UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 1)
Under the Securities Exchange Act of 1934
PAC-WEST TELECOMM, INC.
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(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
69371Y 10 1
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(CUSIP Number)
Deutsche Bank AG
c/o DB Alternative Trading Inc.
280 Park Avenue, New York, New York 10017
(212) 469-7471
Attn: General Counsel
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December 17, 2004
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(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 Rule 13d-1(e), 13d-1(f) or 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 Rule 13d-7 for other parties
to whom copies are to be sent.
The information required on this cover page shall not be deemed to be "filed"
for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Exchange
Act") or otherwise subject to the liabilities of that section of the Exchange
Act but shall be subject to all other provisions of the Exchange Act (however,
see the Notes).
(Continued on following pages)
(Page 1 of 11 pages)
SCHEDULE 13D
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CUSIP No. 69371Y 10 1 Page 2 of 11 Pages
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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
Deutsche Bank AG is organized under the laws of the
Federal Republic of Germany.
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0 (SEE ITEM 5)
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH 26,666,667 (SEE ITEM 5)
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0 (SEE ITEM 5)
10 SHARED DISPOSITIVE POWER
26,666,667 (SEE ITEM 5)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
26,666,667 (SEE ITEM 5)
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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)
42.1% (SEE ITEM 5)
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14 TYPE OF REPORTING PERSON
BK
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CUSIP No. 69371Y 10 1 Page 3 of 11 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DB Alternative Trading Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) | |
(b) |x|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
AF
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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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NUMBER OF 7 SOLE VOTING POWER
SHARES 0 (SEE ITEM 5)
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH 26,666,667 (SEE ITEM 5)
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0 (SEE ITEM 5)
10 SHARED DISPOSITIVE POWER
26,666,667 (SEE ITEM 5)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
26,666,667 (SEE ITEM 5)
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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)
42.1% (SEE ITEM 5)
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14 TYPE OF REPORTING PERSON
IA
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Item 1. Security and Issuer.
This Amendment No. 1 (this "Amendment") amends the Statement on Schedule
13D (the "Schedule 13D") filed with the Securities and Exchange Commission on
December 29, 2003. The class of equity securities to which this Amendment
related is warrants to purchase a certain number of shares of common stock, par
value $.001 per share (the "Common Stock"), of Pac-West Telecomm, Inc., a
California corporation (the "Company"). The principal executive offices of the
Company are located at 1776 West March Lane, Suite 250, Stockton, California
95207. The following amendments to Items 2, 4, 5, 6 and 7 are hereby made.
Unless otherwise defined herein, all capitalized terms shall have the meanings
ascribed to them in the Schedule 13D.
Item 2. Identity and Background.
The response set forth in item 2 of the Schedule 13D is hereby amended in its
entirety as follows:
This Statement is being filed by DB Alternative Trading Inc. ("DB
Alternative") and Deutsche Bank AG ("Deutsche Bank", together with DB
Alternative, 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").
DB Alternative is a Delaware corporation, and is a wholly-owned subsidiary
of Deutsche Bank. Deutsche Bank is organized under the laws of the Federal
Republic of Germany. The securities associated with this Statement were acquired
through the London Branch of Deutsche Bank, which is licensed by the United
Kingdom banking authority.
The address of the principal office of DB Alternative is 280 Park Avenue,
New York, New York 10017. The address of the principal place of business of
Deutsche Bank is Taunusanlage 12, 60325 Frankfurt, Federal Republic of Germany.
The principal business activity of DB Alternative is to act as a
proprietary trading group that invests in publicly listed companies undergoing
financial or operational restructuring. Subsequent to filing the Schedule 13D on
December 29, 2003, Deutsche Bank replaced DB Advisors, L.L.C., a wholly-owned
subsidiary of Deutsche Bank ("DB Advisors"), with DB Alternative as its
investment advisor. The principal business of Deutsche Bank is the provision of
financial and related services. Deutsche Bank 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.
In addition, in accordance with Securities Exchange Act Release No. 39538
(January 12, 1998), this Statement reflects the securities beneficially owned by
the Corporate and Investment Banking business group and the Corporate
Investments business group (collectively, "CIB") of Deutsche Bank and its
subsidiaries and affiliates. This filing does not reflect securities, if any,
beneficially owned by any other business group of Deutsche Bank. Consistent with
Rule 13d-4 under the Exchange Act, this filing shall not be construed as an
admission that
Page 4 of 11
CIB is, for purposes of Section 13(d) under the Exchange Act, the beneficial
owner of any securities covered by the filing. Furthermore, CIB disclaims
beneficial ownership of the securities beneficially owned by (i) any client
accounts with respect to which CIB or its employees have voting or investment
discretion, or both, and (ii) certain investment entities, of which CIB is the
general partner, managing general partner, or other manager, to the extent
interests in such entities are held by persons other than CIB.
