-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JQYqvWQSGIcy6inGqFYyHDnyFa5kzeDvqrXyQd7pKL9FkVwU50b9ExWuH4aZCrCx +0J0M1QV2vDEYLNzqBktkA== 0000899140-98-000175.txt : 19980318 0000899140-98-000175.hdr.sgml : 19980318 ACCESSION NUMBER: 0000899140-98-000175 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980317 SROS: NASD GROUP MEMBERS: MARSHALL S. COGAN GROUP MEMBERS: TRACE FOAM SUB, INC. GROUP MEMBERS: TRACE INTERNATIONAL HOLDINGS INC GROUP MEMBERS: TRACE INTERNATIONAL HOLDINGS, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FOAMEX INTERNATIONAL INC CENTRAL INDEX KEY: 0000912908 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS FOAM PRODUCTS [3086] IRS NUMBER: 050473908 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-48793 FILM NUMBER: 98567180 BUSINESS ADDRESS: STREET 1: 1000 COLUMBIA AVENUE CITY: LINWOOD STATE: PA ZIP: 19061 BUSINESS PHONE: 6108593000 MAIL ADDRESS: STREET 1: 1000 COLUMBIA AVE CITY: LINWOOD STATE: PA ZIP: 19061 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TRACE INTERNATIONAL HOLDINGS INC CENTRAL INDEX KEY: 0001033338 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 375 PARK AVENUE 11TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10152 SC 13D/A 1 AMENDMENT NO. 6 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 6) FOAMEX INTERNATIONAL INC. (Name of Issuer) Common Stock, $0.01 Par Value (Title of Class of Securities) 344123-10-4 (CUSIP Number) Philip N. Smith, Jr., Esq. Trace International Holdings, Inc. 375 Park Avenue 11th Floor New York, New York 10152 (212) 230-0400 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 16, 1998 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Continued on following page(s) Page 1 of 9 Pages Exhibit Index: Page 6 1 SCHEDULE 13D CUSIP No. 344123-10-4 1 Name of Reporting Person I.R.S. Identification Nos. of Above Persons (entities only) Trace International Holdings, Inc. 58-1080969 2 Check the Appropriate Box If a Member of a Group a. [ ] b. [X] 3 SEC Use Only 4 Source of Funds (See Instructions) BK, 00 5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] 6 Citizenship or Place of Organization Delaware 7 Sole Voting Power Number of 4,474,753 Shares Beneficially 8 Shared Voting Power Owned By 7,050,247 Each Reporting 9 Sole Dispositive Power Person 4,474,753 With 10 Shared Dispositive Power 7,050,247 11 Aggregate Amount Beneficially Owned by Each Reporting Person 11,525,000 12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] 13 Percent of Class Represented By Amount in Row (11) 46.2% 14 Type of Reporting Person (See Instructions) CO 2 SCHEDULE 13D CUSIP No. 344123-10-4 1 Name of Reporting Person I.R.S. Identification Nos. of Above Persons (entities only) Trace Foam Sub, Inc. 13-3808758 2 Check the Appropriate Box If a Member of a Group a. [ ] b. [X] 3 SEC Use Only 4 Source of Funds (See Instructions) 00 5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] 6 Citizenship or Place of Organization Delaware 7 Sole Voting Power Number of 0 Shares Beneficially 8 Shared Voting Power Owned By 7,000,247 Each Reporting 9 Sole Dispositive Power Person 0 With 10 Shared Dispositive Power 7,000,247 11 Aggregate Amount Beneficially Owned by Each Reporting Person 7,000,247 12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] 13 Percent of Class Represented By Amount in Row (11) 28.1% 14 Type of Reporting Person (See Instructions) CO 3 SCHEDULE 13D CUSIP No. 344123-10-4 1 Name of Reporting Person I.R.S. Identification Nos. of Above Persons (entities only) Marshall S. Cogan 2 Check the Appropriate Box If a Member of a Group* a. [ ] b. [X] 3 SEC Use Only 4 Source of Funds (See Instructions) PF 5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] 6 Citizenship or Place of Organization United States of America 7 Sole Voting Power Number of 649,167 Shares Beneficially 8 Shared Voting Power Owned By 0 Each Reporting 9 Sole Dispositive Power Person 649,167 With 10 Shared Dispositive Power 0 11 Aggregate Amount Beneficially Owned by Each Reporting Person 649,167 12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X] 13 Percent of Class Represented By Amount in Row (11) 2.6% 14 Type of Reporting Person (See Instructions) IN 4 This Amendment No. 6 to Schedule 13D is filed on behalf of Trace International Holdings, Inc. ("Trace Holdings"), Trace Foam Sub, Inc. ("Trace Foam Sub"), and Marshall S. Cogan, and amends and supplements the Schedule 13D, dated December 14, 1993 (as amended, the "Schedule 13D"), as amended by Amendment No. 1 thereto filed on December 23, 1994, Amendment No. 2 thereto filed on March 6, 1995, Amendment No. 3 thereto filed on April 28, 1995, Amendment No. 4 thereto filed