-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GmMjCNaKPWbveSmSabPdOoiDF4JkA7Lgm7f1EuGIZJtN9x7avpara+HV3ueHmqzo KAd1dq883/TN98FQiTwSLQ== 0000891836-03-000714.txt : 20031210 0000891836-03-000714.hdr.sgml : 20031210 20031210153715 ACCESSION NUMBER: 0000891836-03-000714 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20031210 GROUP MEMBERS: BRIDGE STREET FUND 1997, L.P. GROUP MEMBERS: GOLDMAN, SACHS &CO. GROUP MEMBERS: GS MEZZANINE ADVISORS, L.L.C. GROUP MEMBERS: GS MEZZANINE PARTNERS OFFSHORE, L.P. GROUP MEMBERS: GS MEZZANINE PARTNERS, L.P. GROUP MEMBERS: STONE STREET 1997, L.L.C. GROUP MEMBERS: STONE STREET FUND 1997, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MONY GROUP INC CENTRAL INDEX KEY: 0001069822 STANDARD INDUSTRIAL CLASSIFICATION: LIFE INSURANCE [6311] IRS NUMBER: 133976138 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-54979 FILM NUMBER: 031047321 BUSINESS ADDRESS: STREET 1: 1740 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2127082000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1128 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D 1 sc0361.txt SCHEDULE 13D -- THE MONY GROUP INC. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 The MONY Group Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 615337102 - -------------------------------------------------------------------------------- (CUSIP Number) Ben Adler, Esq. Goldman, Sachs & Co. 1 New York Plaza 38th Floor New York, New York 10004 (212) 902-5587 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 2, 2003 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If a 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 ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [X]. - -------------------------------------------------------------------------------- CUSIP NO. 615337102 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON The Goldman Sachs Group, Inc. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS AF-WC-OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 0 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 1,720,048 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 1,720,048 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,720,048 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 3.40% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON HC-CO - -------------------------------------------------------------------------------- -2- - -------------------------------------------------------------------------------- CUSIP NO. 615337102 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Goldman, Sachs & Co. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS AF-WC-OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 0 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 1,720,048 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 1,720,048 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,720,048 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.40% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON BD-PN-IA - -------------------------------------------------------------------------------- -3- - -------------------------------------------------------------------------------- CUSIP NO. 615337102 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS Mezzanine Partners, L.P. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 0 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 1,069,396 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 1,069,396 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,069,396 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 2.14% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- -4- - -------------------------------------------------------------------------------- CUSIP NO. 615337102 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS Mezzanine Partners Offshore, L.P. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 0 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 574,239 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 574,239 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 574,239 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 1.16% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- -5- - -------------------------------------------------------------------------------- CUSIP NO. 615337102 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS Mezzanine Advisors, L.L.C. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 0 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 1,643,635 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 1,643,635 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,643,635 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 3.26% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON OO - -------------------------------------------------------------------------------- -6- - -------------------------------------------------------------------------------- CUSIP NO. 615337102 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Stone Street Fund 1997, L.P. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 0 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 36,573 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 36,573 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 36,573 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 0.07% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- -7- - -------------------------------------------------------------------------------- CUSIP NO. 615337102 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Bridge Street Fund 1997, L.P. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 0 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 17,762 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 17,762 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,762 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 0.04% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- -8- - -------------------------------------------------------------------------------- CUSIP NO. 615337102 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Stone Street 1997, L.L.C. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 0 SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY 54,335 EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 0 WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 54,335 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 54,335 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 0.11% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON OO - -------------------------------------------------------------------------------- -9- Item 1. Security and Issuer. ------------------- This Statement on Schedule 13D relates to the common stock, par value $0.01 per share (the "Shares"), of The MONY Group Inc., a Delaware corporation (the "Company"). The principal executive offices of the Company are located at 1740 Broadway, New York, New York 10019. Item 2. Identity and Background. ----------------------- This statement is being filed by GS Mezzanine Partners, L.P. ("GS Mezzanine Partners"), GS Mezzanine Partners Offshore, L.P. ("GS Offshore"), GS Mezzanine Advisors, L.L.C. ("GS Mezzanine Advisors"), Stone Street Fund 1997, L.P. ("1997 Stone"), Bridge Street Fund 1997, L.P. ("1997 Bridge"), Stone Street 1997, L.L.C. ("Stone 1997"), Goldman, Sachs & Co. ("Goldman Sachs"), and The Goldman Sachs Group, Inc. (together with its predecessor, The Goldman Sachs Group, L.P., a Delaware limited partnership, "GS Group" and, together with Goldman Sachs, GS Mezzanine Partners, GS Offshore, GS Mezzanine Advisors, 1997 Stone, 1997 Bridge and Stone 1997, the "Filing Persons").