND BYLAWS: Except as set forth herein,
neither the Merged Corporation nor the Surviving Corporation shall
make any changes to its respective Articles of Incorporation or Bylaws
without the consent of the other Party.
D. CORPORATE DISTRIBUTIONS AND CHANGES: Neither the Merged Corporation
nor the Surviving Corporation shall make any change in its authorized
or issued capital stock, declare or pay any dividend or other
distribution, issue, encumber, purchase or otherwise acquire any of
its capital stock, issue any note, or other debt or security, or
perform any other act that is not within the ordinary course of its
business, without the consent of the other Party.
E. FULL ACCESS: Each of the Parties shall permit representatives of the
other to have full access to all premises, properties, personnel,
books, records, contracts, and documents of and pertaining to the
other Party.
5. CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE: The obligation of the
Parties to consummate this Merger shall be subject to fulfillment on or
before the Effective Time of each of the following conditions, unless
waived.
A. REPRESENTATIONS AND WARRANTIES: The representations and warranties of
both parties set forth in this Agreement shall be true and correct in
all material respects at and as of the Closing Date.
B. SHAREHOLDER APPROVAL: This Agreement shall have been adopted by the
unanimous vote of the shareholders of both the Merged Corporation and
the Surviving Corporation.
C. COMPLIANCE WITH COVENANTS: Each of the Parties shall have complied in
all material respects with the covenants to be performed pursuant to
this Agreement.
6. TERMINATION OF AGREEMENT: Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors (whether
before or after stockholder approval) as provided below:
A. MUTUAL CONSENT: The Parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time.
B. BREACH BY MERGED CORPORATION: The Surviving Corporation may terminate
this Agreement by giving written notice to the Merged Corporation at
any time prior to the Effective Time in the event that the Merged
Corporation has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect; the
Surviving Corporation has notified the Merged Corporation of this
breach; and the breach has continued without cure for a period of
thirty (30) days after the notice of breach.
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C. BREACH BY SURVIVING CORPORATION: The Merged Corporation may terminate
this Agreement by giving written notice to the Surviving corporation
at any time prior to the Effective Time in the event the surviving
corporation has breached any material representation, warranty or
covenant contained in this Agreement in any material respect; the
Merged Corporation has notified the Surviving Corporation of the
breach; and the breach has continued without cure for a period of
thirty (30) days after the notice of breach.
D. EFFECT OF TERMINATION: If any Party terminates this Agreement pursuant
to this Section 6, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach).
7. NOTICES: Any notice or other communication in this Agreement to be
given by either party to the other must be in writing and may be given by
any means which provides evidence of receipt, or by delivering the same in
person, or to an officer of such party. Notice shall be deemed received
upon making an in-person delivery or upon the date shown on a receipted
delivery. For purposes of notice, the addresses of the parties shall be as
follows:
If to Solo Cup Company: Solo Cup Company
1700 Old Deerfield Road
Highland Park, Illinois 60035
If to Solo N.M., Inc. Solo N.M., Inc.
1704 Old Deerfield Road
Highland Park, Illinois 60435
and a copy to: Fox and Grove, Chartered
Suite 6200
311 South Wacker Drive
Chicago, Illinois 60606
or to such other addresses as any party may designate for itself by notice
given from time to time to the other parties in the manner provided herein.
8. OTHER MUTUAL COVENANTS:
A. SEVERABILITY: Each Section of this Agreement and each sentence, clause
or phrase contained in such Section shall be considered severable and,
if for any reason, any Section or sentence, clause or phrase contained
in such Section is determined to be invalid or contrary to any
existing or future laws, such invalidity shall not impair the
operation of or affect that portion of this Agreement which is valid.
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B. AMENDMENT: This Agreement may be amended, altered or revoked at any
time, in whole or in part, by filing with this Agreement a written
instrument setting forth such changes signed by all of the parties to
this Agreement.
C. BINDING ON: This Agreement shall be binding on the parties hereto, and
their respective successors, assigns, heirs and legal representatives.
D. SURVIVAL OF COVENANTS: The covenants, undertakings and indemnities
herein contained to be performed or observed at any time before the
termination of this Agreement shall survive the consummation of the
transactions contemplated hereby and the termination of this
Agreement.
E. SECTION AND OTHER HEADINGS: Section or other headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
F. GOVERNING LAW: This instrument shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
G. COUNTERPARTS: This Agreement may be executed in counterparts, each of
which so executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
H. GENDER AND NUMBER: Where appropriate, words of the masculine gender
include the feminine, and words used in a plural or collective sense
include the singular and vice versa.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
SOLO N.M., INCORPORATED SOLO CUP COMPANY
By: /s/ Robert L. Hulseman By: /s/ Robert L. Hulseman
-------------------------------- -------------------------------------
Robert L. Hulseman, Robert L. Hulseman,
Executive Vice President Chairman/CEO
ATTEST: ATTEST:
/s/ Ronald L. Whaley /s/ Ronald L. Whaley
- ----------------------------------- ----------------------------------------
Ronald L. Whaley Ronald L. Whaley,
Treasurer Executive Vice President
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Form BCA-11.25
ARTICLES OF MERGER
(Rev. Jan. 1999) CONSOLIDATION OR EXCHANGE File # 5350-363-2
Jesse White SUBMIT IN DUPLICATE
Secretary of State
Department of Business FILED THIS SPACE FOR USE BY
Services SECRETARY OF STATE
Springfield, IL 62756
Telephone (217) 782-6961 DEC 27 1999 Date 12/27/99
http://www.sos.state.Il.us
DO NOT SEND CASH! JESSE WHITE Filing Fee $100
Remit payment in check or SECRETARY OF STATE
money order, payable to Approved:
"Secretary of State."
Filing Fee is $100, but if
merger or consolidation PAID
involves more than 2
corporations, $50 each
additional corporation. DEC 28 1999
1. Names of corporations proposing to merge, and the state or country of their
incorporation:
<Table>
<Caption>
State or Country of Illinois Secretary of State File
Names of Corporation Incorporation Number
Solo Cup Company Illinois D 5350-363-2
Clear Shield National, Inc. California F 5365-121-6
___________________________ ___________________ ________________________________
___________________________ ___________________ ________________________________
</Table>
2. The laws of the state or country under which each corporation is
incorporated permit such merger, consolidation or exchange.
3. a. Name of the surviving corporation: Solo Cup Company
b. It shall be governed by the laws of: Illinois
If not sufficient space to cover this point,
add one or more sheets of this size.
4. Plan of merger is as follows:
See attached Agreement and Plan of Merger
EXPEDITED
DEC 27 1999
SECRETARY OF STATE
<Page>
5. Plan of merger was approved, as to each corporation not organized in
Illinois, in compliance with the laws of the state under which it is
organized, and (b) as to each Illinois corporation, as follows:
(THE FOLLOWING ITEMS ARE NOT APPLICABLE TO MERGERS UNDER SECTION 11.30 -
90% OWNED SUBSIDIARY PROVISIONS. SEE ARTICLE 7.)
(ONLY "X" ONE BOX FOR EACH ILLINOIS CORPORATION)
<Table>
<Caption>
By the shareholders, a
resolution of the board
directors having been By written consent of the
duly adopted and shareholders having not
submitted to a vote at a less than the minimum
meeting of shareholders. number of votes required
Not less than the by statute and by the
minimum number of articles of incorporation. By written consent
votes required by statute Shareholders who have of ALL the
and by the articles of not consented in writing shareholders entitled
incorporation voted in have been given notice in to vote on the action
favor of the action taken accordance with Section 7.10 in accordance with
Name of Corporation (Section 11.20) (Section 11.220) Section 7.10 and Section 11.20
- ------------------- ------------------------- ---------------------------- ------------------------------
___________________ / / / / / /
___________________ / / / / / /
___________________ / / / / / /
___________________ / / / / / /
___________________ / / / / / /
</Table>
6. (NOT APPLICABLE IF SURVIVING, NEW OR ACQUIRING CORPORATION IS AN ILLINOIS
CORPORATION)
It is agreed that, upon and after the issuance of a certificate of merger,
consolidation or exchange by the Secretary of State of the State of
Illinois:
a. The surviving, new or acquiring corporation may be served with process
in the State of Illinois in any proceeding for the enforcement of any
obligation of any corporation organized under the laws of the State of
Illinois which is a party to the merger, consolidation or exchange and
in any proceeding for the enforcement of the rights of the dissenting
shareholder of any such corporation organized under the laws of the
State of Illinois against the surviving, new or acquiring corporation.
b. The Secretary of State of the State of Illinois shall be and hereby is
irrevocably appointed as the agent of the surviving, new or acquiring
corporation to accept service of process in any such proceedings, and
c. The surviving, new, or acquiring corporation will promptly pay to the
dissenting shareholders of any corporation organized under the laws of
the State of Illinois which is a party to the merger, consolidation or
exchange the amount, if any, to which they shall be entitled under the
provisions of "The Business Corporation Act of 1983" of the State of
Illinois with respect to the rights of dissenting shareholders.
<Page>
7. (COMPLETE THIS ITEM IF REPORTING A MERGER UNDER SECTION 11.30 - 90% OWNED
SUBSIDIARY PROVISIONS.)
a. The number of outstanding shares of each class of each merging
subsidiary corporation and the number of such shares of each class
owned immediately prior to the adoption of the plan of merger by the
parent corporation, are:
<Table>
<Caption>
Number of Shares of Each Class
Total Number of Shares Owned immediately Prior to
Name of Corporation Outstanding of Each Class Merger by the Parent Corporation
Clear Shield National, Inc. 1,000 1,000
____________________________ _______________________________ ________________________________
____________________________ _______________________________ ________________________________
____________________________ _______________________________ ________________________________
</Table>
b. (Not applicable to 100% owned subsidiaries)
The date of mailing a copy of the plan of merger and notice of the
right to dissent to the shareholders of each merging subsidiary
corporation was ______________, _______.
