UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Tousa Inc.
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(Name of Issuer)
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Common Stock
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(Title of Class of Securities)
878483106
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(CUSIP Number)
Jeffrey Ruiz
Deutsche Bank AG
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY 10005
(212) 250-3667
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
October 26, 2007
(Date of Event which Requires Filing of this Statement
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The Information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Cusip No. 878483106
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Deutsche Bank AG
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS WC
(See Item 3)
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
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7 SOLE VOTING POWER
39,551,813
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NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY
OWNED BY ----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 39,551,813
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10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
39,551,813
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.9%
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14 TYPE OF REPORTING PERSON
BK
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Cusip No. 878483106
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Deutsche Bank Trust Company Americas
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS WC
(See Item 3)
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
39,551,813
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NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY
OWNED BY ----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 39,551,813
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
39,551,813
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.9%
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14 TYPE OF REPORTING PERSON
BK
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Item 1. Security and Issuer
This statement on Schedule 13D (this "Statement") relates to shares of
common stock, par value $0.01 per share (the "Common Stock"), of Tousa Inc.(the
"Issuer"). The address of the principal executive offices of the issuer is 4000
placeHollywood Boulevard, Suite 500 N, placeCityHollywood, StateFlorida
PostalCode33021.
Item 2. Identity and Background
This Statement is being filed by Deutsche Bank Trust Company Americas
("DBTCA")and Deutsche Bank AG ("Deutsche Bank", together with DBTCA, the
"Reporting Persons" and each, a "Reporting Person"). A joint filing agreement
has been filed as Exhibit 1 to this Statement pursuant to Rule 13d-1(k)
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b The address of the principal place of business of Deutsche Bank is
Taunusanlage 12, 60325 Frankfurt, Federal Republic of Germany. The address of
the principal office of Deutsche Bank Trust Company Americas is 60 Wall
Street, New York, New York 10005.
(c) and (f) The principal business of the Reporting Persons and the name,
business address, principal occupation or employment and citizenship of each of
the executive officers, directors, controlling persons and trustees, as
applicable of each of the Reporting Persons and each corporation and other
person ultimately in control of the Reporting Persons are set forth on Schedule
1 to this Statement which is incorporated herein.
Set forth on Schedule 1 to this Statement, and incorporated herein by
reference, is a list of the executive officers and directors of Deutsche
Bank and Deutsche Bank Trust Americas that contain the following information
with respect to each such person: (i) name; (ii) business address; (iii) present
principal occupation or employment and the name and business address of each
corporation or organization in which each such employment is conducted; and (iv)
citizenship.
(d) and (e) During the last five years, none of the Reporting Persons and, to
the best knowledge of the Reporting Person, none of the persons named on
Schedule 1 to this Statement has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or has been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
as a result of which such person was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
On or about July 31, 2007, Deutsche Bank AG, through its Deutsche Bank Trust
Company Americas ("DBTCA") affiliate, acquired 77,200 shares of 8% Series A
Convertible Pay-in-Kind Preferred Stock of the issuer pursuant to that certain
Settlement and Release Agreement (Senior Mezzanine) dated June 29, 2007 among
DBTCA, the issuer, and the other parties thereto in consideration for the
cancellation, satisfaction, retirement or termination of debt held by such
persons and releases by such persons of the issuer and certain other persons
from liability. The Settlement and Release Agreement (Senior Mezzanine) is
included as an exhibit to this Schedule 13D and the information contained
therein is incorporated by reference in answer to this item.
The holders of the convertible preferred stock are entitled at any time after
October 26, 2007(the date the conversion price was established)and before the
mandatory redemption date of July 1, 2015, subject to prior optional redemption
or repurchase, to convert any or all of their shares of convertible preferred
stock into shares of Common Stock at the conversion price per share pursuant to,
and subject to the restrictions, limitations, and other provisions in, the
certificate of designation of the convertible preferred stock. The amount of
shares of Common Stock to be delivered shall be the accreted value of the shares
of convertible preferred stock delivered for conversion divided by the
conversion price of $1.61, subject to adjustment as set forth in the certificate
of designation. The accreted value of the convertible preferred stock is the
liquidation preference of the shares being redeemed and any other accrued and
unpaid dividends whether or not declared. The initial liquidation preference of
the convertible preferred stock is $1,000 per share, subject to adjustment. The
conversion price, the number of shares of Common Stock which Deutsche Bank AG is
deemed to beneficially own, and the percentage of such class represented by such
ownership first became ascertainable on dateMonth10Day26Year2007October 26, 2007
at the expiration of such period. The certificate of designation of the
convertible preferred stock is included in this Schedule 13D as an exhibit and
the information contained therein is incorporated by reference in answer to this
item.