(1) Each of GS Mezzanine Partners, a Delaware limited partnership, GS Offshore, a Cayman Islands exempted limited partnership, 1997 Stone, a Delaware limited partnership, and 1997 Bridge, a Delaware limited partnership, was formed for the purpose of investing in fixed income securities, equity and equity-related securities primarily acquired or issued in leveraged acquisitions, reorganizations and other private equity transactions and in other financial instruments. Goldman Sachs, a New York limited partnership, is an investment banking firm and a member of the New York Stock Exchange, Inc. and other national exchanges. Goldman Sachs also serves as the investment manager for GS Mezzanine Partners and GS Offshore. Goldman Sachs is wholly owned, directly and indirectly, by GS Group. GS Group is a Delaware corporation and holding company that (directly and indirectly through subsidiaries or affiliated companies or both) is a leading investment - -------- (1) Neither the present filing nor anything contained herein shall be construed as an admission that any Filing Person constitutes a "person" for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934. -10- banking organization. The principal business address of each Filing Person (other than GS Offshore) is 85 Broad Street, New York, NY 10004. The principal business address for GS Offshore is c/o Maples and Calder, P.O. Box 309, Grand Cayman, Cayman Islands. The name, business address, present principal occupation or employment and citizenship of each director of GS Group are set forth in Schedule I hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each director and executive officer of GS Mezzanine Advisors, a Delaware limited liability company and the sole general partner of GS Mezzanine Partners and GS Offshore are set forth in Schedule II-A hereto and are incorporated herein by reference. The name, business address, present principal occupation or employment and citizenship of each director and executive officer of Stone 1997, a Delaware limited liability company and the sole general partner of 1997 Stone and 1997 Bridge, are set forth in Schedule II-B hereto and are incorporated by reference. Except as described in Schedule III, during the last five years, none of the Filing Persons, nor, to the knowledge of each of the Filing Persons, any of the persons listed on Schedules I, II-A or II-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. Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- As described herein, on December 30, 1997, GS Mezzanine Partners, GS Offshore, 1997 Stone and 1997 Bridge (collectively, the "Selling Persons") purchased, pursuant to the Investment Agreement, dated as of December 30, 1997, among The Mutual Life Insurance Company of New York, MONY Financial Services Corporation and the investors named therein (the "Investment Agreement"), the full text of -11- which is incorporated by reference as Exhibit 1 hereto, for an aggregate purchase price of $10,000,000, certain Warrants of the Company. The Investment Agreement is described in greater detail in Item 6. The funds used by the Selling Persons to purchase the Warrants under the Investment Agreement were obtained from capital contributions by their partners and from the available funds of such entities. None of the individuals listed on Schedules I, II-A or II-B hereto has contributed any funds or other consideration towards the purchase of the securities of the Company except insofar as they may have partnership interests in any of the Filing Persons and have made capital contributions to any of the Filing Persons, as the case may be. As set forth in Item 5, GS Group and Goldman Sachs may be deemed to beneficially own Shares acquired by Goldman Sachs in ordinary course trading activities, using its working capital As set forth in Item 5, GS Group and Goldman Sachs may be deemed to beneficially own Shares held in client accounts with respect to which Goldman Sachs or employees of Goldman Sachs have voting or investment discretion, or both ("Managed Accounts"). GS Group and Goldman Sachs disclaim beneficial ownership of Shares held in Managed Accounts. The funds used to purchase Shares for Managed Accounts came from client funds. As set forth in footnote 2 in Item 5, this filing only represents the Shares beneficially owned by the investment banking division of the GS Group. Item 4. Purpose of the Transaction. -------------------------- On December 2, 2003, the Selling Persons entered into an agreement (the "Warrant Purchase Agreement") with AXA Financial, Inc. ("AXA") pursuant to which, simultaneously with entering into the Warrant Purchase Agreement, the Selling Persons sold to AXA certain Warrants ("Warrants") to purchase 2,228,574 Shares for $16,268,590.20 in cash. The description of the Warrant Purchase Agreement set forth herein is qualified in its entirety by reference to the Warrant Purchase Agreement, which is attached hereto -12- as Exhibit 2 and is hereby incorporated by reference in its entirety. On September 17, 2003, AXA and the Company announced that their Boards of Directors had approved a transaction under which AXA would acquire 100% of the Company in a cash transaction valued at approximately $1.5 billion. Under the terms of their merger agreement, dated September 17, 2003 (the "Merger Agreement"), Company shareholders will receive $31.00 for each Share. The transaction is subject to Company shareholder and certain regulatory approvals, and certain other conditions. AXA has announced that it intends to exercise the Warrants to purchase Shares prior to the record date for the Company's special shareholders meeting to consider the proposed merger between the Company and AXA and intends to vote the shares in favor of the transaction. None of the Filing Persons or, to the knowledge of the Filing Persons, any of the persons listed on Schedules I, II-A or II-B hereto has any present plans or intentions which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Each of the Filing Persons expects to evaluate on an ongoing basis the Company's financial condition, business, operations and prospects, the market price of the Shares, conditions in the securities markets generally, general economic and industry conditions and other factors. Accordingly, each Filing Person reserves the right to change its plans and intentions at any time, as it deems appropriate. In particular, any one or more of Filing Persons (and their respective affiliates) may purchase additional Shares or other securities of the Company or may sell or transfer Shares beneficially owned by them from time to time in public or private transactions and/or may enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of their positions in the Shares or other securities and/or may cause any of the limited partnerships to distribute in kind to their respective partners Shares or other securities owned by such limited partnerships. Any such transactions may be effected at any time or from time to time (subject to any applicable limitations imposed on the sale of any of their Company securities by the -13- Securities Act of 1933, as amended (the "Securities Act") or other applicable law). To the knowledge of each Filing Person, each of the persons listed on Schedules I, II-A and II-B hereto may make similar evaluations from time to time or on an ongoing basis. Item 5. Interest in Securities of Issuer.