CUSIP No.  60935Y109

13D

1	NAMES OF REPORTING PERSON       GS Mezzanine Partners V Offshore Fund, L.L.C.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP                                                                      (a)  o                                                                                                                                                                                                                  (b)  x
3	SEC USE ONLY
4	SOURCE OF FUNDS        AF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)                       o
6	CITIZENSHIP OR PLACE OF ORGANIZATION        Delaware
NUMBER OF SHARES	7	SOLE VOTING POWER       0
BENEFICIALLY OWNED	8	SHARED VOTING POWER          12,064,337
BY EACH REPORTING	9	SOLE DISPOSITIVE POWER       0
PERSON WITH	10	SHARED DISPOSITIVE POWER       12,064,337
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON       12,064,337
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES                     x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)       3.1%
14	TYPE OF REPORTING PERSON       OO

 

 

 

 

Item 4.    Purpose of Transaction

 

The Investors acquired the Series B-1 Stock and Series B Stock for investment purposes, which purposes include acquiring control of the Company.

 

The Transaction consisted of the sale to the GS Investors and the THL Purchasers in a private placement of 495,000 shares of Series B Stock and 265,000 shares of Series B-1 Stock for an aggregate purchase price of $760,000,000, which shares in the aggregate are convertible into approximately 78.0% of the common equity of the Company at an initial conversion price of $2.50 per share as described below.  In connection with the Transaction, the Company issued to GS Group, as directed by Goldman Sachs, on behalf of the THL Purchasers and certain of the GS Investors, an investment banking advisory fee equal to $7,500,000 in the form of 7,500 shares of Series B-1 Stock, which fee was payable by the THL Purchasers and such GS Investors pursuant to an engagement letter, dated as of March 25, 2008, between such parties and Goldman Sachs.  The engagement letter was effective upon the closing of the Transaction and the Company agreed to assume the obligations of the THL Purchasers and such GS Investors arising from the engagement letter pursuant to an assumption agreement dated as of March 25, 2008.

 

The Company issued all shares of the Series B-1 Stock to the GS Investors and all shares of the Series B Stock to the THL Purchasers. On March 28, 2008, Silver Point purchased 10,000 shares of Series B Stock from the THL Purchasers at a purchase price of $1,000 per share.  On March 31, 2008, the THL Transferees purchased in aggregate 5428.962 shares of Series B Stock from certain of the THL Purchasers at a purchase price of $1,000 per share.  The shares of Series B-1 Stock held by the GS Investors are convertible into shares of Series D Stock (a common equivalent stock which is, subject to certain limitations, convertible into Common Stock), and the shares of Series B Stock held by THL and Silver Point are convertible into shares of Common Stock at an initial conversion price of $2.50 (subject to anti-dilution rights), giving the Investors and GS Group an initial equity interest convertible into approximately 78.8% of the common equity of the Company.  Dividends payable on Series B Stock and Series B-1 Stock are expected to be accrued and not be paid in cash for at least five years.  Because the conversion ratio for the shares in the Certificates provides for a formula which incorporates the amount of unpaid dividends, the accrual of such unpaid dividends will increase the ownership interest of the Investors and GS Group and dilute the interests of the common stockholders.  Over a five year period, assuming the Common Stock outstanding remains 82,598,034, this ownership interest is expected to increase to approximately 87.3%.

 

The Series B Stock will initially have voting rights equivalent to 9.9% of the outstanding Common Stock on a fully converted basis.  It is expected that upon receipt of all regulatory approvals, the holders of the Series B Stock would attain full voting rights.  As stated in the Series B Certificate and Series B-1 Certificate, until the Voting Date (which date is the earlier of (i) the day when all regulatory approvals necessary for THL to have voting rights with respective to all of the Series B Stock, and (ii) on or after June 15, 2008, upon the request of THL, provided, however, that if a vote (or action by written consent) of the stockholders of the Company on any matter is required by law to occur prior to the earlier of such dates, then the Voting Date shall occur no later than immediately prior to such record date)) and also at such time as the Company fails to pay the redemption price for the Series B Stock or Series B-1 Stock that the holders have requested be redeemed pursuant to the terms of the Series B Certificate and Series B-1 Certificate, the Company is  prohibited from taking certain actions without approval of the holders of Series B Stock.  The restrictions in the Series B Certificate pertain to decisions by the Company regarding bankruptcy, liquidation or dissolution, the Board, executive officers, dividends on or buy-backs of junior shares or the Common Stock, taking on debt or making loans, investments, acquisitions or dispositions, and the annual budget.

