This
Amendment No. 8 to Schedule 13D (this “Eighth Amendment”) amends and
supplements the Schedule 13D (the “Schedule 13D”), Amendment
No. 1 to the Schedule 13D (the “First Amendment”), Amendment
No. 2 to the Schedule 13D (the “Second Amendment”), Amendment No. 3 to
the Schedule 13D (the “Third Amendment”), Amendment No. 4 to the
Schedule 13D (the “Fourth Amendment”), Amendment No. 5 to the
Schedule 13D (the “Fifth Amendment”), Amendment No. 6 to the Schedule 13D
(the “Sixth Amendment”) and Amendment No. 7 to the Schedule 13D (the
“Seventh Amendment”) filed by the parties with the Securities and Exchange
Commission (the “Commission”) on June 7, 2001, June 16, 2003,
July 11, 2003, June 3, 2005, January 5, 2007, July 3, 2007,
January 4, 2008 and May 30, 2008, respectively. Except as specifically
amended below, all other provisions of the Schedule 13D, the First
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment, the Sixth Amendment and the Seventh Amendment remain in
effect.
|
Item 2.
|
Identity
and Background.
|
The
following paragraphs amend and supplement Item 2:
This
Eighth Amendment is being filed jointly by the parties to the Schedule 13D,
the First Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment and the Seventh
Amendment.
Appendix
B is amended to include the following information with respect to the executive
officers and directors of the parties jointly filing the
Schedule 13D:
|
|
(b)
|
business
address (or residence where
indicated);
|
|
|
(c)
|
present
principal occupation or employment and the name, principal business and
address of any corporation or other organization in which such employment
is conducted; and
|
Except as
described below, during the last five years, none of the Reporting Persons, nor,
to the knowledge of each of the Reporting Persons, any of the persons listed on
Appendix A or Appendix B hereto (i) has been convicted in a criminal
proceeding (excluding
traffic
violations or similar misdemeanors) or (ii) has 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.
In July
2007, the CFTC found that on certain occasions from 2001 to 2005 Merrill Lynch
Alternative Investments (“MLAI”) violated CFTC Regulation 4.22(c) by failing to
timely file commodity pool annual reports with the National Futures Association
and to timely distribute such reports to pool participants. Without admitting or
denying the allegations, MLAI agreed to a cease-and-desist order and paid a fine
in the amount of $500,000.
As part
of a settlement relating to managing auctions for auction rate securities, the
Commission accepted the offers of settlement of 15 broker-dealer firms,
including Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLPF&S”),
and issued a settlement order on May 31, 2006. The Commission found, and
MLPF&S neither admitted nor denied, that respondents (including MLPF&S)
violated section 17(a)(2) of the Securities Act of 1933 by managing auctions for
auction rate securities in ways that were not adequately disclosed or that did
not conform to disclosed procedures. MLPF&S consented to a cease and desist
order, a censure, a civil money penalty, and compliance with certain
undertakings.
On March
13, 2006, MLPF&S entered into a settlement with the Commission whereby the
Commission alleged, and MLPF&S neither admitted nor denied, that MLPF&S
failed to furnish promptly to representatives of the Commission electronic mail
communications (“e-mails”) as required under Section 17(a) of the Exchange Act
and Rule 17a-4(j) thereunder. The Commission also alleged, and MLPF&S
neither admitted nor denied, that MLPF&S failed to retain certain
e-mails related to its business as such in violation of Section 17(a) of the
Exchange Act and Rule 17a-4(b)(4) thereunder. Pursuant to the terms of the
settlement, MLPF&S consented to a cease and desist order, a censure, a civil
money penalty of $2,500,000, and compliance with certain undertakings relating
to the retention of e-mails and the prompt production of e-mails to the
Commission.
In March
2005, Merrill Lynch & Co., Inc. and certain of its affiliates (Merrill Lynch
& Co., Inc. and its affiliates collectively, “Merrill Lynch”) reached
agreements with the State of New Jersey and the New York Stock Exchange (the
“NYSE”) and reached an agreement in principle 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 principle with the NYSE pursuant to
which Merrill Lynch, without admitting or denying the allegations, later
consented to a settlement that included 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 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 systems error; and partial
non-compliance with Continuing Education requirements. The settlement resulted
in a payment of $10 million to the NYSE.
