-----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, GHXdzEgnpwTn+98DbXH9QulbbzuoWrei/GQUE3nUlmJeZ4bXLUMh+DoP/wt6Jy4R 8WP7wWD6aZvMNeCk7hVyxw== 0000947871-06-000743.txt : 20060420 0000947871-06-000743.hdr.sgml : 20060420 20060420162743 ACCESSION NUMBER: 0000947871-06-000743 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060420 DATE AS OF CHANGE: 20060420 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: 1229 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48793 FILM NUMBER: 06770283 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: BANK OF NOVA SCOTIA / CENTRAL INDEX KEY: 0000009631 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 134941099 FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 44 KING STREET WEST STREET 2: SCOTIA PLAZA 8TH FL. CITY: TORONTO STATE: A6 ZIP: M5H 1H1 BUSINESS PHONE: (416)866-3397 MAIL ADDRESS: STREET 1: 44 KING STREET WEST STREET 2: SCOTIA PLAZA 8TH FL. CITY: TORONTO STATE: A6 ZIP: M5H 1H1 SC 13D/A 1 sc13da_041806.txt AMENDMENT NO. 3 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 3) Foamex International Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 Par Value Per Share - -------------------------------------------------------------------------------- (Title of Class of Securities) 344123997 - -------------------------------------------------------------------------------- (CUSIP Number) Mr. Robert L. Brooks Vice-Chairman and Group Treasurer The Bank of Nova Scotia 44 King Street West Scotia Plaza, 7th floor Toronto, Ontario, Canada M5H 1H1 (416) 866-6163 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 20, 2006 - -------------------------------------------------------------------------------- (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 that is the subject of this Schedule 13D, and is filing this schedule because ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the following box [ ]. SCHEDULE 13D - --------------------------------------- CUSIP No. 344123997 - --------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS The Bank of Nova Scotia I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) - ------- ------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ------- ------------------------------------------------------------------------ 3 SEC USE ONLY - ------- ------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 Not Applicable - ------- ------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------- ------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Canada - ---------------- -------- ------------------------------------------------------ 7 SOLE VOTING POWER NUMBER 350,000 OF -------- ------------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 0 EACH -------- ------------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 350,000 -------- ------------------------------------------------------ 10 SHARED DISPOSITIVE POWER 0 - ------- ------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 350,000 - ------- ------------------------------------------------------------------------ 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) 1.4% (calculated on the basis of 24,509,728 shares of voting common stock outstanding, as reported on the Issuer's Form 10-K for the fiscal year ended January 1, 2006). - ------- ------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) BK - ------- ------------------------------------------------------------------------ (Continued on following pages) Page 2 of 7 Pages SCHEDULE 13D - -------------------------------- CUSIP No. 344123997 - -------------------------------- - ------- ------------------------------------------------------------------------ 1 NAME OF REPORTING PERSONS Calder & Co. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) - ------- ------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ------- ------------------------------------------------------------------------ 3 SEC USE ONLY - ------- ------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 Not Applicable - ------- ------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------- ------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York, United States - ---------------- -------- ------------------------------------------------------ 7 SOLE VOTING POWER NUMBER 0 OF -------- ------------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 297,000 EACH -------- ------------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 -------- ------------------------------------------------------ 10 SHARED DISPOSITIVE POWER 297,000 - ------- ------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 297,000 - ------- ------------------------------------------------------------------------ 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) 1.2% (calculated on the basis of 24,509,728 shares of voting common stock outstanding, as reported on the Issuer's Form 10-K for the fiscal year ended January 1, 2006). - ------- ------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) PN - ------- ------------------------------------------------------------------------ (Continued on following pages) Page 3 of 7 Pages Explanatory Note This Amendment No. 3 to Schedule 13D ("Amendment No. 3") amends the Statement on Schedule 13D filed with the Securities and Exchange Commission on November 8, 2000 (the "Initial Schedule 13D") by