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 PARTNERS III, L.P.
CRESCENDO INVESTMENTS III, LLC
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 August 22, 2007, The Committee to Enhance Topps issued the
following press release:
FOR IMMEDIATE RELEASE
THE COMMITTEE TO ENHANCE TOPPS SENDS LETTER TO STOCKHOLDERS OF
THE TOPPS COMPANY, INC.
CALLS ON THE MAJORITY MEMBERS OF THE TOPPS BOARD TO IMMEDIATELY RESIGN AND
URGES STOCKHOLDERS TO VOTE AGAINST THE ILL-ADVISED AND INADEQUATE $9.75 MERGER
NEW YORK, NY - AUGUST 22, 2007 - The Committee to Enhance Topps announced today
that it has sent a letter to the stockholders of The Topps Company, Inc.
(Nasdaq:TOPP).
The full text of the letter follows:
AN IMPORTANT MESSAGE TO THE TOPPS COMPANY, INC. STOCKHOLDERS
FROM THE COMMITTEE TO ENHANCE TOPPS
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ARTHUR SHORIN AND HIS SO-CALLED "EXECUTIVE COMMITTEE" HAVE SCARED AWAY UPPER
DECK! DO NOT LET THEM NOW SCARE YOU INTO VOTING FOR THE ILL-ADVISED AND
INADEQUATE $9.75 MERGER!
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VOTE THE GOLD PROXY CARD TODAY AGAINST THE ILL-ADVISED EISNER MERGER!
August 22, 2007
Dear Fellow Topps Stockholder:
DO NOT BE FOOLED!
Despite what the Topps Board may be telling you, The Upper Deck Company ("Upper
Deck") withdrew its tender offer bid because Arthur Shorin and his so-called
"Executive Committee" refused to negotiate in good-faith. We believe the
Executive Committee never had any intention of completing a deal with Upper
Deck, even if it meant the most value for the Company's stockholders. The
Executive Committee has favored the inadequate $9.75 Merger with Michael Eisner
and Madison Dearborn throughout the entire sale process because, in our opinion,
its members have interests that are not aligned with the best interests of the
Company's stockholders.
Don't just take our word for it. Here is what the Delaware Court of Chancery and
two leading independent proxy advisory firms, Institutional Shareholder Services
Inc. and Glass Lewis & Co., have had to say regarding the Topps Board's sale
process and its willingness to complete a deal with Upper Deck:
According to the Delaware Court:
"Although [Arthur] Shorin and the other defendants claim that they truly
desire to get the highest value and want nothing more than to get a
topping bid from Upper Deck that they can accept, their behavior belies
those protestations. In reaching that conclusion, I rely not only on the
defendants' apparent failure to undertake diligent good faith efforts at
bargaining with Upper Deck, I also rely on the misrepresentations of fact
about Upper Deck's offer that are contained in Topps's public statements."
According to Glass Lewis:
"We are deeply troubled by the process the board undertook in arriving at
the proposed deal...additionally, we believe the board has provided weak
justification for initially discontinuing negotiations with Upper Deck
during the go-shop period when Upper Deck's offer presented a considerably
higher per share price than the proposed consideration."
According to ISS:
"Overall we believe the sale process had flaws, and the company's openness
to a deal with Upper Deck was questionable."
ENOUGH IS ENOUGH!
THE COMMITTEE TO ENHANCE TOPPS CALLS ON THE MAJORITY MEMBERS OF THE TOPPS BOARD
TO RESIGN THEIR POSITIONS EFFECTIVE IMMEDIATELY. Their failures are countless.
The actions of the Executive Committee violate the most basic principles of
corporate governance and are an insult to both corporate democracy and the
Company's stockholders alike. In fact, the track record of this Board has only
worsened as the process has dragged on. Recently, Vice Chancellor Strine of the
Delaware Court concluded that the Topps Board delivered and filed misleading
proxy materials to its stockholders and the Topps Board has further entrenched
itself by refusing, despite repeated requests, to schedule its 2007 Annual
Meeting for the election of directors in accordance with Delaware law.
The Company's stockholders deserve an independent, non-conflicted board that
will truly look out for stockholders' best interests. The Committee has
assembled a slate of highly qualified director nominees who collectively have
vast expertise in several areas, including entertainment, confectionary,
strategic turnarounds, marketing, brand management and sports management.
THE COMMITTEE HAS BOTH A WELL-QUALIFIED SLATE AND A BETTER ALTERNATIVE FOR
MAXIMIZING STOCKHOLDER VALUE READY IF THE INADEQUATE MERGER IS VOTED DOWN
The Committee urges stockholders to vote down the $9.75 Eisner Merger and
replace the existing Topps Board with the Committee's slate of highly qualified
business executives that, if elected, would engage in value enhancing activities
for the benefit of ALL stockholders. In particular, we believe that Topps needs
to fix its capital structure, upgrade its senior management team and continue to
improve its operations. If elected, our nominees will conduct a modified "Dutch
Auction" tender offer to buy back $110 million of shares between $10.00 to
$10.50 per share - around 28% of the Company's shares outstanding.
Our nominees would also seek to upgrade senior management by hiring a new CEO
with extensive marketing and turnaround experience, and who will bring a fresh
perspective to the organization. We have had discussions with potential
well-qualified candidates who have the requisite qualifications and credentials
to take the Company to the next level. Our slate of director nominees clearly
demonstrates our ability to assemble the best team possible. By contrast, Topps
is currently managed day-to-day by Scott Silverstein, the CEO's son-in-law, a
former lawyer with no business experience beyond Topps.