(2) -------------------------------- (a) According to information supplied by the Company, as of November 28, 2003 there were 48,844,863 Shares outstanding. Each Filing Person beneficially owns the aggregate number and percentage of Shares outstanding as indicated in pages two through nine hereto. The terms of the Warrants provide that the Selling Persons are entitled to purchase the number of Shares that would collectively represent 7% of the Shares on a fully diluted basis minus 2,228,574 Shares. Based upon information currently available to the Selling Persons, they are entitled to purchase 1,697,970 Shares upon exercise of the Warrants. In addition, GS Group and Goldman Sachs may be deemed to beneficially own 20,718 Shares acquired by Goldman Sachs in ordinary course trading activities. As set forth in Item 3, GS Group and Goldman Sachs also may be deemed to beneficially own Shares held in Managed Accounts. GS Group and Goldman Sachs disclaim beneficial ownership of Shares held in Managed Accounts. Such Shares accounted for 1,360 of the total Shares reported hereby for each of GS Group and Goldman Sachs. (b) Each Filing Person shares the power to vote or direct the vote and to dispose or to direct the disposition of the Shares beneficially owned by such Filing - -------- (2) In accordance with the Securities and Exchange Commission (the "SEC") Release No. 34-39538 (January 12, 1998), this filing reflects the securities beneficially owned by the investment banking division ("IBD") of the GS Group and its subsidiaries and affiliates (collectively, "GSG"). This filing does not reflect securities, if any, beneficially owned by any other operating unit of GSG. IBD disclaims beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which IBD or its employees have voting or investment discretion, or both and (ii) certain investment entities, of which IBD is the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than IBD. -14- Person as indicated in pages two through nine hereto. The response to Item 5(a) is also incorporated herein by reference. (c) On October 9, 2003 Goldman Sachs purchased 406 Shares at $32.60 per Share. On October 9, 2003 Goldman Sachs sold 406 Shares at $32.60 per Share. All of the purchases and sales were made by Goldman Sachs in its ordinary course trading activities for cash on the New York Stock Exchange. Except as described in this Schedule 13D, no transactions in the Shares were effected by the Filing Persons, or, to their knowledge, any of the persons listed in Schedules I, II-A or II-B hereto, during the past sixty days. (d) The response to Item 5(a) is incorporated herein by reference. (e) On December 2, 2003, the Filing Persons ceased to be owners of more than 5% of the Shares. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. -------------------------------------------------------- See Items 3 and 4, the responses to which are hereby incorporated by reference. The Mutual Life Insurance Company of New York ("MONY"), MONY Financial Services Corporation (now known as the Company) and the Selling Persons entered into the Investment Agreement on December 30, 1997. Pursuant to the terms and conditions set forth in the Investment Agreement, the Selling Persons purchased the Warrants and certain debt securities of the Company. The Investment Agreement may be terminated by either the Selling Persons or MONY in certain circumstances specified in the Investment Agreement. The Warrants were sold at an aggregate purchase price of $10,000,000 and permit the holders thereof to purchase from the Company in the aggregate 7% of the fully diluted Shares (giving effect to the issuance of the shares in the demutualization offerings, the issuance of the Shares issuable upon exercise of the Warrants and the issuance of Shares upon the exercise, conversion or -15- exchange of any other options, warrants and convertible and exchangeable securities then outstanding) at a specified exercise price which is currently $23.50 per Share. DETERMINATION OF NON-CONTROL The New York Superintendent issued a determination pursuant to Section 1501(c) of the New York Insurance Law, dated December 29, 1997, that the Selling Persons would not control MONY as a result of the transactions contemplated by the Investment Agreement, subject to certain notice and approval requirements, and certain commitments by the Selling Persons. The Selling Persons have agreed to the following notice and approval requirements: (i) the Selling Persons and their affiliates will notify the New York Superintendent before exercising the Warrants or selling any of the Warrants or MONY Notes; (ii) the Selling Persons and their affiliates must notify the New York Superintendent before the sale of any securities of MONY, the Company or any of their affiliates (the "Companies") acquired pursuant to the Investment Agreement; (iii) the notice and non-disapproval requirements of Section 1505(c) and (d) of the New York Insurance Law (relating to transactions within a holding company system) apply to transactions between the Selling Persons and the Companies, except transactions in the ordinary course of the Selling Persons' business other than transactions involving investment management or investment advisory services performed by the Selling Persons for or on behalf of the Companies, to which (along with certain other transactions) the notice requirements of Section 1505(d) of the New York Insurance Law will apply; and (iv) the Selling Persons will provide to the New York Superintendent quarterly and annual reports of transactions between the Selling Persons and the Companies. The Selling Persons have also made commitments to the New York Superintendent as follows: (i) every transaction between the Selling Persons and the Companies will comply with the standards of the New York Insurance Law related to transactions within a holding company system; (ii) the Selling Persons will be subject to New York Insurance Law requirements regarding examinations by the New York Superintendent and violations and penalties in the context of holding company systems; (iii) the Selling Persons will not acquire, directly or indirectly, any security issued by the Companies except pursuant to the Investment Agreement -16- or in the ordinary course of their business; (iv) the Selling Persons will not exercise the rights of security holders to vote (except for certain major corporate transactions, including the proposed merger under the Merger Agreement), propose directors in opposition to management, solicit proxies, call special meetings, or dispose or threaten to dispose of securities as a condition for corporate action or non-action by the Companies; and (v) the Selling Persons will not otherwise cause, or attempt to cause, the direction of the management or policies of, or otherwise exercise control over, the Companies. The determination of non-control will remain in effect until revoked by the New York Superintendent in accordance with the New York Insurance Law, at the request of the Selling Persons or upon the initiative of the New York Superintendent, or the Selling Persons own less than 2% of the equity securities of the Company. REGISTRATION RIGHTS Pursuant to the Investment Agreement the Company has entered into a registration rights agreement granting to the Selling Persons and their subsidiaries or affiliates certain rights to registration under the Securities Act with respect to the Warrants and all Shares issuable upon exercise thereof (the "Registration Rights Agreement"). Subject to certain limitations, the Registration Rights Agreement provides that the Selling Persons and their subsidiaries and affiliates have the right to make three demand registration requests ("Demand Registrations") of the Company and can make an unlimited number of requests for piggyback registrations (each, a "Piggyback Registration"). A Piggyback Registration will not relieve the Company of its obligations to effect Demand Registrations. The Company has agreed to pay all expenses with respect to any Demand Registration or Piggyback Registration other than any underwriting discounts and commissions and any transfer taxes, if any, attributable to the sale by Selling Person or any of their subsidiaries or affiliates of any securities so registered. Item 7. Material to be Filed as Exhibits. -------------------------------- Exhibit 1 -- Investment Agreement dated as of December 30, 1997, among The Mutual Life Insurance Company of New York, MONY Financial Services Corporation and the investors named therein (incorporated by reference to Exhibit 10.1 to The MONY Group Inc.'s Registration Statement on Form S-1 (Registration Number 333-63835)) Exhibit 2 -- Warrant Purchase Agreement, dated December 2, 2003, between GS Mezzanine Partners, L.P., GS Mezzanine Partners Offshore, L.P., Stone Street Fund 1997, L.P., Bridge Street Fund 1997, L.P. and AXA Financial, Inc. Exhibit 3 -- Registration Rights Agreement, dated as of December 30, 1997, among The Mutual Life Insurance Company of New York, MONY Financial Services Corporation and the investors named therein (incorporated by