-----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, KhtplEb61D3r87FP1GTut3CVyv5ssFd2+PVk4pTkNdIXa/S9+3QTb+XwRINyQ3jb DSX2nuwZkNlLChDOU4siUg== /in/edgar/work/0000898822-00-000876/0000898822-00-000876.txt : 20001109 0000898822-00-000876.hdr.sgml : 20001109 ACCESSION NUMBER: 0000898822-00-000876 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20001108 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FOAMEX INTERNATIONAL INC CENTRAL INDEX KEY: 0000912908 STANDARD INDUSTRIAL CLASSIFICATION: [3086 ] IRS NUMBER: 050473908 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-48793 FILM NUMBER: 756147 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: [6022 ] IRS NUMBER: 134941099 FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 44 KING STREET WEST STREET 2: SCOTIA PLZ 8TH FL. M5H 1H1 CITY: TORONTO ONTARIO STATE: A6 ZIP: 00000 BUSINESS PHONE: 416886907 MAIL ADDRESS: STREET 1: BANK OF NOVA SCOTIA 44 KING STREET WEST STREET 2: SCOTIA PLZ 8TH FL. M5H 1H1 CITY: TORONTO ONTARIO CANA SC 13D 1 0001.txt SCHEDULE 13D ================================================================================ 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, $ .01 PAR VALUE PER SHARE (TITLE OF CLASS OF SECURITIES) 06414910 7 (CUSIP NUMBER) -------------- MR. GEORGE E. WHYTE SENIOR VICE-PRESIDENT, GENERAL COUNSEL AND SECRETARY THE BANK OF NOVA SCOTIA 44 KING STREET WEST SCOTIA PLAZA, 8TH FLOOR TORONTO, ONTARIO, CANADA M5H 1H1 (416) 866-6967 HOLDING CERTAIN SHARES THROUGH ITS NOMINEE, CALDER & CO. (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES OF COMMUNICATION) -------------------------- RICHARD G. MASON WACHTELL, LIPTON, ROSEN & KATZ 51 W. 52ND STREET NEW YORK, NY 10019 (212) 403-1252 OCTOBER 31, 2000 (DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ] (Continued on the following pages) (Page 1 of 15 pages) ================================================================================ - ------------------------------ ------------------------------- | CUSIP NO. 06414910 7 | 13D | (PAGE 2 OF 15) | - ------------------------------ ------------------------------- - -------------------------------------------------------------------------------- | 1 | NAME OF REPORTING PERSONS | | | The Bank of Nova Scotia | | | | | | S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS | | | | |---|--------------------------------------------------------------------------| | 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] | | | (b) [ ] | |---|--------------------------------------------------------------------------| | 3 | SEC USE ONLY | |---|--------------------------------------------------------------------------| | 4 | SOURCE OF FUNDS | | | OO | |---|--------------------------------------------------------------------------| | 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT | | | TO ITEM 2(D) OR 2(E) [ ] | |---|--------------------------------------------------------------------------| | 6 | CITIZENSHIP OR PLACE OF ORGANIZATION | | | Canada | |------------------------------------------------------------------------------| |NUMBER OF SHARES | 7 | SOLE VOTING POWER | | | | 5,750,426 | | |---|-------------------------------------------------------| | BENEFICIALLY | 8 | SHARED VOTING POWER | | OWNED BY | | 0 | | |---|-------------------------------------------------------| |EACH REPORTING | 9 | SOLE DISPOSITIVE POWER | | | | 5,750,426 | | |---|-------------------------------------------------------| | PERSON WITH | 10| SHARED DISPOSITIVE POWER | | | | 0 | |------------------------------------------------------------------------------| |11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | | | 5,750,426 | |---|--------------------------------------------------------------------------| |12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES | | | CERTAIN SHARES [X] | |---|--------------------------------------------------------------------------| |13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | | | 24.4% (calculated on the basis of 23,559,994 shares of voting common | | | stock outstanding, derived from the 25,059,994 shares reported on the | | | Form 10-Q for the quarterly period ended June 30, 2000 minus the | | | 1,500,000 shares returned pursuant to the Share Exchange Agreement, as | | | described below). | |---|--------------------------------------------------------------------------| |14 | TYPE OF REPORTING PERSON | | | BK | - -------------------------------------------------------------------------------- - ------------------------------ ------------------------------- |CUSIP NO. | 13D | (PAGE 3 OF 15) | - ------------------------------ ------------------------------- - ------------------------------------------------------------------------------- | 1 | NAME OF REPORTING PERSONS | | | Calder & Co. | | | | | | S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS | | | | |---|--------------------------------------------------------------------------| | 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] | | | (b) [ ] | |---|--------------------------------------------------------------------------| | 3 | SEC USE ONLY | |---|--------------------------------------------------------------------------| | 4 | SOURCE OF FUNDS | | | OO | |---|--------------------------------------------------------------------------| | 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT | | | TO ITEM 2(D) OR 2(E) [ ] | |---|--------------------------------------------------------------------------| | 6 | CITIZENSHIP OR PLACE OF ORGANIZATION | | | New York, United States | |------------------------------------------------------------------------------| |NUMBER OF SHARES | 7 | SOLE VOTING POWER | | | | 5,697,426 | | -------------------------------------------------------------| | BENEFICIALLY | 8 | SHARED VOTING POWER | | OWNED BY | | 0 | | |---|--------------------------------------------------------| |EACH REPORTING | 9 | SOLE DISPOSITIVE POWER | | | | 5,697,426 | | |---|--------------------------------------------------------| | PERSON WITH |10 | SHARED DISPOSITIVE POWER | | | | 0 | |------------------------------------------------------------------------------| |11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | | | 5,697,426 | |---|--------------------------------------------------------------------------| |12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES | | | CERTAIN SHARES [X] | |---|--------------------------------------------------------------------------- |13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | | | 24.2% (calculated on the basis of 23,559,994 shares of voting common | | | stock outstanding, derived from the 25,059,994 shares reported on the | | | Form 10-Q for the quarterly period ended June 30, 2000 minus the | | | 1,500,000 shares returned pursuant to the Share Exchange Agreement, as | | | described below, minus the 53,000 shares that the Bank of Nova Scotia | | does not hold through Calder & Co.) |---|--------------------------------------------------------------------------| |14 | TYPE OF REPORTING PERSON | | | PN | - -------------------------------------------------------------------------------- ITEM 1. SECURITY AND ISSUER. This Schedule 13D relates to shares of Common Stock, par value $ .01 per share (the "Company Common Stock"), of Foamex International Inc. (the "Company"). The principal executive offices of the Company are located at 1000 Columbia Avenue, Linwood, PA 19061. ITEM 2. IDENTITY AND BACKGROUND. This Schedule 13D is being filed by The Bank of Nova Scotia (the "Bank"), whose place of organization is Canada and whose business address is 44 King Street West, Scotia Plaza, 8th floor, Toronto, Ontario, Canada, M5H 1H1, and by Calder & Co., a partnership established to hold securities in the partnership