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 inflate its 1999 earnings by $12
million. The jury also found that the transaction led to investor losses of
$13.7 million. Those convictions were reversed by a federal appellate court on
August 1, 2006, except for one conviction against one employee based on perjury
and obstruction of justice. The government has appealed the reversals. In 2003,
Merrill Lynch agreed to pay $80 million to settle Commission 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 Commission will be made
available to settle investor claims. In September 2003, the United States
Department of Justice 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.
On or
about June 27, 2003, the Attorney General for the State of West Virginia brought
an action against the defendants that participated in the April 28, 2003,
settlement described below. The action, filed in the West Virginia State Court,
alleged that the defendants’ research practices violated the West Virginia
Consumer Credit and Protection Act. On September 16, 2005, the Circuit Court of
Marshall County, West Virginia, dismissed the case, following an earlier
decision by the West Virginia Supreme Court holding that the West Virginia
Attorney General lacked authority to bring the claims. On April 28, 2003, the
Commission, NYSE, National Association of Securities Dealers, and state
securities 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 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, brought to a conclusion the regulatory
actions against Merrill Lynch related to its research practices. 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.
For
further information, reference is made to the Form ADV of Merrill Lynch on file
with, and publicly available on the website of, the Commission.
|
Item
4.
|
Purpose
of Transaction
|
The
following paragraphs amend and supplement Item 4:
On
July 3, 2003, PSi Technologies, Inc. (“PSi Technologies”) issued to Merrill
Lynch Global Emerging Markets Partners, LLC (“MLGEMP LLC”) a $4.0 million
aggregate principal amount 10% Senior Subordinated Note (the “2003
Note”). On July 31, 2008, MLGEMP LLC and PSi
Technologies entered into the Second Amendment to Exchangeable Senior
Subordinate Note pursuant to which the maturity date of the 2003 Note was
changed from July 31, 2008 to August 15, 2008. MLGEMP LLC expects
that between the date hereof and August 15, 2008, MLGEMP LLC and PSi
Technologies will continue discussions concerning further amendments to the 2003
Note, which amendments are expected to include, but may not be limited to,
further extending the maturity date of the 2003 Note, lowering the price per
share of common stock of PSi Technologies Holdings, Inc. (the “Issuer”) at which
the principal amount of the 2003 Note and the interest accrued thereon may be
exchanged into shares of common stock of the Issuer, or a combination of the
foregoing.
Except as
set forth above, as of the date hereof, none of the reporting persons, or to the
knowledge or belief of the reporting persons, any of the individuals listed in
Appendix B, has any present plan or intention which relates to or would result
in any of the actions set forth in parts (a) through (j) of Item 4 of Schedule
13D.
MLGEMP
LLC from time to time intends to review its investment in the Issuer on the
basis of various factors, including the Issuer's business, financial condition,
results of operations and prospects, general economic and industry conditions,
the securities markets in general and those for the Issuer's securities in
particular, as well as other developments and other investment
opportunities. Based upon such review, and subject to the
restrictions set forth in agreements it has entered into with PSi Technologies
and the Issuer, MLGEMP LLC will take such actions in the future as MLGEMP LLC
may deem appropriate in light of the circumstances existing from time to
time.
|
Item 5.
|
Interest
in Securities of the Issuer.
|
The
following paragraphs amend and supplement Item 5:
PSi
Technologies issued the 2003 Note to MLGEMP LLC on July 3,
2003. Pursuant to the terms of the Note, the Issuer may elect to pay
any of the accrued interest by adding it to the principal amount of the 2003
Note, as the Issuer has done on each June 30 and December 31 since June 30,
2005. On July 31, 2008, MLGEMP LLC and PSi Technologies
entered
into the Second Amendment to Exchangeable Senior Subordinated Note pursuant to
which the maturity date of the 2003 Note was changed from July 31, 2008 to
August 15, 2008. As of June 30, 2008, the interest accrued since
December 31, 2007 was added to the principal amount of the 2003 Note and, on
August 15, 2008, the maturity date of the 2003 Note, the interest accrued since
June 30, 2008 will be added to the principal amount of the 2003
Note. At such time, the aggregate principal amount of the 2003 Note
and the interest accrued thereon will be approximately $5,653,722. As
of August 15, 2008, the 2003 Note will be exchangeable for approximately
5,333,700 shares of common stock of the Issuer.
