sec document
SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Filed by the Registrant /_/
Filed by a Party other than the Registrant /X/
Check the appropriate box:
/_/ Preliminary Proxy Statement
/_/ Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
/_/ Definitive Proxy Statement
/X/ Definitive Additional Materials
/ / Soliciting Material Under Rule 14a-12
THE TOPPS COMPANY, INC.
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(Name of Registrant as Specified in Its Charter)
CRESCENDO ADVISORS LLC
CRESCENDO PARTNERS II L.P., SERIES Y
CRESCENDO INVESTMENTS II, LLC
ERIC S. ROSENFELD
ARNAUD AJDLER
THE COMMITTEE TO ENHANCE TOPPS
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(Name of Persons(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/X/ No fee required.
/_/ Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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/_/ Fee paid previously with preliminary materials:
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/_/ Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount previously paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed
Crescendo Partners II, L.P., Series Y has filed a definitive proxy
statement with the SEC in connection with the solicitation of proxies against a
proposed merger between The Topps Company, Inc. ("Topps") and a buyout group
that includes Madison Dearborn Partners, LLC and an investment firm controlled
by Michael Eisner, which will be voted on at a special meeting of the Company's
stockholders.
Item 1: On May 31, 2007, Crescendo Advisors issued the following press
release:
FOR IMMEDIATE RELEASE
ARNAUD AJDLER DELIVERS LETTER TO THE TOPPS BOARD OF DIRECTORS
EXPRESSES SIGNIFICANT CONCERNS WITH ABILITY OF EXECUTIVE COMMITTEE TO
NEGOTIATE IN GOOD FAITH WITH THE UPPER DECK COMPANY
NEW YORK, NY - MAY 31, 2007 - The Committee to Enhance Topps announced today
that Arnaud Ajdler has delivered a letter to the Board of Directors of The Topps
Company, Inc. (Nasdaq:TOPP) in which Mr. Ajdler expresses significant concerns
he has with the manner in which the current negotiations with The Upper Deck
Company are being conducted, including the ability of the so-called "Executive
Committee" of the Topps Board to conduct good-faith negotiations with Upper Deck
in light of certain of the Executive Committee members' conflicts of interest.
The full text of the letter follows:
May 31, 2007
BY EMAIL AND FACSIMILE
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Board of Directors of The Topps Company, Inc.
c/o Mr. Steven Gartner
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Dear Fellow Members of the Board:
As you know, I have very significant concerns about the process that led
to the signing of the merger agreement with entities affiliated with Michael
Eisner and Madison Dearborn Partners, LLC. These concerns now extend to the
manner in which the current negotiations with The Upper Deck Company are being
conducted. Since you have effectively removed three directors of the Company,
Timothy Brog, John Jones and me, from the sale process and in so doing have
transferred virtually all of the Board's duties to the so-called "Executive
Committee" of the Board, the negotiation with Upper Deck is now being overseen
by a group of directors who, in my opinion, have significant conflicts of
interest. This Executive Committee is de facto running the Company, has
supervised the go-shop process and is now handling the Upper Deck negotiations.
This is particularly troublesome since such negotiations could lead to a
transaction that provides greater value to the Company's stockholders.
Certain of the Executive Committee members' conflicts of interest that I
believe are problematic include:
o Arthur Shorin, in my opinion, does not want to see the company that was
started by his father and uncles fall into the hands of long-time
rival, Upper Deck, since a transaction with Upper Deck would end the
family connection with Topps and in all likelihood would prevent Scott
Silverstein, Mr. Shorin's son-in-law, from becoming the next CEO of
Topps (with the obvious financial implications that this implies).
o Allan Feder is a former employee of Topps and a long-time family friend
of Mr. Shorin. Mr. Feder has very limited deal experience (which did
not seem to prevent the Board from selecting him as the lead negotiator
on the Eisner deal) and has told me in the past that he does not
believe that a deal with Upper Deck is possible.
o Jack Nusbaum is a long-time friend of Arthur Shorin and serves as
Chairman of Willkie Farr & Gallagher LLP, which in turn serves as
Topps' outside law firm. Willkie Farr advised the Topps Board with
respect to the merger agreement with Michael Eisner and Madison
Dearborn and is currently providing advice to the Executive Committee
with regard to Upper Deck's offer. In light of these relationships, I
do not understand how either Mr. Nusbaum or Willkie Farr can be
expected to render independent judgment in connection with the Upper
Deck negotiations.
I was also deeply troubled to learn that the Executive Committee met with
the Company's advisors just before Topps' most recent Board meeting on May 23
held to discuss the Upper Deck situation. Why did the Executive Committee
members need to hold a meeting right before the meeting of the full Board? I
suspect that the purpose of the meeting was to ensure that the members of the
Executive Committee are on the same page and vote accordingly. What is the point
of calling a Board meeting if the decisions have already been made by the five
members of the Executive Committee? The actions of the Executive Committee
continue to violate the most basic principles of corporate governance.
