UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 1)
TENDER OFFER STATEMENT
UNDER SECTION 14(D)(1) OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
FACTORY CARD & PARTY OUTLET CORP.
(Name Of Subject Company (Issuer))
AMSCAN HOLDINGS, INC.
AMSCAN ACQUISITION, INC.
(Names of Filing Persons (Offerors))
Common Stock, par value $0.01 per share
(Title of Class of Securities)
303051106
(CUSIP Number of Class of Securities)
Michael Correale
Amscan Holdings, Inc.
80 Grasslands Road, Elmsford, New York 10523
(914) 345-2020
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)
with copies to:
David C. Chapin
Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
Telephone: (617) 951-7000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount Of Filing Fee**
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$70,590,003
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$
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2,167.11
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*
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Estimated solely for purposes of calculating amount of filing fee in
accordance with Rule 0-11 under the Securities Exchange Act of 1934. The
transaction value is based upon the offer to purchase 4,282,082 shares of
common stock of Factory Card & Party Outlet Corp. at a purchase price of
$16.50 cash per share. Such number of shares of common stock represents
the total of 3,386,117 issued and outstanding shares of common stock,
outstanding options with respect to 687,901 shares of common stock, and
outstanding warrants with respect to 204,164 shares of common stock, in
each case as of September 27, 2007.
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**
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The amount of filing fee, calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, as amended, equals $30.70 per $1,000,000
of the value of the transaction.
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x
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Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number or the Form or Schedule and the date of its filing.
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Amount Previously Paid:
Form or Registration No.:
Filing Party:
Date Filed:
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$2,167.11
Schedule TO-T
Amscan Holdings, Inc.
October 1, 2007
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o
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
x
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third-party tender offer subject to Rule 14d-1.
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o
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issuer tender offer subject to Rule 13e-4.
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o
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going-private transaction subject to Rule 13e-3.
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o
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender
offer:
o
This Amendment No. 1 amends and supplements the Tender Offer Statement on
Schedule TO filed with the Securities and Exchange Commission on October 1,
2007 (the Schedule TO) relating to a tender offer by Amscan Acquisition,
Inc., a Delaware corporation (Purchaser) and a wholly-owned subsidiary of
Amscan Holdings, Inc., a Delaware corporation (Parent), to purchase all of
the outstanding shares of common stock, par value $0.01 per share (the
Shares), of Factory Card & Party Outlet Corp., a Delaware corporation (the
Company), at a purchase price of $16.50 per Share, net to the seller in cash,
without interest thereon and less any applicable withholding taxes, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated
October 1, 2007 (the Offer to Purchase) and in the related Letter of
Transmittal (the Letter of Transmittal which, together with the Offer to
Purchase, as each may be amended and supplemented from time to time,
collectively constitute the Offer).
Capitalized terms used herein and not defined herein have the respective
meanings assigned such terms in the Offer to Purchase and the Schedule TO.
The Items of the Schedule TO, which incorporate by reference information
contained in the Offer to Purchase and Letter of Transmittal, are hereby
amended and supplemented as follows:
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON
Each of the five occurrences of the phrase , to the best knowledge of
Parent, Purchaser, AAH Holdings, the Funds, Fifth Berkshire, Sixth Berkshire
and Berkshire, in Section 9 Certain Information
Concerning Parent and Purchaser of the Offer to Purchase is deleted.
ITEM 4. TERMS OF THE TRANSACTION
The fourth paragraph of Section 4 Acceptance
for Payment and Payment of the Offer to Purchase is deleted and replaced by the following:
If any tendered Shares are not accepted for payment pursuant to the terms
and conditions of the Offer for any reason, promptly after the expiration or
termination of the Offer, the certificates for such Shares will be returned (and, if certificates are submitted for more Shares than are tendered,
new certificates for the Shares not tendered will be sent) in each case without
expense to the tendering stockholder (or, in the case of Shares delivered by
book-entry transfer of such Shares into the Depositarys account at the
Book-Entry Transfer Facility pursuant to the book-entry transfer procedures
described in Section 2 Procedures for Tendering Shares of this Offer to
Purchase, such Shares will be credited to an account maintained at the
Book-Entry Transfer Facility).
The first two paragraphs of Section 5 Certain
U.S. Federal Income Tax Consequences of the Offer to Purchase are deleted and replaced by the
following:
The following is a general summary of the material U.S. federal income
tax consequences relevant to a stockholder whose Shares are (1) tendered and
purchased for cash pursuant to the Offer or (2) converted to cash in the
Merger. This discussion does not purport to consider all aspects of United
States federal income taxation that might be relevant to stockholders. The
summary is based on the current provisions of the Internal Revenue Code of
1986, as amended (the Code), regulations issued thereunder, judicial
decisions and administrative rulings, all of which are subject to change,
possibly with retroactive effect.
The tax consequences to any particular
stockholder may differ depending on that stockholders own circumstances and
tax position.