name for the account and subject to the order of the Bank (the "Nominee"), whose business address is One Liberty Plaza, New York, New York 10006. Set forth on Appendix A attached hereto and incorporated herein by reference are the names, business addresses, principal occupations and citizenship of the directors and executive officers of the Bank. Set forth on Appendix B attached hereto and incorporated herein by reference are the names, business addresses, principal occupations and citizenship of the partners of the Nominee. During the last five years, neither the Bank, nor to its knowledge, any of its directors or executive officers, nor the Nominee, nor to its knowledge, any of its partners, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been 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. See the information set forth under "Item 4. Purpose of Transaction," which is incorporated by reference in response to this Item 3. ITEM 4. PURPOSE OF TRANSACTION. In the ordinary course of its business, from 1995 through 1999, the Bank made loans and advances, and extended credit and other financial accommodations to or for the benefit of Trace International and/or Trace Foam Sub (collectively "Trace") pursuant to, or in connection with, certain loan agreements, credit agreements, pledge agreements, security agreements, demand notes, guarantees and other agreements, instruments and documents, including without limitation the following (collectively, the "Loan Documents"): Margin Loan Credit Agreement, dated as of August 15, 1997, between Trace International and the Bank, as amended, amended and restated, supplemented or otherwise modified from time to time; Second Amended and Restated Credit Agreement, dated as of December 24, 1997, between Trace International and the Bank, as amended, amended and restated, supplemented or otherwise modified from time to time; Guaranty, dated July 28, 1995, by Trace International in favor of the Bank, as amended, amended and restated, supplemented or otherwise modified from time to time; Demand Note, dated May 7, 1999, between Trace International and the Bank, as amended, amended and restated, supplemented or otherwise modified from time to time; Amended and Restated Pledge Agreement, dated as of June 30, 1998, by Trace International in favor of the Bank, as amended, amended and restated, supplemented or otherwise modified from time to time; Pledge Agreement, dated as of August 15, 1997, by Trace International in favor of the Bank, as amended, amended and restated, supplemented or otherwise modified from time to time; Trace Foam Sub Guaranty, dated as of December 30, 1998, by Trace Foam Sub in favor of the Bank, as amended, amended and restated, supplemented or otherwise modified from -4- time to time; Demand Note, dated December 1, 1998, between Trace Foam Sub and the Bank, as amended, amended and restated, supplemented or otherwise modified from time to time; Note Pledge Agreement, dated as of March 29, 1999, by Trace Foam Sub in favor of the Bank, as amended, amended and restated, supplemented or otherwise modified from time to time; and Borrower Pledge Agreement, dated as of May 7, 1999, made by Trace Foam Sub in favor of the Bank, as amended. On July 21, 1999 Trace filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York. The Bank's claims of in excess of US $167,000,000 at the time Trace filed its petitions in addition to the assigned claims of certain other Trace creditors were secured by liens and security interests on certain Trace assets, including as to the assigned claims, 7,000,247 shares of Company Common Stock. Pursuant to the Stipulation of Settlement (the "Settlement") between the Bank and John S. Pereira, in his capacity as the Chapter 7 Trustee of Trace (the "Trustee"), entered as an Order by the U.S. Bankruptcy Court for the Southern District of New York on October 18, 2000, and which became final and non-appealable on or about October 31, 2000, the Bank became the owner of 1,500,000 shares of Company Common Stock. Pursuant to the Share Exchange Agreement, dated as of July 31, 2000, as amended October 25, 2000, by and between the Bank and the Company (the "Share Exchange Agreement"), on November 2, 2000 the Bank transferred 1,500,000 shares of Company Common Stock to the Company in exchange for 15,000 shares of Company Series B Preferred Stock (the "Company Preferred Stock") to be held the Nominee. At any time, the holders of the Company Preferred Stock may convert each share of Company Preferred Stock, for no further consideration, into 100 shares of Company Common Stock, subject to adjustment; PROVIDED that, until (A) the termination of (1) the Credit Agreement, dated as of June 12, 1997, as amended and restated as of February 27, 1998, as further amended and restated as of June 29, 1999, among Foamex L.P., FMXI, Inc., the lenders and issuing banks named therein, and Citicorp USA, Inc. and The Bank of Nova Scotia, as administrative agents, (2) the Credit Agreement, dated as of February 27, 1998, as amended or as may be amended, among Foamex Carpet Cushion, Inc., the lenders and issuing banks named therein, and Citicorp USA, Inc. and The Bank of Nova Scotia, as administrative agents, (3) the Indenture, dated as of June 12, 1997, as supplemented from time to time, by and among Foamex L.P., Foamex Capital Corporation, General Felt Industries, Inc., Foamex Fibers, Inc. and the Bank of New York, as trustee, and (4) the Indenture, dated as of December 23, 1997, as supplemented from time to time, by and among Foamex L.P., Foamex Capital Corporation, General Felt Industries, Inc., Foamex Fibers, Inc., Foamex LLC, Crain Holdings Corp. and the Bank of New York, as trustee, or (B) the elimination of the change of control provisions in such Credit Agreements and Indentures, such conversion would not result in any holder becoming the owner of 25% or more of the voting stock of the Company. After effectuating the transfer of 1,500,000 shares of Company Common Stock to the Company in exchange for 15,000 shares of Company Preferred Stock to be held by the Nominee, the Trustee released the remaining shares of Company Common Stock and the Bank, through its Nominee, became the owner of 5,697,426 shares of Company Common Stock pursuant to the Settlement. As a result of these transactions and its prior holdings of 53,000 shares of Company Common Stock, the Bank has become the owner of 5,750,426 shares of Company Common Stock and 15,000 shares of Company Preferred Stock. The Bank holds 5,697,426 of such shares of Company Common Stock and all of the -5- 15,000 shares of Company Preferred Stock through its Nominee. The Bank intends to review its investment in the Company on a continuing basis and, depending upon price and availability of Company securities, subsequent developments affecting the Company, the business and prospects of the Company, general stock market and economic conditions, tax considerations and other factors deemed relevant, to consider decreasing the size of the Bank's investment in the Company. The foregoing descriptions of the Settlement, the Share Exchange Agreement, the terms and conditions of the Series B Preferred Stock and the Nominee do not purport to be complete and are qualified in their entirety by reference to the Settlement, the Share Exchange Agreement, as amended, the Series B Preferred Stock Certificate of Designations, and the Calder & Co. Partnership Agreement, respectively, each of which is filed herewith as Exhibits 99.1, 99.2, 99.3, 99.4 and 99.5, and is incorporated herein by reference. