UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D/A

 

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This Amendment No. 1 supplements and amends certain information in the Statement on Schedule 13D filed on December 31, 2007 (the “Initial Schedule 13D” and, together with this Amendment No. 1, this “Schedule 13D”) by The Goldman Sachs Group, Inc. (“GS Group”), Goldman, Sachs & Co. (“Goldman Sachs”), GSCP VI Advisors, L.L.C. (“GSCP Advisors”), GSCP VI Offshore Advisors, L.L.C. (“GSCP Offshore Advisors”), GS Advisors VI, L.L.C. (“GS Advisors”), Goldman, Sachs Management GP GmbH (“GS GmbH”), GS Capital Partners VI Fund, L.P. (“GS Capital”), GS Capital Partners VI Offshore Fund, L.P. (“GS Offshore”), GS Capital Partners VI GmbH & Co. KG (“GS Germany”), GS Capital Partners VI Parallel, L.P. (“GS Parallel”), GS Parthenon A, L.P. (“GS Parthenon A”) and GS Parthenon B, L.P. (“GS Parthenon B” and, together with GS Parthenon A, the “Purchasers”) relating to shares of Common Stock, par value $.01 per share, of The First Marblehead Corporation. Unless otherwise indicated, all capitalized terms used but not defined herein shall have the same meaning ascribed to them in the Initial Schedule 13D.

Neither the present filing nor anything contained herein shall be construed as an admission that any Reporting Person constitutes a “person” for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934, as amended.

Item 2 of the Initial Schedule 13D is hereby amended by replacing in its entirety Schedules I, II-A, II-B, II-C, II-D and II-E incorporated therein by reference with Schedules I, II-A, II-B, II-C, II-D and II-E hereto, respectively, which Schedules I, II-A, II-B, II-C, II-D and II-E are incorporated herein by reference.

Item 3 of the Initial Schedule 13D is hereby amended by adding the following to the end of Item 3:

“On January 30, 2008, the Purchasers converted all of the Series A Preferred Stock into Common Stock (the “Series A Conversion”).

On August 18, 2008 (the “Subsequent Closing Date”), pursuant to the Investment Agreement, the Purchasers purchased 132,701 shares of Series B Preferred Stock, for an aggregate purchase price of $132,701,000.00 in cash. As a result of a decrease in the Issuer's stockholders' equity since the time of the initial investment by the Purchasers, and based on the Issuer's stockholders' equity as of June 30, 2008, the subsequent equity investment by the Purchasers was limited to $132,701,000.00. The funds used by the Purchasers to purchase such shares of Series B Preferred Stock were obtained from capital contributions made by their respective partners.”

Item 4 of the Initial Schedule 13D is hereby amended by adding the following to the end of the first paragraph:

“Subsequent to the filing of the Initial Schedule 13D, the commitment letter expired.”

Item 5 of the Initial Schedule 13D is hereby amended by deleting it in its entirety and replacing it with the following:

“(a)      The following is based upon 98,885,597 shares of Common Stock outstanding as of June 30, 2008, as confirmed to the Reporting Person by the Issuer in connection with the Subsequent Closing.

 

 

As described in Item 6, the Purchasers have agreed not to convert and hold shares of Series B Preferred Stock if, after giving effect to any such conversion, the Purchasers and their affiliates would own more than 9.9% of the outstanding shares of Common Stock.

As of August 18, 2008, each of GS Group and Goldman Sachs may be deemed to beneficially own 9.9% of the outstanding Common Stock, consisting of (i) 84,356 shares of Common Stock acquired by Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group in ordinary course trading activities, (ii) 68,060 shares of Common Stock held in Managed Accounts, (iii) 5,320,284 shares of Common Stock acquired by the Purchasers in the Series A Conversion and (iv) such number of shares of Common Stock into which the Series B Preferred Stock directly held by the Purchasers may be converted as would represent, together with other shares beneficially owned by GS Group or any other affiliates of the Purchasers, 9.9% of the outstanding Common Stock. In addition, GS Group may be deemed to beneficially own 3,000 shares of Common Stock that it holds directly. Neither of GS Group nor Goldman Sachs has sole or shared voting power of shares of Common Stock held in Managed Accounts. Each of GS Group and Goldman Sachs disclaims beneficial ownership of shares of Common Stock held in Managed Accounts.

As of August 18, 2008, GSCP Advisors may be deemed to beneficially own 9.9% of the outstanding Common Stock, consisting of (i) 5,320,284 shares of Common Stock acquired by the Purchasers in the Series A Conversion and (ii) such number of shares of Common Stock into which the Series B Preferred Stock directly held by the Purchasers may be converted as would represent, together with other shares beneficially owned by GS Group or any other affiliates of the Purchasers, 9.9% of the outstanding Common Stock.

