-----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, Wkhr3XoN8s+LEoc7/GyTJpGkZZ6+OtP7HO1hYzr4iFXJQLp7+qD5LEKFoQOKHK88 z3dVHysX6uWv5NozQAtHrw== 0000950123-06-004908.txt : 20060420 0000950123-06-004908.hdr.sgml : 20060420 20060420172131 ACCESSION NUMBER: 0000950123-06-004908 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20060420 DATE AS OF CHANGE: 20060420 GROUP MEMBERS: D.E. SHAW & CO., L.L.C. GROUP MEMBERS: D.E. SHAW & CO., L.P. GROUP MEMBERS: DAVID E. SHAW 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 SEC ACT: 1934 Act SEC FILE NUMBER: 005-48793 FILM NUMBER: 06770748 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: DE SHAW LAMINAR PORTFOLIOS LLC CENTRAL INDEX KEY: 0001263972 IRS NUMBER: 010577802 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 120 W 45TH STREET STREET 2: TOWER 45, 39TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10036 SC 13D 1 y19978sc13d.txt ORIGINAL FILING ON SCHEDULE 13D - ------------------------------------------------------------------------------- OMB APPROVAL -------------------------- OMB Number: Expires: February 28, 2009 Estimated average burden hours per response....14.5 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 Foamex International Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 344123104 - -------------------------------------------------------------------------------- (CUSIP Number) D. E. Shaw Laminar Portfolios, L.L.C. Attn: Compliance Department 120 West Forty-Fifth Street Floor 39, Tower 45 New York, NY 10036 212-478-0000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Christopher Boies, Esq. Boies, Schiller & Flexner LLP 333 Main Street Armonk, NY 10504 914-749-8200 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 of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. 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). - -------------------------------------------------------------------------------- CUSIP NO. 344123104 13D PAGE 1 OF 25 PAGES - -------------------------------------------------------------------------------- 1. Name Of Reporting Person I.R.S. Identification No. of Above Person D. E. Shaw Laminar Portfolios, L.L.C. FEIN 01-0577802 - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) WC - -------------------------------------------------------------------------------- 5. Check 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 ----------------------------------------------------------------- 8. Shared Voting Power Beneficially 4,888,426(1) Owned by Each ----------------------------------------------------------------- 9. Sole Dispositive Power Reporting -0- Person ----------------------------------------------------------------- 10. Shared Dispositive Power With 4,888,426(1) - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,888,426(1) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 18.8%(2) - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) OO - -------------------------------------------------------------------------------- (1) The 4,888,426 share number set forth above includes (a) the 3,388,426 shares of Common Stock beneficially owned by the Reporting Person, plus (b) 1,500,000 shares of Common Stock into which the 15,000 shares of Series B Preferred Stock beneficially owned by the Reporting Person may be converted. (2) With respect to the calculation of the percentage of the outstanding shares of Common Stock beneficially owned by the Reporting Person, 26,009,728 was used as the total amount of outstanding shares of Common Stock of the Issuer, which includes (a) the 24,509,728 total outstanding shares of Common Stock reported by the Company in its 10-K for the fiscal year ended January 1, 2006, and (b) the 1,500,000 shares of Common Stock issuable upon full conversion of the 15,000 shares of Series B Preferred Stock beneficially owned by the Reporting Person. - -------------------------------------------------------------------------------- CUSIP NO. 344123104 13D PAGE 2 OF 25 PAGES - -------------------------------------------------------------------------------- 1. Name Of Reporting Person I.R.S. Identification No. of Above Person D. E. Shaw & Co., L.P. FEIN 13-3695715 - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) AF - -------------------------------------------------------------------------------- 5. Check 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 ----------------------------------------------------------------- 8. Shared Voting Power Beneficially 4,888,426(1) Owned by Each ----------------------------------------------------------------- 9. Sole Dispositive Power Reporting -0- Person ----------------------------------------------------------------- 10. Shared Dispositive Power With 4,888,426(1) - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,888,426(1) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 18.8%(2) - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IA, PN - -------------------------------------------------------------------------------- (1) The 4,888,426 share number set forth above includes (a) the 3,388,426 shares of Common Stock