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) As of the date hereof, the Bank, beneficially owns 5,750,426 of the outstanding shares of Company Common Stock. Such shares represent in the aggregate approximately 24.4% of the outstanding shares of Company Common Stock. The Bank holds 5,697,426 shares of such Company Common Stock through its Nominee. The shares held by the Nominee represent in the aggregate approximately 24.2% of the outstanding shares of Company Common Stock. (b) The Bank holds sole power to vote and to dispose of the 5,750,426 shares of Company Common Stock. The bank holds 5,697,426 of such shares of Company Stock through its Nominee. The Company Preferred Stock does not have voting privileges. (c) Except as described in Item 4 above, the Bank has not effected any transaction in Company Shares during the past 60 days. (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 Company Shares. As of the date hereof, the Bank, through its Nominee, beneficially owns 15,000 shares of Company Preferred Stock, which are convertible into an aggregate of 1,500,000 shares of the Company Common Stock upon the events described in Item 4. The Bank disclaims beneficial ownership over such 1,500,000 shares of Company Common Stock on the basis that the Company Preferred Stock is not convertible within the next 60 days into such shares of Company Common Stock. If the Bank were to be deemed to beneficially own such shares, it would hold an aggregate of 28.9% of the Company Common 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. Exhibit 99.1 - Stipulation of Settlement between John S. Pereira, in his capacity as the Chapter 7 Trustee of Trace International Holdings, Inc., and Trace Foam Sub, Inc., and The Bank of Nova Scotia, entered as an Order by the U.S. Bankruptcy Court for the Southern District of New York on October 18, 2000. Exhibit 99.2 - Share Exchange Agreement, dated July 31, 2000, between Foamex International, Inc. and The Bank of Nova Scotia. -6- Exhibit 99.3 - Amendment to Share Exchange Letter Agreement, dated October 25, 2000. Exhibit 99.4 - Form of Certificate of Designations of Series B Preferred Stock of Foamex International, Inc. Exhibit 99.5 - Partnership Agreement of Calder & Co. Exhibit 99.6 - Joint Filing Agreement, dated as of November 8, 2000, between The Bank of Nova Scotia and Calder & Co. -7- SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 8, 2000 THE BANK OF NOVA SCOTIA By: /s/ D. N. Gillespie -------------------------- Name: D. N. Gillespie Title: Managing Director -8- SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: CALDER & CO. By: W. R. Ebbels ---------------------------- Name: W. R. Ebbels Title: Partner -9- APPENDIX A INFORMATION CONCERNING EXECUTIVE OFFICERS AND DIRECTORS OF THE BANK OF NOVA SCOTIA NAME OF CORPORATE PRESENT POSITION WITH THE BANK CITIZENSHIP OFFICERS Peter Cowperthwaite Chairman of the Board and Chief Canada Godsoe Executive Officer Bruce Robert Birmingham President Canada Robert William Chisholm Vice-Chairman, Domestic Banking Canada Richard Earl Waugh Vice-Chairman, Wealth Management Canada & International Banking Barry Reginald Frederick Co-Chairman and Co-Chief United Luter Executive Officer, Scotia Capital Kingdom William David Wilson Co-Chairman and Co-Chief Canada Executive Officer, Scotia Capital John Francis Matthew Senior Executive Vice-President, Canada Crean Global Risk Management Robert Hartland Pitfield Executive Vice-President and Canada Group Head, Wealth Management Stanley Dennis Norman Executive Vice-President, Canada Belcher Investment Banking Credit & Credit Policy Robert Leslie Brooks Executive Vice-President, & Canada, Group Treasurer Ireland Sylvia Dolores Chrominska Executive Vice-President, Human Canada Resources Sarabjit S. Marwah Executive Vice-President & Chief Canada Financial Officer Margaret Jean Mulligan Executive Vice President, Canada Systems & Operations William P. Sutton Executive Vice-President, Latin Canada America, International Banking Albert E. Wahbe Executive Vice-President, Canada Electronic Banking Warren K. Walker Executive Vice-President, Canada Electronic Delivery John Adam Young Executive Vice-President, Canada Domestic Branch Banking The business address for Executive Officers of the Bank is: 44 King St. West, Toronto, Ontario, Canada M5H 1H1 -10- NAME OF CORPORATE PRINCIPAL OCCUPATION & ADDRESS CITIZENSHIP DIRECTORS Lloyd Ingram Barber President Emeritus Canada University of Regina Box 510, 800 Green Avenue Regina Beach, Saskatchewan, Canada S0G 4C0 Malcolm Robert Baxter Chairman, President & CEO Canada Coast Tire & Auto Service Ltd. 91 Millidge Avenue Saint John, N.B., Canada E2K 2M3 Ronald A. Brenneman President & CEO Canada Petro-Canada P.O. Box 2844 Calgary, Alberta, Canada T2P 3E3 Choong Joong Chen Senior Partner Singapore Rajah & Tann Advocates & Solicitors (Attorneys) 4 Battery Road 15th Floor, Bank of China Building Singapore 049908 Edwin Kendall Cork Managing Director Canada Sentinel Associates Ltd. Suite 703, 165 University Avenue Toronto, Ontario, Canada M5H 3B9 Sir Judson Graham Day Chairman Canada, Hydro One Inc. Great 384 Bay Street Britain Toronto, Ontario, Canada Nancy Ashleigh Everett President Canada Royal Canadian Securities Limited 800 - 240 Graham Avenue Winnipeg, Manitoba, Canada R3M 0J1 Maurice Keith Goodrich Corporate Director Canada, USA 11730 Shipwatch Drive, Suite 307 Largo, Florida, USA 33774 -11- NAME OF CORPORATE PRINCIPAL OCCUPATION & ADDRESS CITIZENSHIP DIRECTORS The Honourable Henry Chairman & President Canada N.R. Jackman E-L Financial Corporation 165 University Avenue Toronto, Ontario, Canada M5H 3B8 Pierre J. Jeanniot Director General & CEO Canada International Air Transport Association Route de L'Aeroport 33 P.O. Box 416 CH 1215, Geneva 15, Airport, Switzerland John C. Kerr Chairman & CEO Canada Lignum Ltd. 1200 - 1090 W. Georgia St. Vancouver, B.C., Canada V6E 3V7 Senator Michael John Member of the Senate of Canada Canada Langtry Kirby Government of Canada Suite 204, 140 Wellington Street Ottawa, Ontario, Canada K1A 0A4 Laurent Lemaire President & CEO Canada Cascades Inc. 404, Marie-Victorin, C.P. 30 Kingsey Falls, Quebec, Canada J0A 1B0 John Thomas Mayberry President & CEO Canada Dofasco Inc. P.O. Box 2460 Hamilton, Ontario, Canada L8N 3J5 The Honourable Barbara President & CEO Canada Jean McDougall Canadian Institute of International Affairs Glendon Hall 2275 Bayview Ave. Toronto, Ontario, Canada M4N 3M6 Ian McDougall Retired; Consultant (Part-time) USA Inco Limited 145 King Street West Toronto, Ontario, Canada M5H 4B7 -12- NAME OF CORPORATE PRINCIPAL OCCUPATION & ADDRESS CITIZENSHIP DIRECTORS Helen Anne Parker Company Director Canada 771 - Towner Park Road Sidney, B.C., Canada V8L 5L7 Elizabeth Parr-Johnston President, University of New Canada Brunswick 58 Waterloo Row Fredericton, N.B., Canada E3B 1Y9 Arthur Richard Andrew Lawyer Canada Scace McCarthy Tetrault Suite 4700 Toronto-Dominion Bank Tower Toronto-Dominion Centre Toronto, Ontario, Canada M5K 1E6 Gerald W. Schwartz Chairman & CEO Canada Onex Corporation 161 Bay Street P.O. Box 700 Toronto, Ontario, Canada M5J 2S1 Isadore Sharpe Chairman & Chief Executive Canada Officer Four Seasons Hotels & Resorts 1165 Leslie Street Toronto, Ontario, Canada M3C 2K8 Allan Cameron Shaw Chairman & CEO Canada The Shaw Group Limited P.O. Box 996 Halifax, N.S., Canada B3J 2X1 Paul David Sobey President & CEO Canada Empire Company Limited 115 King Street Stellarton, Nova Scotia, Canada B0K 1S0 -13- APPENDIX B INFORMATION CONCERNING THE PARTNERS OF CALDER & CO. NAME OF PARTNER PRINCIPAL OCCUPATION AND ADDRESS CITIZENSHIP Vilma Pindling Banker U.S.A. The Bank of Nova Scotia One Liberty Plaza, 24th Floor New York, NY 10006 William R. Ebbels Banker Canada The Bank of Nova Scotia One Liberty Plaza, 24th Floor New York, NY 10006 Warren Goshine Banker/Trust Officer U.S.A. One Liberty Plaza, 23rd Floor New York, NY 10006 -14- APPENDIX C INDEX OF EXHIBITS Exhibit 99.1. Stipulation of Settlement