-----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, Sph6zawFlS81Y7ZVhihAiYh5/5LJyU3EQ7gFFdclJx0GDRZMjsH59t4s7qX5AJFe fjkLOZUeHnP8Il6++2+Ykg== 0000769993-06-000766.txt : 20060721 0000769993-06-000766.hdr.sgml : 20060721 20060721163840 ACCESSION NUMBER: 0000769993-06-000766 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20060721 DATE AS OF CHANGE: 20060721 GROUP MEMBERS: GOLDMAN, SACHS & CO. 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: 06974528 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: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1126 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 foamex1.txt SCHEDULE 13D --------------------------------- OMB APPROVAL --------------------------------- OMB Number: 3235-0145 Expires: February 28, 2009 Estimated average burden hours per response...........14.4 --------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1)* Foamex International Inc. - ------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value - ------------------------------------------------------------------------------- (Title of Class of Securities) 344123104 -------------------------------------------- (CUSIP Number) Sandip S. Khosla, Esq. Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 (212) 902-1000 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 19, 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 which is the subject of this Schedule 13D, and is filing this schedule because of Rules 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [X] 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 the disclosures provided in a prior cover page. The information required in 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). Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number. SEC 1746 (3-06) Page 1 of 8 pages - ----------------------- CUSIP No. 344123104 - ----------------------- - ------------------------------------------------------------------------------ 1. Name of Reporting Person I.R.S. Identification No. of above Person The Goldman Sachs Group, Inc. - ------------------------------------------------------------------------------ 2. Check the Appropriate Box if a Member of a Group (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3. SEC Use Only - ------------------------------------------------------------------------------ 4. Source of Funds AF - ------------------------------------------------------------------------------ 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 ---------------------------------------------------------- 8. Shared Voting Power Beneficially 4,870,283 Owned by ---------------------------------------------------------- Each 9. Sole Dispositive Power Reporting 0 Person ---------------------------------------------------------- 10. Shared Dispositive Power With: 4,870,283 - ------------------------------------------------------------------------------ 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,870,283 - ------------------------------------------------------------------------------ 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares [_] - ------------------------------------------------------------------------------ 13. Percent of Class Represented by Amount in Row (11) 19.9% - ------------------------------------------------------------------------------ 14. Type of Reporting Person HC-CO - ------------------------------------------------------------------------------ Page 2 of 8 pages - ----------------------- CUSIP No. 344123104 - ----------------------- - ------------------------------------------------------------------------------ 1. Name of Reporting Person I.R.S. Identification No. of above Person Goldman, Sachs & Co. - ------------------------------------------------------------------------------ 2. Check the Appropriate Box if a Member of a Group (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3. SEC Use Only - ------------------------------------------------------------------------------ 4. Source of Funds WC - ------------------------------------------------------------------------------ 5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [X] - ------------------------------------------------------------------------------ 6. Citizenship or Place of Organization New York - ------------------------------------------------------------------------------ 7. Sole Voting Power Number of 0 Shares ---------------------------------------------------------- 8. Shared Voting Power Beneficially 4,870,283 Owned by ---------------------------------------------------------- Each 9. Sole Dispositive Power Reporting 0 Person ---------------------------------------------------------- 10. Shared Dispositive Power With: 4,870,283 - ------------------------------------------------------------------------------ 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,870,283 - ------------------------------------------------------------------------------ 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares [_] - ------------------------------------------------------------------------------ 13. Percent of Class Represented by Amount in Row (11) 19.9% - ------------------------------------------------------------------------------ 14. Type of Reporting Person BD-PN-IA - ------------------------------------------------------------------------------ Page 3 of 8 pages AMENDMENT NO. 1 TO SCHEDULE 13D RELATING TO THE COMMON STOCK OF FOAMEX INTERNATIONAL INC. The Goldman Sachs Group, Inc. ("GS Group") and Goldman, Sachs & Co. ("Goldman Sachs", and, together with GS Group, the "Filing Persons")/1/ hereby amend and supplement the statement on Schedule 13D filed with respect to the Common Stock, par value $0.01 per share (the "Common Stock"), of Foamex International Inc., a Delaware corporation (the "Company"), filed June 26, 2006 (as amended, the "Schedule 13D"). Goldman Sachs and GS Group may be deemed, for purposes of this Schedule 13D, to beneficially own from time to time Common Stock acquired in ordinary course trading activities by Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group. Unless otherwise indicated, all capitalized terms used but not defined herein shall have the same meaning ascribed to them in the Schedule 13D. This Amendment No. 1 is being filed to report that on July 19, 2006, the Company's board of directors adopted a resolution amending the Rights Agreement between the Company and Mellon Investor Services LLC, dated as of August 5, 2004 (the "Rights Agreement"), as described further herein. - ------------------ /1/ Neither the present filing nor anything contained herein shall be construed as an admission that any Filing Person constitutes a "person" for any purposes other than Section 13(d) of the Securities Exchange Act of 1934. Page 4 of 8 pages Item 3 is hereby amended as follows: Item 3. Source and Amount of Funds or Other Consideration. -------------------------------------------------- Funds for shares of