Exhibit 99.1
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of September 26,
2005, is made by and among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Capital Partners,
LLC, ▇▇▇▇▇▇▇▇▇▇ & Co., LLC, Special Value Bond Fund, LLC, Special Value Absolute
Return Fund, LLC and Special Value Bond Fund II, LLC (individually, a
"Stockholder" and, collectively, the "Stockholders"), and Amscan Holdings, Inc.,
a Delaware corporation ("Parent"). Capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Merger Agreement (as defined below).
WHEREAS, concurrently herewith, Parent, Amscan Holdings, Inc., a
Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and
Party City Corporation, a Delaware corporation (the "Company"), are entering
into an Agreement and Plan of Merger (the "Merger Agreement"), providing for the
merger of Merger Sub with and into the Company with the Company as the surviving
corporation (the "Merger"), upon the terms and subject to the conditions set
forth in the Merger Agreement;
WHEREAS, as of the date hereof, each of the Stockholders beneficially
owns, or has complete investment authority over, and has (or upon exercise or
exchange of a convertible security will have) the power to vote and dispose of
the number of shares of common stock, par value $0.01 per share, of the Company
(the "Common Stock") set forth opposite such Stockholder's name on Schedule A
attached hereto (the "Owned Shares" and, together with any securities issued or
exchanged with respect to such shares of Common Stock upon any recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up or combination of the securities of the
Company or any other change in the Company's capital structure or securities of
which such Stockholder acquires beneficial ownership after the date hereof and
prior to the termination hereof, whether by purchase, acquisition or upon
exercise of options, warrants, conversion of other convertible securities or
otherwise, collectively referred to herein as, the "Covered Shares"); and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to
enter into the Merger Agreement, each of Parent and Merger Sub has required that
the Stockholders agree, and in order to induce Parent and Merger Sub to enter
into the Merger Agreement, the Stockholders have agreed, to enter into this
Agreement with respect to (a) the Covered Shares and (b) certain other matters
as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending co be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I.
VOTING AGREEMENT
Section 1.1 Voting Agreement. The Stockholders hereby agree that
during the Voting Period, at any meeting of the stockholders of the Company,
however called, or at any adjournment thereof or in any other circumstances upon
which a vote, consent or other approval (including by written consent) is
sought, the Stockholders shall (i) when a meeting is held,
appear at such meeting or otherwise cause the Covered Shares to be counted as
present thereat for the purpose of establishing a quorum and (ii) vote (or cause
to be voted) in person or by proxy the Covered Shares in favor of the Merger,
the Merger Agreement and the transactions contemplated by the Merger Agreement
and (iii) vote (or cause to be voted) the Covered Shares against any
extraordinary corporate transaction (other than the Merger), such as a merger,
consolidation, business combination, tender or exchange offer, reorganization,
recapitalization, liquidation, sale or transfer of a material amount of the
assets or securities of the Company or any of its subsidiaries (other than
pursuant to the Merger) or any other Takeover Proposal. For the purposes of this
Agreement, "Voting Period" shall mean the period commencing on the date hereof
and ending immediately prior to any termination of this Agreement pursuant to
Section 5.1 hereof.
Section 1.2 Proxy.
(a) EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PARENT, THE
PRESIDENT OF PARENT AND THE SECRETARY OF PARENT, IN THEIR RESPECTIVE CAPACITIES
AS OFFICERS OF PARENT, AND ANY OTHER DESIGNEE OF PARENT, EACH OF THEM
INDIVIDUALLY, SUCH STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE (AS
DEFINED BELOW)) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO
VOTE THE COVERED SHARES IN ACCORDANCE WITH SECTION 1.1. EACH STOCKHOLDER INTENDS
THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN
INTEREST AND WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY
PROXY PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO THE COVERED SHARES.
(b) The parties acknowledge and agree that neither Parent, nor
Parent's successors, assigns, subsidiaries, divisions, employees, officers,
directors, shareholders, agents and affiliates, shall owe any duty to, whether
in law or otherwise, or incur any liability of any kind whatsoever, including
without limitation, with respect to any and all claims, losses, demands, causes
of action, costs, expenses (including reasonable attorney's fees) and
compensation of any kind or nature whatsoever to the Stockholder in connection
with, as a result of or otherwise relating to any vote (or refrain from voting)
by Parent of the Covered Shares subject to the irrevocable proxy hereby granted
to Parent at any annual, special or other meeting or action or the execution of
any consent of the Stockholders of the Company. The parties acknowledge that,
pursuant to the authority hereby granted under the irrevocable proxy, Parent may
vote the Covered Shares pursuant to Section 1.1 in furtherance of its own
interests, and Parent is not acting as a fiduciary for the Stockholder.
