sc13d
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
TOUSA, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
878483106
(CUSIP Number)
Michael Colvin
Highland Capital Management, L.P.
Two Galleria Tower
13455 Noel Road, Suite 800
Dallas, Texas 75240
(972) 628-4100
(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 that is the subject of this Schedule 13D, and is filing this schedule because of
§§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See §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 persons
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).
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CUSIP No. |
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878483106 |
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Page |
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2 |
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of |
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12 |
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1 |
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Names of reporting persons. I.R.S.
Identification Nos. of above persons (entities only).
Highland Capital Management, L.P. 75-2716725 |
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2 |
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC Use Only |
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4 |
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Source of Funds (See Instructions) |
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OO |
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5 |
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Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) |
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6 |
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Citizenship or Place of Organization |
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Delaware
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7 |
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Sole Voting Power |
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Number of |
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11,439,752 |
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Shares |
8 |
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Shared Voting Power |
Beneficially |
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Owned by |
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6,644,720 |
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Each |
9 |
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Sole Dispositive Power |
Reporting |
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Person |
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11,439,752 |
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With |
10 |
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Shared Dispositive Power |
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6,644,720 |
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11 |
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Aggregate Amount Beneficially Owned by Each reporting person |
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18,084,472 |
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12 |
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |
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13 |
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Percent of Class Represented by Amount in Row (11) |
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23.3% |
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14 |
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Type of reporting person (See Instructions) |
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PN, IA, HC |
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CUSIP No. |
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878483106 |
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Page |
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3 |
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of |
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12 |
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1 |
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Names of reporting persons. I.R.S. Identification Nos. of above persons (entities only).
Strand Advisors, Inc. 95-4440863 |
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2 |
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC Use Only |
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4 |
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Source of Funds (See Instructions) |
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OO |
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5 |
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Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) |
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6 |
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Citizenship or Place of Organization |
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Delaware
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7 |
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Sole Voting Power |
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Number of |
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11,439,752 |
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Shares |
8 |
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Shared Voting Power |
Beneficially |
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Owned by |
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6,644,720 |
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Each |
9 |
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Sole Dispositive Power |
Reporting |
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Person With |
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11,439,752 |
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10 |
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Shared Dispositive Power |
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6,644,720 |
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11 |
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Aggregate Amount Beneficially Owned by Each reporting person |
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18,084,472 |
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12 |
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |
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13 |
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Percent of Class Represented by Amount in Row (11) |
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23.3% |
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14 |
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Type of reporting person (See Instructions) |
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CO, HC |
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CUSIP No. |
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878483106 |
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Page |
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4 |
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of |
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12 |
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1 |
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Names of reporting persons. I.R.S.
Identification Nos. of above persons (entities only).
James D. Dondero |
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC Use Only |
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4 |
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Source of Funds (See Instructions) |
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OO |
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5 |
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Check if Disclosure of Legal Proceedings
Is Required Pursuant to Items 2(d) or 2(e) |
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6 |
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Citizenship or Place of Organization |
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United States of America
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7 |
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Sole Voting Power |
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Number of |
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11,439,752 |
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Shares |
8 |
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Shared Voting Power |
Beneficially |
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Owned by |
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6,644,720 |
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Each |
9 |
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Sole Dispositive Power |
Reporting |
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Person |
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11,439,752 |
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With |
10 |
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Shared Dispositive Power |
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6,644,720 |
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11 |
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Aggregate Amount Beneficially Owned by Each reporting person |
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18,084,472 |
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12 |
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |
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13 |
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Percent of Class Represented by Amount in Row (11) |
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23.3% |
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14 |
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Type of reporting person (See Instructions) |
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IN, HC |
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1 |
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Names of reporting persons. I.R.S.
Identification Nos. of above persons (entities only).
