UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

TRUDY J. NOMM, Individually and On ) Behalf of All Others Similarly Situated, ) CIVIL ACTION NO. ) Plaintiff, ) ) CLASS ACTION COMPLAINT vs. ) FOR VIOLATIONS OF THE ) FEDERAL SECURITIES LAW ODYSSEY HEALTHCARE, INC., ) RICHARD R. BURNHAM, DAVID C. ) GASMIRE, and DOUGLAS B. CANNON, ) JURY TRIAL DEMANDED ) Defendants. )

Plaintiff, Trudy J. Nomm (“Plaintiff”), individually and on behalf of all other persons

similarly situated, by her undersigned attorneys, for her complaint again st defendants, alleges the

following based upon personal knowledge as to herself and his own acts, and information and belief

as to all other matters, based upon, inter alia, the investigation conducted by and through her

attorneys, which included, among other things, a review of the defendants’ public documents,

conference calls and announcements made by defendants, United States Securities and Exchange

Commission (“SEC”) filings, wire and press releases published by and regarding Odyssey

Healthcare, Inc. (“Odyssey” or the “Company”) securities analysts’ reports and advisories about the

Company, and information readily obtainable on the Internet. Plaintiff believes that substantial evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery. NATURE OF THE ACTION

1. This is a federal class action on behalf of purchasers of the securities of Odyssey between May 5, 2003 and February 23, 2004, inclusive (the “Class Period”), seeking to pursue remedies under the Securities Exchange Act of 1934 (the “Exchange Act”).

JURISDICTION AND VENUE

2. The claims asserted herein arise under and pursuant to Sections 10(b) and 20(a) of the Exchange Act, (15 U.S.C. §§ 78j(b) and 78t(a)), and Rule 10b-5 promulgated thereunder (17

C.F.R. §240.10b-5).

3. This Court has jurisdiction over the subject matter of this action pursuant to §27 of the Exchange Act (15 U.S.C. §78aa) and 28 U.S.C. § 1331.

4. Venue is proper in this Judicial District pursuant to §27 of the Exchange Act, 15

U.S.C. § 78aa and 28 U.S.C. § 1391(b). Many of the acts and transactions alleged herein, including the preparation and dissemination of materially false and misleading information, occurred in substantial part in this Judicial District. Additionally, the Company maintains a principal executive office in this Judicial District.

5. In connection with the acts, conduct and other wrongs alleged in this complaint, defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including but not limited to, the United States mails, interstate telephone communications and the facilities of the national securities exchange.

-2- PARTIES

6. Plaintiff Trudy J. Nomm as set forth in the accompanying certification, incorporated by reference herein, purchased Odyssey securities at artificially inflated prices during the Class

Period and has been damaged thereby.

7. Defendant Odyssey is a Delaware corporation that maintains its principal place of business within this judicial district at 717 N. Harwood, Suite 1500, Dallas, Texas 75201.

8. Defendant Richard R. Burnham (“Burnham”) was the Company’s Chief Executive

Officer until January 1, 2004 when relinquished his role as chief executive officer. Currently, he serves as the Company’s Chairman of the Board.

9. Defendant Douglas B. Cannon (“Cannon”) is the Company’s Chief Financial Officer,

Secretary, Treasurer, and Principal Financial and Chief Accounting Officer.

10. Defendant David C. Gasmire (“Gasmire”) is currently the Company’s President and

Chief Executive Officer.

11. Defendants Burnham, Cannon, and Gasmire are collectively referred to hereinafter as the “Individual Defendants.” During the Class Period, each of the Individual Defendants, as senior executive officers and/or directors of Odyssey were privy to non-public information concerning its business, finances, products, markets and present and future business prospects via access to internal corporate documents, conversations and connections with other corporate officers and employees, attendance at management and Board of Directors meetings and committees thereof and via reports and other information provided to them in connection therewith. Because of their possession of such information, the Individual Defendants knew or recklessly disregarded the fact

-3- that adverse facts specified herein had not been disclosed to, and were being concealed from, the investing public.

12. Because of the Individual Defendants' positions with the Company, they had access to the adverse undisclosed information about the Company's business, operations, operational trends, financial statements, markets and present and future business prospects via access to internal corporate documents (including the Company's operating plans, budgets and forecasts and reports of actual operations compared thereto), conversations and connections with other corporate officers and employees, attendance at management and Board of Directors meetings and committees thereof and via reports and other information provided to them in connection therewith.

13. It is appropriate to treat the Individual Defendants as a group for pleading purposes and to presume that the false, misleading and incomplete information conveyed in the Company's public filings, press releases and other publications as alleged herein are the collective actions of the narrowly defined group of defendants identified above. Each of the above officers of Odyssey, by virtue of their high-level positions with the Company, directly participated in the management of the

Company, was directly involved in the day-to-day operations of the Company at the highest levels and was privy to confidential proprietary information concerning the Company and its business, operations, growth, financial statements, and financial condition, as alleged herein. Said defendants were involved in drafting, producing, reviewing and/or disseminating the false and misleading statements and information alleged herein, were aware, or recklessly disregarded, that the false and misleading statements were being issued regarding the Company, and approved or ratified these statements, in violation of the federal securities laws.