(MONTH & DAY) (YEAR)
Was written consent for the merger or written waiver of the 30-day
period by the holders of all outstanding shares of all subsidiary
corporations received? / / Yes / / No
(IF THE ANSWER IS "NO," THE DUPLICATE COPIES OF THE ARTICLES OF MERGER
MAY NOT BE DELIVERED TO THE SECRETARY OF STATE UNTIL AFTER 30 DAYS
FOLLOWING THE MAILING OF A COPY OF THE PLAN OF MERGER AND OF THE
NOTICE OF THE RIGHT TO DISSENT TO THE SHAREHOLDERS OF EACH MERGING
SUBSIDIARY CORPORATION.)
8. The undersigned corporations have caused these articles to be signed by
their duly authorized officers, each of whom affirms, under penalties of
perjury, that the facts stated herein are true. (All signatures must be in
BLACK INK.)
<Table>
DATED DECEMBER 20 , 1999 SOLO CUP COMPANY
----------------------------- -------- -----------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY /s/ RONALD L. WHALEY BY /s/ ROBERT L. HULSEMAN
----------------------------------------------------- -------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
RONALD L. WHALEY, EXEC. V.P. ROBERT L. HULSEMAN, CHAIRMAN/CEO
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED DECEMBER 20 , 1999 CLEAR SHIELD NATIONAL, INC.
----------------------------- -------- -----------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY /s/ RONALD L. WHALEY BY /s/ ROBERT L. HULSEMAN
----------------------------------------------------- -------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
RONALD L. WHALEY, ASSISTANT SECRETARY ROBERT L. HULSEMAN, PRESIDENT
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED ,
----------------------------- -------- -----------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY BY
----------------------------------------------------- -------------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
----------------------------------------------------- -----------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
</Table>
<Page>
AGREEMENT AND PLAN OF MERGER
BETWEEN
SOLO CUP COMPANY
AND
CLEAR SHIELD NATIONAL, INC.
This Agreement and Plan of Merger is made as of the 20th day of December,
1999, between Clear Shield National, Inc., a California corporation (herein
called "Merged Corporation" or "Clear Shield"), and Solo Cup Company, an
Illinois corporation (herein called "Surviving Corporation" or "Solo"). The
Merged Corporation- and the Surviving Corporation are referred to collectively
herein as "the Parties".
WHEREAS, the Parties contemplate a tax-free-merger of Clear Shield with and
into Solo in a reorganization pursuant to Internal Revenue Code Section 368 (a)
(1) (A) ;
WHEREAS, Clear Shield is a wholly owned subsidiary of Solo; and
WHEREAS, the Parties expect that the merger will further certain of their
business objectives;
NOW THEREFORE, the Parties agree as follows:
1. BASIC TRANSACTION:
A. THE MERGER: On and subject to the terms and conditions of this
Agreement, Clear Shield will merge with and into Solo (the "Merger")
at the Effective Time (hereinafter defined). Solo shall be the
corporation surviving the Merger. All of the property, real, personal
and mixed, of each of the Parties, and all debts due to either of
them, shall be transferred to and vested in the Surviving Corporation,
without further act or deed, as of the Effective Time. As of the
Effective Time, the Surviving Corporation shall be responsible and
liable for all of the liabilities and obligations of both the Merged
Corporation and the Surviving Corporation, and any claim or judgment
against either Party.
B. THE CLOSING: The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Fox and
Grove, Chartered on the second business day following the satisfaction
or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions
with respect to actions the respective Parties will take at the
Closing itself) or such other date as the Parties may mutually
determine (the "Closing Date").
<Page>
C. ACTIONS AT THE CLOSING: At the Closing, (i) Clear Shield will deliver
to Solo all of its issued and outstanding stock certificates and
copies of all corporate resolutions and consents which are necessary
to consummate the Merger, (ii) Solo will deliver to Clear Shield
copies of all of its corporate resolutions and consents necessary to
consummate the Merger, and (iii) the Merged Corporation and the
Surviving corporation will file with the Secretary of State of the
State of Illinois Articles of Merger in the form attached hereto as
Exhibit A (the "Articles of Merger").
D. EFFECT OF MERGER:
(1) GENERAL: The Merger shall become effective at the time (the
"Effective Time") that the Parties file the Articles of Merger
with the Secretary of State of the State of Illinois. The Merger
shall have the effect set forth in the Illinois Business
Corporation Act of 1983, as amended. The Surviving Corporation
may, at any tune after the Effective Time, take any action
(including executing and delivering any document) in the name and
on behalf of either the Merged Corporation or the Surviving
Corporation in order to carry out and effectuate the transactions
contemplated by this Agreement.
(2) ARTICLES OF INCORPORATION: The Articles of Incorporation of the
Surviving Corporation in effect as of the date of this Agreement
and as of the Effective Time will remain the Articles of
Incorporation of the Surviving Corporation without any
modification or Amendment in the Merger.
(3) BYLAWS: The Bylaws of the Surviving Corporation in effect as of
the date of this Agreement and as of the Effective Time will
remain the Bylaws of the Surviving Corporation.
(4) DIRECTORS AND OFFICERS: The Director's and Officers of the
Surviving Corporation as of the date of this Agreement and as of
the Effective Time shall continue to serve until their respective
successors are duly elected and qualified pursuant to the Bylaws
of the Surviving Corporation.
(5) CONVERSION OF CLEAR SHIELD SHARES: At and as of the Effective
Time, each share of Clear Shield shall be cancelled.
(6) SURVIVING CORPORATION SHARES: Each share of the Surviving
Corporation issued and outstanding at and as of the Effective
Time will remain issued and outstanding.
2. REPRESENTATIONS AND WARRANTIES OF THE MERGED CORPORATION: The Merged
Corporation represents and warrants to the surviving Corporation that the
2
<Page>
statements contained in this Section 2 are correct and complete as of the
date of this Agreement, and will be correct and complete as of the Closing
Date.
A. ORGANIZATION QUALIFICATION AND CORPORATE POWER: The Merged Corporation
is a corporation duly organized, validly existing, and in good
standing under the laws of the State of California. The Merged
Corporation is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of the
Merged Corporation taken as a whole or the ability of the Parties to
consummate the transactions contemplated by this Agreement. The Merged
Corporation has full corporate power and authority to carry on the
businesses in which it is engaged, and to own and use the properties
owned and used by it.
B. CAPITALIZATION: The entire authorized capital stock of the Merged
Corporation consists of 100,000 common shares of $1.00 par value
stock, of which 1,000 shares of the Merged Corporation are issued and
outstanding. All of the issued and outstanding shares of the Merged
Corporation have been duly authorized and are validly issued, fully
paid, and nonassessable. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that could
require the Merged Corporation to issue, sell, or otherwise cause to
become outstanding any of its capital stock. There are no outstanding
or authorized stock appreciation, phantom stock, profit participation,
or similar rights with respect to the Merged Corporation.
C. AUTHORIZATION OF TRANSACTION: The Merged Corporation has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder; provided, however, that the Merged Corporation cannot
consummate the Merger unless and until it receives the approval of all
of its directors. This Agreement constitutes the valid and legally
binding obligation of the Merged Corporation, enforceable in
accordance with its terms and conditions.
D. NONCONTRAVENTION: To the best knowledge of any director or officer of
the Merged Corporation, neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
the Merged Corporation is subject, or any provision of the charter of
bylaws of the Merged Corporation, or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any
3
<Page>
agreement, contract, lease, license, instrument or other arrangement
to which any of the Merged Corporation is a party or by which it is
bound, or to which any of its assets is subject (or result in the
imposition of any security interest upon any of its assets), except
where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation, failure to give notice, or
security interest would not have a material adverse effect on the
financial condition of the Merged Corporation taken as a whole or on
the ability of the Parties to consummate the transactions contemplated
by this Agreement.
E. FINANCIAL STATEMENTS: The financial statements of the Merged
Corporation which have been delivered by the Merged Corporation to the
Surviving Corporation, fairly present the financial condition, of the
Merged Corporation as set forth in such statements.
F. ABSENCE OF UNDISCLOSED LIABILITIES: Except to the extent reflected or
reserved against in the financial statements of the Merged
Corporation, which have been delivered to the Surviving Corporation,
the Merged Corporation did not have at that date any liabilities or
obligations (secured, unsecured, contingent or otherwise) of a nature
customarily reflected in such statements.
G. CONTINUITY OF BUSINESS ENTERPRISE: The Merged Corporation operates at
least one significant historic business line, and owns or leases all
of its historic business assets, in each case within the meaning of
Treas. Reg. Sec. 1.368-1(d). Such business line and business assets
shall be merged into the Surviving Corporation.
H. The Merged Corporation has one wholly-owned subsidiary, Carnival
Brands, Inc., an Illinois corporation.
3. REPRESENTATIONS AND WARRANTIES OF THE SURVIVING CORPORATION: The
Surviving corporation represents and warrants to the Merged Corporation
that the statements contained in this Section 3 are correct and complete as
of the date of this Agreement and will be correct and complete as of the
Closing Date.