 

The Series B-1 Stock held by the Reporting Persons is generally non-voting except for the right of the GS Investors to vote on specific actions described in the Series B-1 Certificate.  The holders of the Series B Stock will vote as a class with the Common Stock and will have a number of votes equal to the number of shares of Common Stock issuable if all the outstanding shares of Series B Stock were converted plus the number of shares of Common Stock issuable if all outstanding shares of Series B-1 Stock were converted into Series B Stock and subsequently converted into Common Stock. While held by the Reporting Persons or their affiliates, the Series B-1 Stock is convertible at the option of the holder into a certain number of shares of Series D Stock, a non-voting Common Stock-equivalent. The shares of Series B-1 Preferred Stock are convertible into an equal number of shares of Series B Preferred Stock by any holder other than the Reporting Persons and their affiliates.

 

As of the Closing Date, the Investors appointed two members and two non-voting observers to the Company’s Board and the size of the Board was reduced to six members, of which three members are independent.  Upon the earlier of (x) written notification by THL, in THL’s sole discretion, to the Company and (y) the Voting Date, the Investors shall lose their right to have the Board observers attend meetings of the Board (except that in certain circumstances, the GS Investors will have the right to appoint at least one non-voting Board observer) and instead shall be entitled to nominate and cause the Company to appoint such additional Board representatives to the Board as shall provide the Investors with that number of directors as is proportionate to the Investors’ Common Stock ownership, calculated on a fully as-converted basis (assuming all shares of Series B-1 Stock were converted into Series B Stock and all Series B Stock was converted into Common Stock at such time).

 

The Purchase Agreement provides that as promptly as practicable following the Closing Date, the Company will hold a meeting of its stockholders to seek approval of amendment to the certificate of incorporation of the Company (the “Charter”), which will provide that as long as the Investors shall have a right to designate Board Representatives, the GS Investors shall have the right to designate one Board Representative (who shall have one vote), and THL (or its permitted successors or assigns) shall have the right to designate two to four Board Representatives, which Board Representatives shall be authorized to vote (with each such THL Board Representative having equal votes) on all matters occasioning action by the Board such number of votes equal to the number of directors that the Investors would be entitled to designate on the as-converted basis mentioned above, minus the one vote of the Board Representative designated by the GS Investors.  The amended Charter will also provide that each member of the Board shall be elected annually for a one year term, and will increase the number of authorized shares of Common Stock to 1,300,000,000 shares. The Purchase Agreement provides that following the Closing Date, for so long as shareholders who are unaffiliated with the Investors beneficially own at least 5% of the outstanding Common Stock, on a fully diluted basis, there shall be at least three independent directors serving on the Board.

 

The Series B Stock and the Series B-1 Stock will pay a cash dividend of 10% or at the Company’s option, it may accrue dividends at a rate of 12.5% in lieu of paying a cash dividend.  Dividends may be accrued for up to five years from the date of the Transaction. After five years, if the Company is unable to pay the dividends in cash, dividends will accrue at a rate of 15%. At this time, the Company expects that dividends will be accrued and not paid in cash for at least five years.  The Series B-1 Stock participates in dividends with the Series D Stock on an as-converted basis and the Series D Stock participates in dividends with the Common Stock on an as-converted basis.  The Series B-1 Stock may be redeemed at the option of the Company if, after five years from the date of the Transaction, the Common Stock trades above $15.00 per share, subject to adjustment, for a period of thirty consecutive trading days. The Series B-1 Stock will be redeemable at the option of the Reporting Persons or their affiliates after ten years and upon a change in control.

 

In addition, on March 17, 2008, in connection with entering into the Purchase Agreement, the Company and Wells Fargo Bank, N.A., as Rights Agent, entered into the Second Amendment to the Rights Agreement (the “Rights Agreement Amendment”).  The Rights Agreement Amendment, as amended of February 11, 2008, modifies the Company’s Rights Agreement, dated as of June 30, 2004 (the “Rights Agreement”), to provide, among other things, that the issuance of rights under the Rights Agreement will not be triggered solely by virtue of the approval, execution or delivery of the Purchase Agreement or the Transaction.