Highland Floating Rate Advantage Fund (1) |
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2 |
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) o |
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(b) þ |
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SEC Use Only |
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Source of Funds (See Instructions) |
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OO |
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5 |
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Check if Disclosure of Legal Proceedings
Is Required Pursuant to Items 2(d) or 2(e) |
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6 |
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Citizenship or Place of Organization |
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Massachusetts
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7 |
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Sole Voting Power |
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Number of |
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0 |
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Shares |
8 |
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Shared Voting Power |
Beneficially |
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Owned by |
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3,599,379 |
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Each |
9 |
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Sole Dispositive Power |
Reporting |
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Person |
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0 |
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With |
10 |
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Shared Dispositive Power |
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3,599,379 |
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11 |
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Aggregate Amount Beneficially Owned by Each reporting person |
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3,599,379 |
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12 |
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |
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13 |
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Percent of Class Represented by Amount in Row (11) |
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5.7% |
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14 |
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Type of reporting person (See Instructions) |
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OO |
(1) Each reporting person may be deemed to
beneficially own securities of the issuer beneficially owned by the
other reporting persons. However, with respect to the matters
described herein, no other reporting person may bind, obligate or
take any action, directly or indirectly, on behalf of Highland
Floating Rate Advantage Fund. Therefore, Highland Floating Rate
Advantage Fund expressly disclaims membership in a group with the
other reporting persons.
Item 1. Security and Issuer.
This statement relates to the Common Stock of TOUSA, Inc. The address of the principal
executive offices of the issuer is 4000 Hollywood Boulevard, Suite 500 N, Hollywood, Florida,
33021.
Item 2. Identity and Background.
The name of each person filing this statement and the place of organization or citizenship of
each such reporting person is stated in Item 1 on the cover page(s) hereto.
The principal business
of Highland Capital Management, L.P. (Highland Capital), a registered investment adviser, is
serving as investment adviser and/or manager to other persons. Strand Advisors, Inc. (Strand) is
denominated, and functions, as the general partner of, and may be deemed to control, Highland
Capital. The principal business of Strand is serving as the general partner of Highland Capital.
James D. Dondero is the President and a director of, and may be deemed to control, Strand. The
present principal occupation of Mr. Dondero is serving as the President and a director of Highland
Capital. The principal business of Highland Floating Rate Advantage
Fund is to act as a registered investment company. The address of the principal office or business address of each reporting person is Two
Galleria Tower, 13455 Noel Road, Suite 800, Dallas, Texas 75240. During the last five years, no
reporting person has been convicted in a criminal proceeding, or was a party to a civil proceeding,
required to be disclosed herein.
The information required to be stated or provided or otherwise called for herein by Item 2 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 Appendix I hereto.
Item 3. Source and Amount of Funds or Other Consideration.
On or about July 31, 2007, persons advised and/or managed by Highland Capital acquired 30,899
shares of 8% Series A Convertible Pay-in-Kind Preferred Stock of the issuer pursuant to that
certain Settlement and Release Agreement dated June 29, 2007 among such persons, 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 information contained in the Settlement and Release Agreement is
incorporated by reference in answer to this item and submitted herewith as an exhibit.
The holders of the convertible preferred stock are entitled at any time after the initial
establishment of the conversion price 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 then in effect. 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 liquidation preference of the convertible
preferred stock is $1,000 per share, subject to adjustment. The conversion price of the preferred
stock is the 20-trading day average of the Common Stock commencing 60 days immediately after
July 31, 2007 multiplied by 1.40, subject to adjustment. The estimated conversion price, the
number of common shares which Highland Capital is deemed to beneficially own, and the percentage of
such class represented by such ownership first became ascertainable on October 26, 2007 at the
expiration of such period. The information contained in the certificate of designation of the
convertible preferred stock is incorporated by reference in answer to this item and submitted
herewith as an exhibit.
The information required to be stated or provided or otherwise called for herein by Item 3 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 Appendix I hereto.
Item 4. Purpose of the Transaction.
The securities were acquired for investment purposes. Each reporting person is involved in
the investment business and plans and proposes, subject to and depending on applicable facts and
circumstances and industry, market, economic, financial, business, and other conditions and, in any
case, to the extent deemed necessary, advisable, appropriate, and/or desirable in light of the
investment, tax, and other purposes, policies, strategies, and considerations of such person and/or
in connection with, in relation to, and/or as a result of some other action, event, and/or factor
(including, without limitation, any present, expected, and/or future value of the securities of the
issuer and the business, financial condition, results of operations, and prospects of the
issuer), to effect and/or cause actions relating to and/or resulting in: (a) the acquisition
of additional securities of the issuer or the disposition of securities of the issuer; (b) an
extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the
issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the
issuer or any of its subsidiaries; (d) a change in the present board of directors or management of
the issuer, including the number or term of directors or to fill any existing vacancies on the
board; (e) a change in the present capitalization or dividend policy of the issuer; (f) a change in
the issuers business or corporate structure; (g) a change in the issuers charter, bylaws or
instruments corresponding thereto or other actions which may impede the acquisition of control of
the issuer; (h) causing a class of securities of the issuer to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an inter-dealer quotations system
of a registered national securities association; (i) a class of equity securities of the issuer
becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; and/or
(j) actions similar to those enumerated above.