|
Item 7.
|
Materials
to be Filed as Exhibits
|
|
Exhibit
|
Description
|
|
|
|
|
99.1
|
Second
Amendment to Exchangeable Senior Subordinated Note, dated July 31, 2008,
between Merrill Lynch Global Emerging Markets Partners, LLC and PSi
Technologies, Inc.
|
|
|
|
|
99.2
|
Joint
Filing Agreement dated as of August 5, 2008, among Merrill Lynch Global
Emerging Markets Partners, LLC; Merrill Lynch Global Emerging Markets
Partners II, LLC; Merrill Lynch Global Emerging Markets Partners, L.P.;
Merrill Lynch & Co., Inc.; Merrill Lynch Group, Inc.; ML IBK
Positions, Inc.; Merrill Lynch Global Private Equity, Inc. and Merrill
Lynch Global Capital, L.L.C.
|
|
|
|
|
99.3
|
Power
of Attorney by and on behalf of Merrill Lynch Group,
Inc.
|
SIGNATURE
After
reasonable inquiry and to the best of our knowledge and belief, we certify that
the information set forth in this Amendment is true, complete and
correct.
Date: August
5, 2008
|
MERRILL
LYNCH GLOBAL EMERGING
|
MERRILL
LYNCH & CO., INC.
|
|
MARKETS
PARTNERS, LLC
|
|
|
|
By:
/s/ Jonathan N.
Santelli
|
|
By: Merrill
Lynch Global Emerging
|
Name: Jonathan
N. Santelli
|
|
Partners,
L.P.,
|
Title: Assistant
Secretary
|
|
as
its Managing Member
|
|
|
|
MERRILL
LYNCH GROUP, INC.
|
|
By: Merrill
Lynch Global Capital L.L.C.,
|
|
|
as
its General Partner
|
By:
/s/ Jonathan N.
Santelli
|
|
|
Name: Jonathan
N. Santelli
|
|
By:
Merrill Lynch Global Private Equity,
|
Title: Authorized
Person*
|
|
Inc.,
|
|
|
as
its Managing Member
|
ML
IBK POSITIONS, INC.
|
|
|
|
|
By:
/s/ Douglas P.
Madden
|
By:
/s/ Douglas P.
Madden
|
|
Name: Douglas
P. Madden
|
Name: Douglas
P. Madden
|
|
Title: Assistant
Secretary
|
Title: Assistant
Secretary
|
|
|
|
|
MERRILL
LYNCH GLOBAL EMERGING
|
MERRILL
LYNCH GLOBAL PRIVATE
|
|
MARKETS
PARTNERS II, LLC
|
EQUITY,
INC.
|
|
|
|
|
By: Merrill
Lynch Global Emerging
|
By:
/s/ Douglas P.
Madden
|
|
Partners,
L.P.,
|
Name: Douglas
P. Madden
|
|
as
its Managing Member
|
Title: Assistant
Secretary
|
|
|
|
|
By: Merrill
Lynch Global Capital L.L.C.,
|
MERRILL
LYNCH GLOBAL CAPITAL,
|
|
as
its General Partner
|
L.L.C.
|
|
|
|
|
By: Merrill
Lynch Global Private Equity,
|
By: Merrill
Lynch Global Private Equity,
|
|
Inc.,
|
Inc.
|
|
as
its Managing Member
|
Its
Managing Member
|
|
|
|
|
By:
/s/ Douglas P.
Madden
|
By:
/s/ Douglas P.
