UNITED STATES
SECURITIES EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
CHART INDUSTRIES, INC.
----------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
---------------------------------------
(Title of Class of Securities)
16115Q209
---------
(CUSIP Number)
Merrill Lynch Pierce Fenner & Smith Incorporated
4 World Trade Center
12th Floor
New York, New York 10080
(212) 449-2010
---------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
August 2, 2005
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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 statement because of ss.ss.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 ss.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 the disclosures provided in a prior cover page.
The information required in 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).
Continued on following pages
Page 1 of 12 Pages
Exhibit Index: Page 11
SCHEDULE 13D
CUSIP No.: 16115Q209 Page 2 of 12 Pages
...............................................................................
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
MERRILL LYNCH & CO., INC.
...............................................................................
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
...............................................................................
3. SEC Use Only
...............................................................................
4. Source of Funds (See Instructions)
Not Applicable
...............................................................................
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
[X]
...............................................................................
6. Citizenship or Place of Organization
Delaware
...............................................................................
Number of Shares 7. Sole Voting Power None
Beneficially Owned .........................................................
by Each Reporting
Person With 8. Shared Voting Power 4,537,122 (See Item 5(a)(i))
.........................................................
9. Sole Dispositive Power 225,588 (See Item 5(a)(ii))
.........................................................
10. Shared Dispositive Power None
...............................................................................
11. Aggregate Amount Beneficially Owned by Each Reporting Person
4,537,122
...............................................................................
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
[ ]
...............................................................................
13. Percent of Class Represented by Amount in Row (11)
84.6%
...............................................................................
14. Type of Reporting Person:
HC; CO
SCHEDULE 13D
CUSIP No.: 16115Q209 Page 3 of 12 Pages
...............................................................................
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
...............................................................................
2. Check the Appropriate Box if a Member of a Group
(a) [X]
(b) [ ]
...............................................................................
3. SEC Use Only
...............................................................................
4. Source of Funds (See Instructions)
Not Applicable
...............................................................................
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
[X]
...............................................................................
6. Citizenship or Place of Organization
Delaware
...............................................................................
Number of Shares 7. Sole Voting Power None
Beneficially Owned ..........................................................
by Each Reporting
Person With 8. Shared Voting Power 4,537,122 (See Item 5(a)(i))
..........................................................
9. Sole Dispositive Power 225,588 (See Item 5(a)(ii))
..........................................................
10. Shared Dispositive Power None
...............................................................................
11. Aggregate Amount Beneficially Owned by Each Reporting Person
4,537,122
...............................................................................
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
[ ]
...............................................................................
13. Percent of Class Represented by Amount in Row (11)
84.6%
...............................................................................
14. Type of Reporting Person:
BD; CO
Page 4 of 12 Pages
This Amendment No. 1 to Schedule 13D relates to shares of common
stock, par value $0.01 per share (the "Shares"), of Chart Industries, Inc.
(the "Issuer"). This Amendment No. 1 supplementally amends the initial
statement on Schedule 13D, dated February 17, 2004 (the "Initial Statement"),
filed by the Reporting Persons (as defined herein). This Amendment No. 1 is
being filed by the Reporting Persons to report the information disclosed in
Item 4 hereof. Capitalized terms used and not defined in this Amendment No. 1
shall have the meanings set forth in the Initial Statement. Except as
specifically provided herein, this Amendment No. 1 does not modify any of the
information previously reported in the Initial Statement.
Item 1 Security and Issuer
This Statement relates to the Shares of the Issuer. The address of
the principal executive office of the Issuer is 5885 Landerbrook Drive, Suite
205, Cleveland, Ohio 44124.
Item 2 Identity and Background
(a) This Statement is filed on behalf of each of the following
persons (collectively, the "Reporting Persons"):
(i) Merrill Lynch, Pierce, Fenner & Smith Incorporated
("MLPFS"); and
(ii) Merrill Lynch & Co., Inc. ("MLC").
(b) The address of the principal business office of MLPFS and MLC is
4 World Financial Center, New York, New York 10080. The directors and
executive officers of MLC and MLPFS can be reached at the same address. A list
of the directors and executive officers of MLC and MLPFS, along with their
principal occupations is as follows:
For MLC:
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----------------------- ------------------------------------------------
Directors Principal Occupations
----------------------- ------------------------------------------------
E. Stanley O'Neal Chairman of the Board and Chief Executive Officer of
MLC
Armando M. Codina Chairman of the Board and Chief Executive Officer
of Codina Group, Inc.