The Bank of Nova Scotia (the "Bank"), as subsequently amended by Amendment No. 1 thereto, filed by the Bank on February 8, 2005, and Amendment No. 2 thereto, filed by the Bank on February 14, 2005 (together with the Initial Schedule 13D and Amendment No. 1, the "Schedule 13D"). Unless otherwise defined herein, all capitalized terms shall have the meanings ascribed to them in the Schedule 13D. Item 4. Purpose of Transaction. Item 4 is hereby amended by inserting the following after the last paragraph thereof: Effective April 17, 2006, the Bank terminated its written sales plan with Morgan Stanley & Co. Incorporated. On April 20, 2006, the Bank entered into a Securities Purchase Agreement with D.E. Shaw Laminar Portfolios, L.L.C. ("D.E. Shaw"), pursuant to which the Bank sold to D.E. Shaw 2,494,526 shares of Company Common Stock at a price of $0.30 per share, and 15,000 shares of Company Preferred Stock at a price of $30.00 per share, for an aggregate cash purchase price of $1,198,357.80. On April 20, 2006, the Bank entered into a Securities Purchase Agreement with Goldman, Sachs & Co. ("Goldman Sachs"), pursuant to which the Bank sold to Goldman Sachs 2,631,000 shares of Company Common Stock at a price of $0.30 per share, for an aggregate cash purchase price of $789,300.00. Item 5. Interest in Securities of the Issuer. Item 5 is hereby amended and restated as follows: (a) As of April 20, 2006, the Bank beneficially owned 350,000 shares of Company Common Stock, 297,000 of which are held in the name of its Nominee. The total number of shares beneficially owned by the Bank represents in the aggregate approximately 1.4% of the outstanding shares of Company Common Stock. The calculation of the foregoing percentage is based on 24,509,728 shares of Company Common Stock disclosed as outstanding as of March 17, 2006 by the Company in its annual report on Form 10-K for the fiscal year ended January 1, 2006. (b) The Bank holds sole power to vote and to dispose of the 350,000 shares of Company Common Stock described in (a) above. (c) Except as described in Item 4 above, the Bank has not effected any transaction in the Company Common Stock during the past 60 days. Page 4 of 7 Pages (d) No other person is known to the Bank to have the right to receive or power to direct dividends from, or proceeds from the sale of, the shares of Company Common Stock held by the Bank. (e) The Bank ceased to be a beneficial owner of more than five percent of the Company Common Stock on April 20, 2006. As of the date hereof, the Bank beneficially owns no shares of Company Preferred Stock. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. See the information set forth under "Item 4. Purpose of Transaction" which is incorporated by reference in response to this Item 6. Item 7. Material to Be Filed as Exhibits. The following documents are attached as exhibits hereto: Exhibit 99.8 - Securities Purchase Agreement between The Bank of Nova Scotia and D.E. Shaw Laminar Portfolios, L.L.C., dated April 20, 2006. Exhibit 99.9 - Securities Purchase Agreement between The Bank of Nova Scotia and Goldman, Sachs & Co., dated April 20, 2006. Page 5 of 7 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. Dated: April 20, 2006 THE BANK OF NOVA SCOTIA By: /s/ Russell Morgan ------------------------------ Name: Russell Morgan Title: Managing Director and Head of Investments, Group Treasury 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. Dated: April 20, 2006 CALDER & CO. By: /s/ Yasmin Prendergast ----------------------------- Name: Yasmin Prendergast Title: Partner EX-99.8 2 ex99_8.txt SECURITIES PURCHASE AGREEMENT SECURITIES PURCHASE AGREEMENT SECURITIES PURCHASE AGREEMENT, dated April 20, 2006 (this "Agreement"), by and among The Bank of Nova Scotia, a Canadian chartered bank incorporated under the laws of Canada (the "Seller"), and D. E. Shaw Laminar Portfolios, L.L.C. (the "Purchaser"). WHEREAS, the Seller beneficially owns 5,475,526 shares of common stock, par value US$0.01 per share (the "Common Stock"), of Foamex International Inc. (the "Company"); WHEREAS, the Seller beneficially owns 15,000 shares of Series B Preferred Stock, par value US$1.00 per share (the "Preferred Stock"), of the Company; WHEREAS, the Seller desires to sell, transfer, assign, and convey to the Purchaser, and the Purchaser desires to purchase from the Seller upon the terms and subject to the conditions set forth herein, 2,494,526 shares of Common Stock (the "Common Shares"); and WHEREAS, the Seller desires to sell, transfer, assign, and convey to the Purchaser, and the Purchaser desires to purchase from the Seller upon the terms and subject to the conditions set forth herein, 15,000 shares of Preferred Stock (the "Preferred Shares" and together with the Common Shares, the "Shares"). NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto hereby agree as follows: 1. PURCHASE AND SALE OF SECURITIES On the date hereof, the Seller shall sell, transfer, assign and convey the Common Shares to the Purchaser, and the Purchaser shall purchase the Common Shares from the Seller, at a purchase price of US$0.30 per share, for an aggregate cash purchase price of US$748,357.80 (the "Common Purchase Price"). Such sale shall be subject to the terms and conditions set forth herein. On the date hereof, the Seller shall sell, transfer, assign and convey the Preferred Shares to the Purchaser, and the Purchaser shall purchase the Preferred Shares from the Seller, at a purchase price of US$30.00 per share, for an aggregate cash purchase price of US$450,000.00 (the "Preferred Purchase Price" and together with the Common Purchase Price, the "Purchase Price"). Such sale shall be subject to the terms and conditions set forth herein. 