 

The description of the Purchase Agreement in this Schedule 13D does not purport to be complete, and is qualified in its entirety by reference to such agreement, which is included as Exhibit 7.02 hereto and incorporated by reference herein.

 

Except as described in this Schedule 13D, the Reporting Persons currently have no plans or proposals which relate to or would result in any transaction, event or action enumerated in paragraphs (a) through (j) of Item 4 of the form of Schedule 13D promulgated under the Act.

 

Each of the Reporting Persons reserves the right, in light of its ongoing evaluation of the Issuer’s financial condition, business, operations and prospects, the market price of the Common Stock, conditions in the securities markets generally, general economic and industry conditions, its business objectives and other relevant factors, to change its plans and intentions at any time, as it deems appropriate.  In particular, any one or more of the Reporting Persons (and their respective affiliates) reserves the right, in each case subject to the terms and conditions of the Purchase Agreement, the Series B-1 Certificate and any applicable law, to (i) purchase additional shares of Common Stock or other securities of the Issuer, (ii) sell or transfer shares of the Series B-1 Preferred Stock, Series D Preferred Stock or Common Stock or other securities beneficially owned by them from time to time in public or private transactions, (iii) cause any of the GS Investors to distribute in kind to their respective partners or members, as the case may be, shares of Series B-1 Preferred Stock, Series D Preferred Stock or Common Stock or other securities owned by such GS Investors, (iv) enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of their positions in the shares of Common Stock, Series B-1 Preferred Stock, Series D Preferred Stock or other securities and (v) consider participating in a business combination transaction that would result in an acquisition of all of the Issuer’s outstanding Common Stock.  To the knowledge of each Reporting Person, each of the persons listed on Schedules I, II-A, II-B, II-C, or II-D hereto may make similar evaluations from time to time or on an ongoing basis.

 

Item 5.     Interest in Securities of the Issuer

 

(a)           The Issuer represented and warranted to the Investors in the Purchase Agreement that, as of March 17, 2008, there were 82,598,034 shares of Common Stock outstanding.

 

As of March 25, 2008, GS Group may be deemed to beneficially own an aggregate of 109,014,968 shares of Common Stock, consisting of (i) 265,000 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible into 106,000 shares of Series D Preferred Stock, which are convertible  by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 106,000,000 shares of Common Stock, (ii) 7,500 shares of Series B-1 Preferred Stock acquired by GS Group on the Closing Date, which are convertible into 3,000 shares of Series D Preferred Stock, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 3,000,000 shares of Common Stock, (iii) 10,906 shares of Common Stock acquired by Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group in ordinary course trading activities and (iv) 4,062 shares of Common Stock held in Managed Accounts, representing in the aggregate approximately 28% of the outstanding Common Stock.  The Reporting Persons disclaim beneficial ownership of shares of Common Stock held in Managed Accounts.

 

As of March 25, 2008, Goldman Sachs may be deemed to beneficially own an aggregate of 106,014,968 shares of Common Stock, consisting of (i) 265,000 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible into 106,000 shares of Series D Preferred Stock, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 106,000,000 shares of Common Stock, (ii) 10,906 shares of Common Stock acquired by Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group in ordinary course trading activities and (iii) 4,062 shares of Common Stock held in Managed Accounts, representing in the aggregate approximately 27.2% of the outstanding Common Stock.  The Reporting Persons disclaim beneficial ownership of shares of Common Stock held in Managed Accounts.

 

As of March 25, 2008, GSCP Advisors and GS Capital may each be deemed to beneficially own an aggregate of 39,583,851.2 shares of Common Stock, consisting of 98,959.628 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible into 39,583.8512 shares of Series D Preferred Stock, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 39,583,851.2 shares of Common Stock, representing in the aggregate approximately 10.2% of the outstanding Common Stock.