-4- 14. As officers and controlling persons of a publicly-held company whose securities were, and are, registered with the SEC pursuant to the Exchange Act, and was traded on the NASDAQ and governed by the provisions of the federal securities laws, the Individual Defendants each had a duty to disseminate promptly, accurate and truthful information with respect to the Company's financial condition and performance, growth, operations, financial statements, business, markets, management, earnings and present and future business prospects, and to correct any previously- issued statements that had become materially misleading or untrue, so that the market price of the

Company's publicly-traded securities would be based upon truthful and accurate information. The

Individual Defendants' misrepresentations and omissions during the Class Period violated these specific requirements and obligations.

15. The Individual Defendants participated in the drafting, preparation, and/or approval of the various public and shareholder and investor reports and other communications complained of herein and were aware of, or recklessly disregarded, the misstatements contained therein and omissions therefrom, and were aware of their materially false and misleading nature. Because of their Board membership and/or executive and managerial positions with Odyssey, each of the

Individual Defendants had access to the adverse undisclosed information about Odyssey financial condition and performance as particularized herein and knew (or recklessly disregarded) that these adverse facts rendered the positive representations made by or about Odyssey and its business issued or adopted by the Company materially false and misleading.

16. The Individual Defendants, because of their positions of control and authority as officers and/or directors of the Company, were able to and did control the content of the various SEC filings, press releases and other public statements pertaining to the Company during the Class Period.

-5- Each Individual Defendant was provided with copies of the documents alleged herein to be misleading prior to or shortly after their issuance and/or had the ability and/or opportunity to prevent their issuance or cause them to be corrected. Accordingly, each of the Individual Defendants is responsible for the accuracy of the public reports and releases detailed herein and is therefore primarily liable for the representations contained therein.

17. Each of the defendants is liable as a participant in a fraudulent scheme and course of business that operated as a fraud or deceit on purchasers of Odyssey securities by disseminating materially false and misleading statements and/or concealing material adverse facts. The scheme:

(i) deceived the investing public regarding Odyssey business, operations, management and the intrinsic value of Odyssey securities; and (ii) caused Plaintiff and other members of the Class to purchase Odyssey securities at artificially inflated prices.

PLAINTIFF’S CLASS ACTION ALLEGATIONS

18. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil

Procedure 23(a) and (b)(3) on behalf of a Class, consisting of all those who purchased or otherwise acquired the securities of Odyssey between May 5, 2003 and February 23, 2004, inclusive (the "Class

Period") and who were damaged thereby. Excluded from the Class are defendants, the officers and directors of the Company, at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which defendants have or had a control- ling interest.

19. The members of the Class are so numerous that joinder of all members is imprac- ticable. Throughout the Class Period, Odyssey’s securities were actively traded on the NASDAQ.

While the exact number of Class members is unknown to Plaintiff at this time and can only be

-6- ascertained through appropriate discovery, Plaintiff believes that there are hundreds or thousands of members in the proposed Class. Record owners and other members of the Class may be identified from records maintained by Odyssey or its transfer agent and may be notified of the pendency of this action by mail, using the form of notice similar to that customarily used in securities class actions.

20. Plaintiff’s claims are typical of the claims of the members of the Class as all members of the Class are similarly affected by defendants' wrongful conduct in violation of federal law that is complained of herein.

21. Plaintiff will fairly and adequately protect the interests of the members of the Class and have retained counsel competent and experienced in class and securities litigation.

22. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class. Among the questions of law and fact common to the Class are:

(a) whether the federal securities laws were violated by defendants' acts as alleged herein;

(b) whether statements made by defendants to the investing public during the Class

Period misrepresented material facts about the business, operations and management of Odyssey; and

(c) to what extent the members of the Class have sustained damages and the proper measure of damages.

23. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy since joinder of all members is impracticable. Furthermore, as the

-7- damages suffered by individual Class members may be relatively small, the expense and burden of individual litigation make it impossible for members of the Class to individually redress the wrongs done to them. There will be no difficulty in the management of this action as a class action.

SUBSTANTIVE ALLEGATIONS

Background

24. Odyssey is one of the largest providers of hospice care in the United States in terms of both average daily census and number of locations. At the end of March 2003, the company had

65 hospice locations in 26 states. Odyssey seeks to improve the quality of life of terminally ill patients and their families, by providing care directed at managing pain and other discomforting symptoms, and by addressing the psychosocial and spiritual needs of patients and their families.