Finally, in the merger proxy statement, letters to stockholders and
statements to the press, the Company continues to mislead stockholders and
allege that a thorough and multi-year evaluation of the Company's strategic
alternatives was conducted and that no better offers emerged. Yet you never once
contacted Upper Deck to see if there was any interest in combining the two
companies to maximize stockholder value, despite your knowledge that there was
interest on Upper Deck's part. How is this consistent with your public comments
and disclosure of a thorough and multi-year process? Now, if a transaction with
Upper Deck is reached, a break up fee and expenses of $16.5 million, equal to
approximately 5.6% of the transaction value, will have to be paid. This
represents slightly more than 40 cents per share that could have been paid to
stockholders instead of to Mr. Eisner.
As I have been telling you for many months, it is time for Topps to be run
for the benefit of its public stockholders instead of being run like a private
club.
Regards,
/s/ Arnaud Ajdler
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CERTAIN INFORMATION CONCERNING THE PARTICIPANTS
The Committee to Enhance Topps (the "Committee"), together with the other
participants named below, has made a definitive filing with the Securities and
Exchange Commission ("SEC") of a proxy statement and an accompanying proxy card
to be used to solicit votes in connection with the solicitation of proxies
against a proposed merger between The Topps Company, Inc. (the "Company") and a
buyout group that includes Madison Dearborn Partners, LLC, and an investment
firm controlled by Michael Eisner, which will be voted on at a meeting of the
Company's stockholders (the "Merger Proxy Solicitation").
Crescendo Advisors ("Crescendo Advisors"), together with the other participants
named below, intends to make a preliminary filing with the Securities and
Exchange Commission ("SEC") of a proxy statement and an accompanying proxy card
to be used to solicit votes for the election of its nominees at the 2007 annual
meeting of stockholders of Topps (the "Annual Meeting Proxy Solicitation").
THE COMMITTEE AND CRESCENDO ADVISORS ADVISE ALL STOCKHOLDERS OF THE COMPANY TO
READ THE PROXY STATEMENT AND OTHER PROXY MATERIALS IN CONNECTION WITH EACH OF
THE MERGER PROXY SOLICITATION AND THE ANNUAL MEETING PROXY SOLICITATION AS THEY
BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. SUCH PROXY
MATERIALS WILL BE AVAILABLE AT NO CHARGE ON THE SEC'S WEB SITE AT
HTTP://WWW.SEC.GOV. IN ADDITION, THE PARTICIPANTS IN THE PROXY SOLICITATIONS
WILL PROVIDE COPIES OF THE PROXY STATEMENT WITHOUT CHARGE UPON REQUEST. REQUESTS
FOR COPIES SHOULD BE DIRECTED TO THE PARTICIPANTS' PROXY SOLICITOR, DF KING &
CO., INC. AT ITS TOLL-FREE NUMBER: (800) 628-8532.
The participants in the Merger Proxy Solicitation are Crescendo Advisors LLC, a
Delaware limited liability company ("Crescendo Advisors"), Crescendo Partners
II, L.P., Series Y, a Delaware limited partnership ("Crescendo Partners"),
Crescendo Investments II, LLC, a Delaware limited liability company ("Crescendo
Investments"), Eric Rosenfeld, Arnaud Ajdler and The Committee to Enhance Topps
(the "Merger Proxy Solicitation Participants").
The participants in the Annual Meeting Proxy Solicitation include the Merger
Proxy Solicitation Participants, together with Timothy E. Brog, John J. Jones,
Michael Appel, Jeffrey D. Dunn, Charles C. Huggins, Thomas E. Hyland, Thomas B.
McGrath and Michael R. Rowe (the "Annual Meeting Proxy Solicitation
Participants"). Together, the Merger Proxy Solicitation Participants and the
Annual Meeting Proxy Solicitation Participants are referred to herein as the
"Participants."
Crescendo Advisors beneficially owns 100 shares of common stock of the Company.
Crescendo Partners beneficially owns 2,547,700 shares of common stock of the
Company. As the general partner of Crescendo Partners, Crescendo Investments may
be deemed to beneficially own the 2,547,700 shares of the Company beneficially
owned by Crescendo Partners. Eric Rosenfeld may be deemed to beneficially own
2,547,900 shares of the Company, consisting of 100 shares held by Eric Rosenfeld
and Lisa Rosenfeld JTWROS, 2,547,700 shares Mr. Rosenfeld may be deemed to
beneficially own by virtue of his position as managing member of Crescendo
Investments and 100 shares Mr. Rosenfeld may be deemed to beneficially own by
virtue of his position as managing member of Crescendo Advisors. Mr. Ajdler
beneficially owns 2,301 shares of the Company.
Timothy E. Brog beneficially owns 437,567 shares of common stock of the Company,
John J. Jones owns 2,301 shares of common stock of the Company, and none of
Michael Appel, Jeffrey D. Dunn, Charles C. Huggins, Thomas E. Hyland, Thomas B.
McGrath and Michael R. Rowe beneficially own any shares of common stock of the
Company.
For Additional Information Please Contact:
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D.F. King & Co., Inc.
(800) 628-8532
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