on August 28, 1997, and Amendment No. 5 thereto filed on December 24, 1997, and is being filed pursuant to Rule 13d-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). This Amendment No. 6 is being filed to reflect the Trace Holdings proposal to acquire all outstanding shares of Common Stock. The Schedule 13D is hereby amended as follows: Item 3. Sources and Amounts of Funds or Other Consideration The last sentence of the first paragraph of Item 3 is hereby amended and restated as follows: Trace Holdings Plan (as defined) acquired 10,000, 30,000, 2,500 and 7,500 shares of Common Stock on December 21, 23, 27 and 30, 1993, resepectively, at prices ranging from $16.25 to $16.50 per share. The following sentence is added at the end of the first paragraph of Item 3: Trace Holdings purchased 22,079 shares of Common Stock on January 10, 1996 for $7.875 per share. The second to last sentence of the third paragraph of Item 3 is hereby amended and restated as follows: From August 1997 through December 1997, Trace Holdings used $2,107,721.18 of Bank Loan borrowings to purchase 175,100 shares of Common Stock at prices ranging from $9.74 to $13.0797. Item 4. Purpose of Transaction. The following paragraph is added at the end of Item 4: On March 16, 1998, Trace Holdings made a proposal to the Board of Directors of the Issuer to acquire all of the outstanding shares of the Common Stock not currently owned by the Trace Holdings or its subsidiaries at a cash per share price of $17 (the "Proposed Transaction"). A copy of the letter setting forth Trace's proposal (the "Offer Letter") is filed as Exhibit L to this Schedule 13D. Consummation of the Proposed Transaction would be subject to the approval of the Board of Directors and stockholders of the Issuer, as well as well as other customary conditions, including receipt of all necessary regulatory approvals. Trace Holdings anticipates that upon completion of the Proposed Transaction the Common Stock will cease to be quoted on the NASDAQ National Market System and will be deregistered under Section 5 12(g) of the Securities Exchange Act of 1934, as amended. Trace Holdings reserves the right to amend or withdraw the proposal made in the Offer Letter in its discretion at any time. Item 5. Interest in Securities of the Issuer. The fourth paragraph of Item 5 (a and b) (iii) of Schedule 13D is hereby amended and restated in its entirety as follows: As a result of the foregoing, Trace Holdings may be deemed to own beneficially (as such term is defined in Rule 13d-3) a total of 11,525,000 shares of Common Stock, which represents approximately 46.2% of the outstanding Common Stock. The second paragraph of subclause (iv) of Item 5 (a and b) of Schedule 13D is amended and restated in its entirety as follows: Mr. Cogan is the Chairman of the Board and President of Trace Foam Sub and the Chairman of the Board and Chief Executive Officer of Trace Holdings and owns or has voting control over capital stock of Trace Holdings representing greater than a 50% voting interest. Mr. Cogan, by virtue of his control positions at Trace Foam Sub and Trace Holdings, may be deemed to own beneficially (as that term is defined in Rule 13d-3) the 11,525,000 shares of Common Stock beneficially owned, directly or indirectly, by Trace Foam Sub and Trace Holdings. Mr. Cogan expressly disclaims beneficial ownership of any of the shares of Common Stock owned by Trace Foam Sub and Trace Holdings. Item 7. Material to be Filed as Exhibits. The following is added to Item 7: EXHIBIT A: Intentionally Omitted. EXHIBIT L: Offer Letter dated March 16, 1998. EXHIBIT M: Amended and Restated Joint Filing Agreement and Power of Attorney 6 SIGNATURE 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. TRACE INTERNATIONAL HOLDINGS, INC. By: /s/ Marshall S. Cogan Name: Marshall S. Cogan Title: Chairman and Chief Executive Officer Date: March 16, 1998 7 SIGNATURE 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. TRACE FOAM SUB, INC. By: /s/ Marshall S. Cogan Name: Marshall S. Cogan Title: Chairman of the Board and President Date: March 16, 1998 8 SIGNATURE 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. /s/ Marshall S. Cogan --------------------- Marshall S. Cogan Date: March 16, 1998 EXHIBIT INDEX Exhibit Number Document - -------------- ---------- 99.12 EXHIBIT L: Offer Letter dated March 16, 1998. 