A. ORGANIZATION, QUALIFICATION AND CORPORATE POWER: The Surviving
Corporation is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Illinois. The Surviving
Corporation is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of the
Surviving Corporation taken as a whole ox the ability of the Parties
to consummate the transactions contemplated by this Agreement. The
Surviving Corporation has full corporate power and authority to carry
on the businesses in which it is engaged and to own and use the
properties owned and used by it.
4
<Page>
B. CAPITALIZATION: The entire authorized capital stock of the Surviving
Corporation consists of 100,100,000 common shares of $.0l par value
stock, of which 10,234,600 shares of the Surviving Corporation are
issued and outstanding. Of the 10,234, 600 shares outstanding
110,177,126 are Class A Non-voting common shares and 57,474 are Class
B Voting common shares. All of the issued and outstanding shares of
the Surviving Corporation have been duly authorized and are validly
issued, fully paid, and nonassessable. There are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or
similar rights with respect to the Surviving Corporation.
C. AUTHORIZATION OF TRANSACTION: The Surviving Corporation has full power
and authority (including fall corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder; provided, however, that the Surviving Corporation cannot
consummate the Merger unless and until it receives the approval of all
of its directors. This Agreement constitutes the valid and legally
binding obligation of the surviving Corporation, enforceable in
accordance with its terms and conditions.
D. NONCONTRAVENTION: To the best knowledge of any director or officer of
the Surviving Corporation, neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
the surviving corporation is subject or any provision of the charter
or bylaws of the surviving Corporation, or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument or other arrangement to which any of the Surviving
Corporation is a party, or by which it is bound, or to which any of
its assets is subject (or result in the imposition of any Security
Interest upon any of its assets), except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, failure to give notice, or Security Interest would not
have a material adverse effect on the financial condition of the
Surviving Corporation taken as a whole or on the ability of the
Parties to consummate the transactions contemplated by this Agreement.
E. FINANCIAL STATEMENTS: The financial statements of the Surviving
Corporation which have been delivered by the Surviving Corporation to
the Merged Corporation, fairly represent the financial condition of
the Surviving Corporation as set forth in such statements.
F. ABSENCE OF UNDISCLOSED LIABILITIES: Except to the extent reflected or
reserved against in the financial statements of the Surviving
Corporation,
5
<Page>
which have been delivered to the Merged Corporation, the Surviving
Corporation did not have at that date any liabilities or obligations
(secured, unsecured, contingent or otherwise) of a nature customarily
reflected in such statements.
G. CONTINUITY OF BUSINESS ENTERPRISE: It is the present intention of the
Surviving Corporation to continue at least one historic business line
of the Merged Corporation and to use all of the Merged Corporation's
historic business assets in its business, in each case within the
meaning of Treas. Reg. Sec. 1.368-1(d). Such business line and
business assets of the Merged Corporation shall be merged into the
Surviving Corporation.
H. SHARES ISSUED IN MERGER: All of the shares of the Surviving
Corporation, if any, which are to be delivered to the shareholders of
the Merged Corporation pursuant to this Agreement will, when so
delivered, be validly issued and outstanding, fully paid and
nonassessable.
4. COVENANTS OF THE PARTIES: The Parties agree as follows with respect to
the period from and after the date of this Agreement:
A. GENERAL: Each of the parties will use its best efforts to take all
action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement.
B. ILLINOIS BUSINESS CORPORATION ACT: The Merged Corporation will call a
special meeting of its directors as soon as practicable in order that
the directors may consider and vote upon the adoption of this
Agreement and the approval of the Merger in accordance with the
Illinois Business Corporation Act. The Surviving Corporation will call
a special meeting of its directors as soon as practicable in order
that the directors may consider and vote upon the adoption of this
Agreement and the approval of the Merger in accordance with the
Illinois Business Corporation Act.
C. ARTICLES OF INCORPORATION AND BYLAWS: Except as set forth herein,
neither the Merged Corporation nor the Surviving Corporation shall
make any changes to its respective Articles of Incorporation or Bylaws
without the consent of the other Party.
D. CORPORATE DISTRIBUTIONS AND CHANGES: Neither the Merged Corporation
nor the Surviving Corporation shall make any change in its authorized
or issued capital stock, declare or pay any dividend or other
distribution, issue, encumber, purchase or otherwise acquire any of
its capital stock, issue any note, or other debt or security, or
perform any other act that is not within the ordinary course of its
business, without the consent of the other Party.
6
<Page>
E. FULL ACCESS: Each of the Parties shall permit representatives of the
other to have full access to all premises, properties, personnel,
books, records, contracts, and documents of and pertaining to the
other Party.
5. CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE: The obligation of the
Parties to consummate this Merger shall be subject to fulfillment on or
before the Effective Time of each of the following conditions, unless
waived.
A. REPRESENTATIONS AND WARRANTIES: The representations and warranties of
both parties set forth in this Agreement shall be true and correct in
all material respects at and as of the Closing Date.
B. DIRECTOR APPROVAL: This Agreement shall have been adopted by the
unanimous vote of the directors of both the Merged Corporation and the
Surviving Corporation.
C. COMPLIANCE WITH COVENANTS: Each of the Parties shall have complied in
all material respects with the covenants to be performed pursuant to
this Agreement.
6. TERMINATION OF AGREEMENT: Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors (whether
before or after director approval) as provided below:
A. MUTUAL CONSENT: The Parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time:
B. BREACH BY MERGED CORPORATION: The Surviving Corporation may terminate
this Agreement by giving written notice to the Merged Corporation at
any time prior to the Effective Time in the event that the Merged
Corporation has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect; the
Surviving Corporation has notified the Merged Corporation of this
breach; and the breach has continued without cure for a period of
thirty (30) days after the notice of breach.
C. BREACH BY SURVIVING CORPORATION: The Merged Corporation may terminate
this Agreement by giving written notice to the Surviving corporation
at any time prior to the Effective Time in the event the surviving
corporation has breached any material representation, warranty or
covenant contained in this Agreement in any material respect; the
Merged Corporation has notified the Surviving Corporation of the
breach; and the breach has continued without cure for a period of
thirty (30) days after the notice of breach.
D. EFFECT OF TERMINATION: If any Party terminates this Agreement pursuant
to this Section 6, all rights and obligations of the Parties hereunder
shall
7
<Page>
terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach).
7. NOTICES: Any notice or other communication in this Agreement to be
given by either party to the other must be in writing and may be given by
any means which provides evidence of receipt, or by delivering the same in
person, or to an officer of such party. Notice shall be deemed received
upon making an in-person delivery or upon the date shown on a receipted
delivery. For purposes of notice, the addresses of the parties shall be as
follows:
If to Solo Cup Company: Solo Cup Company
1700 Old Deerfield Road
Highland Park, Illinois 60035
If to Clear Shield National, Inc.: Clear Shield National, Inc.
1700 Old Deerfield Road
Highland Park, Illinois 60035
and a copy to: Fox and Grove, Chartered
Suite 6200
311 South Wacker Drive
Chicago, Illinois 60606
or to such other addresses as any party may designate for itself by notice given
from time to time to the other parties in the manner provided herein.
8. OTHER MANUAL COVENANTS:
A. SEVERABILITY: Each Section of this Agreement and each sentence, clause
or phrase contained in such Section shall be considered severable and,
if for any reason, any Section or sentence, clause or phrase contained
in such Section is determined to be invalid or contrary to any
existing or future laws, such invalidity shall not impair the
operation of or affect that portion of this Agreement which is valid.
B. AMENDMENT: This Agreement may be amended, altered or revoked at any
time, in whole or in part, by filing with this Agreement a written
instrument setting forth such changes signed by all of the parties to
this Agreement.
C. BINDING ON: This Agreement shall be binding on the parties hereto, and
their respective successors, assigns, heirs and legal representatives.
D. SURVIVAL OF COVENANTS: The covenants, undertakings and indemnities
herein contained to be performed or observed at any time before the
termination of this Agreement shall survive the consummation of the
transactions contemplated hereby and the termination of this
Agreement.
8
<Page>
E. SECTION AND OTHER HEADINGS: Section or other headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
F. GOVERNING LAW: This instrument shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
G. COUNTERPARTS: This Agreement may be executed in counterparts, each of
which so executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
H. GENDER AND NUMBER: Where appropriate, words of the masculine gender
include the feminine, and words used in a plural or collective sense
include the singular and vice versa.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
CLEAR SHIELD NATIONAL, INC. SOLO CUP COMPANY
By: /s/ Robert L. Hulseman By: /s/ Robert L. Hulseman
-------------------------------- -------------------------------------
Robert L. Hulseman, Robert L. Hulseman,
President Chairman/CEO
ATTEST: ATTEST:
/s/ Ronald L. Whaley /s/ Ronald L. Whaley
- ----------------------------------- ----------------------------------------
Ronald L. Whaley Ronald L. Whaley
Vice President Executive Vice President
9
<Page>
Form BCA-11.25
ARTICLES OF MERGER
CONSOLIDATION OR EXCHANGE
(Rev. Jan. 1999) File # 5350-363-2
Jesse White SUBMIT IN DUPLICATE
Secretary of State
Department of Business Services FILED THIS SPACE FOR USE BY
Springfield, IL 62756 SECRETARY OF STATE
Telephone (217) 782-6961 DEC 29 1999
http://www.sos.state.Il.us Date 12/29/99
DO NOT SEND CASH! JESSE WHITE Filing Fee $100.00
Remit payment in check or SECRETARY OF STATE
money order, payable to Approved:
"Secretary of State."