As part of the same settlement, the Issuer issued warrants (the "Stock Purchase
Warrants") in two tranches exercisable into the Common Stock at exercise prices
based on a share price of $4.25 (established on October 26, 2007 based on the
average trading price of the Common Stock during a designated period) multiplied
by 1.25 in the case of one tranche (the "Lower Strike Stock Purchase Warrants")
or 1.50 in the case of the other tranche (the "Higher Strike Stock Purchase
Warrants"). On or about July 31, 2007, Deutsche Bank AG through its DBTCA
affiliate acquired 5,045,662 Lower Strike Stock Purchase Warrants and 5,045,662
Higher Strike Stock Purchase Warrants pursuant to that certain Settlement and
Release Agreement (Junior Mezzanine) dated June 29, 2007 among DBTCA, the
issuer, and the other parties thereto in consideration for the cancellation,
satisfaction, retirement or termination of debt held by such persons and
releases by such persons of the issuer and certain other persons from liability.
The Settlement and Release Agreement (Junior Mezzanine) is included as an
exhibit to this Schedule 13D and the information contained therein in
incorporated by reference in answer to this item.
The holders of the Stock Purchase Warrants are entitled to at any time after
October 26, 2007(the date on which the exercise prices were established) to and
including July 31, 2012 to exercise the Stock Purchase Warrants into shares of
Common Stock at their respective exercise prices per share pursuant to, and
subject to the restrictions, limitations, and other provisions in, the Warrant
Purchase Stock Certificate. The exercise price, the number of shares of Common
Stock which Deutsche Bank AG is deemed to beneficially own, and the percentage
of such class represented by such ownership first became ascertainable on
dateMonth10Day26Year2007October 26, 2007. The information contained in the Stock
Purchase Warrant Certificate is included with this Schedule 13D as an exhibit
and the information contained therein is incorporated by reference in answer to
this item.
Item 4. Purpose of Transaction
The securities were acquired for investment purposes. The Reporting Persons
reserve the right to acquire, or cause to be acquired, additional securities of
the Issuer or derivatives or other instruments related thereto, to dispose of,
or cause to be disposed, such securities, derivatives or other instruments at
any time and to formulate other purposes, plans or proposals regarding the
Issuer or any of its securities, to the extent deemed advisable in light of
general investment and trading policies of the Reporting Persons, market
conditions or other factors. Except as set forth herein, the Reporting Persons
do not have any plans or proposals at this time that relate to or would result
in any of the transactions described in subparagraphs (a) through (j) of Item 4
of Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a) The reporting person declares that neither the filing of this statement nor
anything herein shall be construed as an admission that such person is, for the
purposes of Section 13(d) or 13(g) of the Act or any other purpose, the
beneficial owner of any securities covered by this statement.
The reporting person declares that neither the filing of this statement nor
anything herein shall be construed as an admission that such person is, for the
purposes of Section 13(d) or 13(g) of the Act or any other purpose, (i) acting
(or has agreed or is agreeing to act together with any other person) as a
partnership, limited partnership, syndicate, or other group for the purpose of
acquiring, holding, or disposing of securities of the issuer or otherwise with
respect to the issuer or any securities of the issuer or (ii) a member of any
group with respect to the issuer or any securities of the issuer.
The aggregate number and percentage of the class of securities identified
pursuant to Item 1 beneficially owned by the reporting person is stated in Items
11 and 13 on the cover page(s) hereto.
