UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
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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$1,042,046,980
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$
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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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o
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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: N/A
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Filing Party: N/A
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Form or Registration No.: N/A
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Date Filed: N/A
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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
third-party
tender offer subject to
Rule 14d-1.
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o
issuer
tender offer subject to
Rule 13e-4.
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þ
going-private
transaction subject to
Rule 13e-3.
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o
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:
o
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This Tender Offer Statement and
Rule 13e-3
Transaction Statement filed on Schedule TO (this
“Schedule TO”
) is filed by Fairfax
Financial Holdings Limited, a Canadian corporation
(“Fairfax”)
, and Fairfax Investments USA Corp.,
a Delaware corporation and wholly-owned subsidiary of Fairfax
(“Purchaser”)
. This 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 (the
“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 (the
“Offer to
Purchase”
), a copy of which is attached hereto as
Exhibit (a)(1)(i), and the related Letter of Transmittal, a copy
of which is attached hereto as Exhibit (a)(1)(ii) (which, as
amended or supplemented from time to time, together constitute
the
“Offer”
). The information set forth in the
Offer to Purchase, including all schedules thereto, and the
related Letter of Transmittal are hereby expressly incorporated
by reference in response to all items of this Schedule TO,
including, without limitation, all of the information required
by
Schedule 13E-3
that is not included in or covered by the items in
Schedule TO and is supplemented by the information
specifically provided herein.
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Item 1.
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Summary
Term Sheet.
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Reference is made to the information set forth in the Offer to
Purchase under the headings “Summary Term Sheet” which
is incorporated herein by reference.
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Item 2.
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Subject
Company Information.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 7. Certain Information Concerning Odyssey Re,”
which is incorporated herein by reference.
(b) Reference is made to the information set forth in the
Offer to Purchase under the heading “Introduction,”
which is incorporated herein by reference.
(c) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 6. Price Range of the Shares; Dividends,”
which is incorporated herein by reference.
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Item 3.
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Identity
and Background of Filing Person.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the headings “Summary Term
Sheet,” “Introduction,” “The
Offer — Section 8. Certain Information Concerning
Purchaser and Fairfax” and in
“Schedule A — Information Concerning
Directors and Executive Officers of Purchaser and Fairfax,”
which is incorporated herein by reference.
(b) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 8. Certain Information Concerning Purchaser and
Fairfax,” which is incorporated herein by reference.
(c) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 8. Certain Information Concerning Purchaser and
Fairfax” and in “Schedule A —
Information Concerning Directors and Executive Officers of
Purchaser and Fairfax,” which is incorporated herein by
reference.
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Item 4.
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Terms
of the Transaction.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the headings “Summary Term
Sheet,” “Introduction,” “Special
Factors — Section 7. Effects of the Offer,”
“Special Factors — Section 9. Summary of the
Merger Agreement,” “The Offer —
Section 1. Terms of the Offer,” “The
Offer — Section 2. Acceptance for Payment and
Payment for Shares,” “The Offer —
Section 3. Procedures for Accepting the Offer and Tendering
Shares,” “The Offer — Section 4.
Withdrawal Rights,” “The Offer —
Section 5. Certain United States Federal Income Tax
Consequences” and “The Offer —
Section 12. Effect of the Offer on the Market for the
Shares; NYSE Listing; Exchange Act Registration; Margin
Regulations,” which is incorporated herein by reference.
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares,” “Special
Factors — Section 12.
Related Party Transactions” and in
“Schedule B — Security Ownership of Certain
Beneficial Owners and Management,” which is incorporated
herein by reference.
(b) Reference is made to the information set forth in the
Offer to Purchase under the heading “Special
Factors — Section 1. Background” and
“Special Factors — Section 9. Summary of the
Merger Agreement,” which is incorporated herein by
reference.
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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(a) and (c) (1) through (7) Reference is made to
the information set forth in the Offer to Purchase under the
headings “Special Factors — Section 2.
Purpose of and Reasons for the Offer; Plans for Odyssey Re After
the Offer and the Merger,” “Special
Factors — Section 7. Effects of the Offer,”
“Special Factors — Section 8. Conduct of
Odyssey Re’s Business if the Offer Is Not Completed,”
“Special Factors — Section 9. Summary of the
Merger Agreement” and “The Offer —
Section 12. Effect of the Offer on the Market for the
Shares; NYSE Listing; Exchange Act Registration; Margin
Regulations,” which is incorporated herein by reference.