Filing Fee is $100, but
if merger or
consolidation involves PAID
more than 2 corporations,
$50 each additional
corporation. DEC 29 1999
1. Names of corporations proposing to merge, and the state or country of their
incorporation:
<Table>
<Caption>
State or Country of Illinois Secretary of State File
Names of Corporation Incorporation Number
Solo Cup Company Illinois D-5360-363-2
Carnival Brands, Inc. Illinois D-5830-889-7
_________________________ _______________________ ___________________________
_________________________ _______________________ ___________________________
</Table>
2. The laws of the state or country under which each corporation is
incorporated permit such merger, consolidation or exchange.
3. a. Name of the surviving corporation: Solo Cup Company
b. It shall be governed by the laws of: Illinois
If not sufficient space to cover this point,
add one or more sheets of this size.
4. Plan of merger is as follows:
See attached Agreement and Plan of Merger.
EXPEDITED
DEC 29 1999
SECRETARY OF STATE
<Page>
5. Plan of merger was approved, as to each corporation not organized in
Illinois, in compliance with the laws of the state under which it is
organized, and (b) as to each Illinois corporation, as follows:
(The following items are not applicable to mergers under Section 11.30 -
90% owned subsidiary provisions. See Article 7.)
(Only "X" one box for each Illinois corporation)
<Table>
<Caption>
By the shareholders, a
resolution of the board
directors having been By written consent of the
duly adopted and shareholders having not
submitted to a vote at a less than the minimum
meeting of shareholders. number of votes required
Not less than the by statute and by the
minimum number of articles of incorporation. By written consent
votes required by statute Shareholders who have of ALL the
and by the articles of not consented in writing shareholders entitled
incorporation voted in have been given notice in to vote on the action
favor of the action taken accordance with Section 7.10 in accordance with
Name of Corporation (Section 11.20) (Section 11.220) Section 7.10 and Section 11.20
- ------------------- ------------------------- ---------------------------- ------------------------------
______________________ / / / / / /
______________________ / / / / / /
______________________ / / / / / /
______________________ / / / / / /
______________________ / / / / / /
</Table>
6. (NOT APPLICABLE IF SURVIVING, NEW OR ACQUIRING CORPORATION IS AN ILLINOIS
CORPORATION)
It is agreed that, upon and after the issuance of a certificate of merger,
consolidation or exchange by the Secretary of State of the State of
Illinois:
a. The surviving, new or acquiring corporation may be served with process
in the State of Illinois in any proceeding for the enforcement of any
obligation of any corporation organized under the laws of the State of
Illinois which is a party to the merger, consolidation or exchange and
in any proceeding for the enforcement of the rights of the dissenting
shareholder of any such corporation organized under the laws of the
State of Illinois against the surviving, new or acquiring corporation.
b. The Secretary of State of the State of Illinois shall be and hereby is
irrevocably appointed as the agent of the surviving, new or acquiring
corporation to accept service of process in any such proceedings, and
c. The surviving, new, or acquiring corporation will promptly pay to the
dissenting shareholders of any corporation organized under the laws of
the State of Illinois which is a party to the merger, consolidation or
exchange the amount, if any, to which they shall be entitled under the
provisions of "The Business Corporation Act of 1983" of the State of
Illinois with respect to the rights of dissenting shareholders.
<Page>
7. (COMPLETE THIS ITEM IF REPORTING A MERGER UNDER SECTION 11.30 - 90% OWNED
SUBSIDIARY PROVISIONS.)
a. The number of outstanding shares of each class of each merging
subsidiary corporation and the number of such shares of each class
owned immediately prior to the adoption of the plan of merger by the
parent corporation, are:
<Table>
<Caption>
Number of Shares of Each Class
Total Number of Shares Owned immediately Prior to
Name of Corporation Outstanding of Each Class Merger by the Parent Corporation
Carnival Brands, Inc. 1,000 1,000
______________________________________ ____________________________________ ____________________________________
______________________________________ ____________________________________ ____________________________________
______________________________________ ____________________________________ ____________________________________
</Table>
b. (Not applicable to 100% owned subsidiaries)
The date of mailing a copy of the plan of merger and notice of the
right to dissent to the shareholders of each merging subsidiary
corporation was _____________, ___________.
(MONTH & DAY) (YEAR)
Was written consent for the merger or written waiver of the 30-day
period by the holders of all outstanding shares of all subsidiary
corporations received? / / Yes / / No
(IF THE ANSWER IS "NO," THE DUPLICATE COPIES OF THE ARTICLES OF MERGER
MAY NOT BE DELIVERED TO THE SECRETARY OF STATE UNTIL AFTER 30 DAYS
FOLLOWING THE MAILING OF A COPY OF THE PLAN OF MERGER AND OF THE
NOTICE OF THE RIGHT TO DISSENT TO THE SHAREHOLDERS OF EACH MERGING
SUBSIDIARY CORPORATION.)
8. The undersigned corporations have caused these articles to be signed by
their duly authorized officers, each of whom affirms, under penalties of
perjury, that the facts stated herein are true. (All signatures must be in
BLACK INK.)
<Table>
DATED DECEMBER 20 , 1999 SOLO CUP COMPANY
-------------------------------- ------------- --------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY /s/ RONALD L. WHALEY BY /s/ ROBERT L. HULSEMAN
------------------------------------------------ ----------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
RONALD L. WHALEY, EXEC. V.P. ROBERT L. HULSEMAN, CHAIRMAN/CEO
------------------------------------------------ --------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED DECEMBER 20 , 1999 CARNIVAL BRANDS, INC.
-------------------------------- ------------- --------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY /s/ RONALD L. WHALEY BY /s/ ROBERT L. HULSEMAN
------------------------------------------------ ---------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
RONALD L. WHALEY, ASSISTANT SECRETARY ROBERT L. HULSEMAN, PRESIDENT
------------------------------------------------ --------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED ,
-------------------------------- ------------ --------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY BY
------------------------------------------------ ----------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
------------------------------------------------ --------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
</Table>
<Page>
AGREEMENT AND PLAN OF MERGER
BETWEEN
SOLO CUP COMPANY
AND
CARNIVAL BRANDS, INC.
This Agreement and Plan of Merger is made as of the __ day of ____________,
1999, between Carnival Brands, Inc. an Illinois corporation (herein called
"Merged Corporation" or "Carnival"), and Solo Cup Company, an Illinois
corporation (herein called "Surviving Corporation" or "Solo"). The Merged
Corporation and the Surviving Corporation are referred to collectively herein as
"the Parties".
WHEREAS, the Parties contemplate a tax-free-merger of Carnival with and
into Solo in a reorganization pursuant to Internal Revenue Code Section 368
(a)(1)(A);
WHEREAS, Carnival is a wholly owned subsidiary of Solo; and
WHEREAS, the Parties expect that the merger will further certain of their
business objectives;
NOW THEREFORE, the Parties agree as follows:
1. BASIC TRANSACTION:
A. THE MERGER: On and subject to the terms and conditions of this
Agreement, Carnival will merge with and into Solo (the "Merger") at
the Effective Time (hereinafter defined). Solo shall be the
corporation surviving the Merger. All of the property, real, personal
and mixed, of each of the Parties, and all debts due to either of
them, shall be transferred to and vested in the Surviving Corporation,
without further act or deed, as of the Effective Time. As of the
Effective Time, the Surviving Corporation shall be responsible and
liable for all of the liabilities and obligations of both the Merged
Corporation and the Surviving Corporation, and any claim or judgment
against either Party.
B. THE CLOSING: The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Fox and
Grove, Chartered on the second business day following the satisfaction
or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions
with respect to actions the respective Parties will take at the
Closing itself) or such other date as the Parties may mutually
determine (the "Closing Date").
<Page>
C. ACTIONS AT THE CLOSING: At the Closing, (i) Carnival will deliver to
Solo all of its issued and outstanding stock certificates and copies
of all corporate resolutions and consents which are necessary to
consummate the Merger, (ii) Solo will deliver to Carnival copies of
all of its corporate resolutions and consents necessary to consummate
the Merger, and (iii) the Merged Corporation and the Surviving
corporation will file with the Secretary of State of the State of
Illinois Articles of Merger in the form attached hereto as Exhibit A
(the "Articles of Merger").
D. EFFECT OF MERGER:
(1) GENERAL: The Merger shall become effective at the time (the
"Effective Time") that the Parties file the Articles of Merger
with the Secretary of State of the State of Illinois. The Merger
shall have the effect set forth in the Illinois Business
Corporation Act of 1983, as amended. The Surviving corporation
may, at any time after the Effective Time, take any action
(including executing and delivering any document) in the name and
on behalf of either the Merged Corporation or the Surviving
corporation in order to carry out and effectuate the transactions
contemplated by this Agreement.
(2) ARTICLES OF INCORPORATION: The Articles of Incorporation of the
Surviving Corporation in effect as of the date of this Agreement
and as of the Effective Time will remain the Articles of
Incorporation of the Surviving Corporation without any
modification or Amendment in the Merger.
(3) BYLAWS: The Bylaws of the Surviving Corporation in effect as of
the date of this Agreement and as of the Effective Time will
remain the Bylaws of the Surviving Corporation.
(4) DIRECTORS AND OFFICERS: The Directors and Officers of the
Surviving Corporation as of the date of this Agreement and as of
the Effective Time shall continue to serve until their respective
successors are duly elected and qualified pursuant to the Bylaws
of the Surviving Corporation.
(5) CONVERSION OF CARNIVAL SHARES: At and as of the Effective Time,
each outstanding share of Carnival shall be cancelled.