Odyssey's care is provided in a variety of settings including patients' homes, nursing homes, long-term care facilities, hospitals and, in some cities, Odyssey's free-standing inpatient hospice facilities.

25. As a hospice care provider, its goal is to improve the quality of life of terminally ill patients and their families. In keeping with the hospice concept, Odyssey provides intensive treatment of the physical and emotional pain and symptoms associated with terminally ill patients.

It focuses primarily on enhancing a patient's comfort and overall quality of life, and its services are generally provided in the patient's home, a nursing home or a hospital.

Materially False And Misleading Statements Issued During The Class Period

26. The Class Period commences on May 5, 2003. At that time, the Company announced financial results for the three months ended March 31, 2003. Net patient service revenue for the

-8- 2003 quarter grew 50 percent to $60.1 million, compared to $40.1 million for the first quarter of

2002. Net income for the quarter was $7.2 million, a 79 percent increase over the $4.0 million for the corresponding quarter in 2002. Earnings per diluted share were $0.29, an increase of 81 percent over the $0.16 for the year-ago quarter. The Company's effective income tax rate for the first quarter of 2003 was 39 percent, compared to 37 percent for the first quarter of 2002. Net cash provided by operations for the 2003 quarter was $12.3 million. The average daily census for the quarter was

5,363 patients, an increase of 45 percent over the 3,690 patients for the first quarter of 2002. Days of care for the quarter increased 45 percent to 482,648, compared to 332,064 for the same quarter last year. The average daily census for the month of March 2003 was 5,533, a 44 percent increase over the March 2002 average daily census of 3,854.

27. Commenting on these results, defendant Burnham stated:

"Our goal of providing excellent service to an increasing number of patients and their families and leveraging our existing infrastructure to produce strong financial performance is showing very good results[.]". . . "As is typical in our company, the increase in days of patient care is primarily attributable to growth in our existing locations. In addition to this internal growth, during the quarter, we acquired a hospice south of Dallas, which complements our Dallas/Fort Worth service area."

28. Defendant Burnham further noted that the Company anticipated continued good performance in 2003 and was therefore increasing its guidance for the year. "We expect revenue growth in 2003 of 30 to 33 percent over 2002 and an increase of 35 to 40 percent in net income over

2002," he said. The Company had previously provided guidance of 30 percent growth in revenue and 30 to 35 percent growth in net income year over year.

-9- 29. On May 14, 2003, Odyssey filed its quarterly report on Form 10-Q with the SEC. The

Company’s Form 10-Q was signed by defendants Burnham and Cannon and reaffirmed its previously announced financial results.

30. On August 4, 2004, Odyssey announced financial results for the second quarter and the six months ended June 30, 2003. Net patient service revenue for the 2003 second quarter grew

39 percent to $64.9 million, compared to $46.6 million for the second quarter of 2002. Net income for the quarter was $7.6 million, a 60 percent increase over the $4.7 million for the corresponding quarter in 2002. Earnings per diluted share restated for the 50 percent stock dividend for stockholders of record at the close of business July 28, 2003, to be distributed on Aug. 12, 2003, were $0.20 ($0.31 on a pre-split basis), an increase of 54 percent over the $0.13 ($0.19 pre-split) for the year-ago quarter. The Company's effective income tax rate for the second quarter of 2003 was approximately 39 percent, compared to approximately 38 percent for the second quarter of 2002.

Net cash provided by operations for the 2003 second quarter was $15.1 million. The average daily census for the quarter was 5,758 patients, an increase of 34 percent over the 4,289 patients for the second quarter of 2002. Days of care for the quarter increased 34 percent to 523,967, compared to

390,314 for the same quarter last year. The average daily census for the month of June 2003 was

5,867, a 33 percent increase over the June 2002 average daily census of 4,404.

31. Commenting on these results, defendant Burnham stated:

"We are very pleased with our continued strong financial performance[.]". . . "More importantly, our existing programs continue to reach more patients and families, and we are creating additional platforms for growth by expanding our programs into new communities around the country."

-10- 32. Additionally, Odyssey stated that because of increased visibility into the remainder of the year, the Company noted that it was increasing its guidance for net income growth in 2003 to

40 to 43 percent over 2002 results. The Company had previously provided guidance of 35 to 40 percent net income growth in 2003 over 2002.

33. On August 13, 2003, Odyssey filed its quarterly report on Form 10-Q with the SEC.

The Company’s Form 10-Q was signed by defendants Burnham and Cannon and reaffirmed its previously announced financial results.