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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(a), (b) and (d) Reference is made to the information
set forth in the Offer to Purchase under the headings
“Summary Term Sheet,” “Introduction” and
“The Offer — Section 9. Source and Amount of
Funds,” which is incorporated herein by reference.
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Item 8.
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Interest
in Securities of the Subject Company.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the headings “Summary Term
Sheet,” “Introduction,” “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares” and in
“Schedule B — Security Ownership of Certain
Beneficial Owners and Management,” which is incorporated
herein by reference.
(b) Reference is made to the information set forth in the
Offer to Purchase under the heading “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares” and in
“Schedule B — Security Ownership of Certain
Beneficial Owners and Management,” which is incorporated
herein by reference.
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Item 9.
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Persons/Assets,
Retained, Employed, Compensated or Used.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 14. Fees and Expenses,” which is incorporated
herein by reference
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Item 10.
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Financial
Statements.
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(a) The financial statements of Fairfax and Purchaser are
not material to the Offer.
(b) The pro forma financial statements of Fairfax and
Purchaser are not material to the Offer.
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Item 11.
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Additional
Information.
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(a)(1) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 1. Background,”
“Special Factors — Section 9. Summary of the
Merger Agreement” and “Special Factors —
Section 12. Related Party Transactions,” which is
incorporated herein by reference.
(a)(2) through (4) Reference is made to the information set
forth in the Offer to Purchase under the headings “The
Offer — Section 12. Effect of the Offer on the
Market for the Shares; NYSE Listing; Exchange Act Registration;
Margin Regulations” and “The Offer —
Section 13. Certain Legal Matters; Regulatory
Approvals,” which is incorporated herein by reference.
(a)(5) N/A.
(b) Reference is made to the information set forth in the
Offer to Purchase and the Letter of Transmittal, which is
incorporated herein by reference.
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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)(1)(vii)
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Fairfax Financial Holdings Limited press release dated
September 23, 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 11.4
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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Item 13.
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Information
Required by
Schedule 13E-3.
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The following sets forth that information required by
Schedule 13E-3
that has not already been set forth in
Items 1-12
above. The information set forth in the Offer to Purchase is
incorporated herein by reference to the items required by
Schedule 13E-3.
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Item 2.
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Subject
Company Information.
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(d) Reference is made to the information set forth in the
Offer to Purchase under the headings “The Offer —
Section 6. Price Range of the Shares; Dividends” and
“The Offer — Section 10. Dividends and
Distributions,” which is incorporated herein by reference.
(e) Reference is made to the information set forth in the
Offer to Purchase under the heading “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares,” which is incorporated
herein by reference.
(f) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares,” “Special
Factors — Section 12. Related Party
Transactions” and “Schedule B —
Security Ownership of Certain Beneficial Owners and
Management,” which is incorporated herein by reference.
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Item 4.
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Terms
of the Transaction.
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(c) None.
(d) Reference is made to the information set forth in the
Offer to Purchase under the headings “Summary Term
Sheet,” “Special Factors — Section 10.
Appraisal Rights;
Rule 13e-3”
and in “Schedule C — Section 262 of the
Delaware General Corporations Law,” which is incorporated
herein by reference.
(e) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 10. Appraisal Rights;
Rule 13e-3”
and “The Offer — Section 8. Certain
Information Concerning Purchaser and Fairfax” which is
incorporated herein by reference.
(f) Not applicable.
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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(c) Reference is made to the information set forth in the
Offer to Purchase under the heading “Special
Factors — Section 1. Background” and
“Special Factors — Section 3. The
Recommendation by the Special Committee” which is
incorporated herein by reference.
(e) Reference is made to the information set forth in the
Offer to Purchase under the headings “Introduction,”
“Special Factors — Section 1.
Background,” “Special Factors —
Section 3. The Recommendation by the Special
Committee,” “Special Factors —
Section 9. Summary of the Merger Agreement,”
“Special Factors — Section 11. Transactions
and Arrangements Concerning the Shares,” and “Special
Factors — Section 12. Related Party
Transactions” and in “Schedule B —
Security Ownership of Certain Beneficial Owners and
Management,” which is incorporated herein by reference.
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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(b) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 1. Background,”
“Special Factors — Section 2. Purpose of and
Reasons for the Offer; Plans for Odyssey Re After the Offer and
the Merger,” “Special Factors —
Section 9. Summary of the Merger Agreement” and
“Special Factors — Section 7. Effects of the
Offer,” which is incorporated herein by reference.