(c) Except pursuant to Section 5.1 of this Agreement, this irrevocable
proxy shall not be terminated by any act of the Stockholder or by operation of
law, whether by the death or incapacity of the Stockholder or by the occurrence
of any other event or events (including, without limiting the foregoing, the
termination of any trust or estate for which the Stockholder is acting as a
fiduciary or fiduciaries or the dissolution or liquidation of any corporation or
partnership). If after the execution hereof the Stockholder should die or become
incapacitated, or if any trust or estate should be terminated, or if any
corporation or partnership
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should be dissolved or liquidated, or if any other such event or events shall
occur before the Termination Date, certificates representing the Covered Shares
shall be delivered by or on behalf of the Stockholder in accordance with the
terms and conditions of the Merger Agreement and this Agreement, and actions
taken by the Parent hereunder shall be as valid as if such death, incapacity,
termination, dissolution, liquidation or other event or events had not occurred,
regardless of whether or not the Parent has received notice of such death,
incapacity, termination, dissolution, liquidation or other event.
Section 1.3 Warrant. At the request of Parent made at any time after
the date hereof and prior to the record date set by the Board of Directors of
the Company in connection with the meeting of stockholders of the Company to
vote on and approve the Merger (the "Record Date"), Special Value Bond Fund, LLC
("SVBF") shall, pursuant to its Warrant to Purchase Common Stock of the Company
dated August 16, 1999 representing the right to purchase 2,496,000 shares of
Common Stock (the "Warrant"), exercise the Warrant in full immediately prior to
the Record Date either pursuant to Section 1.1(a) or 1.2 of the Warrant. In the
event that (a) SVBF shall exercise the Warrant in a cashless exercise in
accordance with Section 1.2 of the Warrant, and (b) the Merger is consummated
pursuant to the Merger Agreement, promptly after the Effective Time, Parent
shall pay to SVBF in immediately available funds, as directed by SVBF in
writing, an amount equal to the product of (I) the Cash Merger Consideration per
share of Common Stock, times (II) the difference of (x) the number of shares of
Common Stock that would have been issued upon exercise of the Warrant if the
Current Market Price (as defined in the Warrant) was equal to the per share Cash
Merger Consideration for purposes of consummating the cashless exercise in
accordance with Section 1.2 of the Warrant, and (y) the number of shares of
Common Stock actually issued upon exercise of the Warrant in accordance with
Section 1.2 of the Warrant. An example of such payment mechanic is set forth on
Schedule B hereto. In no event shall any such payment be made if either the
Merger is not consummated pursuant to the Merger Agreement, or the Warrant is
not exercised pursuant to Section 1.2 of the Warrant.
Section 1.4 Other Matters. Except as set forth in Section 1.1, each
Stockholder shall not be restricted from voting in favor of, against or
abstaining with respect to any matter presented to the stockholders of the
Company. In addition, nothing in this Agreement shall give Parent or any of its
officers or designees the right to vote any Covered Shares in connection with
the election of directors.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to each Stockholder as follows:
Section 2.1 Valid Existence. Parent is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power and authority to carry on its business as
it is now being conducted.
Section 2.2 Authority Relative to This Agreement. Parent has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been
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duly and validly authorized, executed and delivered by Parent and, assuming the
due authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligations of Parent, enforceable
against Parent in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Section 2.3 No Conflicts. Except for the applicable requirements of
the Securities Exchange Act of 1934, as amended, no filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is necessary on
the part of Parent for the execution and delivery of this Agreement by Parent
and the consummation by Parent of the transaction contemplated hereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Parent as follows:
Section 3.1 Valid Existence. Such Stockholder is duly organized,
formed or created, validly existing and in good standing under the laws of the
jurisdiction of its organization.
Section 3.2 Authority Relative To This Agreement. Such Stockholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly authorized,
executed and delivered by such Stockholder and, assuming the due authorization,
execution and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of such Stockholder, enforceable against such Stockholder
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to creditors
rights generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 3.3 No Conflict.
(a) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of its obligations under this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby will not, (i) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to such Stockholder or (ii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under contract to which such
Stockholder is a party; except for violations, breaches or defaults that would
not materially impair the ability of such Stockholder to perform its obligations
hereunder.
(b) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of its obligations under this Agreement will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any court or arbitrator or any governmental entity, agency or
official except for applicable requirements, if any, of the
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Securities and Exchange Act of 1934, as amended, and except where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not materially impair the ability of such
Stockholder to perform its obligations hereunder.