Madden
|
|
Name: Douglas
P. Madden
|
Name: Douglas
P. Madden
|
|
Title: Assistant
Secretary
|
Title: Assistant
Secretary
|
|
MERRILL
LYNCH GLOBAL EMERGING
|
|
MARKETS
PARTNERS,
|
|
L.P.
|
|
|
|
By: Merrill
Lynch Global Capital, L.L.C.
|
|
Its
General Partner
|
|
|
|
By: Merrill
Lynch Global Private Equity,
|
|
Inc.
|
|
Its
Managing Member
|
|
|
|
By:
/s/ Douglas P.
Madden
|
|
Name: Douglas
P. Madden
|
|
Title: Assistant
Secretary
|
* See the
Power of Attorney attached hereto as Exhibit 99.3.
APPENDIX
A
CORPORATIONS,
LIMITED PARTNERSHIP
AND
LIMITED LIABILITY COMPANIES
The names
and principal businesses of the reporting persons are set forth
below. Unless otherwise noted, the reporting persons have as the
address of their principal business and office 4 World Financial Center, North
Tower, New York, NY 10080.
|
NAME
|
PRINCIPAL
BUSINESS
|
|
|
|
|
Merrill
Lynch Global Emerging Markets Partners, L.P.
|
Investment
partnership.
|
|
|
|
|
Merrill
Lynch Global Capital, L.L.C.
|
Acts
as general partner for an investment partnership.
|
|
|
|
|
Merrill
Lynch Global Private Equity, Inc.
|
Acts
as a manager of the affairs of the general partner in investment
partnerships.
|
|
|
|
|
ML
IBK Positions, Inc.
|
Holds
proprietary investments for Merrill Lynch & Co.,
Inc.
|
|
|
|
|
Merrill
Lynch Group, Inc.
|
Holding
company.
|
|
|
|
|
Merrill
Lynch & Co., Inc.
|
A
holding company that, through its subsidiaries and affiliates, provides
investment, financing, insurance and related services on a global
basis.
|
|
|
|
|
Merrill
Lynch Global Emerging Markets Partners, LLC
|
Investment
Entity
|
|
|
|
|
Merrill
Lynch Global Emerging Markets Partners II, LLC
|
Investment
Entity
|
APPENDIX
B
EXECUTIVE
OFFICERS AND DIRECTORS
The names
and principal occupations of each of the executive officers and directors of
Merrill Lynch Global Private Equity, Inc., ML IBK Positions, Inc., Merrill Lynch
Group, Inc. and Merrill Lynch & Co., Inc. are set forth
below. Unless otherwise noted, all of these persons are United States
citizens, and have as their business address 4 World Financial Center, New
York, NY 10080.
MERRILL
LYNCH GLOBAL EMERGING MARKETS PARTNERS, LLC
Merrill
Lynch Global Emerging Markets Partners, L.P. is the managing member of Merrill
Lynch Global Emerging Markets Partners, LLC. See Appendix A and the
information set forth below with respect to Merrill Lynch Global Emerging
Markets Partners, L.P.
MERRILL
LYNCH GLOBAL EMERGING MARKETS PARTNERS II, LLC
Merrill
Lynch Global Emerging Markets Partners, L.P. is the managing member of Merrill
Lynch Global Emerging Markets Partners II, LLC. See Appendix A and
the information set forth below with respect to Merrill Lynch Global Emerging
Markets Partners, L.P.
MERRILL
LYNCH GLOBAL EMERGING MARKETS PARTNERS, L.P.
Merrill
Lynch Global Capital, L.L.C. is the general partner of Merrill Lynch Global
Emerging Markets Partners, L.P. See Appendix A and the information
set forth below with respect to Merrill Lynch Global Capital,
L.L.C.
MERRILL
LYNCH GLOBAL CAPITAL, L.L.C.
Merrill
Lynch Global Private Equity, Inc. is the managing member of Merrill Lynch Global
Capital, L.L.C. See Appendix A and the information set forth below
with respect to Merrill Lynch Global Private Equity, Inc.