Jill K. Conway Visiting Scholar, Massachusetts Institute of Technology
Alberto Cribiore Managing Principal of Brera Capital Partners LLC
John D. Finnegan Chairman of the Board, President and
Chief Executive Officer of The Chubb Corporation
Heinz-Joachim Neuberger Executive Vice President and Chief Financial Officer of
Siemans AG; Member of the Executive Committee of the
Managing Board of Siemens AG
David K. Newbigging Chairman of the Board of Talbot Holdings Limited
Page 5 of 12 Pages
Aulana L. Peters Corporate Director; Partner, Retired, of Gibson, Dunn &
Crutcher LLP
Joseph W. Prueher Corporate Director; U.S. Ambassador, Retired, to the
People's Republic of China
Ann N. Reese Co-Founder and Co-Executive Director of the Center for
Adoption Policy
Charles O. Rossotti Senior Advisor to the Carlyle Group
----------------------- ------------------------------------------------
Executive Officers Principal Occupations
----------------------- ------------------------------------------------
E. Stanley O'Neal Chairman of the Board and Chief Executive Officer
Rosemary T. Berkery Executive Vice President and General Counsel
Robert C. Doll Senior Vice President and Chief Investment Officer and
President of Merrill Lynch Investment Managers
Ahmass L. Fakahany Executive Vice President and Chief Administrative
Officer
Gregory J. Fleming Executive Vice President and Co-President of Global
Markets and Investment Banking
James P. Gorman Executive Vice President and President and Head of
Corporate Acquisitions, Strategy and Research
Do Woo Kim Executive Vice President and Co- President of Global
Markets and Investment Banking
Robert J. McCann Executive Vice President and President of Global
Private Client Group
Jeffrey N. Edwards Senior Vice President and Chief Financial Officer
For MLPFS:
----------
----------------------- ------------------------------------------------
Directors Principal Occupations
----------------------- ------------------------------------------------
Candace E. Browning Director and Senior Vice President
Gregory J. Fleming Director and Executive Vice President
James P. Gorman Director and Executive Vice President
Page 6 of 12 Pages
Do Woo Kim Director and Executive Vice President
Robert J. McCann Director, Chairman of the Board and Chief Executive
Officer
Carlos M. Morales Director and Senior Vice President
----------------------- ------------------------------------------------
Executive Officers Principal Occupations
----------------------- ------------------------------------------------
Rosemary T. Berkery Executive Vice President
Ahmas L. Fakahany Executive Vice President
Joseph F. Regan First Vice President and Chief Financial Officer
(e) During the last five years, none of the Reporting Persons or, to
the best of their knowledge, any of their directors or executive officers,
have been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding 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 except as noted below:
On November 3, 2004, a jury in Houston, Texas convicted four former
Merrill Lynch employees of criminal misconduct in connection with a Nigerian
barge transaction that the government alleged helped Enron Corp. ("Enron")
inflate its 1999 earnings by $12 million. The jury also found that the
transaction led to investor losses of $13.7 million. In 2003, Merrill Lynch
agreed to pay $80 million to settle Securities and Exchange Commission ("SEC")
charges that it aided and abetted Enron's fraud by engaging in two improper
year-end transactions in 1999, including the Nigerian barge transaction. The
$80 million paid in connection with the settlement with the SEC will be made
available to settle investor claims. In September 2003, the United States
Department of Justice (the "Justice Department") agreed not to prosecute
Merrill Lynch for crimes that may have been committed by its former employees
related to certain transactions with Enron, subject to certain understandings,
including Merrill Lynch's continued cooperation with the Department, its
acceptance of responsibility for conduct of its former employees, and its
agreement to adopt and implement new policies and procedures related to the
integrity of client and counter-party financial statements, complex structured
finance transactions and year-end transactions.
In March 2005, Merrill Lynch reached agreements with the State of
New Jersey and the New York Stock Exchange ("NYSE") and reached an agreement
in principal with the State of Connecticut pursuant to which Merrill Lynch,
without admitting or denying the allegations, consented to a settlement that
included findings that it failed to maintain certain books and records and to
reasonably supervise a team of former financial analysts ("FAs") who
facilitated improper market timing by a hedge fund client. Merrill Lynch
terminated the FAs in October 2003, brought the matter to the attention of
regulators, and cooperated fully in the regulators review. The settlement will
result in aggregate payments of $13.5 million.