beneficially owned by the Reporting Person, plus (b) 1,500,000 shares of Common Stock into which the 15,000 shares of Series B Preferred Stock beneficially owned by the Reporting Person may be converted. (2) With respect to the calculation of the percentage of the outstanding shares of Common Stock beneficially owned by the Reporting Person, 26,009,728 was used as the total amount of outstanding shares of Common Stock of the Issuer, which includes (a) the 24,509,728 total outstanding shares of Common Stock reported by the Company in its 10-K for the fiscal year ended January 1, 2006 and (b) the 1,500,000 shares of Common Stock issuable upon full conversion of the 15,000 shares of Series B Preferred Stock beneficially owned by the Reporting Person. - -------------------------------------------------------------------------------- CUSIP NO. 344123104 13D PAGE 3 OF 25 PAGES - -------------------------------------------------------------------------------- 1. Name Of Reporting Person I.R.S. Identification No. of Above Person D. E. Shaw & Co., L.L.C. FEIN 13-3799946 - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) AF - -------------------------------------------------------------------------------- 5. Check 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 ----------------------------------------------------------------- 8. Shared Voting Power Beneficially 4,888,426(1) Owned by Each ----------------------------------------------------------------- 9. Sole Dispositive Power Reporting -0- Person ----------------------------------------------------------------- 10. Shared Dispositive Power With 4,888,426(1) - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,888,426(1) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 18.8%(2) - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) OO - -------------------------------------------------------------------------------- (1) The 4,888,426 share number set forth above includes (a) the 3,388,426 shares of Common Stock beneficially owned by the Reporting Person, plus (b) 1,500,000 shares of Common Stock into which the 15,000 shares of Series B Preferred Stock beneficially owned by the Reporting Person may be converted. (2) With respect to the calculation of the percentage of the outstanding shares of Common Stock beneficially owned by the Reporting Person, 26,009,728 was used as the total amount of outstanding shares of Common Stock of the Issuer, which includes (a) the 24,509,728 total outstanding shares of Common Stock reported by the Company in its 10-K for the fiscal year ended January 1, 2006, and (b) the 1,500,000 shares of Common Stock issuable upon full conversion of the 15,000 shares of Series B Preferred Stock beneficially owned by the Reporting Person. - -------------------------------------------------------------------------------- CUSIP NO. 344123104 13D PAGE 4 OF 25 PAGES - -------------------------------------------------------------------------------- 1. Name Of Reporting Person I.R.S. Identification No. of Above Person David E. Shaw - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) AF - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization United States - -------------------------------------------------------------------------------- 7. Sole Voting Power Number of -0- Shares ----------------------------------------------------------------- 8. Shared Voting Power Beneficially 4,888,426(1) Owned by Each ----------------------------------------------------------------- 9. Sole Dispositive Power Reporting -0- Person ----------------------------------------------------------------- 10. Shared Dispositive Power With 4,888,426(1) - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,888,426(1) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 18.8%(2) - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- (1) The 4,888,426 share number set forth above includes (a) the 3,388,426 shares of Common Stock beneficially owned by the Reporting Person, plus (b) 1,500,000 shares of Common Stock into which the 15,000 shares of Series B Preferred Stock beneficially owned by the Reporting Person may be converted. (2) With respect to the calculation of the percentage of the outstanding shares of Common Stock beneficially owned by the Reporting Person, 26,009,728 was used as the total amount of outstanding shares of Common Stock of the Issuer, which includes (a) the 24,509,728 total outstanding shares of Common Stock reported by the Company in its 10-K for the fiscal year ended January 1, 2006, and (b) the 1,500,000 shares of Common Stock issuable upon full conversion of the 15,000 shares of Series B Preferred Stock beneficially owned by the Reporting Person. ITEM 1. SECURITY AND THE ISSUER This statement on Schedule 13D relates to the common stock, par value $0.01 per share ("Common Stock"), of Foamex International Inc., a Delaware corporation (the "Issuer"), and is being filed pursuant to Rule 13d-1 under the Act. The principal executive offices of the Issuer are located at 1000 Columbia Avenue, Linwood, PA 19061. ITEM 2. IDENTITY AND BACKGROUND (a), (f) This statement