Fifth Third Bancorp (TG:FFH)
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NEW YORK, Feb. 21 /PRNewswire/ -- Financial Market Participants,
As you may be aware, on February 4, 2008, Institutional Credit Partners, LLC ("ICP"), a New York investment manager, sent a letter to the Board of Directors of Bank of America Corporation (NYSE: BAC, "BOA") requesting that specific information be publicly disclosed regarding a problematic transaction (the "Transaction") engaged in with Fairfax Financial Holdings Ltd. (NYSE/TSX: FFH, "Fairfax") (see Carol Remond, Letter to BofA Directors Questions Fairfax Deal, Dow Jones Newswires, February 11, 2008). The letter provides a detailed explanation of the successful scheme whereby BOA assisted Fairfax in improperly avoiding approximately $400 million in U.S. income taxes. ICP believes that Odyssey Re Holdings Corp. (NYSE: ORH, "Odyssey") remains liable for this amount in addition to an approximate $300 million in penalties and interest. A copy of ICP's letter to BOA is available at http://www.post233.com/.
ICP, has sought and continues to seek complete and accurate disclosure of the Transaction, but has been repeatedly rebuffed by Fairfax and BOA. To ensure detailed public disclosure of this highly significant Transaction, ICP believes that the following questions must be answered on Fairfax's and Odyssey's fourth quarter 2007 conference calls this Friday, February 22, 2008:
Questions:
(1) According to Fairfax's March 4, 2003 press release outlining the
Transaction, Fairfax "purchased" and "beneficially own[ed]" an
additional 4.3 million, or 25%, of Odyssey's publicly available
shares (the "Subject Stock") in order to consolidate Odyssey for tax
purposes. How did Fairfax acquire beneficial ownership of the
Subject Stock? Consider in your answer that 15.8 million of the 17.1
million publicly available Odyssey shares were reported as
beneficially owned by third parties after the Transaction closed.
(see Exhibit 1 - http://www.post233.com/exhibit_1.htm)
(2) If Fairfax received the Subject Stock through a short sale from its
counterparty, BOA, from whom, specifically, did BOA borrow beneficial
ownership of 25% of Odyssey's publicly available shares prior to
conveying this beneficial ownership (including the voting rights) to
Fairfax for 3.5 years? Again, consider in your answer that 15.8
million of the 17.1 million publicly available Odyssey shares were
reported as beneficially owned (including voting rights) by third
parties after the Transaction closed. (see Exhibit 1 -
http://www.post233.com/exhibit_1.htm)
(3) If the Subject Stock was indeed sold short to Fairfax, why wasn't
this material information disclosed in the Transaction's original
documentation? Furthermore, why wasn't this short sale reported to
the New York Stock Exchange ("NYSE") as required by NYSE Rule 421?
Consider in your answer that according to NYSE short interest data,
there were 2,343,732 Odyssey shares sold short prior to the
Transaction on February 15, 2003 and 2,900,873 Odyssey shares
reported as short after the Transaction on March 15, 2003.
Therefore, only 557,141 additional shares of Odyssey stock were
reported to the NYSE as sold short at a time when a 4.3 million share
short sale would have been executed to facilitate the Transaction.
(see Exhibit 2 - http://www.post233.com/exhibit_2.pdf)
(4) The Transaction was unwound when notes exchangeable into the 4.3
million shares of Subject Stock were repurchased or exchanged for in
2006.
As per Odyssey's SEC Form 4 filing on May 26, 2006, Fairfax paid
$9,392,000 to repurchase a portion of the Notes from BOA which were
exchangeable into 400,000 shares of the Subject Stock. Then,
according to Odyssey's 2006 SEC SC 13D/A filing, Fairfax repurchased
a second portion of the Notes exchangeable into 1 million shares of
Subject Stock. As payment for the August repurchase, Fairfax agreed
to reimburse BOA for the future costs of covering 1 million shares of
its short position at then market prices. The combined price of
these two repurchases was disclosed in Fairfax's 2006 annual report,
"In June [(disclosed in the May 26, 2006 Form 4)] and August 2006,
[Fairfax] repurchased $32.9 [million] of these exchangeable
debentures [(exchangeable into 1.4 million shares)] for cash
consideration of $43.4 [million] ... "(1)
a) If Fairfax, as was repeatedly claimed in SEC filings, had
beneficial ownership of the Subject Stock since March 3, 2003,
why did it have to pay market price of $43.4 million for 1.4
million shares of the Subject Stock in 2006?(2)
Fairfax's 2006 annual report continues regarding the remaining
2.9 million shares,
" ... and in November 2006, the holder of $68.1 [million] principal
amount of debentures exercised its right to receive 2.9 million
OdysseyRe common shares which extinguished the remaining indebtedness
under the exchangeable debentures."(1)
b) If Fairfax, as was repeatedly claimed in SEC filings, had
beneficial ownership of the Subject Stock since March 3, 2003,
why was it forced to return 2.9 million shares of the Subject
Stock to BOA in November 2006?
c) If, as was repeatedly claimed in SEC filings, the Transaction
was executed for "investment purposes", why, as outlined
above, was Fairfax unable to realize the approximate $60
million of profit from a greater than 75% increase in
Odyssey's share price over the life of the Transaction?
d) If BOA was an independent counterparty operating at
arms-length, why didn't BOA lose $60 million being short the
Subject Stock during the same time period?
e) If Fairfax never had an investment interest in the Subject
Stock, what was the required non-tax business purpose of the
Transaction?
Market participants require comprehensive answers to the above questions in order to adequately understand both Odyssey's and Fairfax's true regulatory and financial obligations. Thank you for your immediate attention to this matter.
Respectfully,
William F. Gahan
Institutional Credit Partners, LLC
(1) The Transaction was refinanced in November 2004 and $101 million in
New Notes were issued. $32.9 million and $68.1 million worth of the
New Notes were exchangeable into 1.4 million and 2.9 million shares of
Subject Stock, respectively.
(2) While it is clear that Fairfax paid for BOA to cover 1 million shares
of its short position at market prices starting in August 2006, it is
not disclosed whether BOA covered its 400,000 share short position
pursuant to Fairfax's May/June repurchase of $9,392,000 principal
amount of the Notes. However, $9,392,000 was within $320,000, or 4%,
of the market value of 400,000 Odyssey shares on May 26, 2006.
DISCLOSURE: ICP and its affiliates hold investments from which they will profit in the event of a decline in the creditworthiness of Fairfax and/or Odyssey. ICP may change its investments from time to time, including the extent nature and form of these investments. However, ICP anticipates holding, for the foreseeable future, investments whose value will increase in the event of a decline in the creditworthiness of Fairfax and/or Odyssey. ICP has made and will continue to make these investment decisions on the basis of its analysis, beliefs, and assumptions that it believes to be reasonable.
DATASOURCE: Institutional Credit Partners, LLC
CONTACT: Pen Pendleton for Institutional Credit Partners, LLC,
+1-212-371-5999
Web site: http://www.icpcapital.com/
http://www.post233.com/