In March 2005, Merrill Lynch reached an agreement in principal with
the NYSE pursuant to which Merrill Lynch, without admitting or denying the
allegations, will consent to a settlement that includes findings with regard
to certain matters relating to the failure to deliver prospectuses for certain
auction rate preferred shares and open-end mutual funds; the failure to
deliver product descriptions with
Page 7 of 12 Pages
regard to certain exchange-traded funds; the failure to ensure that
proper registration qualifications were obtained for certain personnel; issues
with regard to the retention, retrieval and review of e-mails; isolated lapses
in branch office supervision; late reporting of certain events such as
customer complaints and arbitrations; the failure to report certain complaints
in quarterly reports to the NYSE due to a system error; and partial
non-compliance with Continuing Education requirements. The settlement will
result in a payment of $10 million to the NYSE.
On April 28, 2003, the SEC, NYSE, National Association of Securities
Dealers, Inc. ("NASD"), and state regulators announced that the
settlements-in-principle that the regulators had disclosed on December 20,
2002 had been reduced to final settlements with regard to ten securities
firms, including Merrill Lynch. On October 31, 2003, the United States
District Court for the Southern District of New York entered into final
judgments in connection with the April 28, 2003, research settlements. The
final settlements pertaining to Merrill Lynch, which involved both monetary
and non-monetary relief set forth in the regulators' announcements, brought to
a conclusion the regulatory actions against Merrill Lynch related to alleged
conflicts of interest affecting research analysts. Merrill Lynch entered into
these settlements without admitting or denying the allegations and findings by
the regulators, and the settlements did not establish wrongdoing or liability
for purposes of any other proceedings.
(f) The Reporting Persons are corporations formed under the laws of
the state of Delaware. To the best of the knowledge of the Reporting Person,
all of the Reporting Person's executive officers and directors are United
States citizens, with the following exceptions:
For MLC:
Heinz-Joachim Neuberger - Citizen of Germany
David K. Newbigging - Citizen of the United Kingdom
Do Woo Kim - Citizen of the Republic of Korea
For MLPFS:
Do Woo Kim - Citizen of the Republic of Korea
Item 4. Purpose of Transaction
Item 4 is hereby amended to add the following at the end thereof:
On August 2, 2005, the Issuer entered into an Agreement and Plan of
Merger (the "Merger Agreement") with First Reserve Fund X, L.P., a Delaware
limited partnership ("First Reserve"), CI Acquisition, Inc., a Delaware
corporation and wholly-owned subsidiary of First Reserve (the "Merger
Subsidiary"), MLC, MLPFS, OCM Principal Opportunities Fund II, L.P., Audax
Chart LLC, Carl Marks Strategic Investments, L.P., Carl Marks Strategic
Investments III, L.P., Van Kampen Senior Loan Fund, GE Capital CFE, Inc.,
Arthur S. Holmes Trust U/A 03/04/03 and Christine H. Holmes Trust U/A 03/04/03
(collectively, the "Principal Stockholders").
Subject to the terms and conditions of the Merger Agreement, the
Merger Subsidiary has agreed to acquire all the outstanding shares of the
Issuer for a cash purchase price of $65.74 per share, less the Issuer's
transaction expenses. In addition, the holders of the Issuer's outstanding
warrants and options will receive the same per share cash purchase price less
the exercise price of the warrants and options. The Merger Subsidiary will
first purchase the shares owned by the Principal Stockholders. Following the
purchase of the Principal Stockholders' shares and the purchase of additional
shares, if any,
Page 8 of 12 Pages
required for the Merger Subsidiary to own at least 90% of the
Issuer, the Merger Subsidiary will be merged with and into the Issuer, with
the Issuer continuing as the surviving corporation. The same per share price
paid to the Principal Stockholders will be paid to the Issuer's remaining
stockholders. The transaction is subject to the receipt of necessary approvals
under applicable antitrust and competition laws and other customary closing
conditions.
The summary of the Merger Agreement contained in this Item 4 is
qualified in its entirety by reference to the Merger Agreement. A copy of the
Merger Agreement is filed as Exhibit 2.1 to the Issuer's Current Report on
Form 8-K filed with the SEC on August 8, 2005 and is incorporated herein by
reference.