reference to Exhibit 10.2 to The MONY Group Inc.'s Registration Statement on Form S-1 (Registration Number 333-63835)) -17- Exhibit 4 -- Joint Filing Agreement, dated December 10, 2003, between Goldman, Sachs & Co., The Goldman Sachs Group, Inc., GS Mezzanine Partners, L.P., GS Mezzanine Partners Offshore, L.P., GS Mezzanine Advisors, L.L.C., Stone Street Fund 1997, L.P., Bridge Street Fund 1997, L.P. and Stone Street 1997, L.L.C. Exhibit 5 -- Power of Attorney, dated December 8, 2000, relating to Goldman, Sachs & Co. (incorporated by reference to Exhibit 99.2 to Amendment No. 3 to the Schedule 13G filed with respect to The MONY Group Inc. by the Filing Persons on February 13, 2001) Exhibit 6 -- Power of Attorney, dated December 8, 2000, relating to The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit 99.3 to Amendment No. 3 to the Schedule 13G filed with respect to The MONY Group Inc. by the Filing Persons on February 13, 2001) Exhibit 7 -- Power of Attorney, dated January 31, 2000, relating to GS Mezzanine Partners, L.P. (incorporated by reference to Exhibit 99.5 to Amendment No. 2 to the Schedule 13G filed with respect to The MONY Group Inc. by the Filing Persons on February 14, 2000) Exhibit 8 -- Power of Attorney, dated January 31, 2000, relating to GS Mezzanine Partners Offshore, L.P. (incorporated by reference to Exhibit 99.6 to Amendment No. 2 to the Schedule 13G filed with respect to The MONY Group Inc. by the Filing Persons on February 14, 2000) Exhibit 9 -- Power of Attorney, dated February 1, 2000, relating to GS Mezzanine Advisors, L.L.C. (incorporated by reference to Exhibit 99.8 to Amendment No. 2 to the Schedule 13G filed with respect to The MONY Group Inc. by the Filing Persons on February 14, 2000) Exhibit 10 -- Power of Attorney, dated December 16, 1999, relating to Stone Street Fund 1997, L.P. (incorporated by reference to Exhibit 99.11 to Amendment No. 2 to the Schedule 13G filed with respect to The MONY Group Inc. by the Filing Persons on February 14, 2000) Exhibit 11 -- Power of Attorney, dated December 16, 1999, relating to Bridge Street Fund 1997, L.P. (incorporated by reference to Exhibit 99.12 to Amendment No. 2 to the Schedule 13G filed with respect to The MONY Group Inc. by the Filing Persons on February 14, 2000) Exhibit 12 -- Power of Attorney, dated December 16, 1999, relating to Stone Street 1997, L.L.C. (incorporated by reference to Exhibit 99.13 to Amendment No. 2 to the Schedule 13G filed with respect to The MONY Group Inc. by the Filing Persons on February 14, 2000) -18- SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: December 10, 2003 GOLDMAN, SACHS & CO. THE GOLDMAN SACHS GROUP, INC. By: /s/ ROGER S. BEGELMAN By: /s/ ROGER S. BEGELMAN ----------------------- ----------------------- Name: Roger S. Begelman Name: Roger S. Begelman Title: Attorney-in-fact Title: Attorney-in-fact GS MEZZANINE PARTNERS, L.P. GS MEZZANINE PARTNERS OFFSHORE, L.P. By: /s/ ROGER S. BEGELMAN By: /s/ ROGER S. BEGELMAN ----------------------- ----------------------- Name: Roger S. Begelman Name: Roger S. Begelman Title: Attorney-in-fact Title: Attorney-in-fact GS MEZZANINE ADVISORS, L.L.C. STONE STREET FUND 1997, L.P. By: /s/ ROGER S. BEGELMAN By: /s/ ROGER S. BEGELMAN ----------------------- ----------------------- Name: Roger S. Begelman Name: Roger S. Begelman Title: Attorney-in-fact Title: Attorney-in-fact BRIDGE STREET FUND 1997, L.P. STONE STREET 1997, L.L.C. By: /s/ ROGER S. BEGELMAN By: /s/ ROGER S. BEGELMAN ----------------------- ----------------------- Name: Roger S. Begelman Name: Roger S. Begelman Title: Attorney-in-fact Title: Attorney-in-fact -19- SCHEDULE I The name of each director of the Goldman Sachs Group, Inc. is set forth below. The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004. Each person is a citizen of the United States of America except for Lord Browne of Madingley, who is a citizen of the United Kingdom and Claes Dahlback, who is a citizen of Sweden. The present principal occupation or employment of each of the listed persons is set forth below. Name Present Principal Occupation - ---- ---------------------------- Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc. John A. Thain President and Chief Operating Officer of The Goldman Sachs Group, Inc. Lloyd C. Blankfein Vice Chairman of The Goldman Sachs Group, Inc. Lord Browne of Madingley Group Chief Executive of BP plc James A. Johnson Vice Chairman of Perseus, L.L.C. John H. Bryan Retired Chairman and Chief Executive Officer of Sara Lee Corporation Ruth J. Simmons President of Brown University Claes Dahlback Nonexecutive Chairman of Investor AB William W. George Retired Chairman and Chief Executive Officer of Medtronic, Inc. I-1 Edward M. Liddy Chairman of the Board, President and Chief Executive Officer of The Allstate Corporation I-2 SCHEDULE II-A The name, position and present principal occupation of each executive officer of G.S. Mezzanine Advisors, L.L.C., which is the sole general partner of each of G.S. Mezzanine Partners, L.P. and G.S. Mezzanine Partners Offshore, L.P., are set forth below. The business address for all the executive officers listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004, except as follows: The business address of Richard S. Sharp, Antoine L. Schwartz, Hughes B. Lepic, Stephen S. Trevor, Atul Kapur, Robert G. Doumar, Jr. and Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Mary Nee is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P. DiSabato is 555 California Street, 45th Floor, San Francisco, CA 94104. The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606. All executive officers listed below are citizens of the United States of America, except as follows: Richard S. Sharp is a citizen of the United Kingdom. Sanjeev K. Mehra is a citizen of India. Atul Kapur is a citizen of Singapore. Antoine L. Schwartz and Hughes B. Lepic are citizens of France. Adrian M. Jones is a citizen of Ireland. Ulrika Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation - ---- -------- ---------------------------- Richard A. Friedman President Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co.
II-A-1
Henry Cornell Vice President Managing Director of Goldman, Sachs & Co. Richard S. Sharp Vice President Managing Director of Goldman Sachs International Esta E. Stecher Assistant Secretary Managing Director of Goldman, Sachs & Co. Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co. Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co. Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co. Elizabeth C. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co. David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co. David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co.
II-A-2
Hughes B. Lepic Vice President Managing Director of Goldman Sachs International Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co. Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co. Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co. Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co. Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co. Stephen S. Trevor Vice President Managing Director of Goldman Sachs International Abraham Bleiberg Vice President Managing Director of Goldman, Sachs & Co. Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co. Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co.
II-A-3
Atul Kapur Vice President Managing Director of Goldman Sachs International Robert G. Doumar, Jr. Vice President Managing Director of Goldman Sachs International Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co. Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co. Elizabeth C. Marcellino Vice President Managing Director of Goldman, Sachs & Co. Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co. Katherine B. Enquist Vice President/ Managing Director of Goldman, Secretary Sachs & Co. John E. Bowman Vice President Vice President of Goldman, Sachs & Co. James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co. Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co.
