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 23, 2007, Arnaud Ajdler delivered the following letter
to the Topps Board:
August 23, 2007
BY EMAIL AND FACSIMILE
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Board of Directors of The Topps Company, Inc.
c/o Mr. Steve Gartner
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Dear Fellow Members of the Board:
I have reviewed the additional disclosure (the "Additional Disclosure")
filed by The Topps Company, Inc. ("Topps" or the "Company") with the Securities
and Exchange Commission (the "SEC") on August 22, 2007 as part of your
settlement with the NY plaintiffs. It is apparent from this filing that the
Executive Committee disregarded specific comments provided by me in connection
with materially misleading statements contained in the Additional Disclosure.
The Additional Disclosure fails to state the fact that ALL FOUR members of the
ad hoc committee, including Steve Greenberg (Chairman of the Ad Hoc Committee
and managing director of Allen & Co.) and Allan Feder (our lead director) had
concerns with Lehman Brothers' performance in connection with the sale of the
Company. The fact that the four of us (and not just Timothy Brog and I - the
so-called objecting directors) had concerns with Lehman casts additional doubts
on the process, the valuation and the fairness opinion that Lehman provided.
Since the Executive Committee has chosen to ignore my request to fully inform
stockholders on the issue and continues with its policy of selective disclosure
and half-truths, it is my duty as a fiduciary to set the record straight and
again request that the Company correct the Additional Disclosure to include the
following:
THE HALF-TRUTH REGARDING THE EXTENSION OF LEHMAN BROTHERS' ENGAGEMENT: You
vaguely state that "members of the ad hoc committee ... expressed concern with
Lehman Brothers' performance in connection with the potential sale of the
Company." In the next paragraph, you single only me out, stating "Arnaud Ajdler,
a director and member of the Second Committee, continued to express concern with
Lehman Brothers." What really happened is best described by Steve Greenberg,
himself, who wrote the following to the Board on August 20, 2007, following my
comments to an earlier draft.
"ARNAUD IS GENERALLY CORRECT. ALL 4 MEMBERS OF THE AHC EXPRESSED
DISAPPOINTMENT WITH LEHMAN'S PERFORMANCE AND/OR FOCUS AT VARIOUS TIMES
AND, LEAVING ASIDE THE "TAIL" ISSUES, I THINK IT'S FAIR TO SAY THAT ALL OF
US WOULD HAVE HIRED SOMEONE ELSE WERE WE TO REKINDLE THE PROCESS."
Why does the Executive Committee continue to mislead stockholders and not want
to disclose that all four members of the Ad Hoc Committee expressed
disappointment with Lehman's performance, as opposed to singling me out? Could
it be that highlighting Lehman's shortcomings would cast further doubts on the
terrible process you ran and on Lehman's fairness opinion? The Executive
Committee's continuous attempts to mislead stockholders casts significant doubt
on your credibility as you try to convince Topps' stockholders of your good
faith negotiations with Upper Deck and that the proposed $9.75 Merger is in the
best interest of stockholders and is a result of a thorough process.
THE HALF-TRUTH REGARDING THE INTERVIEW OF THE OTHER INVESTMENT BANKS: You state
that the Ad Hoc Committee "interviewed a number of investment banks, including
Goldman Sachs, Morgan Stanley, Houlihan Lokey and Greenhill, for possible
retention by the Second Committee as its financial advisor and, if requested, to
deliver a fairness opinion." This is simply not true. The Ad Hoc Committee did
NOT interview these banks looking for its own separate financial advisor as the
disclosure indicates, but INSTEAD interviewed these investment banks to replace
Lehman Brothers (if the Board had decided at the January 9 board meeting to
start a full process.). Again, I raised this issue after reviewing the draft of
the Additional Disclosure, and you simply preferred to ignore the truth.
I wish that over the last few months you had put as much effort in trying to
maximize stockholder value as you have in trying to craft selective disclosure.
I would have hoped that the Executive Committee would have learned from the
Delaware Court opinion. It is clear, however, that it has not. Selective and
misleading disclosures will not change the fact that the existing $9.75 Merger
is not in the best interest of the Company's stockholders since the
consideration is wholly inadequate and it does not provide full and fair value
to the Company's stockholders.
Regards,
/s/ Arnaud Ajdler
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Arnaud Ajdler
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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