 

As of March 25, 2008, GSCP Offshore Advisors and GS Offshore may each be deemed to beneficially own an aggregate of 32,924,454 shares of Common Stock, consisting of 82,311.135 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible into 32,924.454 shares of Series D Preferred Stock, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 32,924,454 shares of Common Stock, representing in the aggregate approximately 8.5% of the outstanding Common Stock.

 

As of March 25, 2008, GS Advisors and GS Parallel may each be deemed to beneficially own an aggregate of 10,884,884.4 shares of Common Stock, consisting of 27,212.211 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible into 10,884.8844 shares of Series D Preferred Stock, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 10,884,884.4 shares of Common Stock, representing in the aggregate approximately 2.8% of the outstanding Common Stock.

 

As of March 25, 2008, GS GmbH and GS Germany may each be deemed to beneficially own an aggregate of 1,406,810.4 shares of Common Stock, consisting of 3,517.026 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible into 1,406.8104 shares of Series D Preferred Stock, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 1,406,810.4 shares of Common Stock, representing in the aggregate approximately 0.4% of the outstanding Common Stock.

 

As of March 25, 2008, GS Mezzanine Onshore GP, GS Mezzanine Onshore and GSMP Onshore may each be deemed to beneficially own an aggregate of 8,319,093.2 shares of Common Stock, consisting of 20,797.733 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible into 8,319.0932 shares of Series D Preferred Stock, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 8,319,093.2 shares of Common Stock, representing in the aggregate approximately 2.1% of the outstanding Common Stock.

 

As of March 25, 2008, GS Mezzanine Institutional GP, GS Mezzanine Institutional and GSMP Institutional may each be deemed to beneficially own an aggregate of 816,570 shares of Common Stock, consisting of 2,041.425 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 816.57 shares of Series D Preferred Stock, which are convertible into 816,570 shares of Common Stock, representing in the aggregate approximately 0.2% of the outstanding Common Stock.

 

As of March 25, 2008, GS Mezzanine Offshore GP, GS Mezzanine Offshore and GSMP Offshore may each be deemed to beneficially own an aggregate of 12,064,336.8 shares of Common Stock, consisting of 30,160.842 shares of Series B-1 Preferred Stock acquired by the GS Investors on the Closing Date, which are convertible by a holder other than the Reporting Persons or their affiliates, subject to certain limitations, into 12,064.3368 shares of Series D Preferred Stock, which are convertible into 12,064,336.8 shares of Common Stock, representing in the aggregate approximately 3.1% of the outstanding Common Stock.

 

As of March 25, 2008, THL and Silver Point may be deemed to beneficially own an aggregate of 198,000,000 shares of Common Stock, representing in the aggregate approximately 50.8% of the outstanding Common Stock.

 

In accordance with Securities and Exchange Commission Release No. 34-39538 (January 12, 1998) (the “Release”), this Schedule 13D reflects the securities beneficially owned by certain operating units (collectively, the “Goldman Sachs Reporting Units”) of GS Group and its subsidiaries and affiliates (collectively, “GSG”).  This Schedule 13D does not reflect securities, if any, beneficially owned by any operating units of GSG whose ownership of securities is disaggregated from that of the Goldman Sachs Reporting Units in accordance with the Release.  The Goldman Sachs Reporting Units disclaim beneficial ownership of the securities beneficially owned, if any, by (i) any client accounts with respect to which the Goldman Sachs Reporting Units or their employees have voting or investment discretion, or both, and (ii) certain investment entities of which the Goldman Sachs Reporting Units acts as the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than the Goldman Sachs Reporting Units.

 

None of the Reporting Persons or, to the knowledge of any of the Reporting Persons, any of the persons listed on Schedules I, II-A, II-B, II-C, or II-D hereto may be deemed to beneficially own any shares of Common Stock other than as set forth herein.

 

(b)           Each Reporting Person shares the power to vote or direct the vote and to dispose or direct the disposition of shares of Common Stock beneficially owned by such Reporting Person as indicated herein.

 

As a result of the matters described in Item 4 above and Item 6 below, the Reporting Persons may be deemed to constitute a "group", within the meaning of Section 13(d)(3) of the Exchange Act, with THL and Silver Point.  The Reporting Persons disclaim beneficial ownership of the stock held by THL and Silver Point.  Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that the Reporting Persons or any of their respective affiliates are the beneficial owners of any of stock beneficially owned by THL and Silver Point for purposes of Section 13(d) of the Exchange Act or for any other purpose. 

