-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Dwi6uvEn6rHCFwPkjxkjcflkN94opjchjk1UhQZQRf1t7JT+c6CkoF6W3CYtxnBi JpJS3E9lTxW6FoWs/OVGbw== 0000950135-05-005712.txt : 20051011 0000950135-05-005712.hdr.sgml : 20051010 20051011144458 ACCESSION NUMBER: 0000950135-05-005712 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20051011 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20051011 DATE AS OF CHANGE: 20051011 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMSCAN HOLDINGS INC CENTRAL INDEX KEY: 0001024729 STANDARD INDUSTRIAL CLASSIFICATION: PAPERBOARD CONTAINERS & BOXES [2650] IRS NUMBER: 133911462 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-14107 FILM NUMBER: 051132268 BUSINESS ADDRESS: STREET 1: 80 GRASSLANDS ROAD CITY: ELMSFORD STATE: NY ZIP: 10523 BUSINESS PHONE: 9143452020 MAIL ADDRESS: STREET 1: 80 GRASSLANDS ROAD CITY: ELMSFORD STATE: NY ZIP: 10523 8-K 1 b57222ahe8vk.txt AMSCAN HOLDINGS, INC. UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): October 11, 2005 AMSCAN HOLDINGS, INC. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 000-21827 13-3911462 - -------------------------------- ----------- ------------------- (State or other jurisdiction of (Commission (I.R.S. Employer of incorporation or organization) File Number) Identification No.) 80 Grasslands Road, Elmsford, New York 10523 - ------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (914) 345-2020 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. AMENDMENT TO MERGER AGREEMENT - ----------------------------- On October 11, 2005, Amscan Holdings, Inc. (the "Company") entered into Amendment No. 1 ("Amendment One") to the Agreement and Plan of Merger, dated as of September 26, 2005 (as amended, the "Merger Agreement"), by and among the Company, Party City Corporation., a Delaware corporation ("Party City"), and BWP Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of the Company. Amendment One changes the definition of "Termination Date" under the Merger Agreement to March 1, 2006. A copy of Amendment One is attached to this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference as though fully set forth herein. The foregoing Summary of Amendment One is qualified in its entirety by the complete text of Amendment One filed herewith. CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS - ---------------------------------------------------- Statements in this document regarding the proposed merger contemplated by the Merger Agreement (the "Merger"), the expected effects, timing and completion of the proposed transaction and any other statements about our future expectations, beliefs, goals, plans or prospects constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Any statements that are not statements of historical fact (including statements containing the words "believes," "plans," "anticipates," "expects," "estimates" and similar expressions) should also be considered to be forward-looking statements. There are a number of important factors that could cause actual results or events to differ materially from those indicated by such forward-looking statements, including: the ability to consummate the proposed transaction due to the failure of Party City to obtain stockholder approval, the failure to consummate the necessary debt financing arrangements or the failure to satisfy other conditions to the closing of the proposed transaction, the ability to recognize the benefits of the transaction, intense competition in our and Party City's industries, changes in government regulation, failure to manage the integration of acquired companies and other risks that are contained in documents and the other factors described in our Annual Report on Form 10-K for the year ended December 31, 2004 filed with the SEC. ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS (d) The following Exhibits are filed as part of this report: 2.1 Amendment No. 1 to Agreement and Plan of Merger, dated as of October 11, 2005, by and among Party City Corporation, Amscan Holdings, Inc. and BWP Acquisition, Inc. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Date: October 11, 2005 AMSCAN HOLDINGS, INC. By: /s/ Robert J. Small ------------------------------ Name: Robert J. Small Title: Chairman of the Board Exhibit Index ------------- Exhibit Number Description - -------------- ----------- 2.1 Amendment No. 1 to Agreement and Plan of Merger, dated as of October 11, 2005, by and among Party City Corporation, Amscan Holdings, Inc. and BWP Acquisition, Inc. EX-2.1 2 b57222ahexv2w1.txt EX-2.1 AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER Exhibit 2.1 AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER This Amendment No. 1 to Agreement and Plan of Merger (the "Amendment") dated as of October 11, 2005 by and among Amscan Holdings, Inc., a Delaware corporation ("Parent"), BWP Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Party City Corporation, a Delaware corporation (the "Company"). RECITALS WHEREAS, Parent, Merger Sub and the Company have entered into that certain Agreement and Plan of Merger (the "Merger Agreement") dated as of September 26, 2005; WHEREAS, Parent, Merger Sub and the Company desire to amend the Merger Agreement as provided in this Amendment; and WHEREAS, capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement. NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Amendment and intending to be legally bound hereby, the Parties agree as follows: Section 1. Definitions. The Merger Agreement is hereby amended pursuant to Section 8.3 thereof, by deleting the definition of "Termination Date" in Section 1.1 thereof in its entirety and replacing it with the following definition of Termination Date: "Termination Date" means March 31, 2006." Section 2. Effect of Amendment. (a) Except as expressly modified hereby, all terms, conditions and provisions of the Merger Agreement shall remain unchanged and continue in full force and effect. (b) In the event of any inconsistency or conflict between the Merger Agreement and this Amendment, the terms, conditions and provisions of this Amendment shall govern and control. (c) This Amendment, the Merger Agreement, the Voting Agreement and the Confidentiality Agreement constitute the entire agreement among the Parties hereto and their Affiliates and supersedes all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. From and after the execution of a counterparty hereof by the Parties hereto, any reference to the Merger Agreement shall be deemed a reference to the Merger Agreement as amended hereby. Section 3. Headings. The headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning or interpretation of this Amendment. Section 4. Governing Law. This Amendment shall be governed in all respects, including validity, interpretation and effect, by the internal Laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof. Section 5. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement. Section 6. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AMENDMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AMENDMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AMENDMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. [The rest of this page has intentionally been left blank] 2 IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized officers as of the date first above written. PARTY CITY CORPORATION, a Delaware corporation By /s/ Gregg A. Melnick ---------------------------------- Name: Gregg A. Melnick Title: Chief Financial Officer AMSCAN HOLDINGS, INC., a Delaware corporation By: /s/ Robert J. Small ---------------------------------- Name: Robert J. Small Title: Chairman of the Board BWP ACQUISITION, INC., a Delaware corporation By: /s/ Robert J. Small ---------------------------------- Name: Robert J. Small Title: President -----END PRIVACY-ENHANCED MESSAGE-----