SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
The MONY Group Inc.
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(Name of Issuer)
Common Stock, $0.01 par value
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(Title of Class of Securities)
615337102
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(CUSIP Number)
Ben Adler, Esq.
Goldman, Sachs & Co.
1 New York Plaza
38th Floor
New York, New York 10004
(212) 902-5587
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December 2, 2003
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(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].
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CUSIP NO. 615337102
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Goldman Sachs Group, Inc.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF-WC-OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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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
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,720,048
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
3.40%
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14. TYPE OF REPORTING PERSON
HC-CO
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-2-
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CUSIP NO. 615337102
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF-WC-OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
New York
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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
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,720,048
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.40%
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14. TYPE OF REPORTING PERSON
BD-PN-IA
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-3-
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CUSIP NO. 615337102
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Mezzanine Partners, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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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
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,069,396
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
2.14%
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14. TYPE OF REPORTING PERSON
PN
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-4-
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CUSIP NO. 615337102
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Mezzanine Partners Offshore, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
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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
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
574,239
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
1.16%
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14. TYPE OF REPORTING PERSON
PN
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-5-
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CUSIP NO. 615337102
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Mezzanine Advisors, L.L.C.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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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
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,643,635
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
3.26%
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14. TYPE OF REPORTING PERSON
OO
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-6-
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CUSIP NO. 615337102
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stone Street Fund 1997, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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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
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
36,573
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
0.07%
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14. TYPE OF REPORTING PERSON
PN
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CUSIP NO. 615337102
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Bridge Street Fund 1997, L.P.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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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
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,762
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
0.04%
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14. TYPE OF REPORTING PERSON
PN
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-8-
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CUSIP NO. 615337102
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1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stone Street 1997, L.L.C.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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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
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
54,335
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES
[ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
0.11%
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14. TYPE OF REPORTING PERSON
OO
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-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
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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.
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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