Section 3.4 Ownership Of Shares. As of the date hereof, (i) such
Stockholder (other than ▇▇▇▇▇▇▇▇▇▇ Capital Partners, LLC) has good and
marketable title to and is the record and beneficial owner of the Owned Shares
set forth opposite such Stockholder's name on Schedule A hereto and (ii)
▇▇▇▇▇▇▇▇▇▇ Capital Partners, LLC has complete investment authority over the
Owned Shares set forth opposite its name on Schedule A hereto, free and clear of
all pledges, liens, proxies, claims, charges, security interests, preemptive
rights, voting trusts, voting agreements, options, rights of first offer or
refusal and any other encumbrances or arrangements whatsoever with respect to
the ownership, transfer or other voting of the Owned Shares, except liens
granted to lending institutions with respect to the extension of credit and the
granting of loans to the Stockholders; provided, however, such liens do not
impair the ability of any Stockholder nor require the consent of such lender (i)
to sell, transfer or assign the Owned Shares pursuant to the Merger, (ii) to
grant to Parent the proxy hereunder or (iii) to or for any Stockholder to comply
with its obligations pursuant to Section 4.3 hereof.
Section 3.5 Stockholder Has Adequate Information. Such Stockholder is
a sophisticated investor with respect to the Covered Shares and has
independently and without reliance upon Parent and based on such information as
such Stockholder has deemed appropriate, made its own analysis and decision to
enter into this Agreement. Such Stockholder acknowledges that Parent has not
made nor makes any representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Agreement. Such
Stockholder acknowledges that the agreements contained herein with respect to
the Covered Shares by such Stockholder are irrevocable, and that the Stockholder
shall have no recourse to the Covered Shares or Parent with respect to the
Covered Shares, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
Section 3.6 Parent's Excluded Information. Such Stockholder
acknowledges and confirms that (a) Parent may possess or hereafter come into
possession of certain non-public information concerning the Covered Shares and
the Company which is not known to Stockholder and which may be material to
Stockholder's decision to vote in favor of the Merger ("Parent's Excluded
Information"), (b) Stockholder has requested not to receive Parent's Excluded
Information and has determined to vote in favor of the Merger and sell the
Covered Shares notwithstanding its lack of knowledge of Parent's Excluded
Information, and (c) Parent shall have no liability or obligation to Stockholder
in connection with, and Stockholder hereby waives and releases Parent from, any
claims which Stockholder or its successors and assigns may have against Parent
(whether pursuant to applicable securities, laws or otherwise) with respect to
the non-disclosure of Parent's Excluded Information; provided, however, nothing
contained in this Section 3.6 shall limit Stockholder's right to rely upon the
express representations and warranties made by Parent in this Agreement, or
Stockholder's remedies in respect of breaches of any such representations and
warranties.
Section 3.7 No Setoff. Such Stockholder has no liability or obligation
related to or in connection with the Covered Shares other than the obligations
to Parent as set forth in
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this Agreement. To the knowledge of such Stockholder, there are no legal or
equitable defenses or counterclaims that have been or may be asserted by or on
behalf of the Company, as applicable, to reduce the amount of the Covered Shares
or affect the validity or enforceability of the Covered Shares.
ARTICLE IV.
COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby covenants and agrees as follows:
Section 4.1 No Solicitation. Such Stockholder agrees that (i) it is a
"Representative" of the Company for purposes of Section 4.7 of the Merger
Agreement, (ii) in such capacity, it is subject to the restrictions of Section
4.7 of the Merger Agreement and (iii) that any breach by such Stockholder of the
terms of Section 4.7 of the Merger Agreement shall be a breach by such
Stockholder of this Agreement.
Section 4.2 No Transfer. Other than pursuant to the terms of this
Agreement or the Merger Agreement and except with respect to clause (ii) below,
as disclosed in Article III of this Agreement, without the prior written consent
of Parent or as otherwise provided in this Agreement, during the term of this
Agreement, such Stockholder hereby agrees to not, directly or indirectly, (i)
grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Covered Shares or (ii) sell,
pledge, assign, transfer, encumber or otherwise dispose of (including by merger,
consolidation or otherwise by operation of law), or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect assignment, transfer, encumbrance or other disposition of (including by
merger, consolidation or otherwise by operation of law), any Covered Shares.
Promptly following the date hereof, Stockholder and Parent shall deliver joint
written instructions to the Company and to the Company's transfer agent stating
that the Owned Shares may not be sold, transferred, pledged, assigned,
hypothecated, tendered or otherwise disposed of in any manner without the prior
written consent of Parent or except in accordance with the terms and conditions
of this Agreement. If any Covered Shares are acquired after the date hereof by a
Stockholder, the foregoing instructions shall be delivered upon acquisition of
such Covered Shares.