99.13 EXHIBIT M: Amended and Restated Joint Filing Agreement and Power of Attorney 9 EX-99.12 2 OFFER LETTER [Letterhead of Trace International Holdings, Inc.] March 16, 1998 Board of Directors Foamex International Inc. 1000 Columbia Avenue Linwood, PA 19061 Dear Board of Directors Trace International Holdings Inc. ("Trace") is pleased to make a proposal to acquire all of the outstanding shares of common stock, par value $.01 per share (the "Common Stock") of Foamex International Inc., ("Foamex") not currently owned by Trace or any of its subsidiaries for a cash price per share of $17. Trace believes that this proposal is a fair one that will benefit the public stockholders of Foamex. The price represents a 22.5% premium over the closing market price on Friday, March 13, 1998 of $13-7/8 and enables the public stockholders to receive cash for their shares. Trace wishes to affirm its ability and desire to carry out this proposal. In connection with the financing of this proposal, Trace has received (i) a commitment letter from The Bank of Nova Scotia, DLJ Capital Funding, Inc. and Donaldson, Lufkin & Jenrette Securities Corporation to provide $850 million of loans and (ii) a highly confident letter from Donaldson, Lufkin & Jenrette Securities Corporation and Scotia Capital Markets (U.S.A.) Inc. to raise $410 million of debt financing and from Donaldson, Lufkin & Jenrette Securities Corporation to raise an additional $75 million of debt financing. Consummation of the acquisition would be subject to approval by the Board of Directors and stockholders of Foamex, as well as to other conditions customary in a transaction of this type. Trace anticipates that upon the completion of the acquisition, the shares of Foamex will cease to be quoted on the Nasdaq National Market System and 1 that the Common Stock will be deregistered under the Securities Exchange Act of 1934, as amended. Trace expects that the Board of Directors of Foamex will form a special committee of directors of Foamex who are not affiliated with Trace, and that the special committee will engage legal and financial advisors to represent both them and the public shareholders and to provide a fairness opinion with respect to the proposed transaction. When the special committee is selected, Trace is prepared to meet with the special committee and its advisors to provide them with any information they may require. Trace wishes to make it clear that Trace is not interested in selling its interest in Foamex and that there are no prospects of a sale of a controlling interest to a third party. Thank you for your consideration of this proposal. Please respond as soon as practicable so that both parties may proceed with this transaction. Sincerely, TRACE INTERNATIONAL HOLDINGS, INC. By:/s/ Marshall S. Cogan Name: Marshall S. Cogan Title: Chairman of the Board Chief Executive Officer 2 EX-99.13 3 JOINT FILING AGREEMENT AND POWER OF ATTORNEY EXHIBIT M AMENDED AND RESTATED JOINT FILING AGREEMENT AND POWER OF ATTORNEY The undersigned hereby acknowledge and agree that the foregoing Amendment No. 6 to the statement on Schedule 13D, executed in accordance with and pursuant to the power of attorney set forth below or otherwise, is filed on behalf of each of us executing such documents, by power of attorney or otherwise, and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of each of the undersigned by a single joint filing pursuant to Paragraph (f) of Rule 13d-1 of the Securities Exchange Act of 1934 (the "Exchange Act"). The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent it knows or has reason to believe that such information is inaccurate. Each person whose signature appears below hereby constitutes and appoints PHILIP N. SMITH his true and lawful attorney-in-fact and agent, for him and in name, place and stead, in any and all capacities, to sign any and all filings on Schedule 13D under the Exchange Act, and any amendment thereto, relating to the securities of FOAMEX INTERNATIONAL INC., and to file the same with the Securities and Exchange Commission, and hereby grants to such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do, hereby ratifying and confirming all that such attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof in connection with such filings. This agreement may be executed in any number of counterparts and all of such counterparts taken together shall constitute one and the same instrument. 1 IN WITNESS WHEREOF, the undersigned have caused this Joint Filing Agreement and Power of Attorney to be duly executed and delivered as of the 16th day of March, 1998 TRACE INTERNATIONAL HOLDINGS, INC. By:/s/ Marshall S. Cogan Name: Marshall S. Cogan Title: Chairman and Chief Executive Officer TRACE FOAM SUB, INC. By:/s/ Marshall S. Cogan Name: Marshall S. Cogan Title: Chairman of the Board and President By:/s/ Marshall S. Cogan ---------------------- Marshall S. Cogan 2 -----END PRIVACY-ENHANCED MESSAGE-----