-----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, NLL4UZTFhRdPHcGIhXV2dKS3+ZYMKA2xHmnN3x2MiRGtdttmTsDBkYbTYq5i0KDU 0xoAryYb8UvAlVeyfI8k8Q== 0000899140-98-000442.txt : 19981020 0000899140-98-000442.hdr.sgml : 19981020 ACCESSION NUMBER: 0000899140-98-000442 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19981019 SROS: NASD GROUP MEMBERS: MARSHALL S. COGAN GROUP MEMBERS: TRACE FOAM SUB, 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: 98727739 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. 9 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 9) 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) October 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 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) 46.1% 14 Type of Reporting Person (See Instructions) CO Page 2 of 9 Pages 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) 28.0% 14 Type of Reporting Person (See Instructions) CO Page 3 of 9 Pages 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 669,167 Shares Beneficially 8 Shared Voting Power Owned By 0 Each Reporting 9 Sole Dispositive Power Person 669,167 With 10 Shared Dispositive Power 0 11 Aggregate Amount Beneficially Owned by Each Reporting Person 669,167 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) 2.5% 14 Type of Reporting Person (See Instructions) IN Page 4 of 9 Pages This Amendment No. 9 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, Amendment No. 5 thereto filed on December 24, 1997, Amendment No. 6 thereto filed on March 16, 1998, Amendment No. 7 thereto filed on June 26, 1998 and Amendment No. 8 thereto filed on July 21, 1998, 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. 9 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 4. Purpose of Transaction. The following paragraphs are added at the end of Item 4: Trace Holdings has been informed that due to changes in market conditions, the financing originally contemplated by the Merger Agreement will not be available for the proposed acquisition of all of the outstanding shares of Common Stock not currently owned by Trace Holdings or its subsidiaries for a purchase price of $18.75 per share. In addition, the commitment letter for the bank debt portion of the financing expired on October 15, 1998. Although Trace Holdings has attempted to obtain such substitute financing, to date, it has not been successful in obtaining substitute financing for a transaction at $18.75 per share. In light of the inability to obtain financing and changes in market conditions, Trace Holdings submitted a new proposal to the Board of Directors of the Issuer on October 16, 1998, whereby Trace Holdings would acquire all of the outstanding shares of Common Stock not currently owned by Trace Holdings or its subsidiaries, at a cash per share price of $12.00 (the "New Proposed Transaction"). A copy of the letter setting forth Trace Holdings' proposal (the "New Offer Letter") is filed as Exhibit P to this Schedule 13D. In connection with the financing of the New Proposed Transaction, Trace Holdings anticipates arranging for the $800 million necessary for the financing of the new proposal through The Bank of Nova Scotia. Consummation of the New Proposed Transaction will be subject to a number of conditions, including (1) the approval of the Board of Directors of the Issuer, (2) the approval of the stockholders of the Issuer including a majority of the stockholders other than Trace Holdings and its subsidiaries, (3) the receipt of necessary financing, (4) the termination of the existing Merger Agreement and Amendment No. 1 thereto, (5) the execution of a new definitive agreement prior to November 5, 1998, at which date the financing arrangement will expire if no agreement is executed and (6) other conditions typical for transactions of this type, including receipt of all necessary regulatory approvals. Trace Holdings anticipates that upon completion of the New Proposed Transaction the Common Stock will cease to be quoted on the NASDAQ National Market System and will be deregistered under Section 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 New Offer Letter in its discretion at any time. Page 5 of 9 Pages Item 7. Material to be Filed as Exhibits. The following is added to Item 7: EXHIBIT P New Offer Letter of Trace International Holdings, Inc., dated October 16, 1998. Page 6 of 9 Pages 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 of the Board and Chief Executive Officer Date: October 19, 1998 Page 7 of 9 Pages 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 and Chief Executive Officer Date: October 19, 1998 Page 8 of 9 Pages 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: October 19, 1998 Page 9 of 9 Pages EX-99.1 2 NEW OFFER LETTER Exhibit 99.1 ------------ TRACE INTERNATIONAL HOLDINGS, INC. 375 Park Avenue New York, N.Y. 10152 October 16, 1998 Foamex International Inc. 1000 Columbia Avenue Linwood, PA 19061 Attention: Chief Executive Officer Special Committee of Board of Directors of Foamex International Inc. c/o Gutfreund & Co., Inc. 712 Fifth Avenue New York, NY 10019 Attention: Mr. John Gutfreund Re: Debt Financing New Acquisition Proposal ------------------------ Ladies & Gentlemen: This notice is being provided to you pursuant to the terms of the Agreement and Plan of Merger, dated as of June 25, 1998, by and among Trace International Holdings, Inc. ("Trace"), Trace Merger Sub, Inc. and Foamex International Inc. ("Foamex"), as amended on July 6, 1998 (the "Merger Agreement"). Capitalized terms used herein but not otherwise defined shall have the meaning ascribed to them in the Merger Agreement. Trace has been informed that due to changes in market conditions the financing contemplated by the Merger Agreement will not be available. In addition, the commitment letter for the bank debt portion of the financing expired on October 15, 1998. Pursuant to Section 5.10 of the Merger Agreement, Trace has been using its reasonable best efforts to obtain financing on terms and conditions not materially less favorable to Trace than those set forth in the Financing Letters. However, based on current market conditions and discussions with investment and commercial banks, Foamex International Inc. Special Committee of Board of Directors of Foamex October 16, 1998 Page 2 all of whom have indicated that they would not be able to finance a transaction at a price of $18.75 per share, Trace believes that it will not be able to obtain such alternate financing. In light of expectation that Trace will be unable to obtain alternate financing, Trace hereby submits a revised proposal to acquire all of the outstanding shares of Common Stock of Foamex not currently owned by Trace or any of its subsidiaries for a cash price of $12.00 per share. In connection with the financing of this proposal, Trace will arrange the $800 million necessary for the financing of the new proposal through The Bank of Nova Scotia. This new proposal is subject to a number of conditions, including (1) the approval of the board of directors of Foamex, (2) the approval of the stockholders other than Trace and its subsidiaries, (3) the receipt of necessary financing, (4) the termination of the existing Merger Agreement, (5) the execution of a new definitive merger agreement prior to November 5, 1998, at which time the financing arrangement will expire if no agreement is executed and (6) other conditions currently contained in the Merger Agreement or as may be typical for transactions of this type. Trace believes that this new proposal is a fair one that will benefit the public stockholders of Foamex. The price represents a 14.3% premium over the closing market price on October 15, 1998 of $10.50 and enables the public stockholders to receive cash for their shares. Trace anticipates that upon the completion of the acquisition, the Common Stock of Foamex will cease to be quoted on the Nasdaq National Market System and that the Common Stock will be deregistered under the Securities Exchange Act of 1934, as amended. Foamex International Inc. Special Committee of Board of Directors of Foamex October 16, 1998 Page 3 Thank you for your consideration of this new proposal. Please respond as soon as practicable so that both parties may proceed with this new proposal. Sincerely yours, By:/s/ Karl H. Winters ------------------- Name: Karl H. Winters Title: Vice President Finance and Controller cc: Victor I. Lewkow, Esq. (Cleary, Gottlieb, Steen & Hamilton) -----END PRIVACY-ENHANCED MESSAGE-----