NORTH LAS VEGAS, Nev., Aug. 21 /PRNewswire/ -- The Upper Deck Company
(Upper Deck) today announced that it has terminated its previously
announced tender offer for all outstanding shares of The Topps Company,
Inc. (Nasdaq: TOPP) (Topps), stating that the actions of Topps made the
conditions precedent to the tender offer incapable of being satisfied. All
Topps shares previously tendered and not withdrawn under the tender offer
will be returned promptly in accordance with the terms of the tender offer.
Upper Deck sent Topps a letter today advising that it had terminated
its tender offer. The text of the letter follows:
Dear Mr. Feder:
I am in receipt of your letter dated August 20, 2007. We are only going
to bother to respond to some of the inaccuracies that riddle your letter.
Indeed, we find the timing of your letter curious in light of the recently
announced positions of Institutional Shareholder Services and Crescendo
concerning the "flawed" manner in which Topps has conducted itself
throughout the merger process.
In short, your letter is a transparent effort to create noise in order
to discredit the UD transaction, promote the Tornante/Madison Dearborn
merger favored by Topps' entrenched management, and insulate Topps from
potential liability to its shareholders by cynically attempting to shift
the blame to UD for a breakdown of the merger. In fact, for months UD has
endeavored in good faith to consummate a merger with Topps that would
provide significant benefits to Topps and its shareholders. Topps, however,
has erected a series of hurdles designed to frustrate UD's ability to move
forward, including the following:
-- Topps has steadfastly refused to disclose information crucial to UD's
due diligence. Incredibly, Topps insists that UD has been provided
"aggregate" diligence sufficient for a reasonable buyer to do an
appropriate analysis. However, financial information necessary to
assess the value of the assets and complete the merger agreement
continues to be withheld, including player association and league
agreements, pricing matrixes, P&L by product line, and the Whiz Kids
Distribution Agreement. Your latest of many conflicting and frankly
bizarre positions that have been communicated to us on diligence
appears to be that Topps will not provide the bulk of the
still-outstanding information (including P&L information) until after
we have signed a merger agreement, and that the remainder of such
information (including player and league agreements) will not be
provided until after UD has actually closed its tender offer. As you
well know, we are a strategic buyer and can only adequately evaluate
this transaction with all of this critical information. We have been
consistent with this position since our initial conversations with
Topps, which is more than we can say for Topps, as we have received
multiple conflicting changes (at least two of which have come from you
personally) to Topps' previous position on how and when the remaining
diligence is to be provided in the last week alone. It is Topps, not
UD, which is responsible for this cynically contrived game of
cat-and-mouse.
-- In response to UD's request that the minimum tender offer condition be
90%, your counsel suggested (subject to board approval) a 78%
condition with a top-up option to get to the 90% required to
consummate a short-form merger. The parties agreed to continue to
discuss this provision; however, in light of your decision to withhold
critical diligence after our repeated requests for access, and your
threat that we must now indicate in writing our acceptance of the 50%
minimum tender condition, we -- apparently like others in the
marketplace -- have concluded that Topps has no interest in pursuing
in good faith a transaction with UD.
-- Finally, the timing described in your letter is simply inaccurate.
These roadblocks have been created by Topps as part of a deliberate
effort to discredit UD (both publicly and internally with the Topps
employees upon whom UD would need to rely post-closing of this
acquisition), defeat UD's offer, and justify entrenched management's
continued shameless support of the less favorable Tornante/Madison Dearborn
transaction. It is now abundantly clear that Topps will attempt to impede
any and all reasonable efforts to consummate the UD merger, which thus
cannot possibly be consummated under the current circumstances.
Accordingly, UD is left no choice but to immediately terminate its tender
offer, as well as all merger discussions with Topps, while reserving all of
its rights to seek redress against Topps and those responsible for the
collapse of this transaction, which would have been in the best interest of
Topps' shareholders...the people to whom you owe a fiduciary duty.
IMPORTANT INFORMATION
This press release is neither an offer to purchase nor a solicitation
of an offer to sell any securities. Upper Deck and its direct wholly-owned
subsidiary UD Company, Inc. filed a Tender Offer Statement on Schedule TO
(containing an Offer to Purchase, a Letter of Transmittal and related
materials) with the U.S. Securities and Exchange Commission. Investors and
security holders of Topps are advised to read these disclosure materials,
and other disclosures materials because these materials will contain
important information. Security holders may obtain a free copy of the
disclosure materials and other documents filed by Upper Deck and UD
Company, Inc. with the U.S. Securities and Exchange Commission at the SEC's
website at http://www.sec.gov. The disclosure materials may also be
obtained from the Information Agent for the tender offer at no cost after
the tender offer is commenced.
CAUTIONARY STATEMENTS
This release contains "forward-looking statements" within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the
Exchange Act. Forward-looking statements made in this press release are
subject to risks and uncertainties. Forward-looking statements include
statements that are predictive in nature, which depend upon or refer to
future events or conditions, which include words such as "believes,"
"plans," "anticipates," "estimates," "expects," "intends," "seeks" or
similar expressions. In addition, any statements we may provide concerning
future financial performance, ongoing business strategies or prospects, and
possible future actions, including with respect to our strategy following
completion of the offer and our plans with respect to Topps, are also
forward-looking statements. Forward-looking statements are based on current
expectations and projections about future events and are subject to risks,
uncertainties and assumptions about Topps, economic and market factors and
the industry in which Topps does business, among other things. You should
not place undue reliance on forward-looking statements, which are based on
current expectations, since, while Upper Deck believes the assumptions on
which the forward-looking statements are based are reasonable, there can be
no assurance that these forward-looking statements will prove accurate.
This cautionary statement is applicable to all forward-looking statements
contained in this press release. These statements are not guarantees of
future performance. All forward-looking statements included in this press
release are made as of the date hereof and, unless otherwise required by
applicable law, we undertake no obligation to publicly update any
forward-looking statements, whether as a result of new information, future
events or otherwise. Actual events and results may differ materially from
those expressed or forecasted in forward-looking statements due to a number
of factors.
About Upper Deck
Founded in 2003, Upper Deck is a premier sports and entertainment
publishing company which delivers a portfolio of relevant, innovative and
multi-dimensional product experiences to collectors, sports and
entertainment enthusiasts. For more information on Upper Deck and its
products please visit http://www.upperdeck.com.
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