2. CLOSING (a) The closing of the purchase and sale of the Shares (the "Closing") shall take place at the offices of D. E. Shaw & Co., L.P., 120 West 45th Street, New York, New York 10036, on the date hereof or on such date as shall be mutually agreed by the Seller and the Purchaser, as soon as reasonably practicable. (b) At the Closing, such sale and purchase shall be effected by the Purchaser delivering to the Seller the Purchase Price. The Purchase Price shall be paid in cash by wire transfer in immediately available funds to an account designed by the Seller. At the Closing, or as promptly as practicable thereafter (the "Settlement Date"), the Seller shall deliver duly executed certificates or other instruments evidencing the Shares purchased on the date hereof, in each case with appropriate instruments of transfer attached (duly endorsed or otherwise in form sufficient for transfer and reasonably satisfactory to the Purchaser). 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE SELLER The Seller represents and warrants to, and covenants with, the Purchaser that: (a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) Subject to the restrictive legend set forth on the certificates evidencing the Shares and the terms of the Certificate of Designations of Series B Preferred Stock of the Company, including restrictions on convertibility of the Preferred Stock set forth therein, the Seller has valid and good title to the Shares, and the Shares are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance (collectively, "Encumbrances"). Upon delivery of the Shares to the Purchaser on the Settlement Date, against payment therefor as contemplated hereby, the Seller will deliver the Shares to the Purchaser free and clear of any Encumbrance. (d) Until the Settlement Date, the Seller shall execute all certificates, instruments, documents or agreements to further effectuate the delivery of the Shares pursuant to this Agreement. (e) There is no investment banker, broker, finder or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. (f) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares. -2- 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PURCHASER The Purchaser represents and warrants to, and covenants with, the Seller that: (a) The Purchaser is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Purchaser has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Purchaser. This Agreement has been duly executed and delivered by the Purchaser and constitutes a legally valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) There is no investment banker, broker, finder or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser. (d) The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended (the "Securities Act") or is a "qualified institutional buyer" as defined in Rule 144A(a)(1) of the Securities Act. (e) The Shares to be acquired by the Purchaser will be acquired for investment for the Purchaser's own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. (f) The Purchaser understands that as of the date hereof the Shares have not been, and will not be, registered under the Securities Act. The Purchaser understands that the Shares are restricted securities under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares, and on requirements relating to the Company which are outside of the Purchaser's control, and which the Company is under no obligation and may not be able to satisfy. (g) Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares. -3- (h) The Purchaser understands that the certificates representing the Shares bear a legend substantially as follows: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS." 5. SURVIVAL The respective agreements, representations, warranties, covenants and other statements made by or on behalf each party hereto pursuant to this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any party, and shall survive delivery of and payment for the Shares; provided, that the representations and warranties of the Seller and the Purchaser shall not survive after the Settlement Date. All other sections of this Agreement shall remain in full force and effect after the Settlement Date including without limitation Section 6(d). 