Set forth on Schedules A-1 and A-2 to this Statement, and incorporated
herein by reference, are lists of the executive officers and directors of the
Reporting Persons that contain the following information with respect to each
such person: (i) name; (ii) business address; (iii) present principal occupation
or employment; and (iv) citizenship.
During the last five years, none of the Reporting Persons and, to the best
knowledge of the Reporting Persons, none of the persons named on Schedules A-1
and A-2 hereto 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 4. Purpose of Transaction.
The response set forth in Item 4 of the Schedule 13D is hereby amended by adding
the following paragraph after the second paragraph:
Deutsche Bank intends to dispose of the securities covered by this
statement in order to divest its interest in the Company for investment
purposes.
On December 17, 2004, Deutsche Bank AG-London, acting through DB
Alternative Trading Inc., and Deutsche Bank Trust Company Americas ("DB Trust")
entered into a Payoff Letter and Release with the Company (the "Letter
Agreement") pursuant to which Deutsche Bank has agreed to cancel the Note,
cancel the Warrants and release the Company from all obligations under the
Guaranty and Security Agreement (as described below) upon the receipt of
$40,750,000 from the Company (the "Payoff Amount").
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended in its entirety as follows:
(a) - (b) On December 19, 2003, Deutsche Bank, acting through its London
Branch and DB Advisors, acquired the Warrants. Based on the 36,514,802 shares of
Common Stock outstanding as of October 22, 2003, and assuming that the Warrants
are fully exercised, after such exercise Deutsche Bank would beneficially own
approximately 42.1% of the outstanding Common Stock. DB Alternative acts as the
discretionary investment manager for Deutsche Bank with respect to the Warrants
and, as such, shares the power to exercise and dispose of such Warrants and the
shares of Common Stock issuable upon the exercise of the Warrants, and, upon
exercise of the Warrants, would share the power to vote or direct the vote of
the shares of Common Stock issuable upon such exercise.
Page 5 of 11
(c) Except for the transactions described herein, there were no
transactions effected in the past sixty days in this class of securities by
either Deutsche Bank or DB Alternative.
(d) Not applicable.
(e) The Reporting Persons will cease to be the beneficial owners of any of
the securities covered by this statement upon the receipt by Deutsche Bank of
the Payoff Amount from the Company.
Item 6. Contracts, Arrangements, Understanding or Relationships with Respect to
Securities of the Issuer.
The response set forth in Item 6 of the Schedule 13D is hereby amended by adding
the following to the end of the Item:
Payoff Letter and Release
On December 17, 2004, Deutsche Bank, acting through its London Branch and
DB Alternative, and DB Trust entered into the Letter Agreement with the Company.
Subject to the terms and conditions of the Letter Amendment, Deutsche Bank has
agreed to cancel the Note, cancel the Warrants and release the Company from all
obligations under the Guaranty and Security Agreement upon the receipt of the
Payoff Amount.
The proceeds of the transactions contemplated by the Asset Purchase
Agreement, dated December 17, 2004, by and between U.S. TelePacific Corp. and
the Company relating to the sale of the Company's small and medium-sized
enterprises business (the "SME Asset Purchaser Agreement") will be used to
provided the Payoff Amount and the payment of the Payoff Amount to Deutsche Bank
under the Letter Agreement is expressly conditioned on the closing of the
transactions contemplated by the SME Asset Purchase Agreement.
Upon Deutsche Bank's receipt of the Payoff Amount, (i) such Payoff Amount
will be deemed payment in full of all interest and principal owed under each of
the Purchase Agreement, the Note, the Guaranty and Security Agreement, the
Warrant and the Registration Rights Agreement (collectively, the "Transaction
Documents"), (ii) all outstanding Warrants to purchase Common Stock of the
Company issued pursuant to any of the Transaction Documents will be immediately
terminated, (iii) all the Transaction Documents will be immediately terminated
(other than with respect to certain indemnification and confidentiality
obligations) and (iv) all liens, security interests and encumbrances granted by
the Company to Deutsche Bank or DB Trust pursuant to the Transaction Documents
will be immediately released.
The Letter Agreement is to terminate upon the termination of the SME Asset
Purchase Agreement. Deutsche Bank may terminate the Letter Agreement if the
transactions contemplated by the SME Asset Purchase Agreement are not
consummated on or prior to April 15, 2005, subject to certain extensions until
no later than June 30, 2005 in the event of delays obtaining regulatory
approvals.
Page 6 of 11
This description of the Letter Agreement is qualified in its entirety by
reference to the Letter Agreement, a copy of which has been filed as Exhibit 5
to this statement and is incorporated herein by reference.
Item 7. Material to be filed as Exhibits.
