Upper Deck Back in the Game; Makes Offer for Topps

Spurned in its first attempt to lure Topps away from Michael Eisner’s Tornante Company, Upper Deck has now offered $424 million.

Upper Deck hasn’t given up hope of acquiring the Topps company, making a new pitch at a buy price well in excess of what shareholders have been offered by Michael Eisner’s group.

Topps admitted today the ‘mystery bidder’ who had made a last minute effort to acquire the company before the Topps Board of Directors approved the deal with Eisner’s group, was, in fact, Upper Deck. That effort was turned down, which upset three members of the board, who say the controlling members of the board are undervaluing the company.

The two factions of the Board are taking turns wooing Topps’ shareholders in the days leading up to the June 28 vote.

Topps shares jumped on the news. Any deal involving Upper Deck buying Topps would create an interesting dilemma for Major League Baseball, which offers baseball licenses to those two companies. Neither side was commenting much late Thursday, except to acknowledge there had been serious discussions.

Here’s the official news release from Topps:

The Topps Company, Inc. (Nasdaq:TOPP) announced today that it has received an unsolicited indication of interest from The Upper Deck Company to acquire Topps for a price of $10.75 per share.

Topps had previously received an indication of interest for the same amount from Upper Deck as part of the Company’s "go shop" process under its existing merger agreement with The Tornante Company LLC and Madison Dearborn Partners, LLC. The previous indication of interest was not pursued by the Topps Board of Directors for a number of reasons, including the absence of any information as to whether Upper Deck would be capable of financing its proposed acquisition, the risk that the transaction would not be consummated due to the failure to obtain the necessary regulatory approvals, Upper Deck’s unwillingness to assume sufficient risk as to the occurrence of such a failure, Upper Deck’s insistence on limiting its liability in the event of its breach of a definitive agreement and certain other issues identified in its indication of interest.

The Company’s Board of Directors noted that there are material outstanding issues associated with Upper Deck’s latest indication of interest, including, but not limited to, the availability of committed financing for the transaction, the completion of a due diligence review of the Company by Upper Deck, Upper Deck’s continued unwillingness to sufficiently assume the risk associated with a failure to obtain the requisite antitrust approval and Upper Deck’s continued insistence on limiting its liability under any definitive agreement. Upper Deck’s present indication of interest was accompanied by a highly conditional "highly confident" letter from a commercial bank. Included among the conditions to the highly confident letter (which was not a commitment to provide financing) were the completion of the lender’s due diligence review of both Upper Deck and Topps, internal bank approvals, the absence of any material adverse change to the business or prospects of Upper Deck or Topps, the receipt of all third party consents, the absence of certain pending litigation and the receipt of certain solvency and other opinions. Many of these conditions are absent from the Tornante-Madison Dearborn transaction. There can be no assurance that a superior transaction will be reached with Upper Deck.

The Tornante Company LLC and Madison Dearborn have granted the Company a waiver under the existing merger agreement to permit the Company and its representatives to engage in discussions and negotiations with Upper Deck, which the Company intends to do. At this juncture, the Topps Board of Directors has not made any determination as to whether Upper Deck’s current indication of interest either constitutes a superior proposal (within the meaning of the existing merger agreement) or may reasonably be expected to result in a superior proposal.

On March 5, 2007, Topps entered into a definitive agreement to be acquired by The Tornante Company LLC and Madison Dearborn Partners, LLC for $9.75 per share in cash. Under the terms of the merger agreement, Topps solicited superior proposals from third parties during the subsequent 40 days, which expired on Saturday, April 14, 2007. The Topps Board has not withdrawn, qualified, modified, changed or amended its recommendation with respect to The Tornante Company LLC and Madison Dearborn Partners, LLC merger agreement.

Topps & Upper Deck boxes on eBay