- Amended tender offer statement by Third Party (SC TO-T/A)
17 10월 2009 - 6:11AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SCHEDULE TO
(Amendment
No. 4)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
ODYSSEY RE HOLDINGS CORP.
(Name of Subject Company (issuer))
FAIRFAX INVESTMENTS USA CORP.
a wholly owned subsidiary of
FAIRFAX FINANCIAL HOLDINGS LIMITED
(Names of Filing Persons (offerors))
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
67612W108
(CUSIP Number of Class of Securities)
Eric P. Salsberg
Vice President, Corporate Affairs
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario, Canada M5J 2N7
(416) 367-4941
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Filing Persons)
Copy to:
Christopher J. Cummings
Adam M. Givertz
Shearman & Sterling LLP
Commerce Court West
199 Bay Street, Suite 4405
Toronto, Ontario, Canada M5L 1E8
(416) 360-8484
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$1,042,046,980
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$58,146.22
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*
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Estimated for purposes of calculating the amount of the filing fee only. The calculation assumes the
purchase of all outstanding shares of common stock, par value $0.01
per share (the Shares), of Odyssey Re Holdings Corp., a Delaware
corporation, other than Shares owned by Fairfax Financial Holdings Limited
(Fairfax) and its subsidiaries, at a purchase price of $65.00 per Share, net to the seller
in cash. As of September 17, 2009, there were 58,430,892 Shares outstanding, of which
42,399,400 Shares are owned by Fairfax and its subsidiaries. As a result, this calculation
assumes the purchase of 16,031,492 Shares.
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**
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The amount of the filing fee is calculated in accordance with
Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate
Advisory No. 5 for fiscal year 2009 issued by the Securities and Exchange
Commission on March 11, 2009. Such fee equals 0.00558% of the transaction value.
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þ
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Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
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Amount Previously Paid: $58,146.22
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Filing Party:
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Fairfax Financial Holdings Limited and
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Fairfax Investments USA Corp.
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Form or Registration No.: Schedule TO-T
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Date Filed:
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September 23, 2009
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o
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Check the box if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
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Check the appropriate boxes to designate any transactions to which the statement relates:
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þ
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third-party tender offer subject to Rule 14d-1.
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o
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issuer tender offer subject to Rule 13e-4.
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þ
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going-private transaction subject to Rule 13e-3.
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o
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer:
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This Amendment No. 4 amends and supplements the Tender Offer Statement and Rule 13e-3
Transaction Statement filed on Schedule TO (as amended and supplemented, the
Schedule TO
) by
Fairfax Financial Holdings Limited, a Canadian corporation (
Fairfax
), and Fairfax Investments USA
Corp., a Delaware corporation and wholly-owned subsidiary of Fairfax (
Purchaser
). The Schedule
TO relates to the offer by Purchaser to purchase all the outstanding shares of common stock, par
value $0.01 per share (the
Shares
), of Odyssey Re Holdings Corp, a Delaware corporation (
Odyssey
Re
), other than Shares owned by Fairfax and its subsidiaries, at a purchase price of $65.00 per
Share, net to the seller in cash, without interest and less any applicable withholding of taxes,
upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September
23, 2009, as amended and supplemented (the
Offer to Purchase
), a copy of which is attached to the
Schedule TO as Exhibit (a)(1)(i), and the related Letter of Transmittal, a copy of which is
attached to the Schedule TO as Exhibit (a)(1)(ii) (which, as amended or supplemented from time to
time, together constitute the
Offer
). All capitalized terms used in this Amendment No. 4 without
definition have the meanings ascribed to them in the Schedule TO.
The following amendments to Items 11 and 12 of the Schedule TO are hereby made.
Item 11.
Additional Information.
Section a(5) of Item 11 of the Schedule TO is hereby amended in its entirety to read as
follows:
Litigation
.
On October 7, 2009, the directors of Odyssey Re, Odyssey Re (as a nominal defendant), Fairfax
and Purchaser (collectively, the
Defendants
) were served with a purported stockholder derivative
and class action complaint, dated October 7, 2009, filed in the Superior Court of Connecticut,
Judicial District of Stamford/Norwalk (the
Court
). The action, captioned
CapGrowth Partners v. V.
Prem Watsa, et al.
, Docket No. CV09-6002152-S (the
CapGrowth Complaint
), purports to assert
claims against the members of Odyssey Res board of directors for alleged breaches of their
fiduciary duties to Odyssey Res stockholders in connection with the Offer and the other
transactions contemplated by the Offer to Purchase, and a claim against Fairfax and Purchaser for
allegedly aiding and abetting such alleged breaches of fiduciary duties. The CapGrowth Complaint
seeks, among other relief, a declaratory judgment and monetary and/or rescissory damages. The
plaintiff also sought, by separate application, a temporary restraining order and expedited
discovery and a temporary injunction as to the Offer and the other transactions contemplated by the
Offer to Purchase. The Defendants believe that the claims made in the CapGrowth Complaint are
without merit and intend to vigorously defend against this action.