34. On September 2, 2003, Odyssey announced that it had acquired Utah's Heritage

Hospice, L.L.C. effective Sept. 1, 2003. The Utah hospice program provided care to approximately

280 patients from Salt Lake City, Ogden and St. George and the surrounding areas. Odyssey, which operates in 27 other states, had not previously provided care in Utah. Commenting on this, defendant Burnham stated:

"Historically, about one-third of Odyssey's annual growth is a result of acquisitions, and two-thirds is a result of growth in our existing hospice programs and expansion into communities not previously served by the company[.]" . . . "We are very pleased to have the caregivers and staff of Utah's Heritage Hospice join the Odyssey team. They have established a well-respected hospice program, providing compassionate and high-quality care in the major population centers of the state[.]"

35. On September 16, 2003, defendant Burnham, appearing on Bloomberg television's

Morning Call program, reaffirmed the Company's prior guidance for net income growth in 2003 of

40 to 43 percent over 2002 results.

36. On November 3, 2003, Odyssey announced financial results for the third quarter and the nine months ended Sept. 30, 2003. Net patient service revenue for the 2003 third quarter grew

-11- 40 percent to $71.0 million, compared to $50.7 million for the third quarter of 2002. Net income for the quarter was $7.8 million, a 45 percent increase over the $5.4 million for the corresponding quarter in 2002. Earnings per diluted share were $0.21, an increase of 40 percent over the $0.15 for the year-ago quarter. The average daily census for the quarter was 6,198 patients, an increase of 34 percent over the 4,619 patients for the third quarter of 2002. Days of care for the quarter increased

34 percent to 570,233, compared to 424,944 for the same quarter last year. The average daily census for the month of September 2003 was 6,552, a 37 percent increase over the September 2002 average daily census of 4,786.

37. Commenting on these results, defendant Burnham stated:

"We are very pleased to report strong growth in revenue and net income," said Richard R. Burnham, chairman and chief executive officer. "We have also made excellent progress in expanding into new communities and increasing the number of patients in our existing programs. To continue our strong growth, we have accelerated our timeframe for new programs and are currently working on seven new locations scheduled to open in 2004."

38. On November 13, 2003, Odyssey filed its quarterly report on Form 10-Q with the

SEC. The Company’s Form 10-Q was signed by defendants Burnham and Cannon and reaffirmed its previously announced financial results.

39. On November 17, 2003, Odyssey announced that it had acquired Hospice Home Care, a hospice provider in San Antonio, Texas, effective Nov. 15, 2003. Hospice Home Care was providing care to approximately 100 patients. Odyssey, which provided hospice services in 28 states, including locations throughout Texas, would integrate Hospice Home Care into its existing San

Antonio hospice program. Commenting on this, defendant Gasmire stated:

-12- "Historically, about one-third of Odyssey's annual growth is a result of acquisitions, and two-thirds is a result of the growth in our existing hospice programs and expansion into communities not previously served by the company[.]" . . . The San Antonio acquisition is Odyssey's eighth in 2003. Including the San Antonio acquisition, the acquired programs had a total of approximately 600 patients at the time of their purchase.

"We are very pleased to have the caregivers and staff of Hospice Home Care join the Odyssey team. The compassionate and high-quality care they have provided throughout the greater San Antonio area is a tribute to each person associated with Hospice Home Care[.]" . . . "By combining our two organizations, we believe we can reach even more patients and families who can benefit from our services."

40. On January 15, 2004, Odyssey announced that it had acquired Crown of Texas

Hospice, Amarillo, Ltd. and Crown of Texas Hospice, Southeast, Ltd. effective Jan. 15, 2004. The hospice programs currently served approximately 400 patients and their families in 20 counties in the Texas Panhandle and nine counties surrounding Conroe, Texas, north of Houston. Commenting on this defendant Gasmire Stated: "Crown of Texas has provided outstanding care to patients and families in the Texas Panhandle and in the counties surrounding Conroe[.]’. . . ‘We are pleased to be able to continue this strong legacy of care and look forward to being an important part of the healthcare communities in these areas." Prior to the acquisition, Odyssey did not have a hospice program in the Texas Panhandle. According to the Company, the purchase price of the transaction was $22.5 million in cash. Odyssey also noted that the acquisition was expected to be accretive beginning approximately mid 2004, following the Company's historic pattern of implementing its operating model in newly acquired programs in approximately 90 to 120 days. "While this acquisition is the largest in our history, our focus will remain on organic growth," noted defendant

Gasmire.

-13- 41. The statements contained in ¶¶ 26-40 were materially false and misleading when made because each failed to disclose or indicate the following: (1) that the Company’s financial results were materially inflated because at least six of its Hospice programs exceeded the amounts they were entitled to received in Medicare reimbursements; (2) that the Company admitted patients to its Hospice programs who were not eligible for Medicare yet claimed that such patients were; (3) the Company’s financial results were a result of providing a level of care and services below the standards set forth under government guidelines because the Company’s caseloads were heavier than industry norms; (4) that the Company could not keep up with its heady growth due to higher labor costs – especially in California, which represented 13 percent to 15 percent of Odyssey’s revenues;

(5) that higher drug costs were hurting the Company’s margins; and (6) that Odyssey was suffering from negative cash-flows.