Section 4.3 Certain Transactions. In the event that (i) the Merger
Agreement is terminated by Parent pursuant to Section 8.1(c) or Section 8.1(g),
the Company pursuant to Section 8.1(d), or either party pursuant to Section
8.1(b) or 8.1(e), and (ii) within twelve (12) months of such termination, any
Stockholder sells, transfers or otherwise disposes of its Covered Shares to any
other Person (other than to any Affiliate of such Stockholder (provided such
Affiliate agrees in writing to be bound by and has full ability to perform the
terms of this Section 4.3) or Parent) pursuant to any Alternative Transaction or
a definitive agreement for an Alternative Transaction is executed, such
Stockholder shall pay to Parent, on or prior to ten (10) Business Days following
the consummation of an Alternative Transaction, an amount in cash, in
immediately available funds as directed in writing by Parent, equal to the
product of (x) .5, multiplied by (y) the aggregate number of Covered Shares
sold, transferred or otherwise disposed of by such Stockholder, multiplied by
(z) the difference of (a) the cash price per share (or the Fair Market Value (as
defined below), if securities or other consideration is received) of the Covered
Shares received by such Stockholder in any Alternative Transaction (to the
extent
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greater than the Cash Merger Consideration), minus (b) the Cash Merger
Consideration. For purposes of this Section 4.3, Fair Market Value shall mean,
in the case of securities, the value of such securities, as determined by the
average of the last sales prices for such securities on the five trading days
ending five trading days prior to the date of the consummation of the
Alternative Transaction. If such securities do not have an existing public
trading market or there is other consideration provided, the value of the
securities or other consideration, as the case may be, shall be the mutually
agreed upon fair market value on the day prior to the consummation of the
Alternative Transaction. Notwithstanding anything to the contrary herein, if the
price per share of the Covered Shares received by such Stockholder in any
Alternative Transaction is less than the Cash Merger Consideration, no
Stockholder shall be liable to, or owe any payment to, Parent with respect to
the Covered Shares. For purposes of this Agreement, an "Alternative Transaction"
shall mean any transaction that would constitute a Takeover Proposal or the sale
or transfer of any of the Covered Shares held by a Stockholder to a Person or
group of Persons in a single transaction or a series of related transactions by
way of merger, sale of stock or otherwise; provided, however, any sale or
transfer of any Covered Shares by such Stockholder on the open market at such
time when an Alternative Transaction has not otherwise been commenced, publicly
proposed, or disclosed to a Stockholder shall not be deemed an Alternative
Transaction.
Section 4.4 Public Announcement. Stockholder shall consult with Parent
before issuing any press releases or otherwise making any public statements with
respect to the transactions contemplated herein and shall not issue any such
press release or make any such public statement without the approval of Parent,
except as may be required by law.
Section 4.5 Additional Shares. Stockholder shall as promptly as
practicable notify Parent of the number of any new Covered Shares acquired by
the Stockholder, if any, after the date hereof. Any such shares shall be subject
to the terms of this Agreement as though owned by the Stockholder on the date
hereof.
ARTICLE V.
MISCELLANEOUS
Section 5.1 Termination. This Agreement and all of its provisions
shall terminate upon the earlier of (i) the Effective Time, (ii) the termination
of the Merger Agreement in accordance with its terms, or (iii) written notice of
termination of this Agreement by Parent to Stockholders (such date of
termination, the "Termination Date"); except that the provisions of Section 4.3
and Article V shall survive any such termination if such obligations arose at or
before the time of such termination.
Section 5.2 Amendment Of Merger Agreement. The obligations of the
Stockholders under this Agreement shall terminate if the Merger Agreement is
amended or otherwise modified after the date hereof without the prior written
consent of the Stockholders in a manner that reduces or changes the form of the
Cash Merger Consideration.
Section 5.3 Survival of Representations and Warranties. The respective
representations and warranties of the Stockholders and Parent contained herein
shall not be deemed waived or otherwise affected by any investigation made by
the other party hereto. The representations and warranties contained herein
shall expire with, and be terminated and
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extinguished upon, consummation of the Merger, and thereafter no party hereto
shall be under any liability whatsoever with respect to any such representation
or warranty.
Section 5.4 Fees And Expenses. Except as otherwise provided herein or
as set forth in the Merger Agreement, all costs and expenses incurred in
connection with the transactions contemplated by this Agreement shall be paid by
the party incurring such costs and expenses.