(6) SURVIVING CORPORATION SHARES: Each share of the Surviving
Corporation issued and outstanding at and as of the Effective
Time will remain issued and outstanding.
2. REPRESENTATIONS AND WARRANTIES OF THE MERGED CORPORATION: The Merged
Corporation represents and warrants to the surviving Corporation that the
2
<Page>
statements contained in this Section 2 are correct and complete as of the
date of this Agreement, and will be correct and complete as of the Closing
Date.
A. ORGANIZATION, QUALIFICATION AND CORPORATE POWER: The Merged
Corporation is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Illinois. The Merged
Corporation is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of the
Merged Corporation taken as a whole or the ability of the Parties to
consummate the transactions contemplated by this Agreement. The Merged
Corporation has full corporate power and authority to carry on the
businesses in which it is engaged, and to own and use the properties
owned and used by it.
B. CAPITALIZATION: The entire authorized capital stock of the Merged
Corporation consists of 10,000 common shares of $1.00 par value stock,
of which 1,000 shares of the Merged Corporation are issued and
outstanding. All of the issued and outstanding shares of the Merged
Corporation have been duly authorized and are validly issued, fully
paid, and nonassessable. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that could
require the Merged Corporation to issue, sell, or otherwise cause to
become outstanding any of its capital stock. There are no outstanding
or authorized stock appreciation, phantom stock, profit participation,
or similar rights with respect to the Merged Corporation.
C. AUTHORIZATION OF TRANSACTION: The Merged Corporation has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder; provided, however, that the Merged Corporation cannot
consummate the Merger unless and until it receives the approval of all
of its directors. This Agreement constitutes the valid and legally
binding obligation of the Merged Corporation, enforceable in
accordance with its terms and conditions.
D. NONCONTRAVENTION: To the best knowledge of any director or officer of
the Merged Corporation, neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
the Merged Corporation is subject, or any provision of the charter of
bylaws of the Merged Corporation, or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any
3
<Page>
agreement, contract, lease, license, instrument or other arrangement
to which any of the Merged Corporation is a party or by which it is
bound, or to which any of its assets is subject (or result in the
imposition of any security interest upon any of its assets), except
where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation, failure to give notice, or
security interest would not have a material adverse effect on the
financial condition of the Merged Corporation taken as a whole or on
the ability of the Parties to consummate the transactions contemplated
by this Agreement.
E. FINANCIAL STATEMENTS: The financial statements of the Merged
Corporation which have been delivered by the Merged Corporation to the
Surviving Corporation, fairly present the financial condition of the
Merged Corporation as set forth in such statements.
F. ABSENCE OF UNDISCLOSED LIABILITIES: Except to the extent reflected or
reserved against in the financial statements of the Merged
Corporation, which have been delivered to the Surviving Corporation,
the Merged Corporation did not have at that date any liabilities or
obligations (secured, unsecured, contingent or otherwise) of a nature
customarily reflected in such statements.
G. CONTINUITY OF BUSINESS ENTERPRISE: The Merged Corporation operates at
least one significant historic business line, and owns or leases all
of its historic business assets, in each case within the meaning of
Treas. Reg. Sec. 1.368-1(d). Such business line and business assets
shall be merged into the Surviving Corporation.
H. The Merged Corporation has no subsidiaries.
3. REPRESENTATIONS AND WARRANTIES OF THE SURVIVING CORPORATION: The
Surviving corporation represents and warrants to the Merged Corporation
that the statements contained in this Section 3 are correct and complete as
of the date, of this Agreement and will be correct and complete as of the
Closing Date.
A. ORGANIZATION, QUALIFICATION AND CORPORATE POWER: The Surviving
Corporation is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Illinois. The Surviving
Corporation is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of the
Surviving Corporation taken as a whole or the ability of the Parties
to consummate the transactions contemplated by this Agreement. The
Surviving Corporation has full corporate power and authority to carry
on the businesses in which it is engaged and to own and use the
properties owned and used by it.
4
<Page>
B. CAPITALIZATION: The entire authorized capital stock of the Surviving
Corporation consists of 100,100,000 common shares of $.01 par value
stock, of which 10,234,600 shares of the Surviving Corporation are
issued and outstanding. Of the 10,234,600 shares outstanding
10,177,126 are Class A Non-voting common shares and 57,474 are Class B
Voting common shares. All of the issued and outstanding shares of the
Surviving Corporation have been duly authorized and are validly
issued, fully paid, and nonassessable. There are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or
similar rights with respect to the Surviving Corporation.
C. AUTHORIZATION OF TRANSACTION: The Surviving Corporation has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder; provided, however, that the Surviving Corporation cannot
consummate the Merger unless and until it receives the approval of all
of its directors. This Agreement constitutes the valid and legally
binding obligation of the surviving Corporation, enforceable in
accordance with its terms and conditions.
D. NONCONTRAVENTION: To the best knowledge of any director or officer of
the Surviving Corporation, neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
the surviving corporation is subject or any provision of the charter
or bylaws of the surviving Corporation, or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument or other arrangement to which any of the Surviving
Corporation is a party, or by which it is bound, or to which any of
its assets is subject (or result in the imposition of any Security
Interest upon any of its assets), except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, failure to give notice, or Security Interest would not
have a material adverse effect on the financial condition of the
Surviving Corporation taken as a whole or on the ability of the
Parties to consummate the transactions contemplated by this Agreement.
E. FINANCIAL STATEMENTS: The financial statements of the Surviving
Corporation which have been delivered by the Surviving Corporation to
the Merged Corporation, fairly represent the financial condition of
the Surviving Corporation as set forth in such statements.
F. ABSENCE OF UNDISCLOSED LIABILITIES: Except to the extent reflected or
reserved against in the financial statements of the Surviving
Corporation,
5
<Page>
which have been delivered to the Merged Corporation, the Surviving
Corporation did not have at that date any liabilities or obligations
(secured, unsecured, contingent or otherwise) of a nature customarily
reflected in such statements.
G. CONTINUITY OF BUSINESS ENTERPRISE: It is the present intention of the
Surviving Corporation to continue at least one historic business line
of the Merged Corporation and to use all of the Merged Corporation's
historic business assets in its business, in each case within the
meaning of Treas. Reg. Sec. 1.368-1(d). Such business line and
business assets of the Merged Corporation shall be merged into the
Surviving Corporation.
4. COVENANTS OF THE PARTIES: The Parties agree as follows with respect to
the period from and after the date of this Agreement:
A. GENERAL: Each of the parties will use its best efforts to take all
action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement.
B. ARTICLES OF INCORPORATION AND BYLAWS: Except as set forth herein,
neither the Merged Corporation nor the Surviving Corporation shall
make any changes to its respective Articles of Incorporation or Bylaws
without the consent of the other Party.
C. CORPORATE DISTRIBUTIONS AND CHANGES: Neither the Merged Corporation
nor the Surviving Corporation shall make any change in its authorized
or issued capital stock, declare or pay any dividend or other
distributions, issue, encumber, purchase or otherwise acquire any of
its capital stock, issue any note, or other debt or security, or
perform any other act that is not within the ordinary course of its
business, without the consent of the other Party.
D. FULL ACCESS: Each of the Parties shall permit representatives of the
other to have full access to all premises, properties, personnel,
books, records, contracts, and documents of and pertaining to the
other Party.
5. CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE: The obligation of the
Parties to consummate this Merger shall be subject to fulfillment on or
before the Effective Time of each of the following conditions, unless
waived.
A. REPRESENTATIONS AND WARRANTIES: The representations and warranties of
both parties set forth in this Agreement shall be true and correct in
all material respects at and as of the Closing Date.
B. DIRECTOR APPROVAL: This Agreement shall have been adopted by the
unanimous vote of the directors of both the Merged Corporation and the
Surviving Corporation.
6
<Page>
C. COMPLIANCE WITH COVENANTS: Each of the Parties shall have complied in
all material respects with the covenants to be performed pursuant to
this Agreement.
6. TERMINATION OF AGREEMENT: Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors as
provided below:
A. MUTUAL CONSENT: The Parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time.
B. BREACH BY MERGED CORPORATION: The Surviving Corporation may terminate
this Agreement by giving written notice to the Merged Corporation at
any time prior to the Effective Time in the event that the Merged
Corporation has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect; the
Surviving Corporation has notified the Merged Corporation of this
breach; and the breach has continued without cure for a period of
thirty (30) days after the notice of breach.
C. BREACH BY SURVIVING CORPORATION: The Merged Corporation may terminate
this Agreement by giving written notice to the Surviving corporation
at any time prior to the Effective Time in the event the surviving
corporation has breached any material representation, warranty or
covenant contained in this Agreement in any material respect; the
Merged Corporation has notified the Surviving Corporation of the
breach; and the breach has continued without cure for a period of
thirty (30) days after the notice of breach.
D. EFFECT OF TERMINATION: If any Party terminates this Agreement pursuant
to this Section 6, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach).
7. NOTICES: Any notice or other communication in this Agreement to be
given by either party to the other must be in writing and may be given by
any means which provides evidence of receipt, or by delivering the same in
person, or to an officer of such party. Notice shall be deemed received
upon making an in-person delivery or upon the date shown on a receipted
delivery. For purposes of notice, the addresses of the parties shall be as
follows:
If to Solo Cup Company: Solo Cup Company
1700 Old Deerfield Road
Highland Park, Illinois 60035
7
<Page>
If to Carnival Brands, Inc.: Carnival Brands, Inc.
1700 Old Deerfield Road
Highland Park, Illinois 60035
and a copy to: Fox and Grove, Chartered
Suite 6200
311 South Wacker Drive
Chicago, Illinois 60606
or to such other addresses as any party may designate for itself by notice
given from time to time to the other parties in the manner provided herein.