The information required to be stated or provided or otherwise called for herein by Item 4 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 Appendix I hereto.
Item 5. Interest in Securities of the Issuer.
(a) Each 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.
Each reporting person may be deemed to be a member of a group with respect to the issuer or
securities of the issuer for the purposes of Section 13(d) or 13(g) of the Act. Each 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 each reporting person is stated in Items 11 and 13 on the cover page(s)
hereto. The holders of the convertible preferred stock are entitled to convert their shares of
convertible preferred stock into the shares of Common Stock covered by this statement that may be
acquired upon conversion of convertible preferred stock pursuant to, and subject to the
restrictions, limitations, and other provisions in, the certificate of designation of the
convertible preferred stock.
(b) Number of shares as to which each reporting person has:
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(i) sole power to vote or to direct the vote: |
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See Item 7 on the cover page(s) hereto. |
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(ii) shared power to vote or to direct the vote: |
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See Item 8 on the cover page(s) hereto. |
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(iii) sole power to dispose or to direct the disposition of: |
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See Item 9 on the cover page(s) hereto. |
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(iv) shared power to dispose or to direct the disposition of: |
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See Item 10 on the cover page(s) hereto. |
(c) Transactions in the class of securities reported on that were effected during the past sixty
days or since the most recent filing of Schedule 13D, whichever is less, by the reporting persons
are described below.
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Effecting |
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Shares |
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Shares |
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Price Per |
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Description of |
Transaction Date |
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Person(s) |
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Acquired (1) |
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Disposed (1) |
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Share ($) |
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Transaction |
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October 1, 2007 |
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Highland Capital |
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0 |
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1,107,453 |
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(2 |
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(1) |
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Based on an estimated conversion price of $1.61. |
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(2) |
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On or about July 31, 2007, Highland Capital effected the acquisition, on behalf of
persons advised and/or managed by Highland Capital, of 30,899 shares of 8% Series A
Convertible Pay-in-Kind Preferred Stock of the issuer pursuant to that certain Settlement
and Release Agreement dated June 29, 2007 among such persons, 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. |
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The holders of the convertible preferred stock are entitled at any time after the
initial establishment of the conversion price 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 then in effect. 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 liquidation preference of the convertible
preferred stock is $1,000 per share, subject to adjustment. The conversion price of the
preferred stock is the 20-trading day average of the Common Stock commencing 60 days
immediately after July 31, 2007 multiplied by 1.40, subject to adjustment. The
estimated conversion price, the number of common shares which Highland Capital is deemed
to beneficially own, and the percentage of such class represented by such ownership
first became ascertainable on October 26, 2007 at the expiration of such period. The
information contained in the certificate of designation of the convertible preferred
stock is incorporated by reference in answer to this item and submitted herewith as an
exhibit. |
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On or about October 1, 2007, Highland Capital effected the disposition, on behalf of
persons advised and/or managed by Highland Capital, of 1,783 shares of convertible
preferred stock which, based upon the estimated conversion price, would currently
represent 1,107,453 shares of common stock. |
Except as otherwise described herein, no transactions in the common stock of the issuer were
effected during the past sixty days or since the most recent filing of Schedule 13D, whichever is
less, by any reporting person.
(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 Appendix I hereto.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer.