 

(c)            Schedule IV sets forth a summary of transactions in the Common Stock which were effected during the sixty day period from January 25, 2008 through March 25, 2008 all of which were effected in the ordinary course of business of Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group.  The transactions in the Common Stock described in Schedule IV were effected on the New York Stock Exchange, NYSE Arca, the Chicago Stock Exchange or the over-the-counter market.

 

Except as set forth in Schedule IV hereto, no transactions in the Common Stock were effected by the Reporting Persons or, to the knowledge of any of the Reporting Persons, any of the persons listed on Schedules I, II-A, II-B, II-C, or II-D hereto, during the sixty day period from January 25, 2008 through March 25, 2008.

 

(d)           Except for clients of Goldman Sachs who may have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, shares of Common Stock, if any, held in Managed Accounts, no other person is known by the Reporting Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock beneficially owned by the Reporting Persons.

 

(e)           Not applicable.

 

Item 6.    Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

The responses to Items 3, 4 and 5 are incorporated herein by reference.

 

The THL Purchasers, GS Investors and GS Group are parties to an Amended and Restated Shareholders Agreement, dated as of March 17, 2008, (the “Shareholders Agreement”) whereby the parties set forth their agreement with respect to certain rights and obligations associated with ownership of securities of the Company.  The agreement specifies that one of the directors that the Investors are entitled to elect will be designated by the GS Investors, so long as the GS Investors own a minimum number of securities, and the number of votes the Board is entitled to cast is at least eleven and such directors shall be entitled to one vote.  The agreement limits the transfer of shares subject to customary exceptions and subject to tag-along rights and drag-along rights, such that in the first five years, the shares may only be transferred to specific parties or pursuant to specific agreements entered into in connection with the Transaction.  It contains an agreement whereby the THL Purchasers and the Reporting Persons will vote in unison regarding the appointment of directors to the Board.  This summary of the Shareholders Agreement does not purport to be complete and is qualified in its entirety by reference to the Shareholders Agreement, which is attached hereto as Exhibit 7.03 and incorporated by reference in its entirety into this Item 6.

 

The THL Purchasers, GS Investors and GS Group are parties to the Joinder and Consent Agreement to the Shareholders Agreement, dated as of March 25, 2008, whereby GS Group was joined to the Shareholders Agreement and the Investors provided their consent thereto. This summary of the Joinder and Consent Agreement does not purport to be complete and is qualified in its entirety by reference to the Joinder and Consent Agreement, which is attached hereto as Exhibit 7.09 and incorporated by reference in its entirety into this Item 6.

 

The THL Purchasers, GS Investors, GS Group and the Company are also parties to the Registration Rights Agreement, dated as of March 25, 2008, with respect to the Series B Stock, the Series B-1 Stock, the Series D Stock and the Common Stock held by the Investors and GS Group (the “Registrable Securities”) whereby the Company is required, after a specified holding period, to use its reasonable best efforts to promptly file with the SEC a shelf registration statement under the Securities Act of 1933, as amended (the “Securities Act”) relating to the offer and sale of the Registrable Securities. The Company is obligated to keep such shelf registration statement continuously effective under the Securities Act until the earlier of (1) the date as of which all of the Registrable Securities have been sold, (2) the date as of which each of the holders of the Registrable Securities is permitted to sell its Registrable Securities without registration pursuant to Rule 144 under the Securities Act and (3) fifteen years. The holders of the Registrable Securities are also entitled to five demand registrations and unlimited piggyback registrations during the term of the Registration Rights Agreement.  This summary of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the Registration Rights Agreement, which is attached hereto as Exhibit 7.08 and incorporated by reference in its entirety into this Item 6.