is filed on behalf of D. E. Shaw Laminar Portfolios, L.L.C., a Delaware limited liability company ("Laminar"), D. E. Shaw & Co., L.P., a Delaware limited partnership ("DESCO LP"), D. E. Shaw & Co., L.L.C., a Delaware limited liability company ("DESCO LLC"), and David E. Shaw, a citizen of the United States of America (David E. Shaw, together with Laminar, DESCO LP and DESCO LLC, collectively, the "Reporting Persons"). The Reporting Persons are filing jointly and the agreement among the Reporting Persons to file jointly is attached hereto as Exhibit 3 and incorporated herein by reference. (b) The business address and principal office, as applicable, of all Reporting Persons is 120 West Forty-Fifth Street, Floor 39, Tower 45, New York, NY 10036. (c) The principal business of Laminar is that of a limited liability company focusing primarily on distressed-securities related investment strategies. Laminar does not have any executive officers or directors. The principal business of DESCO LP is to act as an investment adviser to certain funds, including, without limitation, Laminar. The principal business of DESCO LLC is to act as managing member to certain funds, including, without limitation, Laminar. D. E. Shaw & Co., Inc., a Delaware corporation ("DESCO Inc."), is the general partner of DESCO LP. D. E. Shaw & Co. II, Inc., a Delaware corporation ("DESCO II, Inc."), is the managing member of DESCO LLC. David E. Shaw is the president and sole shareholder of DESCO Inc. and DESCO II, Inc. (d), (e) During the last five years, neither any Reporting Person nor, to the best knowledge of any Reporting Person, any person named in Item 2, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION In acquiring 2,494,526 shares of Common Stock and 15,000 shares of Series B Preferred Stock (convertible into 1,500,000 shares of Common Stock in accordance with the terms thereof) on April 20, 2006, Laminar expended approximately $1,198,357.80 (excluding commissions) of its working capital. In acquiring 893,900 shares of Common Stock prior to April 20, 2006, Laminar expended approximately $140,594.99 (excluding commissions) of its working capital. ITEM 4. PURPOSE OF TRANSACTION On April 20, 2006, Laminar entered into a Securities Purchase Agreement (the "Purchase Agreement") with The Bank of Nova Scotia pursuant to which Laminar purchased 2,494,526 shares of Common Stock and 15,000 shares of Series B Preferred Stock, par value $1.00 per share ("Preferred Stock"). A copy of the Purchase Agreement is attached hereto as Exhibit 4. Laminar purchased the shares of Common Stock and Preferred Stock for the purpose of investing in the Issuer. Laminar will review its investment in the shares of Common Stock and Preferred Stock from time to time and subject to applicable law and regulation and depending upon certain factors, including, without limitation, the financial performance of the Issuer, the availability and price of shares of Common Stock and Preferred Stock or other securities related to the Issuer, and other general market and investment conditions, Laminar may determine to: -- acquire through open market purchases or otherwise additional shares of Common Stock or Preferred Stock; or -- sell shares of Common Stock or Preferred Stock through the open market or otherwise. Such transactions may take place at any time without prior notice. There can be no assurance, however, that any Reporting Persons will take any such action. As part of Laminar's ongoing review of its respective investment in Common Stock and Preferred Stock of the Issuer, Laminar will from time to time hold talks or discussions with, write letters to, and respond to inquiries from various parties, including, without limitation, the Issuer's Board of Directors, management or representatives, other shareholders and other persons or entities regarding the Issuer's affairs and strategic alternatives. In addition, Laminar may in its sole and absolute discretion take such action it deems necessary to preserve the value of its investments in the Issuer through bankruptcy court action, litigation or other similar strategies. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a), (b) Based upon the Issuer's Annual Report on Form 10-K for the year ended January 1, 2006, there were 24,509,728 shares of Common Stock outstanding as of March 17, 2006. The Subject Shares (defined below) reported on this Schedule 13D are comprised of (i) 3,388,426 shares of Common Stock in the name of Laminar and (ii) 1,500,000 shares of Common Stock into which the 15,000 shares of Preferred Stock in the name of Laminar may be converted. Using a total amount of Common Stock equal to 26,009,728 (which includes the 24,509,728 total outstanding shares of Common Stock reported by the Issuer in its 10-K for the fiscal year ended January 1, 2006, and the 1,500,000 shares of Common Stock issuable upon full conversion of the Preferred Stock) (the "Total Share Count"), the 4,888,426 shares of Common Stock beneficially owned by Laminar (the "Subject Shares") represent approximately 18.8% of the Total Share Count. Laminar will have