Deutsche Bank AG through its affiliates owns 77,200 shares of 8% Series A
Convertible Pay-in-Kind Preferred Stock convertible into 47,950,267 shares of
Common Stock subject to the restrictions, limitations and other provisions in
the Certificate of Designations, including the provision in Section 7(a) which
provides that a holder of the preferred stock does not have the right to convert
into Common Stock if, after giving effect to such conversion, that person would
become the beneficial owner of greater than 39.9% of the Common Stock then
outstanding. Deutsche Bank AG through its DBTCA affiliate is the owner of
5,045,662 Lower Strike Stock Purchase Warrants exercisable into 652,958 shares
of Common Stock, when the prevailing market price is at $6.00 and 5,045,662
Higher Strike Stock Purchase Warrants exercisable into 494,673 shares of Common
Stock, when the prevailing market price is at $7.00, subject to the limitations
on exercise contained in the Stock Purchase Warrant Certificate, including the
provision in Section 15 which provides that a holder of warrants does not have
the right to exercise warrants into Common Stock if, after giving effect to such
exercise, that person would become the beneficial owner of greater than 39.9% of
the Common Stock then outstanding. Due to the binding contractual limitations in
Section 7(a) of the Certificate of Designation and Section 15 of the Stock
Purchase Warrant Certificate, Deutsche Bank AG is not the beneficial owner of
the shares of Common Stock in excess of 39,551,813 shares or 39.9% of the shares
of Common Stock outstanding.
b) Number of shares of Common Stock as to which each reporting person has:
(i) sole power to vote or to direct the vote:
See Item 7 on the cover page(s) hereto.
(ii) shared power to vote or to direct the vote:
See Item 8 on the cover page(s) hereto.
(iii) sole power to dispose or to direct the disposition of:
See Item 9 on the cover page(s) hereto.
(iv) shared power to dispose or to direct the disposition of:
See Item 10 on the cover page(s) hereto.
(c) see Item 6
(d) Other persons may have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, shares of Common
Stock that may be deemed to be beneficially owned by the reporting persons.
(e) Not applicable.
The information required to be stated or provided or otherwise called for in
this statement by Item 5 of Schedule 13D, if any, with respect to any person
enumerated in Instruction C of Schedule 13D is stated or provided or otherwise
given herein or in Schedule 1 hereto.
Item 6. Contracts, Arrangements, Understandings, or Relationships with
Respect to Securities of the Issuer
The response to Item 3 of this Schedule 13D is hereby incorporated by reference
in response to this Item 6. Transactions by the Reporting Person in the Common
Stock effected during the past sixty days are set forth in Schedule 2 to this
Schedule 13D.
From time to time, the Reporting Person may lend, pledge or enter into
repurchase transactions relating to portfolio securities, including the Shares,
to and with brokers, banks or other financial institutions. From time to time,
effect, short sale transactions, and may purchase securities for the purpose of
closing out short positions in such securities.
Except as set forth above, the Reporting Person does not have any contracts,
arrangements, understandings or relationships with respect to any securities of
the Issuer.
Item 7. Material to be Filed as Exhibits
Exhibit Description of Exhibit
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10.1 Settlement and Release Agreement (Senior Mezzanine) dates as of dateMonth7Day29Year2007July 29, 2007(1)
10.2 Settlement and Release Agreement (Junior Mezzanine) dated as of dateMonth7Day29Year2007July 29, 2007(2)
10.3 Indenture relating to 14.75% Senior Subordinated PIK Election Notes due dateMonth7Day1Year2015July 1, 2015(3)
10.4 Registration Rights Agreement relating to 14.75% Senior Subordinated PIK Election Notes due
dateMonth7Day1Year2015July 1, 2015(4)
10.5 Certificate of Designation relating to 8% Series A Convertible Pay-in-Kind Preferred Stock(5)
10.6 Registration Rights Agreement relating to 8% Series A Convertible Pay-in-Kind Preferred Stock(6)
10.7 Stock Purchase Warrant dated dateMonth7Day31Year2007July 31, 2007(7)
10.8 Registration Rights Agreement relating to Lender Stock Purchase Warrants(8)
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(1) Incorporated by reference to Exhibit 10.45 to the report on Form 10-Q
filed by TOUSA, Inc. on dateMonth8Day9Year2007August 9, 2007 for the
period ended dateMonth6Day30Year2007June 30, 2007.