 

The THL Purchasers, the GS Investors and Wal-Mart Stores, Inc. (“Wal-Mart”) are party to an amended and restated Equity Participation Agreement, dated as of March 17, 2008, that, among other things, for two years after the effective date of the agreement, prevents the Investors, without the prior written consent of Wal-Mart, from voting in favor of, consenting to or selling or transferring their equity securities in a manner that would result in a change of control of the Company.  The Equity Participation Agreement also grants to Wal-Mart the right to receive a percentage of the profits realized on the equity securities purchased pursuant to the Purchase Agreement by each of the THL Purchasers and the GS Investors, which payments may be made in either cash or, in certain circumstances, equity securities of the Company owned by the THL Purchasers or the GS Investors, as applicable. This summary of the agreement does not purport to be complete and is qualified in its entirety by reference to the amended and restated Equity Participation Agreement, which is attached hereto as Exhibit 7.12 and incorporated by reference in its entirety into this Item 6.

 

The THL Purchasers, the GS Investors, the Company and Wal-Mart are party to an amended and restated Transfer Letter Agreement, dated as of March 17, 2008, that, among other things, permits the transactions, including any stock transfers, contemplated by the Transfer Letter Agreement. This summary of the agreement does not purport to be complete and is qualified in its entirety by reference to the amended and restated Transfer Letter Agreement, which is attached hereto as Exhibit 7.13 and incorporated by reference in its entirety into this Item 6.

 

Item 7.    Material to Be Filed as Exhibits

 

Exhibit 1:  Joint Filing Agreement, dated as of April 4, 2008, by and among The Reporting Persons.

 

Exhibit 2: Amended and Restated Purchase Agreement, dated as of March 17, 2008 by and among the Company, the THL Purchasers and the GS Investors (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by the Company on March 18, 2008).

 

Exhibit 3:  Amended and Restated Shareholders Agreement, dated March 17, 2008, by and among the THL Purchasers, the GS Investors, and the other persons that become signatories thereto.

 

Exhibit 4:  Second Amendment, dated as of March 17, 2008, to the Rights Agreement, dated as of June 30, 2004, by and between the Company and Wells Fargo Bank, N.A., as Rights Agent  (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed by the Company on March 18, 2008).

 

Exhibit 5:  Certificate of Designations, Preferences and Rights of the Series B Participating Convertible Preferred Stock of the Company(incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K filed by the Company on March 28, 2008).

 

Exhibit 6: Certificate of Designations, Preferences and Rights of the Series B-1 Participating Convertible Preferred Stock of the Company  (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K filed by the Company on March 28, 2008).

 

Exhibit 7: Certificate of Designations, Preferences and Rights of the Series D Participating Convertible Preferred Stock of the Company (incorporated by reference to Exhibit 4.4 to the Current Report on Form 8-K filed by the Company on March 28, 2008).

 

Exhibit 8: Registration Rights Agreement, by and among the THL Purchasers, the GS Investors, the Company, and other persons that become signatories thereto, dated as of March 25, 2008.

 

Exhibit 9: Joinder and Consent Agreement to the Shareholders Agreement by GS Group, dated as of March 25, 2008.

 

Exhibit 10:  Fee Arrangement Letter, dated as of March 25, 2008, by and between the Investor parties named therein, Goldman Sachs and the Company (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by the Company on March 28, 2008).

 

Exhibit 11:  Subscription Agreement, dated as of March 25, 2008, by and between the Company and GS Group (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed by the Company on March 28, 2008).

Exhibit 12:  Amended and Restated Wal-Mart Equity Participation Agreement, by and between the THL Purchasers, the GS Investors, and Wal-Mart, dated as of March 17, 2008.

Exhibit 13: Amended and Restated Wal-Mart Transfer Letter Agreement, by and between the Purchasers, the GS Investors, the Company and Wal-Mart, dated as of March 17, 2008.

 

Exhibit 14:  Power of Attorney, dated February 25, 2008, relating to The Goldman Sachs Group, Inc.

 

Exhibit 15:  Power of Attorney, dated February 25, 2008, relating to Goldman, Sachs & Co.

 

Exhibit 16:  Power of Attorney, dated April 1, 2008, relating to GSCP VI Advisors, L.L.C.

 

Exhibit 17:  Power of Attorney, dated April 1, 2008, relating to GSCP VI Offshore Advisors, L.L.C.

 

Exhibit 18:  Power of Attorney, dated April 1, 2008, relating to GS Advisors VI, L.L.C.

 

Exhibit 19:  Power of Attorney, dated December 27, 2007, relating to Goldman, Sachs Management GP GmbH.