6. GENERAL PROVISIONS (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State. (b) Interpretation. The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. (c) Notices. All communications under this Agreement shall be in writing and shall be delivered by hand or facsimile or mailed by overnight courier or by registered or certified mail, postage prepaid, as follows: (i) if to the Purchaser: -4- D. E. Shaw Laminar Portfolios, L.L.C. 39th Floor, Tower 45 120 West 45th St. New York, NY 10036 Attention: Daniel Posner Attention: Brandon Baer With a copy to: General Counsel Fax No.: 212-845-1879 (ii) if to the Seller: The Bank of Nova Scotia 44 King Street West Scotia Plaza, 64th Floor Toronto, Ontario, Canada M5H 1H1 Attention: Mr. Russell Morgan Fax No.: 416-866-5972 Any party hereto may from time to time change its address or fax number for notices under this Section 6(c) by giving notice of such changed address to the other parties hereto. Any notice addressed in accordance with this Section 6(c) shall be deemed to be given: if delivered by hand or facsimile, on the date of such delivery; if mailed by courier, on the first business day following the date of such mailing; and if mailed by registered or certified mail, on the third business day after the date of such mailing. (d) Expenses and Taxes. All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees, costs or expenses. (e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties. (f) Entire Agreement; Amendment. This Agreement constitutes the entire understanding of the parties hereto and supersedes all prior understandings among such parties. This Agreement may be amended with (and only with) the written consent of the Seller and the Purchaser. There are no agreements (other than as expressly stated in this Agreement) between Seller and the Purchaser. Nothing in this Agreement shall be construed to create a partnership between the parties to this Agreement, and neither party shall have the power to obligate or bind the other in any manner. (g) Severability. If any term or provision of this Agreement or the application of any such term or provision to any person or circumstance shall be held invalid, illegal, void or unenforceable in any respect by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain in full force and effect, unless such invalidity, illegality, voidness or unenforceability would substantially impair the benefits of such remaining provisions of any party hereto. -5- (h) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement. [remainder of page intentionally left blank] -6- IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the date first written above. SELLER THE BANK OF NOVA SCOTIA By: /s/ Russell Morgan ------------------------------- Name: Russell Morgan Title: Managing Director and Head of Investments IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the date first written above. PURCHASER D. E. SHAW LAMINAR PORTFOLIOS, L.L.C. By: /s/ Julius Gaudio ------------------------------- Name: Julius Gaudio Title: Authorized Signatory EX-99.9 3 ex99_9.txt SECURITIES PURCHASE AGREEMENT SECURITIES PURCHASE AGREEMENT SECURITIES PURCHASE AGREEMENT, dated April 20, 2006 (this "Agreement"), by and among The Bank of Nova Scotia, a Canadian chartered bank incorporated under the laws of Canada (the "Seller"), and Goldman, Sachs & Co. (the "Purchaser"). WHEREAS, the Seller beneficially owns 5,475,526 shares of common stock, par value US$0.01 per share (the "Common Stock"), of Foamex International Inc. (the "Company"); WHEREAS, the Seller desires to sell, transfer, assign, and convey to the Purchaser, and the Purchaser desires to purchase from the Seller upon the terms and subject to the conditions set forth herein, 2,631,000 shares of Common Stock (the "Shares"). NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto hereby agree as follows: 1. PURCHASE AND SALE OF SECURITIES (a) On the date hereof, the Seller shall sell, transfer, assign and convey the Shares to the Purchaser, and the Purchaser shall purchase the Shares from the Seller, at a purchase price of US$0.30 per share, for an aggregate cash purchase price of US$789,300.00 (the "Purchase Price"). Such sale shall be subject to the terms and conditions set forth herein. 2. CLOSING (a) The closing of the purchase and sale of the Shares (the "Closing") shall take place at the offices of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, on the date hereof or on such date as shall be mutually agreed by the Seller and the Purchaser, as soon as reasonably practicable. (b) At the Closing, such sale and purchase shall be effected by the Purchaser delivering to the Seller the Purchase Price. The Purchase Price shall be paid in cash by wire transfer in immediately available funds to an account designed by the Seller. At the Closing, or as promptly as practicable thereafter (the "Settlement Date"), the Seller shall deliver duly executed certificates or other instruments evidencing the Shares purchased on the date hereof, in each case with appropriate instruments of transfer attached (duly endorsed or otherwise in form sufficient for transfer). 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE SELLER The Seller represents and warrants to, and covenants with, the Purchaser that: (a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) Subject to the restrictive legend set forth on the certificates evidencing the Shares, the Seller has valid and good title to the Shares, and the Shares are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance (collectively, "Encumbrances"). Upon delivery of the Shares to the Purchaser on the Settlement Date, against payment therefor as contemplated hereby, the Seller will deliver the Shares to the Purchaser free and clear of any Encumbrance. (d) There is no investment banker, broker, finder or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. (e) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares. 