The Truth Begins to Emerge

42. On February 23, 2004, Odyssey announced that its first-quarter profits would be below analysts’ estimates. According to the Company, it expected its 2004 earnings per share results to reflect a 23 to 25 percent increase over 2003, or $1.03 to $1.05 for the year. For the first quarter of 2004, Odyssey expected earnings per share of $0.20 to $0.22, (analysts’ expected the Company to earn earnings per share of $0.25) compared to $0.19 for the first quarter of 2003. Commenting on this, defendant Gasmire stated:

"We are pleased with the financial results for the fourth quarter given our start-up initiatives and the costs associated with our acquisitions made in the second half of the year, but we believe there are opportunities for improvement. Toward that goal, we are taking steps to reduce our operating costs in 2004 while continuing to provide the same level of care[.]" . . . "Our guidance for 2004 assumes continued growth in the number of patients for whom we are caring, decreases

-14- in certain costs, and no material change in the quarterly Medicare cap accruals or the financial impact of our start-up initiatives. Our guidance for the first quarter also includes the typical impact of the higher first quarter annual payroll taxes."

43. News of this shocked the market with shares of Odyssey falling $7.11 per share, or

26 percent, to close at $20.32 per share on February 24, 2004.

Post-Class Period Information

44. In its April 12, 2004 edition, Barron’s published an article highlighting the

Company’s operational issues. More specifically, Barron’s stated:

WHEN A COMPANY is in the business of comforting dying patients, whose care can be costly, and it depends heavily on Medicare for revenues, achieving profit margins of 18%-20% and annual earnings gains of 40% or so would seem too good to be true. Yet those are the kinds of numbers that Dallas-based Odyssey Healthcare, the nation's second-largest for-profit hospice provider, has routinely churned out since issuing shares to the public in October 2001. The nation's first hospice provider to go public has expanded its programs to 68 from the 33 that existed in 2001, mainly through acquisitions. And it's expected to show "same-store sales growth" -- revenue from facilities open more than a year -- of 13%-15% this year. Its average "daily census" -- the number of patients it cares for -- rose to 6,019 in 2003 from 4,407 a year earlier. Its profit margins are more than double those of its competitors.

An impressive performance, indeed. But there are signs the company can't keep up with its heady growth. Higher labor costs -- especially in California, which represents 13%-15% of its revenues -- as well as higher drug costs hurt Odyssey's margins in last year's fourth quarter. In reporting those results on Feb. 23, the company forecast lower-than-expected earnings for this year. Another red flag: Odyssey disclosed that, in its most recent quarter, six of its programs exceeded the amounts they were entitled to receive in Medicare reimbursements, raising questions about whether patients admitted to its programs are truly eligible.

There are also suggestions that some of Odyssey's strong growth is the result of providing a level of care and services below the

-15- standards set forth under government guidelines, including providing adequate bereavement services for patients' families. A son tells Barron's of Odyssey's ignoring calls from a nursing home as the staff sought the assistance of the hospice firm with which he'd contracted. Some former nurses and marketing representatives tell Barron's of patients being kicked out of Odyssey programs after 90 days upon being "reevaluated" or because they required hospital care. Former staffers complain about lack of access to supplies and caseloads that are heavier than industry norms.

***

As of 2002, the latest date for which figures are available, the number of hospices in this country had more than doubled to 3,200 since 1986, when hospice care became a permanent Medicare benefit, and the number of patients admitted to hospice programs has hit 885,000, 32% of them 75 to 84 years old, according to the National Hospice and Palliative Care Organization. No wonder, then, that Wall Street has grown enamored of Odyssey. Even now, despite a sharp slump on disappointing fourth-quarter earnings news, its shares still trade in the low 20s, triple their initial-public-offering price of 6.67, after adjusting for two splits. In fact, since the IPO, Odyssey has outpaced the major stock indexes by a wide margin, as investors discovered a lot to like about its strategy.

Odyssey's formula for success has consisted of aggressively going after patient referrals, strictly controlling costs and carefully managing its patient base. Cancer patients, for example, who can be particularly expensive to care for, represent only 36% of the total at Odyssey, versus an industry average of 54%. In seeking patients, it concentrates on nursing homes and assisted-living centers, to keep costs down. Hospice services also can be provided in a dying person's home.

Investors have grown more cautious as a result of the disappointments in the recent quarter. In addition to the higher costs and lower forecast, the hospice chain revealed that its cash flow turned negative in the quarter as claims for reimbursement were delayed because of audits and new rules associated with the federal Health Insurance Portability and Accountability Act, or HIPAA.

-16- 45. On news of this, shares of Odyssey fell $0.48 per share, or 2.3 percent, to close at

$20.41 per share.