WE BELIEVE THAT TOPPS' SHARES COULD BE WORTH AN ENTERPRISE VALUE (NET OF
DEBT) BETWEEN $16 AND $18 PER SHARE IN 2 YEARS
By focusing on these value-enhancing changes, the Committee believes that Topps'
shares could be worth an enterprise value (net of debt) between $16 and $18 per
share in two years, not taking into account an M&A premium that could yield a
higher valuation. We are not the only ones who believe that there is significant
intrinsic value to be unlocked in Topps. Sean P. McGowan, an analyst at Wedbush
Morgan Securities who Forbes recently ranked #1 in the Leisure Equipment &
Products industry in its 2007 Best Analysts-Earnings Estimators survey, stated
the following in a Research Note dated June 19, 2007 regarding a scenario in
which the Committee's director nominees are elected to the Topps Board:
"We believe that this scenario might actually have been the one that could
realize the most value over time, because we believe the company's
fortunes continue to improve and that better management could, over a
period of 18-24 months, have produced value well in excess of $15 per
share."
BY VOTING AGAINST THE ILL-ADVISED $9.75 MERGER, YOU ARE NOT GAMBLING WITH
YOUR INVESTMENT - YOU ARE PROTECTING IT!
CRESCENDO PARTNERS HAS BEEN IN SITUATIONS LIKE THIS BEFORE AND SUCCESSFULLY
UNLOCKED VALUE FOR STOCKHOLDERS
In 2005, Crescendo Partners, a Computer Horizons stockholder, solicited support
against what Crescendo Partners believed to be an ill-advised merger between
Computer Horizons and Analysts International. After the merger was voted down by
Computer Horizons stockholders at a special meeting, Crescendo Partners
successfully replaced the existing Computer Horizons Board with five new board
members, including Eric Rosenfeld. The new Computer Horizons Board replaced
management and explored all strategic alternatives available to maximize
stockholder value, which resulted in stockholders approving a plan of
liquidation and an expected distribution of $4.68-$4.81 per share, a return of
about 60% since Crescendo Partners first became involved. Crescendo Partners has
also successfully changed management in other public companies where we had
board representation, including Emergis, Inc., Ad Opt Technologies, Inc., Spar
Aerospace Ltd. and Sierra Systems Group, Inc., resulting in subsequent increases
in stockholder value.
THE $9.75 MERGER IS SIMPLY INADEQUATE!
The Committee urges stockholders to vote down the Eisner Merger because we
believe that:
o the $9.75 per share Merger consideration is inadequate;
o the process that led to the signing of the Eisner Merger Agreement
was flawed; and
o a better alternative exists for maximizing stockholder value.
Eisner's $9.75 offer price represents a meager 3% premium to the average closing
price of the shares for the 20 trading days preceding the announcement of the
Eisner Merger and was obtained through a flawed sale process. The Topps Board
did not shop the Company prior to signing the Eisner Merger to get the highest
possible price for stockholders but instead was satisfied to sell the business
at an inadequate price to a buyer who promised to keep management in place.
WE URGE THE COMPANY TO HOLD THE SPECIAL MEETING ON AUGUST 30TH WITHOUT
FURTHER DELAY!
The Company has already postponed the special meeting by more than two months
because it was forced by the Delaware Court to correct material omissions and
materially misleading statements in its proxy statement. The Company should not
be allowed to further postpone the special meeting in the event that the voting
results are not to its liking, as might be done in a "banana republic." It is
time to let the stockholders vote!
PROTECT YOUR INVESTMENT TODAY BY VOTING AGAINST THE
ILL-ADVISED EISNER MERGER!
VOTE THE GOLD PROXY CARD TODAY!
If you have any questions, please feel to call us directly at (212) 319-7676.
You may also call D.F. King & Co., Inc., which is assisting the Committee,
toll-free at (800) 628-8532.
Sincerely yours,
Eric Rosenfeld & Arnaud Ajdler
The Committee to Enhance Topps
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, a proxy supplement 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, INCLUDING PROXY
SUPPLEMENTS, 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, D.F. 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 II"),
Crescendo Investments II, LLC, a Delaware limited liability company ("Crescendo
Investments II"), Crescendo Partners III, L.P., a Delaware limited partnership
("Crescendo Partners III"), Crescendo Investments III, LLC, a Delaware limited
liability company ("Crescendo Investments III"), 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 II beneficially owns 2,568,200 shares of common stock of the
Company. As the general partner of Crescendo Partners II, Crescendo Investments
II may be deemed to beneficially own the 2,568,200 shares of the Company
beneficially owned by Crescendo Partners II. Crescendo Partners III beneficially
owns 126,500 shares of common stock of the Company. As the general partner of
Crescendo Partners III, Crescendo Investments III may be deemed to beneficially
own the 126,500 shares of the Company beneficially owned by Crescendo Partners
III. Eric Rosenfeld may be deemed to beneficially own 2,694,900 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 II, 126,500
shares Mr. Rosenfeld may be deemed to beneficially own by virtue of his position
as managing member of Crescendo Investments III 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 133,425 shares of common stock of the Company,
John J. Jones beneficially 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:
D.F. King & Co., Inc.
(800) 628-8532
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