II-A-4
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co. Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C. Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
II-A-5 SCHEDULE II-B The name, position and present principal occupation of each executive officer of Stone Street 1997, L.L.C., which is the sole general partner of each of Stone Street Fund 1997, L.P. and Bridge Street Fund 1997, L.P., are set forth below. The business address for all the executive officers listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004, except as follows: The business address of Richard S. Sharp, Antoine L. Schwartz, Hughes B. Lepic, Stephen S. Trevor, Atul Kapur, Robert G. Doumar, Jr. and Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Mary Nee is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P. DiSabato is 555 California Street, 45th Floor, San Francisco, CA 94104. The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606. All executive officers listed below are citizens of the United States of America, except as follows: Richard S. Sharp is a citizen of the United Kingdom. Sanjeev K. Mehra is a citizen of India. Atul Kapur is a citizen of Singapore. Antoine L. Schwartz and Hughes B. Lepic are citizens of France. Adrian M. Jones is a citizen of Ireland. Ulrika Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation - ---- -------- ---------------------------- Richard A. Friedman President Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co.
II-B-1 Henry Cornell Vice President Managing Director of Goldman, Sachs & Co. Richard S. Sharp Vice President Managing Director of Goldman Sachs International Esta E. Stecher Assistant Secretary Managing Director of Goldman, Sachs & Co. Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co. Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co. Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co. Elizabeth C. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co. David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co. David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co.
II-B-2
Hughes B. Lepic Vice President Managing Director of Goldman Sachs International Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co. Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co. Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co. Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co. Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co. Stephen S. Trevor Vice President Managing Director of Goldman Sachs International Abraham Bleiberg Vice President Managing Director of Goldman, Sachs & Co. Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co. Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co.
II-B-3
Atul Kapur Vice President Managing Director of Goldman Sachs International Robert G. Doumar, Jr. Vice President Managing Director of Goldman Sachs International Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co. Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co. Elizabeth C. Marcellino Vice President Managing Director of Goldman, Sachs & Co. Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co. Katherine B. Enquist Vice President/ Managing Director of Goldman, Secretary Sachs & Co. John E. Bowman Vice President Vice President of Goldman, Sachs & Co. James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co. Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co.
II-B-4
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co. Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C. Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
II-B-5 SCHEDULE III On April 28, 2003, without admitting or denying liability, ten investment banking firms including Goldman Sachs, entered into global settlements with the Securities and Exchange Commission (the "SEC"), the New York Stock Exchange, Inc. (the "NYSE"), the National Association of Securities Dealers (the "NASD") and certain states to resolve the investigations relating to equity research analyst conflicts of interest. Goldman Sachs was charged with violating NYSE Rules 342, 401, 472 and 475, and NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also agreed to a censure by the NYSE and the NASD and to pay a total of $110,000,000 and to adopt a set of industry-wide reforms of its research and investment banking businesses and to adopt certain restrictions on the allocations of "hot" IPO shares. The terms of the global settlement were entered in an order by a federal court in the Southern District of New York on October 31, 2003 (Civil Action Number 03CV2944). In November 2002, the SEC, the NASD and the NYSE alleged that five broker dealers, including Goldman Sachs, violated Section 17(a) of the Exchange Act and Rule 17a-4 hereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and 3110 by allegedly failing to preserve electronic mail communications for three years and/or to preserve electronic mail communications for the first two years in an accessible place, and by allegedly having inadequate supervisory systems and procedures in relation to the retention of electronic mail communications. Without admitting or denying the allegations, the five broker dealers, including Goldman Sachs, consented to censure by the SEC, NASD and NYSE and to the imposition of a cease-and-desist order by the SEC and Goldman Sachs paid a total fine of $1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also undertook to review its procedures regarding the preservation of electronic mail communications for compliance with the federal securities laws and regulations and the rules of the NASD and NYSE, and to confirm within a specified period of time that it has established systems and procedures reasonably designed to achieve compliance with those laws, regulations and rules. III-1 On April 6, 2000, in connection with an industry-wide investigation by the SEC relating to the pricing of government securities in advance refunding transactions, Goldman Sachs joined in a global settlement resolving the SEC investigation as well as a related qui tam lawsuit purportedly brought on behalf of the United States entitled United States ex rel. Lissack v. Goldman, Sachs & Co., et al., 95 Civ. 1363 (S.D.N.Y.)(BSJ). Pursuant to the settlement, without admitting or denying the findings, Goldman Sachs consented to the issuance of an SEC administrative order (SEA Rel. No. 42640) which, among other things, found that Goldman Sachs had violated Sections 17(a)(2) and (3) of the Securities Act of 1933 in connection with such pricing of government securities, required Goldman Sachs to cease and desist from violating such provisions, and ordered Goldman Sachs to make payments totaling approximately $5.1 Million to the U.S. Treasury and $104,000 to two municipalities. Under the global settlement, the qui tam lawsuit was dismissed with prejudice, and the Internal Revenue Service agreed not to challenge the tax-free nature of the refundings by virtue of the pricing of such securities. III-2 EX-99.2 3 sc0361b.txt EXHIBIT 2 - WARRANT PURCHASE AGREEMENT Exhibit 2 ================================================ WARRANT PURCHASE AGREEMENT AMONG GS MEZZANINE PARTNERS, L.P., GS MEZZANINE PARTNERS OFFSHORE, L.P., STONE STREET FUND 1997, L.P., BRIDGE STREET FUND 1997, L.P., AND AXA FINANCIAL, INC. DATED AS OF DECEMBER 2, 2003 ================================================ WARRANT PURCHASE AGREEMENT WARRANT PURCHASE AGREEMENT, dated as of December 2, 2003, among GS Mezzanine Partners, L.P., a Delaware limited partnership, GS Mezzanine Partners Offshore, L.P., a Cayman Islands exempted limited partnership, Stone Street Fund 1997, L.P., a Delaware limited partnership and Bridge Street Fund 1997, L.P., a Delaware limited partnership (each, a "Seller" and collectively, the "Sellers") and AXA Financial, Inc., a Delaware corporation (the "Purchaser"). W I T N E S S E T H: WHEREAS, The Mutual Life Insurance Company of New York, MONY Financial Services Corporation (now known as The MONY Group, Inc.) (the "Company") and the Sellers entered into an Investment Agreement dated December 30, 1997 (the "Investment Agreement") pursuant to which the Sellers purchased from the Company certain Warrants (the "Warrants") to purchase shares of common stock, par value $.01 per share, of the Company (the "Common Stock"); and WHEREAS, the Sellers desire to sell and transfer to the Purchaser, and the Purchaser desires to purchase from the Sellers, certain Warrants. NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein, and subject to and on the terms and conditions herein set forth, the parties hereto agree as follows: ARTICLE I Purchase and Sale of the WARRANTS 1.1 Purchase and Sale of the Warrants. Upon the terms and subject to the conditions set forth in this Agreement and on the basis of the representations, warranties, covenants, agreements, undertakings and obligations contained herein, at the Closing the Purchaser agrees to purchase from the Sellers, and the Sellers agree to sell to the Purchaser, Warrants to purchase 2,228,574 shares of Common Stock (to be allocated among the Sellers as set forth on Annex A hereto). 