UNDISCLOSED ADVERSE FACTS

46. The market for Odyssey’s securities was open, well-developed and efficient at all relevant times. As a result of these materially false and misleading statements and failures to disclose, Odyssey’s securities traded at artificially inflated prices during the Class Period. Plaintiff and other members of the Class purchased or otherwise acquired Odyssey securities relying upon the integrity of the market price of Odyssey’s securities and market information relating to Odyssey, and have been damaged thereby.

47. During the Class Period, defendants materially misled the investing public, thereby inflating the price of Odyssey’s securities, by publicly issuing false and misleading statements and omitting to disclose material facts necessary to make defendants’ statements, as set forth herein, not false and misleading. Said statements and omissions were materially false and misleading in that they failed to disclose material adverse information and misrepresented the truth about the Company, its business and operations, as alleged herein.

48. At all relevant times, the material misrepresentations and omissions particularized in this Complaint directly or proximately caused or were a substantial contributing cause of the damages sustained by plaintiff and other members of the Class. As described herein, during the

Class Period, defendants made or caused to be made a series of materially false or misleading statements about Odyssey’s business, prospects and operations. These material misstatements and omissions had the cause and effect of creating in the market an unrealistically positive assessment of Odyssey and its business, prospects and operations, thus causing the Company’s securities to be

-17- overvalued and artificially inflated at all relevant times. Defendants’ materially false and misleading statements during the Class Period resulted in plaintiff and other members of the Class purchasing the Company’s securities at artificially inflated prices, thus causing the damages complained of herein.

ADDITIONAL SCIENTER ALLEGATIONS

49. As alleged herein, defendants acted with scienter in that defendants knew that the public documents and statements issued or disseminated in the name of the Company were materially false and misleading; knew that such statements or documents would be issued or disseminated to the investing public; and knowingly and substantially participated or acquiesced in the issuance or dissemination of such statements or documents as primary violations of the federal securities laws. As set forth elsewhere herein in detail, defendants, by virtue of their receipt of information reflecting the true facts regarding Odyssey, their control over, and/or receipt and/or modification of Odyssey allegedly materially misleading misstatements and/or their associations with the Company which made them privy to confidential proprietary information concerning Odyssey, participated in the fraudulent scheme alleged herein.

50. Defendants knew and/or recklessly disregarded the falsity and misleading nature of the information which they caused to be disseminated to the investing public. The ongoing fraudulent scheme described in this complaint could not have been perpetrated over a substantial period of time, as has occurred, without the knowledge and complicity of the personnel at the highest level of the Company, including the Individual Defendants.

51. Additionally, during the Class Period, defendants were able to sell their shares at inflated prices and reap more than $26 million in proceeds as shown below:

-18- NAME DATE SHARES & PRICE PROCEEDS Richard R. Burnham 11/10/03 18,132 @ $31.058 $563,143.65 11/07/03 35,137 @ $29.505 $1,036,717.18 11/6/03 50,000 @ $28.076 $1,403,800.00 9/02/03 75,000 @ $31.58 $2,368,500.00 8/29/03 50,000 @ 30.276 $1,513,800.00 8/28/03 25,000 @ $30.00 $750.000.00 8/22/03 500 @ $30.640 $15,320.00 8/15/03 13,600 @ $29.00 $394,400.00 8/14/03 66,751 @ $28.916 $1,930,171.91 6/11/03 50,000 @ $33.00 $1,650,000.00 5/14/03 50,000 @ $29.60 $1,480,000.00 5/08/03 150,000 @ $25.68 $3,852,000.00

Total: 584,120 Total: $16,957,851.83 Douglas B. Cannon 11/11/03 2,343 @ $31.058 $72,768.89 11/7/03 7,961 @ $29.260 $232,938.86 9/12/03 2,000 @ $33.60 $67,200.00 9/10/03 2,372 @ $34.70 $82,308.40 8/25/03 2,879 @ $29.050 $83,634.95 8/14/03 26,700 @ $28.90 $771,630.00 5/28/03 6,194 @ $29.750 $184,271.50 5/23/03 1,616 @ $30.00 $48,480.00 5/16/03 5,184 @ $29.80 $154,483.20

Total: 57,249 Total: $1,697,715 David C. Gasmire 12/11/03 50,000 @ $30,000 $1,500,000.00 8/21/03 149,916 @ $30.40 $4,557,446.40 8/20/03 7,500 @ $30.00 $225,000.00 6/11/03 30,000 @ $33.30 $999,000.00 5/12/03 16,397 @ $29.68 $468,662.96

Total: 253,813 Total: $7,750,109.36 Total Proceeds: $26,405,676.19

-19- Applicability Of Presumption Of Reliance: Fraud-On-The-Market Doctrine

52. At all relevant times, the market for Odyssey securities was an efficient market for the following reasons, among others:

(a) Odyssey stock met the requirements for listing, and was listed and actively traded on the NASDAQ, a highly efficient and automated market;

(b) As a regulated issuer, Odyssey filed periodic public reports with the SEC and the

NASDAQ;

(c) Odyssey regularly communicated with public investors via established market communication mechanisms, including through regular disseminations of press releases on the national circuits of major newswire services and through other wide-ranging public disclosures, such as communications with the financial press and other similar reporting services; and

(d) Odyssey was followed by several securities analysts employed by major brokerage firms who wrote reports which were distributed to the sales force and certain customers of their respective brokerage firms. Each of these reports was publicly available and entered the public marketplace.

