VOTING AGREEMENT
Exhibit 10.1
This VOTING AGREEMENT (the “Agreement”), dated as of September 26, 2005, is made by
and among Xxxxxxx X. Xxxxxxxxxx, Xxxxxxxxxx Capital Partners, LLC, Xxxxxxxxxx & 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
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
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
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 Xxxxxxxxxx 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) Xxxxxxxxxx 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
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
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.
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Tel: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxx X. Small, Chairman
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Tel: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxx X. Small, Chairman
with copies to:
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
if to the Stockholders:
c/o Tennenbaum Capital Partners, LLC
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
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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:
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxx
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.
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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]
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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/ Xxxxxx X. Small | |||
| Name: | Xxxxxx X. Small | |||
| Title: | Chairman of the Board | |||
| STOCKHOLDERS: XXXXXXX X. XXXXXXXXXX |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| XXXXXXXXXX CAPITAL PARTNERS, LLC | ||||
| By: | Xxxxxxxxxx & Co., LLC as Managing Member | |||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Principal | |||
| XXXXXXXXXX & CO., LLC |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Principal | |||
| SPECIAL VALUE BOND FUND, LLC | ||||
| By: | SVIM/MSM, LLC | |||
| as Manager | ||||
| By: | Xxxxxxxxxx & Co., LLC | |||
| as Managing Member |
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Principal | |||
| SPECIAL VALUE ABSOLUTE RETURN FUND, LLC | ||||
| By: | SVAR/MM, LLC | |||
| as Managing Member | ||||
| By: | Xxxxxxxxxx Capital Partners, LLC | |||
| as Managing Member | ||||
| By: | Xxxxxxxxxx & Co., LLC | |||
| as Managing Member | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Principal | |||
| SPECIAL VALUE BOND FUND II, LLC | ||||
| By: | SVIM/MSM II, LLC | |||
| as Managing Member | ||||
| By: | Xxxxxxxxxx & Co., LLC | |||
| as Managing Member | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Principal | |||
Schedule A
Schedule B
Warrant Payment Mechanic