1.2 Purchase Price. The purchase price for the Warrants (the "Purchase Price") shall consist of $16,268,590.20 in the aggregate, to be allocated among the Sellers as set forth on Annex A hereto and payable at the Closing. 1.3 Closing. The closing of the sale and purchase of the Warrants contemplated hereby (the "Closing") shall take place at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004 on December 2, 2003 (the "Closing Date"). 1.4 Deliveries by the Sellers to the Purchaser. On the Closing Date, the Sellers shall deliver, or cause to be delivered, to the Purchaser the following: (a) a certificate representing the Warrants to be sold hereby free and clear of all Liens, duly recorded in the records of the Company; and (b) such other closing documents as the Sellers and the Purchaser reasonably agree. 1.5 Deliveries by the Purchaser to the Sellers. On the Closing Date, the Purchaser shall deliver or cause to be delivered to the Sellers or their designees the following: (a) the Purchase Price by wire transfer of immediately available funds to an account or accounts designated by Sellers or their designees at least two (2) Business Days in advance of the Closing Date; and (b) such other closing documents as the Sellers and the Purchaser reasonably agree. ARTICLE II Representations and Warranties 2.1 Representations and Warranties of the Sellers. Each Seller represents and warrants to, and agrees with, the Purchaser as follows: (a) Organization and Authority of the Sellers. Such Seller is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, with the full power and authority to own, lease or otherwise hold the properties and assets it purports to own (including, without limitation, the Warrants) and to carry on its business as currently conducted. Such Seller has the full legal right, requisite power and authority and has taken all action necessary to execute, deliver and perform fully its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by such Seller of this Agreement and the transactions contemplated hereby have been duly authorized by all necessary action on the part of such Seller (including any necessary action by its partners) and no other proceeding on the part of such Seller is necessary to authorize this Agreement. This Agreement has been duly executed and delivered by such Seller and constitutes, and upon the execution and delivery by the other parties hereto, this Agreement shall constitute, a valid and legally binding agreement of such Seller enforceable against it in accordance with its terms. -2- (b) Title to Warrants. Such Seller has good and valid title to its Warrants free and clear of all Liens, and upon the delivery of and payment for the Warrants at the Closing as provided for in this Agreement, Purchaser will acquire good and valid title to all of the Warrants so purchased, free and clear of any Liens, other than any Lien created by Purchaser. (c) Exercise of Warrants. Upon exercise of the Warrants, Purchaser will acquire good and valid title to the shares of Common Stock that may be purchased upon exercise of such Warrants, free and clear of any Liens, other than any Lien created by the Purchaser. The shares of Common Stock so purchased upon the exercise of the Warrants will not be subject to any restrictions on transfer or voting thereof under the Investment Agreement or the NYID Letter. If the Warrants were to be exercised as of the date hereof, the exercise price pursuant to the terms of the Warrants for each share of Common Stock so purchased would be U.S. $23.50. (d) Non-Contravention. The execution and delivery of this Agreement by such Seller and the performance and consummation of the transactions contemplated hereby will not, directly or indirectly (with or without giving of notice or the lapse of time or both): (i) contravene, conflict with or constitute or result in a breach or violation of, or a default under any provision of the certificate of limited partnership or limited partnership agreement of such Seller; (ii) violate or conflict with any Applicable Law or any Order applicable to such Seller, or give any Governmental Authority or any other Person the right to challenge any of the transactions contemplated hereby or the exercise of the Warrants by Purchaser or to exercise any remedy or obtain any relief under, any Applicable Law or Order to which such Seller is subject; (iii) result in a breach of or constitute a default or give rise to any right of termination, amendment, cancellation or acceleration of any right under any contract, agreement or other obligation to which such Seller is bound or its assets are subject, or give rise to any Lien on the Warrants to be purchased and sold hereunder, except, in the case of clause (iii), to the extent that any such breach, default, right or Lien would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the ability of such Seller to timely perform its obligations under this Agreement or to consummate the transactions contemplated hereby, and assuming, for purposes of clauses (ii) and (iii), the accuracy of the Purchaser's representations and warranties set forth in Sections 2.2(b) and 2.2(c). (e) Consents and Approvals, etc. Assuming the accuracy of the Purchaser's representations and warrants set forth in Section 2.2(c), there are no Permits or expiration of any applicable waiting periods related thereto of any Governmental Authority, or any consents, approvals or authorizations of any other Person, which are required to be obtained or given with respect to any Seller in connection with the execution or delivery by such Seller of this Agreement, the performance of its obligations hereunder or the consummation of the transactions contemplated hereby. The Sellers have duly obtained the written consent of the Company pursuant to Section 6.4 of the Investment Agreement to the transfer of the Warrants contemplated hereunder. 