between John S. Pereira, in his capacity as the Chapter 7 Trustee of Trace International Holdings, Inc. and Trace Foam Sub, Inc., and The Bank of Nova Scotia. Exhibit 99.2. Share Exchange Agreement, dated July 31, 2000, between Foamex International, Inc. and The Bank of Nova Scotia. Exhibit 99.3. Amendment to Share Exchange Letter Agreement, dated October 25, 2000. Exhibit 99.4. Form of Certificate of Designations of Series B Preferred Stock of Foamex International, Inc. Exhibit 99.5. Partnership Agreement of Calder & Co. Exhibit 99.6 Joint Filing Agreement, dated as of Novembewr 8, 2000, between The Bank of Nova Scotia and Calder & Co. -15- EX-99.1 2 0002.txt STIPULATION OF SETTLEMENT Exhibit 99.1 Execution Copy STIPULATION OF SETTLEMENT ------------------------- This Stipulation by and between John S. Pereira, in his capacity as the Chapter 7 Trustee (the "Trustee") of Trace International Holdings, Inc. ("Trace International") and Trace Foam Sub, Inc. ("Trace Foam Sub" and, collectively with Trace International, the "Debtors") and The Bank of Nova Scotia (the "Bank"), through their respective attorneys. Background ---------- A. The Bank made loans and advances, and extended credit and other financial accommodations to or for the benefit of (collectively, the "Pre- Petition Loans"), Trace International and/or Trace Foam Sub pursuant to, or in connection with, certain loan agreements and other documents (collectively, the "Pre-Petition Loan Documents"). The Pre-Petition Loan Documents are more fully described in the proof of claim filed by the Bank in the Debtors' bankruptcy cases. B. On July 21, 1999 (the "Petition Date") the Debtors filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"). C. The Bank asserts that as of July 21, 1999 (the "Petition Date"), the Debtors were, and still are, (i) in the case of Trace International, indebted to the Bank in the aggregate principal amount of approximately $156,699,707 in respect of Pre-Petition Loans plus approximately $10,685,894 in unpaid interest thereon, (ii) in the case of Trace Foam Sub, indebted to the Bank in the aggregate principal amount of approximately $26,669,951 in respect of Pre-Petition Loans plus approximately $1,528,902 in unpaid interest thereon and (iii) in the case of Trace International and Trace Foam Sub, indebted to the Bank in respect of interest, fees, costs, expenses and other charges (including without limitation attorneys' fees and expenses) owing pursuant to the Pre-Petition Loan Documents in amounts to be determined. D. The Bank asserts that pursuant to the Pre-Petition Loan Documents, the Debtors were, and still are, indebted to the Bank in an amount to be determined on account of interest, fees, costs, expenses and other charges (including without limitation attorneys' fees and expenses) accrued subsequent to the Petition Date. The claims described in paragraph C and this paragraph D are hereinafter referred to collectively as the "Pre-Petition Bank Claims." E. The Bank asserts that the Pre-Petition Bank Claims are secured by liens and security interests in the collateral described in the Pre-Petition Loan Documents (the "Pre-Petition Bank Collateral"), including without limitation all of the Debtors' right, title and interest in and to approximately (i) 3,993,110 shares of common stock of United Auto Group, Inc., (ii) 197,179 shares of common stock ("Foamex Common Stock") of Foamex International, Inc. ("Foamex"), (iii) 1000 shares of common stock of Trace Foam Sub and (iv) 2,057 shares of Series C preferred stock of CHF Holdings, Inc. F. Pursuant to that certain Option and Transfer Agreement dated as of November 12, 1999, by and between Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and the Bank, the Bank has acquired all of DLJ's right, title and interest in and to a loan by DLJ and/or affiliate(s) thereof to Trace Foam Sub pursuant to a Customer Agreement between Donaldson, Lufkin & Jenrette Securities Corporation and Trace Foam Sub, and certain agreements, instruments and documents related thereto (the "DLJ Transaction Documents" and, collectively with the Pre-Petition Loan Documents, the "Pre-Petition Documents"). G. The Bank asserts that as of the Petition Date, Trace Foam Sub was, and still is, (i) indebted to the Bank (as assignee of DLJ) in the aggregate principal amount of approximately $35,976,427.60 (including interest compounded in accordance with the DLJ Transaction Documents) and (ii) indebted to the Bank (as assignee of DLJ) in respect of interest, fees, costs, expenses and other charges (including without limitation (x) costs incurred in connection with hedging and covering transactions and (y) attorneys' fees and expenses) owing pursuant to the DLJ Transactions Documents in amounts to be determined. H. The Bank asserts that pursuant to the DLJ Transaction Documents, Trace Foam Sub was, and still is, indebted to the Bank (as assignee of DLJ) in the aggregate amount of at least $3,000,000 on account of interest, fees, costs, expenses and other charges (including without limitation attorneys' fees and expenses) accrued subsequent to the Petition Date. The claims asserted in paragraph G and this paragraph H are hereinafter referred to collectively as the "Assigned Claims" and, collectively with the Pre-Petition Bank Claims, the "Pre-Petition Claims." I. The Bank asserts that the Assigned Claims are secured by liens and security interests in the collateral described in the DLJ Transaction Documents (collectively, with the Pre-Petition Bank Collateral, the "Pre-Petition Collateral"), including without limitation all of Trace Foam Sub's right, title and interest in and to 7,000,247 shares of Foamex Common Stock. J. Pursuant to that certain Final Order Authorizing Debtor in Possession to Obtain Post-Petition Financing pursuant to Section 364 of the Bankruptcy Code and Granting Liens, Security Interests and Super-Priority Claims, entered by the Bankruptcy Court on or about August 23, 1999 (the "DIP Order"), the Bank made post-petition advances to Trace International, the aggregate outstanding principal amount of which (together with accrued and unpaid interest thereon and all fees and expenses incurred in connection therewith) is $212,815 as of June 30, 2000 (the "DIP Claim", and collectively with Pre-Petition Claims, the "Claims"). The DIP Claim is secured by liens on assets of Trace International as described in the DIP Order (the "DIP Collateral" and, collectively with the Pre-Petition Collateral, the "Collateral"). -2- K. On or about January 24, 2000, the Court entered an "Order Converting Cases Under Chapter 11 to Cases Under Chapter 7." L. On or about January 25, 2000, the United States Trustee appointed the Trustee as interim trustee for the Debtors' estates. Pursuant to Section 702(d) of the Bankruptcy Code, the Trustee became the permanent trustee at a meeting of creditors on March 6, 2000. M. The Trustee has investigated the Pre-Petition Claims, the liens asserted by the Bank in the Pre-Petition Collateral (the "Pre-Petition Liens") and other aspects of the Bank's pre-petition relationship with the Debtors, and the Trustee has raised certain issues relating thereto with the Bank. The Trustee and the Bank have agreed to resolve such issues on the terms set forth herein. Terms and Conditions -------------------- NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in reliance upon the mutual undertakings of the parties hereto, the Trustee and the Bank hereby agree as follows: 1. Release by Trustee. Effective as of the Effective Date (as ------------------ hereinafter defined), the Trustee, on behalf of himself, the Debtors and Debtors' respective estates, and any person or entity claiming by or through any of them (collectively, the "Trustee Releasors") shall be