the power to vote or to direct the vote of (and the power to dispose or direct the disposition of) the Subject Shares. DESCO LP as Laminar's investment adviser and DESCO LLC as Laminar's managing member may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Subject Shares. As managing member of DESCO LLC, DESCO II, Inc. may be deemed to have the shared power to vote or to direct the vote of (and the shared power to dispose or direct the disposition of) the Subject Shares. As general partner of DESCO LP, DESCO, Inc. may be deemed to have the shared power to vote or to direct the vote of (and the shared power to dispose or direct the disposition of) the Subject Shares. None of DESCO LP, DESCO LLC, DESCO, Inc., or DESCO II, Inc., owns any shares of Common Stock of the Issuer directly and each such entity disclaims beneficial ownership of the Subject Shares. David E. Shaw does not own any shares of the Issuer directly. By virtue of David E. Shaw's position as president and sole shareholder of DESCO, Inc., which is the general partner of DESCO LP, and by virtue of David E. Shaw's position as president and sole shareholder of DESCO II, Inc., which is the managing member of DESCO LLC, David E. Shaw may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Subject Shares and, therefore, David E. Shaw may be deemed to be the indirect beneficial owner of the Subject Shares. David E. Shaw disclaims beneficial ownership of the Subject Shares. As of the date hereof, neither any Reporting Person, nor to the best knowledge of any Reporting Person, any of the persons set forth in Item 2, owns any shares of Common Stock other than the Subject Shares. (c) The trading dates, number of shares of Common Stock purchased or sold and the price per share for all brokered transactions by the Reporting Persons in the shares of Common Stock within the last 60 days are set forth below:
NO. OF SHARES NAME DATE PURCHASED/(SOLD) PRICE PER SHARE - ------- -------- ---------------- --------------- Laminar 03/21/06 53,900 $0.0941 Laminar 03/22/06 195,000 $0.1420 Laminar 03/23/06 400,000 $0.1450 Laminar 04/06/06 105,000 $0.1946 Laminar 04/07/06 50,000 $0.2100 Laminar 04/10/06 90,000 $0.2100
The trading dates, number of shares of Common Stock purchased or sold and the price per share for all private placement transactions by the Reporting Persons in the shares of Common Stock within the last 60 days are set forth below:
NO. OF SHARES NAME DATE PURCHASED/(SOLD) PRICE PER SHARE - ------- -------- ---------------- --------------- Laminar 04/20/06 2,494,526 $0.3000
The trading dates, number of shares of Preferred Stock purchased or sold and the price per share for all private placement transactions by the Reporting Persons in the shares of Preferred Stock within the last 60 days are set forth below:
NO. OF SHARES NAME DATE PURCHASED/(SOLD) PRICE PER SHARE - ------- -------- ---------------- --------------- Laminar 04/20/06 15,000 $30.00
Except as set forth above, within the last 60 days, no other transactions in shares of Common Stock were effected by any Reporting Person, or to the best knowledge of any Reporting Person, any of the persons set forth in Item 2. (d) No person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Subject Shares. Clause (e) of Item 5 of Schedule 13D is not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Except for the matters described herein, neither the Reporting Persons nor, to the best knowledge of any Reporting Person, any of the persons listed in Item 2 has any contract, arrangement, understanding or relationship with any person with respect to any securities of the Issuer. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 1 Power of Attorney, granted by David E. Shaw relating to D. E. Shaw & Co., Inc., in favor of the signatories hereto, among others, dated February 24, 2004. Exhibit 2 Power of Attorney, granted by David E. Shaw relating to D. E. Shaw & Co. II, Inc., in favor of the signatories hereto, among others, dated February 24, 2004. Exhibit 3 Joint Filing Agreement, by and among the Reporting Persons, dated April 20, 2006. Exhibit 4 Securities Purchase Agreement, by and among The Bank of Nova Scotia and D. E. Shaw Laminar Portfolios, L.L.C., dated as of April 20, 2006. SIGNATURES After reasonable inquiry and to the best of each of the undersigned's knowledge and belief, each of the undersigned, severally and not jointly, certifies that the information set forth in this statement is true, complete and correct. Powers of Attorney, dated February 24, 2004, granted by David E. Shaw in favor of Anne Dinning, Julius Gaudio, Lou Salkind, Stuart Steckler and Eric Wepsic are attached hereto as Exhibit 1 and Exhibit 2 and incorporated herein by reference. Dated: April 20, 2006 D. E. SHAW LAMINAR PORTFOLIOS, L.L.C. BY: D. E. SHAW & CO., L.L.C., as managing member By: /s/ Julius Gaudio ------------------------------------ Name: Julius Gaudio Title: Managing Director D. E. SHAW & CO., L.P. By: /s/ Julius Gaudio ---------------------------------------- Name: Julius Gaudio Title: Managing Director D. E. SHAW & CO., L.L.C. By: /s/ Julius Gaudio ---------------------------------------- Name: Julius Gaudio Title: Managing Director DAVID E. SHAW By: /s/ Julius Gaudio ---------------------------------------- Name: Julius Gaudio Title: Attorney-in-Fact for David E. Shaw EX-99.1 2 y19978exv99w1.txt EX-99.1: POWER OF ATTORNEY Exhibit 1 POWER OF ATTORNEY FOR CERTAIN FILINGS UNDER THE SECURITIES EXCHANGE ACT OF 1934 I, David E. Shaw, hereby make, constitute and appoint each of: Anne Dinning, Julius Gaudio, Lou Salkind, Stuart Steckler, and Eric Wepsic, acting individually, as my agent and attorney-in-fact, with full power of substitution, for the purpose of, from time to time, executing in my name and/or my capacity as President of D. E. Shaw & Co., Inc. (acting for itself or as the general partner of D. E. Shaw & Co., L. P., and general partner or managing member of other entities, any which in turn may be acting for itself or other entities) all documents, certificates, instruments, statement, other filings, and amendments to the forgoing (collectively, "documents") determined by such person to be necessary or appropriate to comply with ownership or control-person reporting requirements imposed by any United States or non-United States governmental or regulatory authority, including without limitation Forms 3, 4, 5, 13D, 13F and 13G required to be filed with the Securities and Exchange Commission; and delivering, furnishing or filing any such documents with the appropriate governmental or regulatory authority. Any such determination shall be conclusively evidenced by such person's execution, delivery, furnishing and/or filing of the applicable document. This power of attorney shall be valid from the date hereof and replaces the power granted on February 5, 2001, which is hereby cancelled. IN WITNESS HEREOF, I have executed this instrument as of the date set forth below. Date: February 24, 2004 DAVID E. SHAW, as President of D. E. Shaw & Co., Inc. /s/ David E. Shaw New York, New York EX-99.2 3 y19978exv99w2.txt EX-99.2: POWER OF ATTORNEY Exhibit 2 POWER OF ATTORNEY FOR CERTAIN FILINGS UNDER THE SECURITIES EXCHANGE ACT OF 1934 I, David E. Shaw, hereby make, constitute and appoint each of: Anne Dinning, Julius Gaudio, Lou Salkind, Stuart Steckler, and Eric Wepsic, acting individually, as my agent and attorney-in-fact, with full power of substitution, for the purpose of, from time to time, executing in my name and/or my capacity as President of D. E. Shaw & Co. II, Inc. (acting for itself or as the managing member of D. E. Shaw & Co., L. L. C., which in turn may be acting for itself or as the managing member of other entities) all documents, certificates, instruments, statement, other filings, and amendments to the forgoing (collectively, "documents") determined by such person to be necessary or appropriate to comply with ownership or control-person reporting requirements imposed by any United States or non-United States governmental or regulatory authority, including without limitation Forms 3, 4, 5, 13D, 13F and 13G required to be filed with the Securities and Exchange Commission; and delivering, furnishing or filing any such documents with the appropriate governmental or regulatory authority. Any such determination shall be conclusively evidenced by such person's execution, delivery, furnishing and/or filing of the applicable document. This power of attorney shall be valid from the date hereof and replaces the power granted on February 5, 2001, which is hereby cancelled. IN WITNESS HEREOF, I have executed this instrument as of the date set forth below. Date: February 24, 2004 DAVID E. SHAW, as President of D. E. Shaw & Co. II, Inc. /s/ David E. Shaw New York, New York EX-99.3 4 y19978exv99w3.txt EX-99.3: JOINT FILING AGREEMENT Exhibit 3 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, each of the undersigned Reporting Persons hereby agrees to the joint filing, along with all other such Reporting Persons, on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.01 per share of Foamex International Inc., and that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, each of the undersigned hereby executes this Agreement as of this 20th day of April, 2006. D. E. SHAW LAMINAR PORTFOLIOS, L.L.C. BY: D. E. SHAW & CO., L.L.C., as managing member By: /s/ Julius Gaudio ------------------------------------ Name: Julius Gaudio Title: Managing Director D. E. SHAW & CO., L.P. By: /s/ Julius Gaudio ---------------------------------------- Name: Julius Gaudio Title: Managing Director D. E. SHAW & CO., L.L.C. By: /s/ Julius Gaudio ---------------------------------------- Name: Julius Gaudio Title: Managing Director DAVID E. SHAW By: /s/ Julius Gaudio ---------------------------------------- Name: Julius Gaudio Title: Attorney-in-Fact for David E. Shaw EX-99.4 5 y19978exv99w4.txt EX-99.4: SECURITIES PURCHASE AGREEMENT Exhibit 4 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 (a) 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. (b) 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) he 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 -----END PRIVACY-ENHANCED MESSAGE-----