On October 14, 2009, the Court held a hearing on the plaintiffs motion for expedited
injunctive relief.
On October 16, 2009, the Court issued a Memorandum of Decision Re: Plaintiffs Application for
a Temporary Restraining Order, Expedited Discovery and Temporary Injunction (the
Memorandum of
Decision
) denying the plaintiffs application for a temporary restraining order, expedited
discovery and temporary injunction.
The CapGrowth Complaint and the Memorandum of Decision are filed as Exhibits (a)(5)(i) and
(a)(5)(ii), respectively, to and incorporated in the Schedule TO.
Item 12.
Exhibits.
Item 12 of the Schedule TO is hereby amended in its entirety to read as follows:
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(a)(1)(i)*
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Offer to Purchase, dated September 23, 2009.
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(a)(1)(ii)*
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Letter of Transmittal.
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(a)(1)(iii)*
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Notice of Guaranteed Delivery.
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(a)(1)(iv)*
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Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.
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(a)(1)(v)*
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Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.
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(a)(1)(vi)*
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Summary Advertisement to be published in
The Wall Street Journal
on September 24, 2009.
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(a)(5)(i)*
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CapGrowth Partners v. V. Prem Watsa, et al., Docket No. CV-09-6002152-S, Superior Court
of Connecticut, Judicial District of Stamford/Norwalk (filed October 7, 2009).
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(a)(5)(ii)
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Memorandum of Decision Re: Plaintiffs Application for a Temporary Restraining Order,
Expedited Discovery and Temporary Injunction, dated October 16, 2009.
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(d)(1)
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Agreement and Plan of Merger, dated as of September 18, 2009, by and among Odyssey Re
Holdings Corp., Fairfax Financial Holdings Limited and Fairfax Investments USA Corp.
(incorporated by reference to Exhibit 2.01 to the Form 8‑K filed by Odyssey Re Holdings
Corp. on September 21, 2009)
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(d)(2)
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Stockholder Support Agreement, dated as of September 18, 2009, among Fairfax Financial
Holdings Limited and Marshfield Associates, Inc. (incorporated by reference to Exhibit
11.3 to the Schedule 13D filed on September 22, 2009)
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(g)*
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Presentation of Merrill Lynch, Pierce, Fenner & Smith Incorporated.
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(g)(2)
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Presentation of Merrill Lynch, Pierce, Fenner & Smith Incorporated dated September 4,
2009 (incorporated by reference to Exhibit (c)(5) to the Schedule 13E-3 filed by Odyssey
Re Holdings Corp. on September 30, 2009)
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*
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Previously filed with the Schedule TO
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2
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information
set forth in this statement is true, complete and correct.
Dated: October 16, 2009
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FAIRFAX INVESTMENTS USA CORP.
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By:
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/s/ Bradley P. Martin
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Name:
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Bradley P. Martin
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Title:
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Vice President, Treasurer and Secretary
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FAIRFAX FINANCIAL HOLDINGS LIMITED
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By:
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/s/ Bradley P. Martin
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Name:
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Bradley P. Martin
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Title:
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Vice President, Chief Operating Officer and
Corporate Secretary
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EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(i)*
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Offer to Purchase, dated September 23, 2009.
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(a)(1)(ii)*
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Letter of Transmittal.
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(a)(1)(iii)*
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Notice of Guaranteed Delivery.
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(a)(1)(iv)*
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Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.
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(a)(1)(v)*
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Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.
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(a)(1)(vi)*
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Summary Advertisement to be published in
The Wall Street Journal
on September 24, 2009.
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(a)(5)(i)*
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CapGrowth Partners v. V. Prem Watsa, et al., Docket No. CV-09-6002152-S, Superior Court
of Connecticut, Judicial District of Stamford/Norwalk (filed October 7, 2009).
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(a)(5)(ii)
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Memorandum of Decision Re: Plaintiffs Application for a Temporary Restraining Order,
Expedited Discovery and Temporary Injunction, dated October 16, 2009.
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(d)(1)
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Agreement and Plan of Merger, dated as of September 18, 2009, by and among Odyssey Re
Holdings Corp., Fairfax Financial Holdings Limited and Fairfax Investments USA Corp.
(incorporated by reference to Exhibit 2.01 to the Form 8‑K filed by Odyssey Re Holdings
Corp. on September 21, 2009)
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(d)(2)
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Stockholder Support Agreement, dated as of September 18, 2009, among Fairfax Financial
Holdings Limited and Marshfield Associates, Inc. (incorporated by reference to Exhibit
11.3 to the Schedule 13D filed on September 22, 2009)
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(g)*
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Presentation of Merrill Lynch, Pierce, Fenner & Smith Incorporated.
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(g)(2)
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Presentation of Merrill Lynch, Pierce, Fenner & Smith Incorporated dated September 4,
2009 (incorporated by reference to Exhibit (c)(5) to the Schedule 13E-3 filed by Odyssey
Re Holdings Corp. on September 30, 2009)
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*
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Previously filed with the Schedule TO
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