deemed, automatically and without necessity of further action by the Trustee Releasors, the Bank or any other person or entity, to have released and discharged the Bank and all of its present and former directors, managing directors, officers, employees, agents, financial advisors, attorneys, administrators, successors and assigns from all actions, causes of action, accounts, agreements, bonds, bills, covenants, contracts, controversies, claims, damages, demands, debts, dues, extents, executions, judgments, liabilities, obligations, promises, predicate acts, reckonings, specialties, suits, defenses, sums of money, liens, security interests, mortgages, trespasses and variances whatsoever, whether known or unknown, in law, admiralty or equity, whether or not arising in or under or related to the Debtors' Chapter 7 or Chapter 11 cases, which against any of them the Trustee Releasors ever had or now has or have, for, upon, or by reason of any matter, cause or thing whatsoever arising out of or under, connected to, or in any way relating to the Pre-Petition Documents, the Collateral, the Claims, the DIP Order or any aspect of the Bank's relationship with the Trustee Releasors or any of them from the beginning of the world to the Effective Date, but specifically excluding the Bank's performance of its obligations set forth hereunder. 2. Release by Bank. Effective as of the Effective Date, the --------------- Bank, on behalf of itself and any person or entity claiming by or through the Bank, shall be deemed to have released and discharged the Trustee, the Debtors and the Debtors' respective estates and all of their respective present and former directors, managing directors, officers, employees, agents, financial advisors, attorneys, administrators, successors and -3- assigns from all actions, causes of action, accounts, agreements, bonds, bills, covenants, contracts, controversies, claims, damages, demands, debts, dues, extents, executions, judgments, liabilities, obligations, promises, predicate acts, reckonings, specialties, suits, defenses, sums of money, liens, security interests, mortgages, trespasses and variances whatsoever, whether known or unknown, in law, admiralty or equity, whether or not arising in or under or related to the Debtors' Chapter 7 or Chapter 11 cases (collectively, the "Bank Claims"), which against any of them the Bank ever had or now has or have, for, upon, or by reason of any matter, cause or thing whatsoever arising out of or under, connected to, or in any way relating to the Pre-Petition Documents, the Collateral, the Claims, the DIP Order or any aspect of the Bank's relationship with the Trustee, the Debtors or any of them from the beginning of the world to the Effective Date, but specifically excluding (a) the Trustee's performance of its obligations hereunder and (b) any and all rights of the Bank in connection with the Pre-Petition Liens or the Pre-Petition Collateral (it being understood and agreed that the foregoing release of Pre-Petition Claims shall not in any way impair the Pre-Petition Liens or any rights of the Bank with respect thereto, but shall only constitute a release of the Bank's deficiency claim, if any, with respect to the Pre-Petition Claims (and the Pre-Petition Claims shall continue to have recourse to the Pre-Petition Collateral notwithstanding such release)). 3. Payment by Bank. On or as soon as practicable after the --------------- Effective Date, the Bank shall pay to the Trustee the amount of $137,185, which payment shall be made by a check payable to "John S. Pereira as chapter 7 trustee of the estates of Trace International Holdings, Inc., et al." 4. Agreement as to Pre-Petition Collateral. Effective as of the Effective Date, and without limiting the generality of paragraphs 1 and 2 hereof, (a) the Bank shall immediately become the owner of the Pre-Petition Collateral other than 5,697,426 shares of Foamex Common Stock (the "Excluded Shares"), free and clear of all mortgages, liens, charges, restrictions, security interests, adverse claims, pledges or demands whatsoever, as if the Bank had validly foreclosed thereon in accordance with applicable law (without necessity of seeking or obtaining relief from the Bankruptcy Court or taking any other action whatsoever), (b) immediately following the exchange of 1,500,000 shares of Foamex Common Stock (which shares shall not include Excluded Shares) for certain preferred stock of Foamex pursuant to an agreement between the Bank and Foamex or as otherwise determined by the Bank in a written notice to the Trustee if such agreement has terminated by its terms, the Bank shall become the owner of the Excluded Shares, free and clear of all mortgages, liens, charges, restrictions, security interests, adverse claims, pledges or demands whatsoever, as if the Bank had validly foreclosed thereon in accordance with applicable law (without necessity of seeking or obtaining relief from the Bankruptcy Court or taking any other action whatsoever), (c) all rights of the Trustee Releasors with respect to the Pre-Petition Collateral shall terminate and (d) the Trustee shall take all action reasonably requested by the Bank to confirm and reflect such ownership and termination. -4- 5. Upon Receipt by the Trustee of the Settlement Payment pursuant to paragraph 3 hereof, the Trustee will segregate $137,500 in an account (the "Segregated Account") in the name of the Trustee, but for the direct benefit of Sonnenschein Nath & Rosenthal ("Sonnenschein"), the Debtors' Chapter 11 counsel. The funds in the Segregated Account (the "Segregated Funds") shall be applied to Sonnenschein's fees and expenses, if any, allowed by the Bankruptcy Court for Sonnenschein's representation of the Debtors in their Chapter 11 cases (collectively, the "Allowed Sonnenschein Fees"). The Trustee shall maintain the $137,500 in the Segregated Account until Sonnenschein's fees and expenses are allowed by the Bankruptcy Court, at which time such funds, upon the request of Sonnenschein, shall be promptly paid by the Trustee to Sonnenschein upon entry of a final order of the Bankruptcy Court approving such fees and expenses subject to the terms and conditions herein. Any excess of the Allowed Sonnenschein Fees over the Segregated Funds shall constitute allowed Chapter 11 administrative claims and shall be treated as such in accordance with applicable provisions of the Bankruptcy Code. Any excess of the Segregated Funds over the Allowed Sonnenschein Fees shall revert to the Debtors' Chapter 7 estate, free and clear of any claim or interest of Sonnenschein or any other person or entity. Sonnenschein hereby withdraws its objection to this Stipulation and, effective upon the Effective Date, releases and discharges the Trustee, the Bank and their respective present and former directors, officers, employees, agents, financial advisors, attorneys, administrators, successors and assigns from any and all claims under the DIP Order, including without limitation paragraph 9 thereof. Sonnenschein shall be deemed to be a party to this Stipulation for purposes of enforcing its rights, and fulfilling its obligations, under this paragraph 5. 