MERRILL
LYNCH GLOBAL PRIVATE EQUITY, INC.
|
EXECUTIVE
OFFICERS AND DIRECTORS
|
PRESENT
PRINCIPAL OCCUPATION
|
|
|
|
|
Nathan
C. Thorne
Director,
President
|
President,
Global Private Equity
|
|
|
|
|
George
A. Bitar
Director,
Managing Director
|
Managing
Director, Global Private Equity
|
|
|
|
|
Guido
Padovano
Director,
Managing Director Citizenship: Italy
|
Managing
Director, Global Private Equity
|
|
|
|
|
Mandakini
Puri
Director,
Managing Director
|
Senior
Vice President, Global Private Equity
|
|
|
|
|
Brian
A. Renaud
Director,
Managing Director
|
Managing
Director, Global Private Equity
|
ML IBK
POSITIONS, INC.
|
EXECUTIVE
OFFICERS AND DIRECTORS
|
PRESENT
PRINCIPAL OCCUPATION
|
|
|
|
|
Gary
M. Carlin
President
|
Managing
Director, Corporate Finance
|
|
|
|
|
Nathan
C. Thorne
Director,
Vice President
|
President,
Global Private Equity
|
|
|
|
|
George
A. Bitar
Director,
Vice President
|
Managing
Director, Global Private Equity
|
|
|
|
|
John
D. Fallon
Director
|
Director,
Global Asset Backed Finance
|
|
|
|
|
Martin
J. McInerney
Director,
Vice President
|
Director,
Global Principal Investments
|
|
|
|
|
Mandakini
Puri
Director,
Vice President
|
Senior
Vice President, Global Private Equity
|
|
|
|
|
Steven
M. Glassman
Director,
Vice President
|
Managing
Director, Global High Yield and Real Estate
Finance
|
MERRILL
LYNCH GROUP, INC.
|
EXECUTIVE
OFFICERS AND DIRECTORS
|
PRESENT
PRINCIPAL OCCUPATION
|
|
|
|
|
Richard
B. Alsop
Director
and Vice President
|
Senior
Vice President, Corporate Law
|
|
|
|
|
Marlene
B. Debel
Director
|
Managing
Director, Global Treasury
|
|
|
|
|
D.
Kevin Dolan
Director,
Chairman of the Board
|
Senior
Vice President, Corporate Tax
|
|
|
|
|
Gary
M. Carlin
Director,
President
|
Managing
Director, Global Finance
|
MERRILL
LYNCH & CO., INC.
|
EXECUTIVE
OFFICERS AND DIRECTORS
|
PRESENT
PRINCIPAL OCCUPATION
|
|
|
|
|
Rosemary
T. Berkery
Executive
Officer
|
Executive
Vice President; Vice Chairman; General Counsel
|
|
|
|
|
Carol
T. Christ
Director
|
President,
Smith College
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Armando
M. Codina
Director
|
President
and Chief Executive Officer of Flagler Development Group
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Virgis
W. Colbert
Director
|
Corporate
Director
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Alberto
Cribiore
Director
|
Managing
Principal, Brera Capital Partners
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Nelson
Chai
Executive
Officer
|
Executive
Vice President, Chief Financial Officer
|
|
|
|
|
John
D. Finnegan
Director
|
Chairman
of the Board, President and Chief Executive Officer of The Chubb
Corporation
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Gregory
J. Fleming
Executive
Officer
|
President;
Chief Operating Officer
|
|
|
|
|
Judith
Mayhew Jonas
Director
Citizenship:
United Kingdom
|
Corporate
Director
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Robert
J. McCann
Executive
Officer
|
Executive
Vice President; President, Vice Chairman, Global Wealth
Management
|
|
|
|
|
Aulana
L. Peters
Director
|
Corporate
Director
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Joseph
W. Prueher
Director
|
Corporate
Director, Consulting Professor to the Stanford-Harvard Preventive Defense
Project
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Ann
N. Reese
Director
|
Co-Founder
and Co-Executive Director of the Center for Adoption Policy
c/o
Corporate Secretary’s Office
222
Broadway, 17th Floor
New
York, NY 10038
|
|
|
|
|
Charles
O. Rossotti
Director
|
Senior
Advisor to The Carlyle Group
c/o Corporate Secretary’s
Office
222
Broadway, 17th Fl.
New
York, NY 10038
|
|
|
|
|
John
A. Thain
Director and
Executive Officer
|
Chairman
of the Board and Chief Executive Officer
|
|
|
|