53. As a result of the foregoing, the market for Odyssey securities promptly digested current information regarding Odyssey from all publicly-available sources and reflected such information in Odyssey stock price. Under these circumstances, all purchasers of Odyssey securities during the Class Period suffered similar injury through their purchase of Odyssey securities at artificially inflated prices and a presumption of reliance applies.

-20- NO SAFE HARBOR

54. The statutory safe harbor provided for forward-looking statements under certain circumstances does not apply to any of the allegedly false statements pleaded in this complaint.

Many of the specific statements pleaded herein were not identified as "forward-looking statements" when made. To the extent there were any forward-looking statements, there were no meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the purportedly forward-looking statements. Alternatively, to the extent that the statutory safe harbor does apply to any forward-looking statements pleaded herein, defendants are liable for those false forward-looking statements because at the time each of those forward-looking statements was made, the particular speaker knew that the particular forward-looking statement was false, and/or the forward-looking statement was authorized and/or approved by an executive officer of Odyssey who knew that those statements were false when made.

FIRST CLAIM Violation Of Section 10(b) Of The Exchange Act And Rule 10b-5 Promulgated Thereunder (Against All Defendants)

55. Plaintiff repeats and realleges each and every allegation contained above as if fully set forth herein.

56. During the Class Period, defendants carried out a plan, scheme and course of conduct which was intended to and, throughout the Class Period, did: (i) deceive the investing public, including Plaintiff and other Class members, as alleged herein; and (ii) cause Plaintiff and other members of the Class to purchase Odyssey securities at artificially inflated prices. In furtherance of

-21- this unlawful scheme, plan and course of conduct, defendants, and each of them, took the actions set forth herein.

57. Defendants (a) employed devices, schemes, and artifices to defraud; (b) made untrue statements of material fact and/or omitted to state material facts necessary to make the statements not misleading; and (c) engaged in acts, practices, and a course of business which operated as a fraud and deceit upon the purchasers of the Company's securities in an effort to maintain artificially high market prices for Odyssey securities in violation of Section 10(b) of the Exchange Act and Rule 10b-

5. All defendants are sued either as primary participants in the wrongful and illegal conduct charged herein or as controlling persons as alleged below.

58. Defendants, individually and in concert, directly and indirectly, by the use, means or instrumentalities of interstate commerce and/or of the mails, engaged and participated in a continuous course of conduct to conceal adverse material information about the business, operations and future prospects of Odyssey as specified herein.

59. These defendants employed devices, schemes and artifices to defraud, while in possession of material adverse non-public information and engaged in acts, practices, and a course of conduct as alleged herein in an effort to assure investors of Odyssey value and performance and continued substantial growth, which included the making of, or the participation in the making of, untrue statements of material facts and omitting to state material facts necessary in order to make the statements made about Odyssey and its business operations and future prospects in the light of the circumstances under which they were made, not misleading, as set forth more particularly herein, and engaged in transactions, practices and a course of business which operated as a fraud and deceit upon the purchasers of Odyssey securities during the Class Period.

-22- 60. Each of the Individual Defendants' primary liability, and controlling person liability, arises from the following facts: (i) the Individual Defendants were high-level executives and/or directors at the Company during the Class Period and members of the Company's management team or had control thereof; (ii) each of these defendants, by virtue of his responsibilities and activities as a senior officer and/or director of the Company was privy to and participated in the creation, development and reporting of the Company's internal budgets, plans, projections and/or reports;

(iii) each of these defendants enjoyed significant personal contact and familiarity with the other defendants and was advised of and had access to other members of the Company's management team, internal reports and other data and information about the Company's finances, operations, and sales at all relevant times; and (iv) each of these defendants was aware of the Company's dissemination of information to the investing public which they knew or recklessly disregarded was materially false and misleading.

61. The defendants had actual knowledge of the misrepresentations and omissions of material facts set forth herein, or acted with reckless disregard for the truth in that they failed to ascertain and to disclose such facts, even though such facts were available to them. Such defendants' material misrepresentations and/or omissions were done knowingly or recklessly and for the purpose and effect of concealing Odyssey operating condition and future business prospects from the investing public and supporting the artificially inflated price of its securities. As demonstrated by defendants' overstatements and misstatements of the Company's business, operations and earnings throughout the Class Period, defendants, if they did not have actual knowledge of the misrepresentations and omissions alleged, were reckless in failing to obtain such knowledge by

-23- deliberately refraining from taking those steps necessary to discover whether those statements were false or misleading.