6. Miscellaneous. ------------- The Trustee shall promptly attempt to obtain Bankruptcy Court approval of this Stipulation pursuant to an order in form and substance reasonably satisfactory to the Bank (an "Approval Order"). The parties agree that the Approval Order may be this Stipulation as "So Ordered" by the Bankruptcy Court on the signature pages hereof. As used herein, "Effective Date" means the first business day on which the Approval Order becomes a final, non-appealable order. This Bankruptcy Court shall have continuing jurisdiction to enforce this Stipulation and to determine any and all disputes arising hereunder or related hereto. This Stipulation constitutes the entire understanding among the parties hereto with respect to the subject matter hereof, and this Stipulation may not be changed, modified or altered in any manner except in writing, signed by both parties. Except as expressly set forth herein, nothing in this Stipulation shall constitute or be deemed to be an admission by any party of liability or as an acknowledgement of the truth of any allegation asserted by the parties. The Background is incorporated into and is a part of this Stipulation. -5- This Stipulation shall be governed by, and construed and enforced in accordance with, the laws of the state of New York (excluding conflicts of laws) and by the applicable provisions of the Bankruptcy Code. 7. This Stipulation may be executed in a number of counterparts and all such counterparts shall be taken to be one agreement. 8. The notice provided in connection with the motion seeking approval of this Stipulation and Order by the Bankruptcy Court is sufficient under the Federal Rules of Bankruptcy Procedure and Local Rules of this district. Dated: New York, New York October 13, 2000 GERSTEN, SAVAGE & KAPLOWITZ LLP WACHTELL, LIPTON, ROSEN, & KATZ Attorneys for the Trustee Attorneys for The Bank of Nova Scotia By: /s/ Harold Jones ------------------------------- Harold D. Jones (HDJ-4652) A Member of the Firm By: /s/ Richard G. Mason 101 East 52nd Street -------------------------------- New York, New York 10022-6018 Richard G. Mason (RGM-0698) (212) 752-9700 A Member of the Firm 51 East 52nd Street New York, New York 10019 (212) 403-1000 SONNENSCHEIN NATH & ROSENTHAL By: /s/ Robert E. Richards ------------------------- Robert E. Richards A Partner of the Firm 1221 Avenue of the Americas New York, New York 10020-1089 212-768-0700 SO ORDERED: /s/ STUART M. BERNSTEIN -------------------------- Stuart M. Bernstein Chief United States Bankruptcy Judge Dated: New York, New York October 16 , 2000 ----------- -6- EX-99.2 3 0003.txt SHARE EXCHANGE AGREEMENT Exhibit 99.2 Foamex International Inc. 1000 Columbia Avenue Linwood, PA 19061 July 31, 2000 The Bank of Nova Scotia One Liberty Plaza New York, New York 10006 Attention: D. Norman Gillespie Foamex International Inc. Share Exchange ---------------------------------------- Dear Sirs: This will confirm our agreement concerning a portion of the 7,197,426 shares (the "Shares") of common stock, par value $.01 per share (the "Common Stock"), of Foamex International Inc. ("Foamex") currently held of record by Trace Foam Sub, Inc. ("Trace") and Trace International Holdings, Inc. ("TII"), which are subject to liens and security interests in favor of The Bank of Nova Scotia ("Scotia Bank"), a creditor of TII, the holder of all of the outstanding shares of capital stock of Trace, and of Trace. We understand that Scotia Bank and John S. Pereira, in his capacity as the Chapter 7 trustee for the estates of Trace and TII (the "Trustee"), have entered into a Stipulation of Settlement (the "Stipulation of Settlement") in the form attached hereto as Exhibit "A," which is subject to approval by the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"). The Stipulation of Settlement provides, among other things, that Scotia Bank will have the right to take title to 1,500,000 of the Shares so that the agreement described herein may be effectuated. Foamex and Scotia Bank desire to facilitate the orderly transfer of Common Stock held of record by Trace to Scotia Bank (and its potential transferees) following Bankruptcy Court approval of the Stipulation of Settlement in a manner that does not constitute a "change in control", as defined in instruments governing certain outstanding indebtedness issued by Foamex L.P. and Foamex Carpet Cushion, Inc., subsidiaries of Foamex. Accordingly, Foamex and Scotia Bank hereby agree as follows: 1. The Share Exchange. On the terms and subject to the conditions ------------------ set forth herein, at the Closing (as defined below), (a) Scotia Bank shall transfer, assign and deliver to Foamex a certificate representing 1,500,000 shares of Common Stock (the "Exchanged Shares"), together with stock powers endorsed in blank, and (b) Foamex shall issue, in exchange for the Exchanged Shares, a certificate registered in the name of Scotia Bank representing 15,000 shares of Series B Preferred Stock, par value $1.00 per share (the "Series B Preferred Stock"), of Foamex. The Series B Preferred Stock shall have the rights, terms and preferences as set forth in 2 the form of Certificate of Designations attached hereto as Exhibit "B" (the "Certificate"). The exchange contemplated by this paragraph 1 is referred to herein as the "Share Exchange"). 2. Closing. The closing of the Share Exchange (the "Closing") shall ------- take place within two business days following the satisfaction or waiver of the conditions set forth in paragraph 5 below at the offices of Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, NY 10019. 3. Foamex Representations and Warranties. Foamex represents and ------------------------------------- warrants to Scotia Bank as follows: (a) Organization and Good Standing. Each of Foamex and its ------------------------------ material subsidiaries is a corporation or other entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of Foamex and its material subsidiaries is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing would not have a material adverse effect on the business, assets, condition (financial or otherwise) or the results of operations of Foamex and its material subsidiaries, taken as a whole. (b) Authorization; Binding Agreement. Foamex has all -------------------------------- requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Foamex and constitutes the legal, valid and binding agreement of Foamex enforceable against Foamex in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by principles of equity regarding the availability of remedies. (c) Filings; Consents. Except for (i) the filing of the ----------------- Certificate with the Secretary of State of Delaware, (ii) obtaining an appropriate determination from the Administrative Agents under each of (A) the Second Amended and Restated Foamex International Guaranty, dated as of February 27, 1998, as amended, made by Foamex in favor of Citicorp USA, Inc., as Collateral Agent, and (B) the Foamex International Guaranty, dated as of February 27, 1998, as amended, made by Foamex in favor of Citicorp USA, Inc., as intercreditor collateral agent, in each case with respect to the amendment to the Foamex Certificate of Incorporation upon the filing of the Certificate (collectively, the "Determinations"), and (iii) any necessary filings with the Securities and Exchange Commission to report the Share Exchange, Foamex is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or other party in connection with the execution and delivery by Foamex of this Agreement and the performance by it of the transactions contemplated hereby. The execution and delivery of this Agreement by Foamex and the performance by it of the transactions contemplated hereby do not and will not conflict with or violate any statute, ordinance, rule or regulation applicable to Foamex, or any writ or injunction 3 to which Foamex is a party or by which Foamex or its properties are bound, and do not and will not breach, conflict with or violate, or cause an event of default under, any Credit Documents listed on Schedule I to the opinion of counsel dated as of the date of this Agreement, provided to Citicorp USA, Inc. and Scotia Bank as Administrative Agents under each of the Foamex L.P. Credit Agreement and the Foamex Carpet Credit Agreement (as each such term is defined in the Certificate) ("Schedule I"). The Common Stock Transfer (as defined in paragraph 6(c) below) does not and will not breach, conflict with or violate, or cause an event of default under, any Credit Documents listed on Schedule 1. A copy of Schedule I is attached hereto. (d) Preferred Stock. The shares of Series B Preferred Stock --------------- to be issued hereunder to Scotia Bank shall be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. (e) Capitalization. On the date of this Agreement, there are -------------- 25,059,994 shares of Common Stock issued and outstanding. On the date of this Agreement, Foamex has no other shares of capital stock issued and outstanding. 