Pursuant to (a) that certain Settlement and Release Agreement dated June 29, 2007 among the
issuer and the other parties thereto, (b) that certain Indenture dated July 31, 2007 among the
issuer and the other parties thereto, and (c) the certificate of designation of the convertible
preferred stock, the issuer (i) issued (A) 14.75% senior subordinated PIK election notes due
July 1, 2015 of the issuer and (B) 30,899 shares of 8% Series A Convertible Pay-in-Kind Preferred
Stock of the issuer to persons advised and/or managed by Highland Capital 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 and (ii) entered into a
registration rights agreement relating to such senior subordinated PIK notes and a registration
rights agreement relating to such convertible preferred stock.
The information contained in the Settlement and Release Agreement, the Indenture, the
certificate of designation of the convertible preferred stock, and the related registration rights
agreements is incorporated by reference in answer to this item and submitted herewith as an
exhibit.
The information required to be stated or provided or otherwise called for herein by Item 6 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 Appendix I hereto.
Item 7. Material to be Filed as Exhibits.
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Exhibit |
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Description of Exhibit |
10.1
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Settlement and Release Agreement(1) |
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10.2
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Indenture relating to 14.75% Senior
Subordinated PIK Election Notes due July 1, 2015(2) |
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10.3
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Registration Rights Agreement relating to
14.75% Senior Subordinated PIK Election Notes due July 1, 2015(3) |
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10.4
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Certificate of Designation relating
to 8% Series A Convertible Pay-in-Kind Preferred Stock(4) |
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10.5
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Registration Rights Agreement
relating to 8% Series A Convertible Pay-in-Kind Preferred
Stock(5) |
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99.1
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Joint Filing Agreement |
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(1)
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Incorporated by reference to
Exhibit 10.45 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
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(2)
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Incorporated by reference to
Exhibit 4.14 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
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(3)
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Incorporated by reference to
Exhibit 4.18 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
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(4)
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Incorporated by reference to
Exhibit 3.6 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
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(5)
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Incorporated by reference to
Exhibit 4.17 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
Signature
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.
Date: November 5, 2007
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Highland Capital Management, L.P.
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By: |
Strand Advisors, Inc., its general partner
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By: /s/ James D. Dondero |
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James D. Dondero, President |
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Strand Advisors, Inc.
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By: /s/ James D. Dondero
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James D. Dondero, President |
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/s/ James D. Dondero
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James D. Dondero |
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Highland Floating Rate Advantage Fund
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By: |
/s/
James D. Dondero |
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James D. Dondero, President |
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APPENDIX I
The name of each director and executive officer of Strand is set forth below. The business
address of each person listed below is Two Galleria Tower, 13455 Noel Road, Suite 800, Dallas,
Texas 75240. Each person identified below is a citizen of the United States of America. The
present principal occupation or employment of each of the listed persons is set forth below.
During the past five years, none of the individuals listed below has been convicted in a criminal
proceeding or been a party to a civil proceeding, in either case of the type specified in Items
2(d) or (e) of Schedule 13D.
Strand Advisors, Inc.
Directors
James D. Dondero
Executive Officers
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President: |
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James D. Dondero |
Executive Vice President: |
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Mark Okada |
Secretary: |
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Michael Colvin |
Assistant Secretary: |
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Patrick Daugherty |
Assistant Secretary: |
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Todd Travers |
Treasurer: |
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Ken McGovern |
EXHIBIT INDEX
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Exhibit |
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Description of Exhibit |
10.1
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Settlement and Release Agreement(1) |
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10.2
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Indenture relating to 14.75% Senior
Subordinated PIK Election Notes due July 1, 2015(2) |
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10.3
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Registration Rights Agreement relating to
14.75% Senior Subordinated PIK Election Notes due July 1, 2015(3) |
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10.4
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Certificate of Designation relating
to 8% Series A Convertible Pay-in-Kind Preferred Stock(4) |
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10.5
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Registration Rights Agreement
relating to 8% Series A Convertible Pay-in-Kind Preferred
Stock(5) |
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99.1
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Joint Filing Agreement |
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(1)
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Incorporated by reference to
Exhibit 10.45 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
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(2)
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Incorporated by reference to
Exhibit 4.14 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
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(3)
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Incorporated by reference to
Exhibit 4.18 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
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(4)
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Incorporated by reference to
Exhibit 3.6 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |
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(5)
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Incorporated by reference to
Exhibit 4.17 to the report on Form 10-Q filed by TOUSA,
Inc. on August 9, 2007 for the period ended June 30, 2007. |