(c)(8) Reference is made to the information set forth in the
Offer to Purchase under the heading “Special
Factors — Section 9. Summary of the Merger
Agreement” and “The Offer — Section 12.
Effect of the Offer on the Market for the Shares; NYSE Listing;
Exchange Act Registration; Margin Regulations,” which is
incorporated herein by reference.
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Item 7.
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Purposes,
Alternatives, Reasons and Effects.
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(a) through (c) Reference is made to the information
set forth in the Offer to Purchase under the headings
“Special Factors — Section 1.
Background,” “Special Factors —
Section 2. Purpose of and Reasons for the Offer; Plans for
Odyssey Re After the Offer and the Merger” and
“Special Factors — Section 3. The
Recommendation by the Special Committee,” which is
incorporated herein by reference.
(d) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 7. Effects of the Offer,”
“Special Factors — Section 10. Appraisal
Rights;
Rule 13e-3,”
“The Offer — Section 5. Certain United
States Federal Income Tax Consequences” and “The
Offer — Section 12. Effect of the Offer on the
Market for the Shares; NYSE Listing; Exchange Act Registration;
Margin Regulations,” which is incorporated herein by
reference.
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Item 8.
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Fairness
of the Transaction.
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(a) through (f) Reference is made to the information
set forth in the Offer to Purchase under the headings
“Summary Term Sheet,” “Introduction,”
“Special Factors — Section 1.
Background,” “Special Factors —
Section 3. The Recommendation by the Special
Committee,” “Special Factors —
Section 4. Position of Fairfax and Purchaser Regarding
Fairness of the Offer and the Merger,” “Special
Factors — Section 6. Odyssey Re Financial
Projections” and “The Offer —
Section 7. Certain Information Concerning Odyssey Re,”
which is incorporated herein by reference.
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Item 9.
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Reports,
Opinions, Appraisals and Negotiations.
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(a) through (c) Reference is made to the information
set forth in the Offer to Purchase under the headings
“The Offer — Section 9. Source and
Amount of Funds” and “Special Factors —
Section 5. Presentation of BofA Merrill Lynch to
Fairfax Management,” which is incorporated herein by
reference.
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Item 10.
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Source
and Amount of Funds or Other Consideration.
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(c) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 14. Fees and Expenses,” which is incorporated
herein by reference.
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Item 12.
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The
Solicitation or Recommendation.
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(d) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares” and “The
Offer — Section 7. Certain Information Concerning
Odyssey Re,” which is incorporated herein by reference.
(e) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 7. Certain Information Concerning Odyssey Re,”
which is incorporated herein by reference.
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Item 13.
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Financial
Statements.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 7. Certain Information Concerning Odyssey Re,”
which is incorporated herein by reference. The audited financial
statements of Odyssey Re as of and for the fiscal years ended
December 31, 2007 and December 31, 2008 are
incorporated herein by reference to the Consolidated Financial
Statements of Odyssey Re included as Item 8 to Odyssey
Re’s Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008 filed with the
SEC on February 27, 2009. The unaudited consolidated
financial statements of Odyssey Re for the six-month fiscal
period ended June 30, 2009 are incorporated herein by
reference to Item 1 of Part I of Odyssey Re’s
Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2009 filed with the SEC on
August 6, 2009.
(b) The pro forma financial statements of Odyssey Re are
not material to the Offer.
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Item 14.
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Persons/Assets,
Retained, Employed, Compensated or Used.
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(b) None.
(f) Section 262 of the General Corporations Law of the
State of Delaware (included as Schedule C to the Offer to
Purchase filed herewith as Exhibit (a)(1)(i)).
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: September 23, 2009
FAIRFAX INVESTMENTS USA CORP.
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By:
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/s/ Bradley
P. Martin
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Name: Bradley P. Martin
Title: Vice President, Secretary and Treasurer
FAIRFAX FINANCIAL HOLDINGS LIMITED
Name: Paul Rivett
Title: Vice President and Chief Legal Officer
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)(1)(vii)
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Fairfax Financial Holdings Limited press release dated
September 23, 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 11.4
to the Schedule 13D filed on September 22, 2009)
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(f)
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Section 262 of the Delaware General Corporation Law
(included as Schedule C to the Offer to Purchase filed
herewith as Exhibit(a)(1)(i)).
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(g)
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Presentation of Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
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