4. Scotia Bank Representations and Warranties. Scotia Bank ------------------------------------------ represents and warrants to Foamex as follows: (a) Filings; Consents. Except for the approval of the ----------------- Stipulation of Settlement by the Bankruptcy Court and any necessary filings with the Securities and Exchange Commission to report the Share Exchange or the Common Stock Transfer (as defined below), Scotia Bank is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or other party in connection with the execution and delivery by Scotia Bank of this Agreement and the performance by it of the transactions contemplated hereby. The execution and delivery by Scotia Bank and the performance by it of the transactions contemplated hereby does not and will not conflict with or violate any statute, ordinance, rule or regulation applicable to Scotia Bank, or any writ or injunction to which Scotia Bank is a party or by which Scotia Bank or its properties are bound, and does not and will not conflict with, or cause an event of default under, any material contract to which Scotia Bank is a party. (b) Exchange. Upon approval of the Stipulation of Settlement -------- by the Bankruptcy Court, Scotia Bank will have full power and authority to cause the Trustee to deliver the Exchanged Shares to Foamex at the Closing. Foamex will acquire good and marketable title thereto, free and clear of any mortgages, liens, charges, restrictions, security interests, adverse claims, pledges, encumbrances or demands whatsoever, all to the extent created by or at the direction of Scotia Bank. (c) Investment Intent. The shares of Series B Preferred ----------------- Stock to be acquired by Scotia Bank pursuant to this Agreement will be acquired for its own account and with no intention of distributing or reselling such securities or the Common Stock issuable upon conversion thereof in any transaction that would be in violation of the securities laws of the United States of America, or any state, without prejudice, however, to its right at all times to sell or otherwise dispose of all or any part of such shares under an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), or under an exemption from 4 such registration available under the Securities Act. If Scotia Bank should in the future decide to dispose of any of the shares of Series B Preferred Stock or any Common Stock into which such shares may be converted, Scotia Bank understands and agrees that it may do so only in compliance with the Securities Act and applicable state securities laws, as then in effect. It agrees to the imprinting of a legend on certificates representing all of the shares of Series B Preferred Stock or any Common Stock into which such shares may be converted to the following effect: "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. Conditions to Obligations. The obligation of Foamex and ------------------------- Scotia Bank to consummate the Share Exchange shall be subject to the fulfillment at or prior to the Closing, of the following conditions, any of which may be waived by the mutual agreement of Foamex and Scotia Bank: (a) Each of the representations and warranties contained in paragraphs 3 and 4 hereof shall be true and correct in all material respects as of the date of the Closing, and Scotia Bank and Foamex shall have complied in all material respects with the covenants contained in paragraphs 6 and 7 hereof to the extent such covenants are to be performed prior to Closing. (b) The Certificate shall have been duly filed with the Secretary of State of Delaware. (c) Foamex shall have received the Determinations. (d) The Bankruptcy Court shall have approved the Stipulation of Settlement by entry of an order in all material respects satisfactory to Foamex and Scotia Bank, which order (i) shall not have been stayed, modified or reversed and (ii) shall have become a final, non-appealable order. (e) No action, suit or other proceeding shall be pending before any court, governmental or regulatory official, body or authority in which it is sought to restrain or prohibit the transactions contemplated hereby, and no injunction, judgment, order, decree or ruling with respect thereto shall be in effect. (f) Counsel to Foamex shall have delivered an opinion to Scotia Bank substantially in the form of Exhibit "C" hereto. (g) The Closing shall occur on or before October 31, 2000. 5 6. Covenants of Foamex. ------------------- (a) Foamex covenants that it at all times will reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock or its issued shares of Common Stock held in its treasury, or both, for the purpose of effecting conversion of the Series B Preferred Stock, up to 1,500,000 shares of Common Stock deliverable upon the conversion of all outstanding shares of Series B Preferred Stock not theretofore converted. Foamex covenants that any shares of Common Stock issued upon conversion of the Series B Preferred Stock shall be validly issued, fully paid and non-assessable. (b) If Foamex adopts a stockholder rights plan, such plan shall provide that the shares of Common Stock to be held by the Trustee or Scotia Bank immediately following the Share Exchange shall be "grandfathered" under the terms of such plan, so as not to trigger the exercisability of any rights issued thereunder solely as a result of a person or entity acquiring such shares from the Trustee, Scotia Bank or their respective transferees; provided -------- that any additional shares of Common Stock acquired by a holder who beneficially owns such initial amount shall trigger such exercisability. (c) After the Closing, Foamex shall cooperate in the transfer of the 5,697,426 shares of Common Stock by the Trustee to Scotia Bank contemplated by Section 4 of the Stipulation of Settlement (the "Common Stock Transfer"). 7. Covenant of Scotia Bank. Prior to consummation of the Share ----------------------- Exchange, Scotia Bank shall not take title to, or otherwise become the beneficial owner of any shares of Common Stock, whether acquired from the Trustee or otherwise, except in an amount up to 53,000 shares of Common Stock owned by Scotia Bank as of the date of this Agreement. 8. Miscellaneous. ------------- (a) This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto. (b) No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. (c) This Agreement shall be governed and construed in accordance with the internal laws of the State of New York. (d) This Agreement may be executed in counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument. 6 (e) All representations, warranties and covenants of the parties shall survive the Closing. If Scotia Bank agrees to the foregoing, please sign as indicated below and return a copy to the undersigned. FOAMEX INTERNATIONAL INC. By: /s/ John G. Johnson, Jr. ----------------------------------- Name: John G. Johnson, Jr. Title: President and Chief Executive Officer Agreed to: THE BANK OF NOVA SCOTIA By: /s/ D. N. Gillespie ------------------------------- Name: D. N. Gillespie Title: Managing Director Schedule I Credit Documents ---------------- 1. Credit Agreement, dated as of June 12, 1997, as amended and restated as of February 27, 1998, and as further amended and restated as of June 29, 1999, among Foamex L.P., FMXI, Inc., the institutions from time to time party thereto as Lenders and Issuing Banks and Citicorp USA, Inc. and The Bank of Nova Scotia, as Administrative Agents (the "Foamex L.P. Administrative Agents"), as amended by Amendment to Foamex Credit Agreement, dated as of December 23, 1999, and Amendment No. 2 to Foamex Credit Agreement, dated as of February 18, 2000 (as so amended, the "Foamex L.P. Credit Agreement"). 