8. OTHER MUTUAL COVENANTS:
A. SEVERABILITY: Each Section of this Agreement and each sentence, clause
or phrase contained in such Section shall be considered severable and,
if for any reason, any Section or sentence, clause or phrase contained
in such Section is determined to be invalid or contrary to any
existing or future laws, such invalidity shall not impair the
operation of or affect that portion of this Agreement which is valid.
B. AMENDMENT: This Agreement may be amended, altered or revoked at any
time, in whole or in part, by filing with this Agreement a written
instrument setting forth such changes signed by all of the parties to
this Agreement.
C. BINDING ON: This Agreement shall be binding on the parties hereto, and
their respective successors, assigns, heirs and legal representatives.
D. SURVIVAL OF COVENANTS: The covenants, undertakings and indemnities
herein contained to be performed or observed at any time before the
termination of this Agreement shall survive the consummation of the
transactions contemplated hereby and the termination of this
Agreement.
E. SECTION AND OTHER HEADINGS: Section or other headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
F. GOVERNING LAW: This instrument shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
G. COUNTERPARTS: This Agreement may be executed in counterparts, each of
which so executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
H. GENDER AND NUMBER: Where appropriate, words of the masculine gender
include the feminine, and words used in a plural or collective sense
include the singular and vice versa.
8
<Page>
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
CARNIVAL BRANDS, INC. SOLO CUP COMPANY
By: /s/ Robert L. Hulseman By: /s/ Robert L. Hulseman
-------------------------------- ---------------------------------
Robert L. Hulseman, Robert L. Hulseman,
President Chairman/CEO
ATTEST: ATTEST:
/s/ Ronald L. Whaley /s/ Ronald L. Whaley
- ------------------------------------ -------------------------------------
Ronald L. Whaley, Ronald L. Whaley,
Vice President Executive Vice President
9
<Page>
Form BCA-11.25
ARTICLES OF MERGER
CONSOLIDATION OR EXCHANGE
(Rev. Jan. 1999) File # 5350-363-2
Jesse White SUBMIT IN DUPLICATE
Secretary of State
Department of Business Services FILED THIS SPACE FOR USE BY
Springfield, IL 62756 SECRETARY OF STATE
Telephone (217) 782-6961 DEC 20 2000
http://www.sos.state.Il.us Date 12/20/00
JESSE WHITE
DO NOT SEND CASH! SECRETARY OF STATE
Remit payment in check or Filing Fee $ 100
money order, payable to
"Secretary of State." Approved:
Filing Fee is $100, but
if merger or
consolidation involves
more than 2 corporations,
$50 each additional
corporation.
1. Names of corporations proposing to merge, and the state or country of their
incorporation:
<Table>
<Caption>
State or Country of Illinois Secretary of State File
Names of Corporation Incorporation Number
Solo Cup Company Illinois D 5350-363-2
Solo Sales (Europe), Inc. Delaware F 5832-453-1
_________________________ _______________________ ___________________________
_________________________ _______________________ ___________________________
</Table>
2. The laws of the state or country under which each corporation is
incorporated permit such merger, consolidation or exchange.
3. a. Name of the surviving corporation: Solo Cup Company
b. It shall be governed by the laws of: Illinois
If not sufficient space to cover this point,
add one or more sheets of this size.
4. Plan of merger is as follows: See attached Agreement and Plan of Merger.
PAID
JAN 02 2001
EXPEDITED SERVICES
<Page>
5. Plan of merger was approved, as to each corporation not organized in
Illinois, in compliance with the laws of the state under which it is
organized, and (b) as to each Illinois corporation, as follows:
(The following items are not applicable to mergers under Section 11.30 -
90% owned subsidiary provisions. See Article 7.)
(Only "X" one box for each Illinois corporation)
<Table>
<Caption>
By the shareholders, a
resolution of the board
directors having been By written consent of the
duly adopted and shareholders having not
submitted to a vote at a less than the minimum
meeting of shareholders. number of votes required
Not less than the by statute and by the
minimum number of articles of incorporation. By written consent
votes required by statute Shareholders who have of ALL the
and by the articles of not consented in writing shareholders entitled
incorporation voted in have been given notice in to vote on the action
favor of the action taken accordance with Section 7.10 in accordance with
Name of Corporation (Section 11.20) (Section 11.220) Section 7.10 and Section 11.20
- ------------------- ------------------------- ---------------------------- ------------------------------
Solo Cup Company / / / / /X/
______________________ / / / / / /
______________________ / / / / / /
______________________ / / / / / /
______________________ / / / / / /
</Table>
6. (NOT APPLICABLE IF SURVIVING, NEW OR ACQUIRING CORPORATION IS AN ILLINOIS
CORPORATION)
It is agreed that, upon and after the issuance of a certificate of merger,
consolidation or exchange by the Secretary of State of the State of
Illinois:
a. The surviving, new or acquiring corporation may be served with process
in the State of Illinois in any proceeding for the enforcement of any
obligation of any corporation organized under the laws of the State of
Illinois which is a party to the merger, consolidation or exchange and
in any proceeding for the enforcement of the rights of the dissenting
shareholder of any such corporation organized under the laws of the
State of Illinois against the surviving, new or acquiring corporation.
b. The Secretary of State of the State of Illinois shall be and hereby is
irrevocably appointed as the agent of the surviving, new or acquiring
corporation to accept service of process in any such proceedings, and
c. The surviving, new, or acquiring corporation will promptly pay to the
dissenting shareholders of any corporation organized under the laws of
the State of Illinois which is a party to the merger, consolidation or
exchange the amount, if any, to which they shall be entitled under the
provisions of "The Business Corporation Act of 1983" of the State of
Illinois with respect to the rights of dissenting shareholders.
<Page>
7. (COMPLETE THIS ITEM IF REPORTING A MERGER UNDER SECTION 11.30 - 90% OWNED
SUBSIDIARY PROVISIONS.)
a. The number of outstanding shares of each class of each merging
subsidiary corporation and the number of such shares of each class
owned immediately prior to the adoption of the plan of merger by the
parent corporation, are:
<Table>
<Caption>
Number of Shares of Each Class
Total Number of Shares Owned immediately Prior to
Name of Corporation Outstanding of Each Class Merger by the Parent Corporation
______________________________________ ____________________________________ ____________________________________
______________________________________ ____________________________________ ____________________________________
______________________________________ ____________________________________ ____________________________________
______________________________________ ____________________________________ ____________________________________
______________________________________ ____________________________________ ____________________________________
</Table>
b. (Not applicable to 100% owned subsidiaries)
The date of mailing a copy of the plan of merger and notice of the
right to dissent to the shareholders of each merging subsidiary
corporation was _____________ , __________.
(MONTH & DAY) (YEAR)
Was written consent for the merger or written waiver of the 30-day
period by the holders of all outstanding shares of all subsidiary
corporations received? / / Yes / / No
(IF THE ANSWER IS "NO," THE DUPLICATE COPIES OF THE ARTICLES OF MERGER
MAY NOT BE DELIVERED TO THE SECRETARY OF STATE UNTIL AFTER 30 DAYS
FOLLOWING THE MAILING OF A COPY OF THE PLAN OF MERGER AND OF THE
NOTICE OF THE RIGHT TO DISSENT TO THE SHAREHOLDERS OF EACH MERGING
SUBSIDIARY CORPORATION.)
8. The undersigned corporations have caused these articles to be signed by
their duly authorized officers, each of whom affirms, under penalties of
perjury, that the facts stated herein are true. (All signatures must be in
BLACK INK.)
<Table>
DATED DECEMBER 15 , 2000 SOLO CUP COMPANY
---------------------------- ---------------- --------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY /s/ RONALD L. WHALEY BY /s/ ROBERT L. HULSEMAN
------------------------------------------------ ---------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
RONALD L. WHALEY, CFO/EVP ROBERT L. HULSEMAN, CHAIRMAN/CEO
------------------------------------------------ --------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED , SOLO SALES (EUROPE), INC.
-------------------------------- ------------- --------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY /s/ RONALD L. WHALEY BY /s/ ROBERT L. HULSEMAN
------------------------------------------------ ----------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
RONALD L. WHALEY, V.P. ROBERT L. HULSEMAN, PRESIDENT
------------------------------------------------ --------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
DATED ,
-------------------------------- ------------- ---------------------------------------------------
(MONTH & DAY) (YEAR) (EXACT NAME OF CORPORATION)
ATTESTED BY BY
------------------------------------------------ ----------------------------------------------
(SIGNATURE OF SECRETARY OR ASSISTANT SECRETARY) (SIGNATURE OF PRESIDENT OR VICE PRESIDENT)
------------------------------------------------ --------------------------------------------------
(TYPE OR PRINT NAME AND TITLE) (TYPE OR PRINT NAME AND TITLE)
</Table>
<Page>
AGREEMENT AND PLAN OF MERGER
OF
SOLO SALES (EUROPE), INC.
INTO
SOLO CUP COMPANY
This Agreement and Plan of Merger is made as of December 15, 2000, by and
between SOLO SALES (EUROPE), INC., a Delaware corporation ("Solo Europe" or the
"Merged Corporation"), and SOLO CUP COMPANY, an Illinois corporation, ("Solo
Cup" or the "Surviving Corporation"). The Merged Corporation and the Surviving
Corporation are sometimes referred to collectively herein as the "Parties".