Item 5. Interest in Securities of the Issuer.
According to information provided by the Issuer in the Merger
Agreement, the number of Shares outstanding was 5,360,409 as of July 18, 2005.
(a) (i) By virtue of being a party to the Investor Rights Agreement
(the "Investor Rights Agreement") (a copy of which was previously filed as
Exhibit 4 to the Initial Statement), the Reporting Persons, to the best of
their knowledge, may be deemed to be the beneficial owner of 4,537,122 Shares,
collectively held by the Stockholder Parties. This amount represents 84.6% of
the total number of Shares outstanding.
(ii) The Reporting Persons are the direct beneficial owners of
225,588 Shares. Their ability to vote or dispose of these shares is controlled
by the terms of the Investor Rights Agreement (for a description of the terms
of the Investor Rights Agreement see Exhibit 4 of the Initial Statement). This
amount represents approximately 4.2% of the total number of Shares
outstanding.
(b) The Reporting Persons have the sole power to vote and dispose of
225,588 Shares, subject to the terms of the Investor Rights Agreement (for a
description of the terms of the Investor Rights Agreement see Exhibit 4 of the
Initial Statement).
(c) Except for the transactions described in Item 4 herein, there
have been no transactions effected with respect to the Shares since June 9,
2005 (60 days prior to the date hereof) by any of the Reporting Persons.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to the Securities of the Issuer.
Item 6 is hereby amended to add the following at the end thereof:
The description of the Merger Agreement contained in Item 4 is
incorporated herein by reference.
Page 9 of 12 Pages
Item 7. Material to be filed as Exhibits.
The Exhibit Index is incorporated herein by reference.
Page 10 of 12 Pages
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: August 8, 2005 MERRILL LYNCH & CO., INC.
By: /s/ Jonathan N. Santelli
-------------------------
Name: Jonathan N. Santelli
Title: Attorney-in-Fact*
Assistant Secretary
Date: August 8, 2005 MERRILL LYNCH PIERCE FENNER & SMITH INC.
By: /s/ Jonathan N. Santelli
-------------------------
Name: Jonathan N. Santelli
Title: Attorney-in-Fact**
Assistant Secretary
-----------------------
* Executed pursuant to a Power of Attorney, dated November 17, 1995, a copy of
which is attached as Exhibit 3 to the Initial Schedule 13D.
** Executed pursuant to a Power of Attorney, dated February 25, 1995, a copy
of which is attached as Exhibit 4 to the Initial Schedule 13D.
Page 11 of 12 Pages
EXHIBIT INDEX
Ex. Page No.
--- --------
5. Joint Filing Agreement, dated August 8, 2005 by and among Merrill Lynch
Pierce Fenner & Smith Inc. and Merrill Lynch & Co., Inc. ................. 12
6. Agreement and Plan of Merger, dated August 2, 2005, by and among the
Issuer, First Reserve Fund X, L.P., CI Acquisition, Inc. and certain
stockholders named therein (incorporated by reference to Exhibit 2.1
of the Issuer's Current Report on Form 8-K, filed on August 8, 2005).
Page 12 of 12 Pages
EXHIBIT 5
JOINT FILING AGREEMENT
The undersigned hereby agree that the statement on Schedule 13D with
respect to the Common Stock of Chart Industries, Inc. dated as of August 8,
2005 is, and any amendments thereto (including amendments on Schedule 13G)
signed by each of the undersigned shall be, filed on behalf of each of us
pursuant to and in accordance with the provisions of Rule 13d-1(k) under the
Securities Exchange Act of 1934, as amended.
Date: August 8, 2005 MERRILL LYNCH & CO., INC.
By: /s/ Jonathan N. Santelli
-------------------------
Name: Jonathan N. Santelli
Title: Attorney-in-Fact*
Assistant Secretary
Date: August 8, 2005 MERRILL LYNCH PIERCE FENNER & SMITH INC.
By: /s/ Jonathan N. Santelli
-------------------------
Name: Jonathan N. Santelli
Title: Attorney-in-Fact**
Assistant Secretary
------------------------
* Executed pursuant to a Power of Attorney, dated November 17, 1995, a copy of
which is attached as Exhibit 3 to the Initial Schedule 13D.
** Executed pursuant to a Power of Attorney, dated February 25, 1995, a copy
of which is attached as Exhibit 4 to the Initial Schedule 13D.