- Amended Statement of Ownership: Solicitation (SC 14D9/A)
October 09 2009 - 6:03AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 1)
Solicitation/Recommendation Statement under Section 14(d)(4)
of the Securities Exchange Act of 1934
ODYSSEY RE HOLDINGS CORP.
(Name of Subject Company)
ODYSSEY RE HOLDINGS CORP.
(Names of Person(s) Filing Statement)
Common Stock, $0.01 Par Value Per Share
(Title of Class of Securities)
67612W108
(CUSIP Number of Class of Securities)
Donald L. Smith
Senior Vice President, General Counsel
and Corporate Secretary
Odyssey Re Holdings Corp.
300 First Stamford Place
Stamford, Connecticut 06902
(203) 977-8024
(Name, Address and Telephone Number of Person Authorized to Receive
Notice and Communications on Behalf of the Person(s) Filing Statement)
With a copy to:
Peter J. Gordon, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Ave
New York, NY 10017-3754
(212) 455-2605
o
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
1
This Amendment No. 1 (this
Amendment No. 1
) amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 initially filed with the U.S. Securities
and Exchange Commission on September 30, 2009, by Odyssey Re Holdings Corp., a Delaware corporation
(the
Company
) (as amended or supplement from time to time, the
Schedule 14D-9
). The Schedule
14D-9 relates to the cash tender offer by Fairfax Investments USA Corp. (
Merger Sub
), a Delaware
corporation and a wholly owned subsidiary of Fairfax Financial Holdings Limited (
Fairfax
and
together with its subsidiaries, the
Fairfax Group
), a company incorporated under the laws of
Canada, to purchase all of the Companys outstanding Common Stock, other than those shares of
Common Stock held by the Fairfax Group, at a price of $65.00 per share, net to the seller in cash,
without interest thereon 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
), and the related Letter of Transmittal (which, together with any amendments or
supplements thereto, constitute the
Offer
)
Except as otherwise set forth below, the information set forth in the Schedule 14D-9 remains
unchanged and is incorporated herein by reference as relevant to the items in this Amendment.
Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in
the Schedule 14D-9.
TABLE OF CONTENTS
ITEM 8. ADDITIONAL INFORMATION.
Item 8 of the Schedule 14D-9 is herby amended and supplemented by adding the following:
Litigation
.
On October 7, 2009, the directors of the Company, the Company (as a nominal defendant),
Fairfax and Merger Sub (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 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 the Companys board of directors for alleged breaches of their
fiduciary duties to the Companys stockholders in connection with the Offer, the Merger and the
other transactions contemplated by the Merger Agreement, and a claim against Fairfax and Merger Sub
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 recissory damages.
The plaintiff is also seeking, by separate application, a temporary
restraining order, expediated discovery and a temporary injunction as
to the Offer and Merger. The Defendants believe that the claims made in the CapGrowth Complaint are without merit and intend
to vigorously defend against this action.
The foregoing summary of the CapGrowth Complaint is qualified in its entirety by reference to
the CapGrowth Complaint, which is filed as Exhibit (a)(5(A) and incorporated in this Amendment No.
1 by reference.
ITEM 9. EXHIBITS.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following:
(a)(5)(A)
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Complaint filed in the Superior Court of Connecticut,
Judicial District of Stamford/Norwalk captioned CapGrowth Partners v. V. Prem Watsa et al.
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2
SIGNATURE
After due inquiry and to the best of its knowledge and belief, the undersigned certifies that
the information set forth in this statement is true, complete and correct.
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ODYSSEY RE HOLDINGS CORP.
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By:
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/s/ Donald L. Smith
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Name:
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Donald L. Smith
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Title:
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Senior Vice President, General Counsel and Corporate Secretary
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Dated: October 8, 2009
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