RECITALS:
The Parties contemplate a tax-free-merger of the Merged Corporation with
and into the Surviving Corporation in a reorganization pursuant to Internal
Revenue Code Sections 368 (a)(1)(A) and 368(a)(1)(D); and
The Parties expect that the merger will further certain of their business
objectives.
NOW THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. BASIC TRANSACTION:
A. THE MERGER: On and subject to the terms and conditions of this
Agreement, Solo Europe will merge with and into Solo Cup (the
"Merger") at the Effective Time (hereinafter defined). Solo Cup shall
be the corporation surviving the Merger. All of the property, real,
personal and mixed, of each of the Parties, and all debts due to
either of them, shall be transferred to and vested in the Surviving
Corporation, without further act or deed, as of the Effective Time. As
of the Effective Time, the Surviving Corporation shall be responsible
and liable for all of the liabilities and obligations of both the
Merged Corporation and the Surviving Corporation, and any claim or
judgment against the Parties.
B. THE CLOSING: The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Fox and
Grove, Chartered on the second business day following the satisfaction
or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions
with respect to actions the respective Parties will take at the
Closing itself) or such other date as the Parties may mutually
determine (the "Closing Date").
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C. ACTIONS AT THE CLOSING: At the Closing: (i) Solo Europe will deliver
to Solo Cup all of their issued and outstanding stock certificates and
copies of all corporate resolutions and consents which are necessary
to consummate the Merger; (ii) Solo Cup will deliver to Solo Europe
copies of all of its corporate resolutions and consents necessary to
consummate the Merger; (iii) the Merged Corporation and the Surviving
Corporation shall file with the Illinois Secretary of State Articles
of Merger in the form attached hereto as Exhibit A (the "Articles of
Merger"); and (iv) the Merged Corporation and the Surviving
Corporation shall file with the Delaware Secretary of State a
Certificate of Merger.
D. EFFECT OF MERGER:
(1) GENERAL: The Merger shall become effective at the time (the
"Effective Time") that the Parties file the Articles of Merger
with the Illinois Secretary of State. The Merger shall have the
effect set forth in the Illinois Business Corporation Act of
1983, as amended. The Surviving Corporation may, at any time
after the Effective Time, take any action (including executing
and delivering any document) in the name and on behalf of either
the Merged Corporation or the Surviving Corporation in order to
carry out and effectuate the transactions contemplated by this
Agreement.
(2) ARTICLES OF INCORPORATION: The Articles of Incorporation of the
Surviving Corporation in effect as of the date of this Agreement
and as of the Effective Time will remain the Articles of
Incorporation of the Surviving Corporation without any
modification or Amendment as a result of the Merger.
(3) BYLAWS: The Bylaws of the Surviving Corporation in effect as of
the date of this Agreement and as of the Effective Time will
remain the Bylaws of the Surviving Corporation.
(4) DIRECTORS AND OFFICERS: The directors and officers of the
Surviving Corporation as of the date of this Agreement and as of
the Effective Time shall continue to serve until their respective
successors are duly elected and qualified pursuant to the Bylaws
of the Surviving Corporation.
(5) CANCELLATION OF SOLO EUROPE SHARES: At and as of the Effective
Time, each share of Solo Europe shall be cancelled as all the
shares of the two corporations participating in the merger are
owned by the same shareholders in virtually identical
proportions.
(6) SURVIVING CORPORATION SHARES: Each share of the Surviving
Corporation issued and outstanding at and as of the Effective
Time will remain issued and outstanding.
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2. SOLO EUROPE REPRESENTATIONS AND WARRANTIES: Solo Europe represents and
warrants to the Surviving Corporation that the statements contained in this
Section 2 are correct and complete as of the date of this Agreement, and
will be correct and complete as of the Closing Date.
A. ORGANIZATION, QUALIFICATION AND CORPORATE POWER: Solo Europe is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware. Solo Europe is duly
authorized to conduct business and is in good standing under the laws
of each jurisdiction where such qualification is required, except
where the lack of such qualification would not have a material adverse
effect on its financial condition taken as a whole, or on the ability
of the Parties to consummate the transactions contemplated by this
Agreement. Solo Europe has full corporate power and authority to carry
on the businesses in which it is engaged, and to own and use its
properties.
B. CAPITALIZATION: The entire authorized capital stock of Solo Europe
consists of 10,000 common shares of $.01 par value stock, of which
1,000 shares are issued and outstanding. All of the issued and
outstanding shares of Solo Europe have been duly authorized and are
validly issued, fully paid, and nonassessable. There are no
outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require Solo Europe to issue,
sell, or otherwise cause to become outstanding any of its capital
stock. There are no outstanding or authorized stock appreciation,
phantom stock, profit participation, or similar rights with respect to
Solo Europe.
C. AUTHORIZATION OF TRANSACTION: Solo Europe has full power and authority
(including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder; provided,
however, Solo Europe cannot consummate the Merger unless and until it
receives the approval of all of its shareholders. This Agreement
constitutes the valid and legally binding obligation of Solo Europe,
enforceable in accordance with its terms and conditions.
D. NONCONTRAVENTION: To the best knowledge of any director or officer of
Solo Europe, neither the execution and the delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will:
(i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Solo Europe is
subject, or any provision of the charter or bylaws of Solo Europe; or
(ii) conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under
any agreement, contract, lease, license, instrument or other
arrangement to which Solo Europe is a party or by which it is bound,
or to which any of its assets is subject (or result in the
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imposition of any security interest upon any of its assets), except
where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation, failure to give notice, or
security interest would not have a material adverse effect on its
financial condition of Solo Europe taken as a whole or on the ability
of the Parties to consummate the transactions contemplated by this
Agreement.
E. FINANCIAL STATEMENTS: The financial statements of Solo Europe which
have been delivered by Solo Europe to the Surviving Corporation,
fairly present the financial condition of Solo Europe as set forth in
such statements.
F. ABSENCE OF UNDISCLOSED LIABILITIES: Except to the extent reflected or
reserved against in the financial statements of Solo Europe which have
been delivered to the Surviving Corporation, Solo Europe did not have
at that date any liabilities or obligations (secured, unsecured,
contingent or otherwise) of a nature customarily reflected in such
statements.
G. CONTINUITY OF BUSINESS ENTERPRISE: Solo Europe operates at least one
significant historic business line, and owns or leases all of its
historic business assets, in each case within the meaning of Treas.
Reg. Sec. 1.368-1(d). Such business line and business assets shall be
merged into the Surviving Corporation.
H. SUBSIDIARIES: Solo Europe does not have any subsidiaries.
3. REPRESENTATIONS AND WARRANTIES OF THE SURVIVING CORPORATION: The
Surviving Corporation represents and warrants to the Merged Corporation
that the statements contained in this Section 3 are correct and complete as
of the date, of this Agreement and will be correct and complete as of the
Closing Date.
A. ORGANIZATION, QUALIFICATION AND CORPORATE POWER: The Surviving
Corporation is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Illinois. The Surviving
Corporation is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of the
Surviving Corporation taken as a whole or on the ability of the
Parties to consummate the transactions contemplated by this Agreement.
The Surviving Corporation has full corporate power and authority to
carry on the businesses in which it is engaged and to own and use its
properties.
B. CAPITALIZATION: The entire authorized capital stock of the Surviving
Corporation consists of 100,100,000 common shares of no par value
stock, of which 10,234,600 shares of the Surviving Corporation are
issued and outstanding. Of the 10,234,600 shares outstanding
10,177,124 are Class A
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Non-voting common shares and 57,474 are Class B Voting common shares.
All of the issued and outstanding shares of the Surviving Corporation
have been duly authorized and are validly issued, fully paid, and
nonassessable. There are 5,715,000 warrants outstanding to purchase
5,715,000 shares of Class A Non-voting common stock. There are no
outstanding or authorized options, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or
commitments that could require the Surviving Corporation to issue,
sell, or otherwise cause to become outstanding any of its capital
stock. There are no outstanding or authorized stock appreciation,
phantom stock, profit participation, or similar rights with respect to
the Surviving Corporation.
C. AUTHORIZATION OF TRANSACTION: The Surviving Corporation has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder; provided, however, the Surviving Corporation cannot
consummate the Merger unless and until it receives the approval of all
of its voting shareholders. This Agreement constitutes the valid and
legally binding obligation of the Surviving Corporation, enforceable
in accordance with its terms and conditions.
D. NONCONTRAVENTION: To the best knowledge of any director or officer of
the Surviving Corporation, neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby will: (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
the surviving corporation is subject or any provision of the charter
or bylaws of the Surviving Corporation; or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument or other arrangement to which any of the Surviving
Corporation is a party, or by which it is bound, or to which any of
its assets is subject (or result in the imposition of any security
interest upon any of its assets), except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, failure to give notice, or security interest would not
have a material adverse effect on the financial condition of the
Surviving Corporation taken as a whole or on the ability of the
Parties to consummate the transactions contemplated by this Agreement.
E. FINANCIAL STATEMENTS: The financial statements of the Surviving
Corporation which have been delivered by the Surviving Corporation to
the Merged Corporation, fairly present the financial condition of the
Surviving Corporation as set forth in such statements.
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F. ABSENCE OF UNDISCLOSED LIABILITIES: Except to the extent reflected or
reserved against in the financial statements of the Surviving
Corporation, which have been delivered to the Merged Corporation, the
Surviving Corporation did not have at that date any liabilities or
obligations (secured, unsecured, contingent or otherwise) of a nature
customarily reflected in such statements.