As of August 18, 2008, GS Parthenon A directly holds (i) 682,918 shares of Common Stock acquired by it in the Series A Conversion and (ii) 17,034 shares of Series B Preferred Stock acquired on the Subsequent Closing Date, which, subject to the limitation on conversions described herein, are convertible into 1,135,600 shares of Common Stock. GS Parthenon A may be deemed to beneficially own (a) 682,918 shares of Common Stock acquired by it in the Series A Conversion and (b) such number of shares of Common Stock into which the Series B Preferred Stock directly held by GS Parthenon A may be converted as would represent, together with other shares beneficially owned by GS Group or any other affiliates of the Purchasers, no more than 9.9% of the outstanding Common Stock.

As of August 18, 2008, GS Parthenon B directly holds (i) 4,637,366 shares of Common Stock acquired by it in the Series A Conversion and (ii) 115,667 shares of Series B Preferred Stock acquired on the Subsequent Closing Date, which, subject to the limitation on conversions described herein, are convertible into 7,711,133 shares of Common Stock. GS Parthenon B may be deemed to beneficially own (a) 4,637,366 shares of Common Stock acquired by it in the Series A Conversion and (b) such number of shares of Common Stock into which the Series B Preferred Stock directly held by GS Parthenon B may be converted as would represent, together with other shares beneficially owned by GS Group or any other affiliates of the Purchasers, no more than 9.9% of the outstanding Common Stock.

In accordance with Securities and Exchange Commission Release No. 34-395538 (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, II-D and II-E to this Schedule 13D 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.

(c)        Except as set forth in this Schedule 13D, 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, II-D and II-E hereto, during the sixty day period from June 19, 2008 through August 18, 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 of the Initial Schedule 13D is hereby amended by adding the following to the end of the description of the Investment Agreement contained therein:

“On January 30, 2008, the Purchasers and the Issuer entered into Amendment No. 1 (“Amendment No. 1”) to the Investment Agreement. Amendment No. 1 modified GS Parthenon A’s right to designate a representative to the Issuer’s Board of Directors by conditioning the right on the Purchasers collectively holding at least 4.5% of the Issuer’s outstanding Common Stock.

On August 18, 2008, the Purchasers and the Issuer entered into Amendment No. 2 (“Amendment No. 2”) to the Investment Agreement. Amendment No. 2 modified GS Parthenon A’s right to designate a representative to the Issuer’s Board of Directors by conditioning the right on the Purchasers collectively holding (i) at least 100 shares of the Issuer’s Common Stock and (ii) other securities, certificates or instruments issued by the Issuer or any of its subsidiaries (or any securitization trust sponsored, structured or administered by the Issuer or any of its subsidiaries) having an aggregate face value or purchase price of at least $25 million.

Goldman Sachs or another subsidiary of GS Group (collectively, “GS”) may, from time to time, in the ordinary course of business, including as a broker, dealer or investment advisor, be party to, enter into or unwind certain cash settled equity derivatives or similar contractual arrangements which provide indirect economic exposure to, but do not give GS direct or indirect voting, investment or dispositive power over, securities of the Issuer and which may be significant in amount. The profit, loss and/or return on such contracts may be wholly or partially dependent on the market value of the securities of the Issuer, the relative value of securities of the Issuer in comparison to one or more other financial instruments, indexes or securities, a basket or group of securities in which the securities of the Issuer may be included,

 

 

or a combination of any of the foregoing. Accordingly, GS disclaims any beneficial ownership in the securities that may be referenced in such contracts.”

Item 7 of the Initial Schedule 13D is hereby amended by adding the following exhibits:

“Exhibit 18: Amendment No. 1 to Investment Agreement, dated January 30, 2008, by and among GS Parthenon A, L.P., GS Parthenon B, L.P. and The First Marblehead Corporation (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by The First Marblehead Corporation on February 4, 2008).”

“Exhibit 19: Amendment No. 2 to Investment Agreement, dated August 18, 2008, by and among GS Parthenon A, L.P., GS Parthenon B, L.P. and The First Marblehead Corporation (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by The First Marblehead Corporation on August 18, 2008).”

 

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: August 20, 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

 

GSCP VI ADVISORS, L.L.C.

By:   /s/ Yvette Kosic                            

Name: Yvette Kosic

Title: Attorney-in-fact

 

GS ADVISORS VI, L.L.C.

By:   /s/ Yvette Kosic                            

Name: Yvette Kosic

Title: Attorney-in-fact

 

GSCP VI OFFSHORE ADVISORS, L.L.C.

By:   /s/ Yvette Kosic                            

Name: Yvette Kosic

Title: Attorney-in-fact

 

GOLDMAN, SACHS MANAGEMENT GP GMBH

By:   /s/ Yvette Kosic                            

Name: Yvette Kosic

Title: Attorney-in-fact