Exhibit 1: Joint Filing Agreement
Exhibit 2: Note and Warrant Purchase Agreement, dated October 17, 2003, among
Pac-West Telecomm, Inc. and Deutsche Bank AG-London acting through DB Advisors,
LLC as investment advisor*
Exhibit 3: Registration Rights Agreement, dated December 19, 2003, by and
among Pac-West Telecomm, Inc. and Deutsche Bank AG-London acting through DB
Advisors, LLC as investment advisor**
Exhibit 4: Pac-West Telecomm, Inc. Warrant to Purchase Shares of Common Stock
issued to Deutsche Bank AG-London acting through DB Advisors, LLC as investment
advisor**
Exhibit 5: Payoff Letter and Release, dated December 17, 2004, from Deutsche
Bank AG-London, acting through DB Alternative Trading Inc., and Deutsche Bank
Trust Company Americas to Pac-West Telecomm, Inc.
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* Previously filed as an exhibit to Form 8-K filed by the Company on October
21, 2003 and incorporated by reference in this Statement.
** Previously filed as an exhibit to Form 8-K filed by the Company on December
22, 2003 and incorporated by reference in this Statement.
Page 7 of 11
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, we
certify that the information set forth in this Statement is true, complete and
corret.
Dated: December 21, 2004
Deutsche Bank AG
By: /s/ Jeffrey A. Ruiz
---------------------------------
Name: Jeffrey A. Ruiz
Title: Vice President
DB ALTERNATIVE TRADING INC.
By: /s/ Jeffrey A. Ruiz
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Name: Jeffrey A. Ruiz
Title: Vice President
SCHEDULE A-1
EXECUTIVE OFFICERS AND DIRECTORS OF
DB ALTERNATIVE TRADING INC.
The following sets forth the name, business address, title and citizenship of
the directors and principal executive officer of DB Alternative Trading Inc. The
business address of DB Alternative Trading Inc. is 280 Park Avenue, New York,
New York 10017.
NAME BUSINESS ADDRESS TITLE CITIZENSHIP
Scott Bowen 60 Wall Street Director United States
New York, New York
Adrienne Browning 60 Wall Street Director United States
New York, New York
Joseph J. Rice 60 Wall Street Director United States
New York, New York
Jonathan Hitchon 280 Park Avenue Chief Operating United Kingdom
New York, New York Officer and
President
Page 9 of 11
SCHEDULE A-2
MANAGING DIRECTORS OF
DEUTSCHE BANK AG
The following sets forth the name, business address, title and citizenship of
the managing directors of Deutsche Bank AG. The business address of Deutsche
Bank AG is Taunusanlage 12, 60325 Frankfurt, Federal Republic of Germany.
NAME BUSINESS ADDRESS TITLE CITIZENSHIP
Dr. Josef Ackermann Deutsche Bank AG Chairman of the Group Executive Member of Swiss
Taunusanlage 12 the Board of Managing Directors, Deutsche
60325 Frankfurt Bank AG
The Federal Republic of
Germany
Dr. Tessen von Heydebreck Deutsche Bank AG Member of the Board of Managing German
Taunusanlage 12 Directors, Deutsche Bank AG
60325 Frankfurt
The Federal Republic of
Germany
Dr. Hermann-Josef Lamberti Deutsche Bank AG Member of the Board of Managing German
Taunusanlage 12 Directors, Deutsche Bank AG
60325 Frankfurt
The Federal Republic of
Germany
Dr. Clemens Borsig Deutsche Bank AG Member of the Board of Managing German
Taunusanlage 12 Directors, Deutsche Bank AG
60325 Frankfurt
The Federal Republic of
Germany
Page 10 of 11
EXHIBIT INDEX
Exhibit 1: Joint Filing Agreement
Exhibit 2: Note and Warrant Purchase Agreement, dated as of October 17, 2003, by
and between Pac-West Telecomm, Inc. and Deutsche Bank AG-London acting through
DB Advisors, LLC as investment advisor*
Exhibit 3: Registration Rights Agreement, dated December 19, 2003, by and among
Pac-West Telecomm, Inc. and Deutsche Bank AG-London acting through DB Advisors,
LLC as investment advisor**
Exhibit 4: Pac-West Telecomm, Inc. Warrant to Purchase Shares of Common Stock
issued to Deutsche Bank AG-London acting through DB Advisors, LLC as investment
advisor**
Exhibit 5: Payoff Letter and Release, dated December 17, 2004, from Deutsche
Bank AG-London, acting through DB Alternative Trading Inc., and Deutsche Bank
Trust Company Americas to Pac-West Telecomm, Inc.
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* Previously filed as an exhibit to Form 8-K filed by the Company on October
21, 2003 and incorporated by reference in this Statement.
** Previously filed as an exhibit to Form 8-K filed by the Company on December
22, 2003 and incorporated by reference in this Statement.
Page 11 of 11