Section 5.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (a) on the date
of delivery if delivered personally, (b) on the first business day following the
date of dispatch if delivered by a nationally recognized next-day courier
service, (c) on the fifth business day following the date of mailing if
delivered by registered or certified mail (postage prepaid, return receipt
requested) or (d) if sent by facsimile transmission, when transmitted and
receipt is confirmed. All notices hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 5.5):
if to Parent:
Amscan Holdings, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Small, Chairman
with copies to:
Ropes & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
if to the Stockholders:
c/o Tennenbaum Capital Partners, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Additionally, any notice delivered to any party hereto shall also be given to
the Company in accordance with this Section 5.5 at:
Party City Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Section 5.6 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
Section 5.7 Entire Agreement; Assignment. This Agreement and the
Merger Agreement constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof and supersede all prior
agreements and undertakings, both written and oral, among the parties hereto, or
any of them, with respect to the subject matter hereof and thereof. This
Agreement shall not be assigned (whether pursuant to a merger, by operation of
law or otherwise), except that Parent or Merger Sub may assign all or any of
their rights and obligations hereunder to an Affiliate, provided, however, that
no such assignment shall relieve the assigning party of its obligations
hereunder if such assignee does not perform such obligations.
Section 5.8 Amendment. This Agreement may be amended by the parties at
any time prior to the Effective Time. This Agreement may not be amended except
by an instrument in writing signed by each of the parties hereto.
Section 5.9 Waiver. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any obligation or other
act of any other party hereto, (b) waive any inaccuracy in the representations
and warranties of any other party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any agreement of any other party
or any condition to its own obligations contained herein. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by the
party
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or parties to be bound thereby. The failure of any party to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
Section 5.10 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section 5.11 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York (without giving
effect to the choice of law principles therein).
Section 5.12 Specific Performance; Submission To Jurisdiction. The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in the United States District Court for the Southern District of the
State of New York or, if such court does not have jurisdiction over the subject
matter of such proceeding or if such jurisdiction is not available, in the state
courts located within New York, New York, this being in addition to any other
remedy to which such party is entitled at law or in equity. In addition, each of
the parties hereto (i) consents to submit itself to the personal jurisdiction of
the United States District Court for the Southern District of the State of New
York and the state courts located within New York, New York in the event any
dispute arises out of this Agreement or any of the transactions contemplated by
this Agreement or any of the transactions contemplated by this Agreement, (ii)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from such court, (iii) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than the United States
District Court for the Southern District of the State of New York or the state
courts located within New York, New York and (iv) to the fullest extent
permitted by Law, consents to service being made through the notice procedures
set forth in Section 5.5. Each party hereto hereby agrees that, to the fullest
extent permitted by Law, service of any process, summons, notice or document by
U.S. registered mail to the respective addresses set forth in Section 5.5 shall
be effective service of process for any suit or proceeding in connection with
this Agreement or the transactions contemplated hereby.
Section 5.13 Waiver of Jury Trial. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable Law any right it may have
to a trial by jury with respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each of the parties hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 5.13.
10
Section 5.14 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
Section 5.15 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
Section 5.16 Further Assurances.
From time to time, at the request of another party and without further
consideration, each party hereto shall take such reasonable further action as
may reasonably be necessary or desirable to consummate and make effective the
transactions contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the Parent and the Principal Stockholders have
caused this Agreement to be duly executed on the date hereof.
AMSCAN HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. Small
------------------------------------
Name: ▇▇▇▇▇▇ ▇. Small
Title: Chairman of the Board
STOCKHOLDERS:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ CAPITAL PARTNERS, LLC
By: ▇▇▇▇▇▇▇▇▇▇ & Co., LLC
as Managing Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Principal
▇▇▇▇▇▇▇▇▇▇ & CO., LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Principal
SPECIAL VALUE BOND FUND, LLC
By: SVIM/MSM, LLC
as Manager
By: ▇▇▇▇▇▇▇▇▇▇ & Co., LLC
as Managing Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Principal
SPECIAL VALUE ABSOLUTE RETURN FUND, LLC
By: SVAR/MM, LLC
as Managing Member
By: ▇▇▇▇▇▇▇▇▇▇ Capital Partners, LLC
as Managing Member
By: ▇▇▇▇▇▇▇▇▇▇ & Co., LLC
as Managing Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Principal
SPECIAL VALUE BOND FUND II, LLC
By: SVIM/MSM II, LLC
as Managing Member
By: ▇▇▇▇▇▇▇▇▇▇ & Co., LLC
as Managing Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Principal