(2) Incorporated by reference to Exhibit 10.46 to the report on Form 10-Q
filed by TOUSA, Inc. on dateMonth8Day9Year2007August 9, 2007 for the
period ended dateMonth6Day30Year2007June 30, 2007.
(3) Incorporated by reference to Exhibit 4.14 to the report on Form 10-Q
filed by TOUSA, Inc. on dateMonth8Day9Year2007August 9, 2007 for the
period ended dateMonth6Day30Year2007June 30, 2007.
(4) Incorporated by reference to Exhibit 4.18 to the report on Form 10-Q
filed by TOUSA, Inc. on dateMonth8Day9Year2007August 9, 2007 for the
period ended dateMonth6Day30Year2007June 30, 2007.
(5) Incorporated by reference to Exhibit 3.6 to the report on Form 10-Q
filed by TOUSA, Inc. on dateMonth8Day9Year2007August 9, 2007 for the
period ended dateMonth6Day30Year2007June 30, 2007.
(6) Incorporated by reference to Exhibit 4.17 to the report on Form 10-Q
filed by TOUSA, Inc. on dateMonth8Day9Year2007August 9, 2007 for the
period ended dateMonth6Day30Year2007June 30, 2007.
(7) Incorporated by reference to Exhibit 4.16 to the report on Form 10-Q
filed by TOUSA, Inc. on dateMonth8Day9Year2007August 9, 2007 for the
period ended dateMonth6Day30Year2007June 30, 2007.
(8) Incorporated by reference to Exhibit 4.19 to the report on Form 10-Q
filed by TOUSA, Inc. on dateMonth8Day9Year2007August 9, 2007 for the
period ended dateMonth6Day30Year2007June 30, 2007.
SIGNATURES
After reasonable 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 as of November 9, 2007
DEUTSCHE BANK AG
By: /s/ Jeffrey A. Ruiz
--------------------------
Name: Jeffrey A. Ruiz
Title: Director
DEUTSCHE BANK AG
By: /s/ Cesar A. Coy
--------------------------
Name: Cesar A. Coy
Title: Assistant Vice President
Schedule 1
Executive Officers, Directors, Controlling Persons and Trustees of
Deutsche Bank AG and each Person Ultimately in Control of Deutsche Bank AG
Deutsche Bank AG is organized under the laws of the Federal Republic of
Germany. The principal business of Deutsche Bank AG is the provision of
financial and related services. Deutsche Bank AG is the largest banking
institution in the Federal Republic of Germany and is the parent company of a
group consisting of banks, capital market and fund management companies,
mortgage banks and property finance companies, installment financing and leasing
companies, insurance companies, research and consultancy companies and other
companies. Deutsche Bank AG is organized under the laws of Germany, the address
of its principal place of business is Taunusanlage 12, 60325 Frankfurt, Germany.
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Name PRESENT PRINCIPAL OCCUPATION OR EMPLOYEMENT
BUSINESS ADDRESS
CITIZENSHIP
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Dr.Josef Ackermann Chairman of the Management Board
and the Group Executive Committee,Deutsche Bank AG
Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt,Germany
Citizenship: Swiss
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Dr.Hugo Banziger Member of the Management Board, Deutsche Bank AG
Deutsche Bank AG
Winchester House
1 Great Winchester Street
United Kingdom
Citizenship: UK/Swiss
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Dr. Tessen von Heydebreck Member of the Management Board, Deutsche Bank AG
Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt,Germany
Citizenship: German
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Mr.Anthony Di Iorio Member of the Management Board, Deutsche Bank AG
Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt,Germany
Citizenship: United States
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Mr.Hermann-Josef Lamberti Member of the Management
Board, Deutsche Bank AG
Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt,Germany
Citizenship: German
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Executive Officers, Directors, Controlling Persons of
Deutsche Bank Trust Company Americas.
Deutsche Bank Trust Company Americas ("DBTCA" (formerly, Bankers Trust Company))
was incorporated in New York in March, 1903. Deutsche Bank Trust Company
Americas's common stock [voting stock] is 100 percent owned by Deutsche Bank
Trust Corporation (("DBTC") formerly, Bankers Trust Corporation)). The Bank
originates loans and other forms of credit, accepts deposits, arranges
financings and provides numerous other commercial banking and financial
services. DBTCA provides a broad range of financial advisory services to its
clients. It also engages in the trading of currencies, securities, and
bank-eligible derivatives.