Common Stock which may be deemed to be beneficially owned by the Filing Persons came from the working capital of Goldman Sachs. No transactions in the Common Stock were effected by the Filing Persons or, to the knowledge of any of the Filing Persons, any of the persons listed on Schedule I hereto, during the period from June 22, 2006 through July 19, 2006. Item 4 is hereby amended as follows: Item 4. Purpose of the Transaction. --------------------------- An informal ad hoc committee of certain holders of equity securities in the Company (the "Ad Hoc Committee") has been formed. The Goldman Sachs Group, Inc. ("Goldman Sachs") is an observer of the Ad Hoc Committee, whose members comprise of D.E. Shaw Laminar Portfolios, L.L.C., Par IV Capital Management LLC, Paloma International L.P., and Sigma Capital Management, LLC. Each of the members of the Ad Hoc Committee, as well as Goldman Sachs has filed separately its own Schedule 13D, and may be deemed to be a member of a group within the meaning of Rule 13d-5(b), with respect to its interests in equity securities of the Company. According to previously filed Schedules 13D, Shaw Laminar Portfolios, L.L.C. beneficially owns 18.8% of the equity securities in the Company; Paloma International L.P. beneficially owns 3.61% of the equity securities in the Company; and Sigma Capital Management, LLC beneficially owns 9.4% of the equity securities in the Company. On July 19, 2006, the Company's board of directors adopted a resolution amending the Rights Agreement, to except the members of the Ad Hoc Committee, as well as Goldman, Sachs & Co., from the definition of "Acquiring Persons" thereunder. In addition, the Rights Agreement was amended to provide that a person shall not be deemed to have "beneficial ownership" (within the meaning of Rule 13d-3) of a security under the Rights Agreement solely as a result of an agreement, arrangement or understanding entered into with any other person during, or in connection with, the Company's Chapter 11 case pending in the United States Bankruptcy Court for the District of Delaware. Goldman Sachs has met, and reserves the right to continue to meet, with the Company's board of directors, management and advisers from time to time to discuss the Company's business and reorganization plan under Chapter 11, its prospects and strategies, as well as various financing and structuring alternatives that may be available. Goldman Sachs may work with the Company and/or the Company's advisors, other equityholders, creditors and other constituents to develop plans or proposals for the Company. These plans or proposals may involve or relate to one of more of the matters described in Item 4 of this Schedule 13D. Page 5 of 8 pages Item 5 is hereby amended as follows: Item 5. Interest in Securities of the Issuer. ------------------------------------- (a) As of July 19, 2006, Goldman Sachs may be deemed to have beneficially owned directly an aggregate of 4,870,283 shares of Common Stock acquired in ordinary course trading activities by Goldman Sachs, representing in the aggregate approximately 19.9% of the shares of Common Stock reported to be outstanding as of June 5, 2006 as disclosed in Company's most recent quarterly report on Form 10-Q for the period ended April 2, 2006 (the "10-Q"). As of June 19, 2006, GS Group may be deemed to have beneficially owned indirectly an aggregate of 4,870,283 shares of Common Stock beneficially owned directly by Goldman Sachs described above, representing in the aggregate approximately 19.9% of the shares of Common Stock reported to be outstanding as disclosed in Company's 10-Q. In accordance with Securities and Exchange Commission Release No. 34-395538 (January 12, 1998) (the "Release"), this filing reflects the securities beneficially owned by certain operating units (collectively, the "Goldman Sachs Reporting Units") of GS Group and its subsidiaries and affiliates (collectively, "GSG"). This filing does not reflect securities, if any, beneficially owned by any operating units of GSG whose ownership of securities is disaggregated from that of the Goldman Sachs Reporting Units in accordance with the Release. The Goldman Sachs Reporting Units disclaim beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which the Goldman Sachs Reporting Units or their employees have voting or investment discretion, or both, and (ii) certain investment entities of which the Goldman Sachs Reporting Units acts as the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than the Goldman Sachs Reporting Units. None of the Filing Persons or, to the knowledge of any of the Filing Persons, any of the persons listed on Schedule I hereto may be deemed to have beneficially owned any shares of Common Stock as of July 19, 2006 other than as set forth herein. (c) No transactions in the Common Stock were effected by the Filing Persons or, to the knowledge of any of the Filing Persons, any of the persons listed on Schedule I hereto, during the period from June 22, 2006 through July 19, 2006. Page 6 of 8 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. Date: July 21, 2006 THE GOLDMAN SACHS GROUP, INC. By:/s/ Roger S. Begelman ---------------------------------------- Name: Roger S. Begelman Title: Attorney-in-fact GOLDMAN, SACHS & CO. By:/s/ Roger S. Begelman ---------------------------------------- Name: Roger S. Begelman Title: Attorney-in-fact Page 7 of 8 pages SCHEDULE I ---------- The name of each director of The Goldman Sachs Group, Inc. is set forth below. The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004. Each person is a citizen of the United States of America except for Lord Browne of Madingley, who is a citizen of the United Kingdom and Claes Dahlback, who is a citizen of Sweden. The present principal occupation or employment of each of the listed persons is set forth below. Name Present Principal Occupation - -------------------------------------------------------------------------------- Lloyd C. Blankfein Chairman of the Board and Chief Executive Officer of The Goldman Sachs Group, Inc. Gary D. Cohn President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc. Jon Winkelried President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc. Lord Browne of Madingley Group Chief Executive of BP p.l.c. John H. Bryan Retired Chairman and Chief Executive Officer of Sara Lee Corporation Claes Dahlback Senior Advisor to Investor AB and Executive Vice Chairman of W Capital Management Stephen Friedman Senior Advisor to Stone Point Capital William W. George Professor of Management Practice at the Harvard Business School, Retired Chairman and Chief Executive Officer of Medtronic, Inc. James A. Johnson Vice Chairman of Perseus, L.L.C. Lois D. Juliber Retired Vice Chairman of Colgate-Palmolive Company Edward M. Liddy Chairman of the Board and Chief Executive Officer of The Allstate Corporation Ruth J. Simmons President of Brown University Page 8 of 8 pages -----END PRIVACY-ENHANCED MESSAGE-----