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PURCHASER The Purchaser represents and warrants to, and covenants with, the Seller that: (a) The Purchaser is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Purchaser has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with their terms, and the execution, delivery and performance of this Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Purchaser. This Agreement has been duly executed and delivered by the Purchaser and constitutes a legally valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers). (c) There is no investment banker, broker, finder or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser. -2- (d) The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended (the "Securities Act") or is a "qualified institutional buyer" as defined in Rule 144A(a)(1) of the Securities Act. (e) The Shares to be acquired by the Purchaser will be acquired for investment for the Purchaser's own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. (f) The Purchaser understands that the Shares are not registered under the Securities Act. The Purchaser understands that the Shares are restricted securities under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. (g) Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares. (h) The Purchaser understands that the certificates representing the Shares bear a legend substantially as follows: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS." 5. SURVIVAL The respective agreements, representations, warranties, covenants and other statements made by or on behalf of each party hereto pursuant to this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any party, and shall survive delivery of and payment for the Shares; provided, that the representations and warranties of the Seller and the Purchaser shall not survive after the Settlement Date. All other sections of this Agreement shall remain in full force and effect after the Settlement Date including without limitation Section 6(d). 6. GENERAL PROVISIONS (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State. -3- (b) Interpretation. The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. (c) Notices. All communications under this Agreement shall be in writing and shall be delivered by hand or facsimile or mailed by overnight courier or by registered or certified mail, postage prepaid, as follows: (i) if to the Purchaser: Goldman, Sachs & Co. 85 Broad Street New York, NY 10004 Attention: Rich Katz Fax No.: 212-902-5492 (ii) if to the Seller: The Bank of Nova Scotia 44 King Street West Scotia Plaza, 64th Floor Toronto, Ontario, Canada M5H 1H1 Attention: Mr. Russell Morgan Fax No.: 416-866-5972 Any party hereto may from time to time change its address or fax number for notices under this Section 6(c) by giving notice of such changed address to the other parties hereto. Any notice addressed in accordance with this Section 6(c) shall be deemed to be given: if delivered by hand or facsimile, on the date of such delivery; if mailed by courier, on the first business day following the date of such mailing; and if mailed by registered or certified mail, on the third business day after the date of such mailing. (d) Expenses and Taxes. All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees, costs or expenses. (e) Publicity. The parties agree to consult with each other to coordinate the issuance of any press release or similar public announcement or communication relating to the execution or performance of this Agreement or to the transactions contemplated hereby, provided however, neither the Seller nor the Purchaser shall be required to consult with the other with respect to any regulatory filing it shall make. (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties. -4- (g) Entire Agreement; Amendment. This Agreement constitutes the entire understanding of the parties hereto and supersedes all prior understandings among such parties. This Agreement may be amended with (and only with) the written consent of the Seller and the Purchaser. There are no agreements (other than as expressly stated in this Agreement) between Seller and the Purchaser. Nothing in this Agreement shall be construed to create a partnership between the parties to this Agreement, and neither party shall have the power to obligate or bind the other in any manner. (h) Severability. If any term or provision of this Agreement or the application of any such term or provision to any person or circumstance shall be held invalid, illegal, void or unenforceable in any respect by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain in full force and effect, unless such invalidity, illegality, voidness or unenforceability would substantially impair the benefits of such remaining provisions of any party hereto. (i) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement. [remainder of page intentionally left blank] - 5 - IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the date first written above. SELLER ------ The Bank of Nova Scotia By: /s/ Russell Morgan -------------------------------- Name: Russell Morgan Title: Managing Director and Head of Investments IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the date first written above. PURCHASER --------- GOLDMAN, SACHS & CO. By: /s/ Richard Katz -------------------------------- Name: Richard Katz Title: Managing Director -----END PRIVACY-ENHANCED MESSAGE-----