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Name PRESENT PRINCIPAL OCCUPATION OR EMPLOYEMENT
BUSINESS ADDRESS
CITIZENSHIP
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Dr.Hugo Banziger Member of the Board of Directors
Winchester House, 1 WinchesterStreet
London, United Kingdom
Citizenship: UK/SWISS
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Mr.George B. Beitzel Member of the Board of Directors,
Office of the Secretary
60 Wall Street
New York, New York, 10005
Citizenship: US
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Mr.James T. Byrne Member of the Board of Directors,
Office of the Secretary
60 Wall Street
New York, New York, 10005
Citizenship: US
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Mr.Richard C.S. Evans Member of the Board of Directors,
60 Wall Street New York, New York, 10005
Citizenship: US
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Ms.Elizabeth R. Gile Member of the Board of Directors,
Office of the Secretary
60 Wall Street
New York, New York, 10005
Citizenship: US
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Mr.William R. Howell Member of the Board of Directors,
Office of the Secretary
60 Wall Street
New York, New York, 10005
Citizenship: US
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Mr.Clyde Mitchell Member of the Board of Directors,
Office of the Secretary
60 Wall Street
New York, New York, 10005
Citizenship: US
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Mr.Seth H. Waugh Member of the Board of Directors,
60 Wall Street New York, New York, 10005
Citizenship: US
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Mr.Scott Bowen Senior Officer - Chief Financial Officer
60 Wall Street New York, New York, 10005
Citizenship: US
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Mr. Stuart Clarke Senior Officer - Chief Operating Officer
60 Wall Street
New York, New York, 10005
Citizenship: US
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Mr. Eric Gallineck Senior Officer - Compliance
60 Wall Street
New York, New York, 10005
Citizenship: US
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Mr.Anthony McCarthy Senior Officer - Group Technology and Operations
60 Wall Street New York, New York,10005
Citizenship: US
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Mr. Patrick McKenna Senior Officer - Credit Risk Management
60 Wall Street
New York, New York, 10005
Citizenship: US
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Mr. Robert Khuzami Senior Officer - General Counsel
60 Wall Street
New York, New York, 10005
Citizenship: US
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Ms. Donna M, Milrod Senior Officer - Independent Control Office
60 Wall Street
New York, New York, 10005
Citizenship: US
--------------------------------------------------------------------------------
Mr.Seth H. Waugh Senior Officer - Chief Executive Office
60 Wall Street New York, New York, 10005
Citizenship: US
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Mr. Richard Ferguson Senior Officer - Treasurer
60 Wall Street
New York, New York, 10005
Citizenship: US
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) under the Securities Exchange Act of
1934, as amended, each of the persons named below agrees to the joint filing of
a Statement on Schedule 13D (including amendments thereto) with respect to the
Common Stock, of Tousa Inc. and further agrees that this Joint Filing Agreement
be included as an exhibit to such filings provided that, as contemplated by
Section 13d-1(k)(ii), no person shall be responsible for the completeness or
accuracy of the information concerning the other persons making the filing,
unless such person knows or has reason to believe that such information is
inaccurate. This Joint Filing Agreement may be executed in any number of
counterparts, all of which together shall constitute one and the same
instrument.
Dated as of November 9, 2007
DEUTSCHE BANK AG
By: /s/ Jeffrey A. Ruiz
--------------------------
Name: Jeffrey A. Ruiz
Title: Director
DEUTSCHE BANK AG
By: /s/ Cesar A. Coy
--------------------------
Name: Cesar A. Coy
Title: Assistant Vice President
DEUTSCHE BANK Trust Company Americas
By: /s/ Jeffrey A. Ruiz
--------------------------
Name: Jeffrey A. Ruiz
Title: Director
Schedule 2 - 60 Day Trade History
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09/19/07 S 90000 2.54
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09/18/07 B 90000 2.54
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09/18/07 S 90000 2.54
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09/19/07 S 90000 2.54
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09/19/07 B 90000 2.54
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09/19/07 B 90000 2.54
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10/02/07 B 55550 2.00
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10/02/07 S 55550 2.00
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