 

Exhibit 20:  Power of Attorney, dated April 1, 2008, relating to GS Capital Partners VI Fund, L.P.

 

Exhibit 21:  Power of Attorney, dated April 1, 2008, relating to GS Capital Partners VI Offshore Fund, L.P.

 

Exhibit 22:  Power of Attorney, dated April 1, 2008, relating to GS Capital Partners VI GmbH & Co. KG.

 

Exhibit 23:  Power of Attorney, dated April 1, 2008, relating to GS Capital Partners VI Parallel, L.P.

 

Exhibit 24:  Power of Attorney, dated April 1, 2008, relating to GS Mezzanine Partners V Onshore Fund, L.P.

 

Exhibit 25:  Power of Attorney, dated April 1, 2008, relating to GS Mezzanine Partners V Onshore Fund, L.L.C.

 

Exhibit 26:  Power of Attorney, dated March 25, 2008, relating to GSMP V Onshore US, Ltd.

 

Exhibit 27:  Power of Attorney, dated April 1, 2008, relating to GS Mezzanine Partners V Institutional Fund, L.P.

 

Exhibit 28:  Power of Attorney, dated April 1, 2008, relating to GS Mezzanine Partners V Institutional Fund, L.L.C.

 

Exhibit 29:  Power of Attorney, dated March 25, 2008, relating to GSMP V Institutional US, Ltd.

 

Exhibit 30:  Power of Attorney, dated April 1, 2008, relating to GS Mezzanine Partners V Offshore Fund, L.P.

 

Exhibit 31:  Power of Attorney, dated April 1, 2008, relating to GS Mezzanine Partners V Offshore Fund, L.L.C.

 

Exhibit 32:  Power of Attorney, dated March 25, 2008, relating to GSMP V Offshore US, Ltd.

 

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: April 4, 2008

 

	THE GOLDMAN SACHS GROUP, INC.
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GOLDMAN, SACHS & CO.
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GS CAPITAL PARTNERS VI PARALLEL, L.P.
	BY:	GS Advisors VI, L.L.C., its General Partner
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P.
	BY:	GSCP VI Offshore Advisors, L.L.C., its General Partner
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GS CAPITAL PARTNERS VI FUND, L.P.
	BY:	GSCP VI Advisors, L.L.C., its General Partner
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GS CAPITAL PARTNERS VI GMBH & CO. KG
	BY:	Goldman, Sachs Management GP GmbH, its General Partner
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GS MEZZANINE PARTNERS V ONSHORE FUND, L.P.
	BY:	GS Mezzanine Partners V Onshore Fund, L.L.C., its General Partner
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GSMP V ONSHORE US, LTD.
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GS MEZZANINE PARTNERS V INSTITUTIONAL FUND, L.P.
	BY:	GS Mezzanine Partners V Institutional Fund, L.L.C., its General Partner
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GSMP V INSTITUTIONAL US, LTD.
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GS MEZZANINE PARTNERS V OFFSHORE FUND, L.P.
	BY:	GS Mezzanine Partners V Offshore Fund, L.L.C., its General Partner
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

	GSMP V OFFSHORE US, LTD.
	By:	/s/ Yvette Kosic

Name:  Yvette Kosic

Title:    Attorney-in-Fact

 

 

 

 

 

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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, New York 10004.  Each person is a citizen of the United States of America except for 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
Lloyd C. Blankfein	Chairman of the Board and Chief Executive Officer of The Goldman Sachs Group, Inc.
Gary D. Cohn	President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.
Jon Winkelried	President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.
John H. Bryan	Retired Chairman and Chief Executive Officer of Sara Lee Corporation
Claes Dahlback	Senior Advisor to Investor AB and Senior Advisor to Foundation Asset Management
Stephen Friedman	Chairman of Stone Point Capital
William W. George	Professor of Management Practice at the Harvard Business School, Retired Chairman and Chief Executive Officer of Medtronic, Inc.
Rajat K. Gupta	Senior Partner of McKinsey & Company
James A. Johnson	Vice Chairman of Perseus, L.L.C.
Lois D. Juliber	Retired Vice Chairman of Colgate-Palmolive Company
Edward M. Liddy	Chairman of the Board of The Allstate Corporation
Ruth J. Simmons	President of Brown University

 

 

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