G. CONTINUITY OF BUSINESS ENTERPRISE: It is the present intention of the
Surviving Corporation and to continue at least one historic business
line of the Merged Corporation and to use all of the Merged
Corporation's historic business assets in its business, in each case
within the meaning of Treas. Reg. Sec. 1.368-1(d). Such business line
and business assets of the Merged Corporation shall be merged into the
Surviving Corporation.
4. COVENANTS OF THE PARTIES: The Parties agree as follows with respect to
the period from and after the date of this Agreement:
A. GENERAL: Each of the parties will use its best efforts to take all
action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement.
B. DELAWARE GENERAL CORPORATE LAW: The Merged Corporation will call a
special meeting of its stockholders as soon as practicable in order
that the stockholders may consider and vote upon the adoption of this
Agreement and the approval of the Merger in accordance with the
General Corporate Law of the State of Delaware.
C. ILLINOIS BUSINESS CORPORATION ACT: The Surviving Corporation will call
a special meeting of its stockholders as soon as practicable in order
that the stockholders may consider and vote upon the adoption of this
Agreement and the approval of the Merger in accordance with the
Illinois Business Corporation Act.
D. ARTICLES OF INCORPORATION AND BYLAWS: Except as set forth herein,
neither the Merged Corporation nor the Surviving Corporation shall
make any changes to its respective Articles of Incorporation or Bylaws
without the consent of the other Parties.
E. CORPORATE DISTRIBUTIONS AND CHANGES: Neither the Merged Corporation
nor the Surviving Corporation shall make any change in its authorized
or issued capital stock, declare or pay any dividend or other
distribution, issue, encumber, purchase or otherwise acquire any of
its capital stock, issue any note, or other debt or security, or
perform any other act that is not within the ordinary course of its
business, without the consent of the other Parties.
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F. FULL ACCESS: Each of the Parties shall permit representatives of the
other to have full access to all premises, properties, personnel,
books, records, contracts, and documents of and pertaining to the
other Parties.
5. CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE: The obligation of the
Parties to consummate this Merger shall be subject to fulfillment on or
before the Effective Time of each of the following conditions, unless
waived:
A. REPRESENTATIONS AND WARRANTIES: The representations and warranties of
all Parties set forth in this Agreement shall be true and correct in
all material respects at and as of the Closing Date.
B. SHAREHOLDER APPROVAL: This Agreement shall have been adopted by the
unanimous vote of the shareholders of the Merged Corporation and the
Surviving Corporation.
C. COMPLIANCE WITH COVENANTS: Each of the Parties shall have complied in
all material respects with the covenants to be performed pursuant to
this Agreement.
6. TERMINATION OF AGREEMENT: Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors (whether
before or after stockholder approval) as provided below:
A. MUTUAL CONSENT: The Parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time.
B. BREACH BY MERGED CORPORATION: The Surviving Corporation may terminate
this Agreement by giving written notice to the Merged Corporation at
any time prior to the Effective Time in the event that the Merged
Corporation has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect; the
Surviving Corporation has notified the Merged Corporation of this
breach; and the breach has continued without cure for a period of 30
days after the notice of breach.
C. BREACH BY SURVIVING COLORATION: The Merged Corporation may terminate
this Agreement by giving written notice to the Surviving Corporation
at any time prior to the Effective Time in the event the Surviving
Corporation has breached any material representation, warranty or
covenant contained in this Agreement in any material respect; the
Merged Corporation has notified the Surviving Corporation of the
breach; and the breach has continued without cure for a period of 30
days after the notice of breach.
D. EFFECT OF TERMINATION: If any Party terminates this Agreement pursuant
to this Section 6, all rights and obligations of the Parties hereunder
shall
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terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach).
7. NOTICES: Any notice or other communication in this Agreement to be
given by either party to the other must be in writing and may be given by
any means which provides evidence of receipt, or by delivering the same in
person, or to an officer of such party. Notice shall be deemed received
upon making an in-person delivery or upon the date shown on a receipted
delivery. For purposes of notice, the addresses of the parties shall be as
follows:
If to Solo Europe: Solo Sales (Europe), Inc.
700 Old Deerfield Road
Highland Park, Illinois 60035
If to Solo Cup: Solo Cup Company
1700 Old Deerfield Road
Highland Park, Illinois 60035
and a copy to: Robert M. Mintz, Esq.
Fox and Grove, Chartered
311 South Wacker Drive,
Suite 6200
Chicago, Illinois 60606
Fax (312) 362-0700
or to such other addresses as any party may designate for itself by notice
given from time to time to the other parties in the manner provided herein.
8. OTHER MUTUAL COVENANTS:
A. SEVERABILITY: Each section of this Agreement and each sentence, clause
or phrase contained in such Section shall be considered severable and,
if for any reason, any section or sentence, clause or phrase contained
in such section is determined to be invalid or contrary to any
existing or future laws, such invalidity shall not impair the
operation of or affect that portion of this Agreement which is valid.
B. AMENDMENT: This Agreement may be amended, altered or revoked at any
time, in whole or in part, by filing with this Agreement a written
instrument setting forth such changes signed by all of the parties to
this Agreement.
C. BINDING ON: This Agreement shall be binding on the parties hereto, and
their respective successors, assigns, heirs and legal representatives.
D. SURVIVAL OF COVENANTS: The covenants, undertakings and indemnities
herein contained to be performed or observed at any time before the
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termination of this Agreement shall survive the consummation of the
transactions contemplated hereby and the termination of this
Agreement.
E. SECTION AND OTHER HEADINGS: Section or other headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
F. GOVERNING LAW: This instrument shall be governed by and construed in
accordance with the internal laws, and not the choice of laws, of the
State of Illinois.
G. COUNTERPARTS: This Agreement may be executed in counterparts, each of
which so executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
H. GENDER AND NUMBER: Where appropriate, words of the masculine gender
include the feminine, and words used in a plural or collective sense
include the singular and vice versa.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
SOLO SALES (EUROPE), INC. SOLO CUP COMPANY
By: /s/ Robert L. Hulseman By: /s/ Robert L. Hulseman
-------------------------------- ---------------------------------
Robert L. Hulseman, Robert L. Hulseman,
President Chairman/CEO
ATTEST: ATTEST:
/s/ Ronald L. Whaley /s/ Ronald L. Whaley
- ------------------------------------ ---------------------------------
Ronald L. Whaley, Ronald L. Whaley,
Vice President CFO/EVP
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<Table>
1. Corporate Name 2. File Number 3. State/Country 4. Inc/Qual Data
SOLO CUP COMPANY D5350-363-2 Illinois 06/21/1984
</Table>
5. President Name & Address
SEE ATTACHED LIST
Secretary Name & Address
Officer/Director Name & Address
Officer/Director Name & Address
<Table>
<Caption>
Share
6. Information Class Series Par Value Number Authorized Number Issued as of 03/31/2003
- -------------------------------------------------------------------------------------------------------------
COMM A .0100 100,000,000 10,367,626.000
COMM B .0100 100,000 57,474.000
</Table>
<Table>
7. Registered Agent Year FILED 7a) Changes Agent Name
RONALD L. WHALEY
SHAYLE P. FOX 2003 MAY 30, 2003
55 W. MONROE ST STE 800 Address
CHICAGO, IL 60603-5004 JESSE 1700 OLD DEERFIELD RD.
WHITE
SECRETARY
OF STATE City Zip
COOK COUNTY HIGHLAND PARK, IL 60035
County
LAKE
Under penalty of perjury and as an authorized 8. Signature/Title Date
officer, I declare that this annual report, pursuant to
provisions of the Business Corporation Act, has been /s/ Ronald L. Whaley COO/CFO 5/28/03
examined by me and is, to the best of my knowledge
and belief, true, correct and complete.
</Table>
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SOLO CUP COMPANY
2003 STATE OF ILLINOIS CORPORATE ANNUAL REPORT
CORPORATION FILE NO. D 5350-363-2
LIST OF OFFICERS AND DIRECTORS
<Table>
<Caption>
OFFICERS DIRECTORS NAME ADDRESS
-------- --------- ---- -------
CHAIRMAN AND CHIEF EXECUTIVE DIRECTOR ROBERT L. HULSEMAN 1700 OLD DEERFIELD ROAD
OFFICER HIGHLAND PARK, IL 60035
PRESIDENT AND SECRETARY DIRECTOR JOHN F. HULSEMAN 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
CHIEF OPERATING OFFICER AND DIRECTOR RONALD L. WHALEY 1700 OLD DEERFIELD ROAD
CHIEF FINANCIAL OFFICER HIGHLAND PARK, IL 60035
EXECUTIVE VICE PRESIDENT
WILLIAM R. COAD 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
SENIOR VICE PRESIDENT PAUL J. HULSEMAN 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
SENIOR VICE PRESIDENT WILLIAM P. IRVIN 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
SENIOR VICE PRESIDENT WILLIAM RICKERT 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
SENIOR VICE PRESIDENT SUSAN H. MARKS 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
SENIOR VICE PRESIDENT ANIL SHAH 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
SENIOR VICE PRESIDENT KATHLEEN C. WOLF 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
SENIOR VICE PRESIDENT PATRICK BYE 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
VICE PRESIDENT JAMES R. HULSEMAN 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
VICE PRESIDENT DAWN S. KELLER 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
VICE PRESIDENT ROBERT W. BIERGANS 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
VICE PRESIDENT RICHARD L. HULSEMAN 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
DIRECTOR SHEILA M. HULSEMAN 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
DIRECTOR GEORGIA S. HULSEMAN 1700 OLD DEERFIELD ROAD
HIGHLAND PARK, IL 60035
</Table>