2.2 Representations and Warranties of the Purchaser. The Purchaser represents and warrants to, and agrees with, the Sellers as follows: (a) Organization and Authority of the Purchaser. The Purchaser is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its -3- incorporation, with the full power and authority to own, lease or otherwise hold the properties and assets it purports to own and to carry on its business as currently conducted. The Purchaser has the full legal right, requisite corporate power and authority and has taken all corporate action necessary to execute, deliver and perform fully its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Purchaser of this Agreement and the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Purchaser (including any necessary stockholder action) and no other corporate proceeding on the part of the Purchaser is necessary to authorize this Agreement. This Agreement has been duly executed and delivered by the Purchaser and constitutes, and upon the execution and delivery by the other parties hereto, this Agreement shall constitute, a valid and legally binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms. (b) Non-Contravention. The execution and delivery of this Agreement by the Purchaser and the performance and consummation of the transactions contemplated hereby will not, directly or indirectly (with or without giving of notice or the lapse of time or both) (i) contravene, conflict with or constitute or result in a breach or violation of, or a default under any provision of the articles of incorporation or by-laws of the Purchaser or any resolution adopted by the Board of Directors of the Purchaser, (ii) violate or conflict with any Applicable Law or any Order applicable to the Purchaser, or give any Governmental Authority or any other Person the right to challenge any of the transactions contemplated hereby or to exercise any remedy or obtain any relief under any Applicable Law or Order to which the Purchaser is subject; or (iii) result in a breach of or constitute a default or give rise to any right of termination, amendment, cancellation or acceleration of any right under any contract, agreement or other obligation to which the Purchaser is bound or its assets are subject, except, in the case of clause (iii), to the extent that any such breach, default, right or Lien would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the ability of the Purchaser to timely perform its obligations under this Agreement or to consummate the transactions contemplated hereby assuming, for clauses (ii) and (iii), the accuracy of the Sellers' representations and warranties set forth in Section 2.1(d). (c) Consents and Approvals. Assuming the accuracy of the Sellers representations and warranties set forth in Section 2.1(e), there are no Permits or expiration of any applicable waiting periods related thereto of any Governmental Authority, or any consents, approvals or authorizations of any other Person which are required to be obtained or given with respect to the Purchaser in connection with the execution or delivery by the Purchaser of this Agreement, the performance of its obligations hereunder or the consummation of the transactions contemplated hereby. (d) Securities Act of 1933. The Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its purchase of the Warrants and is capable of bearing the economic risks thereof. The Purchaser is acquiring the Warrants for its own account, for the purpose of investment only and not with a view to, or for sale in connection with, any distribution thereof or of Common Stock issuable upon exercise thereof in violation of the registration requirements of the Securities Act of 1933, as amended. -4- ARTICLE III Additional Agreements of the Parties 3.1 Announcements. The Purchaser and the Sellers have agreed with each other as to the form, timing and substance of the press release related to the execution of this Agreement (a copy of which is attached hereto as Exhibit A), and shall consult each other as to the form, timing and substance of any other public disclosures related hereto, provided, however, that nothing contained herein shall prohibit either party, following notification to the other party if practicable, from making any disclosure which its counsel determines to be required by any Applicable Law or the applicable rules of any stock exchange. 3.2 Further Assurances. At any time and from time to time after the date hereof, the parties agree to cooperate with each other, and use all reasonable efforts to execute and deliver such other documents, instruments of transfer or assignment and records and do all such further acts and things as may be necessary or desirable to carry out and give effect to the transactions contemplated hereunder. 3.3 Expenses. Regardless of whether any or all of the transactions contemplated by this Agreement are consummated, and except as otherwise expressly provided herein, the Purchaser and the Sellers shall each bear their respective direct and indirect expenses incurred in connection with the negotiation and preparation of this Agreement and the consummation of the transactions contemplated hereby, provided, however, that Sellers shall be responsible to pay directly, or to reimburse the Purchaser for, any payments required to be made to the Company in connection with the transfer, surrender, exchange or assignment of Warrants pursuant to or in connection with this Agreement and all taxes imposed by Applicable Law in connection with the transfer, surrender, exchange or assignment of the Warrants. ARTICLE IV Miscellaneous 4.1 Governing Law. This Agreement shall be deemed to be made in and in all respects shall be governed by and interpreted, construed and enforced in accordance with the law of the State of New York without regard to principles of conflicts of laws that would require application of the law of a jurisdiction other than the State of New York. 4.2 Submission to Jurisdiction; Waiver of Jury Trial. Each party submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the City of New York, the Borough of Manhattan, for purposes of any legal proceeding arising out of or relating to this Agreement; provided that, if such court refuses to so accept or exercise jurisdiction, the Parties shall submit to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in the City of New York, the Borough of Manhattan. Each party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Each party hereby consents to process being served in any action with respect to this Agreement, or any document delivered pursuant hereto, by the means specified in Section 4.3 to its respective address specified at the time for notices under this Agreement or to -5- any other address of which it shall have given written notice to the other party. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HEREBY ACKNOWLEDGES THAT SUCH WAIVER IS MADE WITH FULL UNDERSTANDING AND KNOWLEDGE OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY. 4.3 Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of (a) in the case of personal delivery, when actually delivered, (b) in the case of delivery by prepaid overnight courier with guaranteed next day delivery, the day designated for delivery by such courier, (c) in the case of delivery by registered or certified mail, postage prepaid, return receipt requested, five (5) days after deposit in the mails, or (d) in the case of transmittal by telecopy (confirmed via delivery by personal delivery or prepaid overnight courier with guaranteed next day delivery), upon receipt by the sender of a printed confirmation of transmittal; provided that notices after the giving of which there is a designated period within which to perform an act and notices of changes of address shall be effective only upon receipt. All such notices and communications shall be delivered to the following addresses or telecopier numbers (or at such other address or telecopier number for a Person as shall be specified by like notice): (a) if to the Sellers, addressed to: Goldman Sachs & Co. General Counsel - Principal Investment Area 85 Broad Street New York, NY 10004 Telecopy: (212) 482-3820 with a copy to: Robert G. DeLaMater, Esq. Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004-2498 Telecopy: (212) 558-3588 (b) if to the Purchaser, addressed to: Richard V. Silver, Esq. AXA Financial, Inc. 1290 Avenue of the Americas New York, NY 10104 Telecopy: (212) 707-1935 -6- with a copy to: Michael W. Blair, Esq. Debevoise & Plimpton 919 Third Avenue New York, NY 10016 U.S.A. Telecopy: (212) 909-6836 or at such other place or places or to such other Person or Persons as shall be designated in writing by and to the parties to this Agreement in the manner herein provided. 4.4 Interpretation. When a reference is made in this Agreement to a Section or Annex, such reference shall be to a Section of, or an Annex to, this Agreement unless otherwise indicated. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". Whenever the singular is used herein, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate. 4.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Each counterpart may be delivered by facsimile transmission, which transmission shall be deemed delivery of an originally executed document. 4.6 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party hereto may assign this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other, which approval shall not be unreasonably delayed or withheld, provided, however, that Purchaser may, without the prior written approval of the Sellers, assign this Agreement to any Affiliate of Purchaser. 4.7 Miscellaneous. (a) This Agreement: (i) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties, with respect to the subject matter hereof, and (ii) is not intended to confer upon any other Persons any rights or remedies hereunder. (b) Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any Applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein. -7- (c) This Agreement may be amended only by a written instrument signed by each of the parties. Waiver of any term or condition of this Agreement shall only be effective if in writing and shall not be construed as a waiver of any subsequent breach or waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. (d) No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. 4.8 Certain Definitions. (a) For purposes of this Agreement, the following terms have the meanings set forth below: (i) "Affiliate" means, with respect to any Person, at the time in question, any other Person controlling, controlled by or under common control with such Person. For purposes of the foregoing, "control," including the terms "controlling," "controlled by" and "under common control with," means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise. (ii) "Applicable Law" means any federal, state, local or other statute, law, ordinance, rule, regulation, order, writ, injunction, judgment, consent order or decree applicable to a Person or such Person's properties, assets, business or operations. (iii) "Contract" means any mortgages, indentures, debentures, notes, loans, bonds, agreements, contracts, leases, subleases, licenses, franchises, obligations, instruments, promises, understandings or other legally binding commitments, arrangements or undertakings of any kind whether oral or written and whether express or implied to which any Seller is a party or by which any of their respective assets owned or used may be bound or affected. (iv) "Governmental Authority" means any foreign, federal, state, local, municipal, court or other governmental, quasi-governmental, administrative or regulatory authority, body, agency, court, tribunal, commission, other similar entity (including any non-governmental securities or insurance regulatory agency) or any branch, department or official thereof. (v) "Lien" means any charges, claims, conditional sale or other title retention agreements, covenants, easements, encumbrances, exceptions, liens, mortgages, options, pledges, reservations, rights of first refusal, security interests, servitudes, statutory liens, warrants, or restrictions of any kind, including restrictions on use, voting, transfer, alienation, receipt of income, or exercise of any other attribute of ownership, other than, with respect to the Warrants, restrictions on transfer pursuant to the NYID Letter and applicable insurance and securities law. -8- (vi) "NYID Letter" means the letter dated December 29, 1997 from the New York Insurance Department regarding a determination by the New York Insurance Department of non-control by the Sellers with respect to the Company and setting forth certain conditions pertaining thereto and related matters. (vii) "Order" means any award, decision, injunction, judgment, decree, settlement, order, process, ruling, subpoena or verdict (whether temporary, preliminary or permanent) entered, issued, made or rendered by any court, administrative agency, arbitrator, Governmental Authority or other tribunal of competent jurisdiction. (viii) "Permits" means any franchises, certificates of authority, waivers, licenses, permits, orders, consents, approvals, registrations, authorizations, declarations, qualifications and filings issued, granted, given or otherwise made available by or under, or made with, any Governmental Authorities or pursuant to any Applicable Law. (ix) "Person" means any individual, corporation, company, partnership (limited or general), joint venture, limited liability company, association, trust, or a Governmental Authority, or any other entity. (b) For purposes of this Agreement, the following terms have the meanings set forth in the sections noted below: Closing Section 1.5 Closing Date Section 1.5 Company Recitals Confidentiality Agreement Section 3.8(a) Purchase Price Section 1.2 Purchaser Introductory Paragraph Sellers Introductory Paragraph Warrants Recitals -9- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. GS MEZZANINE PARTNERS, L.P. BY: GS Mezzanine Advisors, L.L.C. Its General Partner BY: /s/ JOHN E. BOWMAN -------------------------------------- Name: John E. Bowman Title: Vice President GS MEZZANINE PARTNERS OFFSHORE, L.P. BY: GS Mezzanine Advisors, L.L.C. Its General Partner BY: /s/ JOHN E. BOWMAN -------------------------------------- Name: John E. Bowman Title: Vice President STONE STREET FUND 1997, L.P. BY: Stone Street 1997, L.L.C., Its General Partner BY: /s/ JOHN E. BOWMAN -------------------------------------- Name: John E. Bowman Title: Vice President BRIDGE STREET FUND 1997, L.P. BY: Stone Street 1997, L.L.C., Its General Partner BY: /s/ JOHN E. BOWMAN -------------------------------------- Name: John E. Bowman Title: Vice President AXA FINANCIAL, INC. BY: /s/ STANLEY B. TULIN -------------------------------------- Name: Stanley B. Tulin Title: Vice Chairman of the Board and Chief Financial Officer
ANNEX A NUMBER OF SHARES OF COMMON STOCK CURRENTLY ISSUABLE UPON ALLOCATION OF SELLER EXERCISE OF WARRANTS TO BE SOLD PURCHASE PRICE - ----------------------------- ------------------------------- -------------- GS Mezzanine Partners, L.P. 1,403,575 $10,246,099.57 GS Mezzanine Offshore Partners, L.P. 753,684 $ 5,501,895.74 Stone Street Fund 1997, L.P. 48,002 $ 350,411.28 Bridge Street Fund 1997, L.P. 23,313 $ 170,183.61 --------- -------------- Aggregate 2,228,574 $16,268,590.20
EX-99.4 4 sc0361c.txt EXHIBIT 4 - JOINT FILING AGREEMENT Exhibit 4 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, the undersigned agree to the joint filing of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Common Stock, $0.01 par value, of The MONY Group Inc., and further agree to the filing of this agreement as an Exhibit thereto. In addition, each party to this Agreement expressly authorizes each other party to this Agreement to file on its behalf any and all amendments to such Statement on Schedule 13D. Date: December 10, 2003 GOLDMAN, SACHS & CO. THE GOLDMAN SACHS GROUP, INC. By: /s/ ROGER S. BEGELMAN By: /s/ ROGER S. BEGELMAN ----------------------- ----------------------- Name: Roger S. Begelman Name: Roger S. Begelman Title: Attorney-in-fact Title: Attorney-in-fact GS MEZZANINE PARTNERS, L.P. GS MEZZANINE PARTNERS OFFSHORE, L.P. By: /s/ ROGER S. BEGELMAN By: /s/ ROGER S. BEGELMAN ----------------------- ----------------------- Name: Roger S. Begelman Name: Roger S. Begelman Title: Attorney-in-fact Title: Attorney-in-fact GS MEZZANINE ADVISORS, L.L.C. STONE STREET FUND 1997, L.P. By: /s/ ROGER S. BEGELMAN By: /s/ ROGER S. BEGELMAN ----------------------- ----------------------- Name: Roger S. Begelman Name: Roger S. Begelman Title: Attorney-in-fact Title: Attorney-in-fact BRIDGE STREET FUND 1997, L.P. STONE STREET 1997, L.L.C. By: /s/ ROGER S. BEGELMAN By: /s/ ROGER S. BEGELMAN ----------------------- ----------------------- Name: Roger S. Begelman Name: Roger S. Begelman Title: Attorney-in-fact Title: Attorney-in-fact -----END PRIVACY-ENHANCED MESSAGE-----