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EXHIBIT 2.1
WAIVER
This Waiver (the “ Waiver ”), dated as of May
23, 2007, waives certain provisions of the Agreement and Plan of
Merger (the “ Agreement ”), dated as of March 5,
2007, by and among The Topps Company, Inc., a Delaware corporation
(the “ Company ”), Tornante-MDP Joe Holding LLC,
a Delaware limited liability company (“ Parent
”) and Tornante-MDP Joe Acquisition Corp., a Delaware
corporation. Capitalized terms used herein and not otherwise
defined have the meaning ascribed to them in the Agreement.
WHEREAS, the Company has received from The Upper Deck Company an
Acquisition Proposal, dated May 21, 2007, to acquire the Company,
copies of which have been provided to Parent (the “ Upper
Deck Acquisition Proposal ”); and
WHEREAS, pursuant to Section 6.2 of the Agreement, the Company is
not permitted to furnish information to, or engage in discussions
or negotiations with, Upper Deck or to take certain other actions
described therein, unless certain conditions set forth in Section
6.2(c) have been satisfied, including, without limitation, that the
board of directors of the Company determines in good faith, after
consultation with its financial advisors and outside counsel, that
the Acquisition Proposal submitted by Upper Deck constitutes or may
reasonably be expected to result in a Superior Proposal (the
“ Board Determination ”).
NOW, THEREFOR, in consideration of the foregoing premises and for
other good and valuable consideration, Parent and Merger Sub agree
as follows:
1. W
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