62. As a result of the dissemination of the materially false and misleading information and failure to disclose material facts, as set forth above, the market price of Odyssey securities was artificially inflated during the Class Period. In ignorance of the fact that market prices of Odyssey publicly-traded securities were artificially inflated, and relying directly or indirectly on the false and misleading statements made by defendants, or upon the integrity of the market in which the securities trades, and/or on the absence of material adverse information that was known to or recklessly disregarded by defendants but not disclosed in public statements by defendants during the Class

Period, Plaintiff and the other members of the Class acquired Odyssey securities during the Class

Period at artificially high prices and were damaged thereby.

63. At the time of said misrepresentations and omissions, Plaintiff and other members of the Class were ignorant of their falsity, and believed them to be true. Had Plaintiff and the other members of the Class and the marketplace known the truth regarding the problems that Odyssey was experiencing, which were not disclosed by defendants, Plaintiff and other members of the Class would not have purchased or otherwise acquired their Odyssey securities, or, if they had acquired such securities during the Class Period, they would not have done so at the artificially inflated prices which they paid.

64. By virtue of the foregoing, defendants have violated Section 10(b) of the Exchange

Act, and Rule 10b-5 promulgated thereunder.

-24- 65. As a direct and proximate result of defendants' wrongful conduct, Plaintiff and the

other members of the Class suffered damages in connection with their respective purchases and sales

of the Company's securities during the Class Period.

SECOND CLAIM Violation Of Section 20(a) Of The Exchange Act (Against the Individual Defendants)

66. Plaintiff repeats and realleges each and every allegation contained above as if fully set forth herein.

67. The Individual Defendants acted as controlling persons of Odyssey within the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their high-level positions, and their ownership and contractual rights, participation in and/or awareness of the

Company's operations and/or intimate knowledge of the false financial statements filed by the

Company with the SEC and disseminated to the investing public, the Individual Defendants had the power to influence and control and did influence and control, directly or indirectly, the decision- making of the Company, including the content and dissemination of the various statements which

Plaintiff contend are false and misleading. The Individual Defendants were provided with or had unlimited access to copies of the Company's reports, press releases, public filings and other

statements alleged by Plaintiff to be misleading prior to and/or shortly after these statements were

issued and had the ability to prevent the issuance of the statements or cause the statements to be

corrected.

68. In particular, each of these defendants had direct and supervisory involvement in the

day-to-day operations of the Company and, therefore, is presumed to have had the power to control

-25- or influence the particular transactions giving rise to the securities violations as alleged herein, and

exercised the same.

69. As set forth above, Odyssey and the Individual Defendants each violated Section

10(b) and Rule 10b-5 by their acts and omissions as alleged in this Complaint. By virtue of their

positions as controlling persons, the Individual Defendants are liable pursuant to Section 20(a) of

the Exchange Act. As a direct and proximate result of defendants' wrongful conduct, Plaintiff and

other members of the Class suffered damages in connection with their purchases of the Company's

securities during the Class Period.

WHEREFORE, Plaintiff prays for relief and judgment, as follows:

(a) Determining that this action is a proper class action, designating Plaintiff as Lead

Plaintiff and certifying Plaintiff as a class representative under Rule 23 of the Federal Rules of Civil

Procedure and Plaintiff’s counsel as Lead Counsel;

(b) Awarding compensatory damages in favor of Plaintiff and the other Class members against all defendants, jointly and severally, for all damages sustained as a result of defendants' wrongdoing, in an amount to be proven at trial, including interest thereon;

(c) Awarding Plaintiff and the Class their reasonable costs and expenses incurred in this action, including counsel fees and expert fees; and

(d) Such other and further relief as the Court may deem just and proper.

-26- JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury.

DATED: May 6, 2004 Respectfully Submitted,

HOEFFNER & BILEK, L.L.P.

By: ______Thomas E. Bilek

Federal Bar No. 9338 State Bar No. 02313525 Lyric Office Center 440 Louisiana Street, Ste. 720 Houston, Texas 77002 Telephone: (713) 227-7720 Facsimile: (713) 227-9404

Attorney-in-Charge

OF COUNSEL:

WECHSLER HARWOOD LLP Robert I. Harwood Jeffrey M. Norton 488 Madison Ave., 8th Floor New York, NY 10022 Telephone: (212) 935-7400 Facsimile: (212) 753-3630

LAW OFFICES OF CHARLES J. PIVEN Charles J. Piven, Esq. 401 East Pratt Street Suite 2525 Baltimore, MD 21202 Telephone: (410) 332-0030 Facsimile: (410) 528-2093

Attorneys for Plaintiff

-27-