For example, the following general summary may not be applicable
with respect to Shares received pursuant to the exercise of employee stock
options or otherwise as compensation or with respect to holders of Shares who
are subject to special tax treatment under the Code such as life insurance
companies, tax-exempt organizations, financial institutions, S corporations,
partnerships and other pass-through entities, trusts, shareholders liable for
the alternative minimum tax, dealers in securities or currencies, traders who
elect to apply a mark-to-market method of accounting, U.S. expatriates and
persons who are holding Shares as part of a straddle, conversion, constructive
sale, hedge or hedging or other integrated transaction. This discussion is
also not applicable to partnerships (or other entities or arrangements that are
classified as partnerships for U.S. federal income tax purposes) that hold
Shares. If a partnership holds Shares, the tax treatment of a partner in the
partnership will generally depend on the status of the partner and the
activities of the partnership. If you are a partnership or a partner in a
partnership holding Shares, you should consult your tax advisors. This
discussion assumes that the Shares are held as capital assets within the
meaning of Section 1221 of the Code. This discussion does not address estate
or gift tax or the consequences of the transactions described herein under the
tax laws of any state, local or foreign jurisdiction.
We have not and will not
seek any opinions of counsel or rulings from the IRS with respect to the
matters discussed herein.
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Stockholders are urged to consult their own tax advisors to determine the
particular tax consequences to them (including the application and effect of
any state, local or foreign income and other tax laws) of the Offer and the
Merger.
The last paragraph of Section 5 Certain U.S.
Federal Income Tax Consequences of the Offer to Purchase is deleted and replaced by the following:
The federal income tax discussion set forth above does not purport to
consider all aspects of United States federal income taxation that might be
relevant to stockholders. Each stockholder is urged to consult his or her own
tax advisor to determine the particular tax consequences to him or her
(including the applicability and effect of estate and gift taxes, foreign,
state and local tax laws and possible tax law changes) of receiving cash
pursuant to the Offer or the Merger.
The last paragraph of Section 14 Certain
Conditions of the Offer of the Offer to Purchase is deleted and replaced by the following:
The foregoing conditions are for the sole benefit of us and Parent and
may be asserted by us or Parent regardless of the circumstances giving rise to
such condition. If we accept for payment, or pay for, any Shares, the
foregoing conditions, other than those subject to government approvals, shall
have been satisfied or shall have been waived by us or Parent in our sole
discretion, in each case in whole or in part at any time and from time to time
prior to the expiration of the Offer and subject to the terms of the Merger
Agreement. The failure by us or Parent at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right, and each such
right shall be deemed an ongoing right which may be asserted at any time and
from time to time prior to the expiration of the Offer.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
Item 5(a)(1) of the Schedule TO is deleted and replaced by the following:
Other than the transactions described in Item 5(b) below, neither
Purchaser nor Parent nor any of the entities discussed or the persons listed in
Annex I of the Offer to Purchase have entered into any transaction with the
Company, or any of the Companys affiliates which are not
natural persons,
during the past two years.
Item 5(a)(2) of the Schedule TO is deleted and replaced by the following:
Other than the transactions described in Item 5(b) below, neither
Purchaser nor Parent nor any of the entities discussed or the persons listed in
Annex I of the Offer to Purchase have entered into any transaction with any
executive officer, director or affiliate of the Company that is a natural
person with an aggregate value that exceeds $60,000 during the past two years.
(b) The changes to Section 9 Certain Information
Concerning Parent and Purchaser of the Offer to Purchase are identified above under Item 3.
The last paragraph of Section 14 Certain
Conditions of the Offer of the Offer to Purchase is deleted and replaced with the language identified
above under Item 4.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
The changes to Section 9 Certain Information
Concerning Parent and Purchaser of the Offer to Purchase are identified above under Item 3.
ITEM 11. ADDITIONAL INFORMATION
(b) The last paragraph of Section 8 Certain
Information Concerning Factory Card of the Offer to Purchase is deleted and replaced by the following:
The forward-looking information set forth above is included in this Offer
to Purchase only because it was made available to Parent and Purchaser and
holders of Shares may want to consider it in deciding whether to accept the
Offer. The inclusion of this forward-looking information should not be
regarded as an indication that any of Parent, Purchaser, Factory Card or their
respective affiliates or representatives considered or consider the projections
to be a reliable, accurate or complete prediction of future events, and the
projections should not be relied upon as such. None of Parent, Purchaser,
Factory Card or any of their respective affiliates or
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representatives has made or makes any representation to any person regarding
the ultimate performance of Factory Card compared to the information contained
in the projections, and none of them undertakes any obligation to update or
otherwise revise the projections to reflect circumstances existing after the
date such projections were generated or to reflect the occurrence of future
events even in the event that any or all of the assumptions underlying the
projections are shown to be in error, except as required by law, including as
required by Rule 14d-6(c) of the Exchange Act.
The Letter of Transmittal is hereby amended and supplemented as follows:
The second sentence of Instruction 4 of the Letter of Transmittal entitled
4. Partial Tenders (
Not Applicable to Stockholders Who Tender by Book-Entry
Transfer
) is hereby amended by replacing the phrase as soon as practicable
with the term promptly.
The first paragraph of the Important Tax Information section on the
last page of the Letter of Transmittal is hereby deleted in its entirety.
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
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AMSCAN HOLDINGS, INC.
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Dated: October 19, 2007
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By: /s/ Michael Correale
Name: Michael Correale
Title: Chief Financial officer
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AMSCAN ACQUISITION, INC.
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Dated: October 19, 2007
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By: /s/ Robert J. Small
Name: Robert J. Small
Title: President
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