2. Second Amended and Restated Foamex International Guaranty, dated as of February 17, 1998, made by Foamex International Inc. in favor of Citicorp USA, Inc., as Collateral Agent, as amended by Amendment No. 1 to Second Amended and Restated Foamex International Guaranty, dated as of March 11, 1999. 3. Foamex International Pledge Agreement, dated as of June 30, 1999, made by Foamex International Inc. in favor of Citicorp USA, Inc., as Collateral Agent. 4. Foamex Security Agreement, dated as of June 12, 1997, made by Foamex L.P. in favor of Citicorp USA, Inc., as Collateral Agent (copy reviewed), as amended by First Amendment to Foamex Security Agreement, dated as of December 23, 1997 (obtained from LEXIS). 5. Amended and Restated Foamex Pledge Agreement, dated as of June 30, 1999, made by Foamex L.P. in favor of Citicorp USA, Inc., as Collateral Agent. 6. Amended and Restated Partnership Pledge Agreement, dated as of June 30, 1999, made by Foamex International Inc. and FMXI, Inc. in favor of Citicorp USA, Inc., as FII Intercreditor Collateral Agent. 7. Credit Agreement, dated as of February 27, 1998, among Foamex Carpet Cushion, Inc., the institutions from time to time party thereto as Lenders and Issuing Banks and Citicorp USA, Inc. and The Bank of Nova Scotia, as Administrative Agents (the "FCC Administrative Agents"), as amended by Amendment No. 1 to Credit Agreement, dated as of October 30, 1998, Amendment No. 2 to Credit Agreement, dated as of March 12, 1999, Amendment No. 3 to Credit Agreement, dated as of June 30, 1999 and Amendment No. 4 to Credit Agreement, dated as of February 18, 2000 (as so amended, the "FCC Credit Agreement"). 8. Foamex International Guaranty, dated as of February 27, 1998, made by Foamex International Inc. in favor of Citicorp USA, Inc., as Collateral Agent, as amended by Amendment No. 1 to Foamex International Guaranty, dated as of March 12, 1999. -1- 9. Indenture, dated as of June 12, 1997, by and among Foamex L.P. and Foamex Capital Corporation, as Issuers, General Felt Industries, Inc., Foamex Fibers, Inc., and The Bank of New York, as Trustee, as supplemented by the First Supplemental Indenture thereto, dated as of December 23, 1997, the Second Supplemental Indenture thereto, dated as of February 27, 1998, and the Third Supplemental Indenture thereto, dated as of September 30, 1998 (as so supplemented, the "June 12, 1997 Indenture"). 10. Indenture, dated as of December 23, 1997, by and among Foamex L.P. and Foamex Capital Corporation, as Issuers, General Felt Industries, Inc., Foamex Fibers, Inc., Foamex LLC, Crain Holdings Corp. and The Bank of New York, as Trustee, as supplemented by the First Supplemental Indenture thereto, dated as of February 27, 1998, and the Second Supplemental Indenture thereto, dated as of September 30, 1998 (as so supplemented, the "December 23, 1997 Indenture"). 11. $70,200,000 Promissory Note, dated February 27, 1998, made by Foamex Carpet Cushion, Inc. in favor of Foam Funding LLC (f/k/a Trace Foam LLC), as amended by Amendment to Promissory Note, dated as of March 15, 1999, Amendment to Promissory Note, dated as of June 30, 1999, and Amendment to Promissory Note, dated as of February 18, 2000 (as so amended, the "FCC Promissory Note"). 12. $7,014,864 Subordinated Promissory Note, dated May 6, 1993, made by Foamex L.P. in favor of John Rallis (copy reviewed). 13. $2,490,000 Revolving Note, dated October 20, 1999, made by Foamex International Inc. in favor of Foamex L.P. 14. Commitment Letter, dated August 19, 1999, between The Bank of Nova Scotia and Foamex Canada Inc. EX-99.3 4 0004.txt AMENDMENT TO SHARE EXCHANGE LETTER AGREEMENT Exhibit 99.3 Foamex International Inc. 1000 Columbia Avenue Linwood, PA 19061 October 25, 2000 The Bank of Nova Scotia One Liberty Plaza New York, New York 10006 Attention: D. Norman Gillespie Amendment to Share Exchange Letter Agreement dated July 31, 2000 ---------------------------------------------------------------- Dear Sirs: This will confirm our agreement to amend the letter agreement dated July 31, 2000 (the "Share Exchange Agreement") between Foamex International Inc. ("Foamex") and The Bank of Nova Scotia ("Scotia Bank") concerning the exchange of 1,500,000 shares of the common stock, par value $.01 per share, of Foamex to 15,000 shares of Series B Preferred Stock, par value $1.00 per share, of Foamex, effective as of the date of this letter, as follows: Clause (g) of Section 5 of the Share Exchange Agreement shall be amended to replace the date "October 31, 2000" with the date "November 10, 2000". Except as otherwise expressly provided in the preceding sentence, the Share Exchange Agreement is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that on and after the date hereof all references in the Share Exchange Agreement to "this Agreement", "hereto", "hereof", "hereunder" or words of like import referring to the Share Exchange Agreement shall mean the Share Exchange Agreement as amended by this letter. The execution, delivery and effectiveness of this letter shall not operate as a waiver of any right, power or remedy of any party under the Share Exchange Agreement. The agreement set forth in this letter shall be governed and construed in accordance with the internal laws of the State of New York. This letter may be executed in counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument. -1- If Scotia Bank agrees to the foregoing, please sign as indicated below and return a copy to the undersigned. FOAMEX INTERNATIONAL INC. By: /s/ G. L. Karpinski ------------------------------- Name: G. L. Karpinski Title: Senior Vice President Agreed to: THE BANK OF NOVA SCOTIA By: /s/ D. N. Gillespie --------------------------- Name: D. N. Gillespie Title: Managing Director -2- EX-99.4 5 0005.txt FORM OF CERTIFICATE OF DESIGNATIONS Exhibit 99.4 FORM OF CERTIFICATE OF DESIGNATIONS OF SERIES B PREFERRED STOCK OF FOAMEX INTERNATIONAL INC. (Pursuant to Section 151 of the Delaware General Corporation Law) --------------------------- Foamex International Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation (the "Board of Directors") as required by Section 151 of the General Corporation Law at a meeting duly called and held on June 30, 2000: RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors in accordance with the provisions of the Restated Certificate of Incorporation of the Corporation (the "Charter"), the Board of Directors hereby creates a series of Preferred Stock, par value $1.00 per share, of the Corporation, and hereby states the designation and number of shares, and fixes the relative rights, preferences, and limitations thereof (in addition to the provisions set forth in the Charter which are applicable to the Preferred Stock of all classes and series) as follows: SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall ---------------------- be designated as "Series B Preferred Stock" (the "Series B Preferred Stock") and the number of shares constituting the Series B Preferred Stock shall be 15,000. SECTION 2. RANK. The shares of Series B Preferred Stock shall rank, ---- with respect to the payment of dividends and the distribution of assets, (i) senior to (x) the Series A Preferred Stock, par value $1.00 per share, hereafter created in connection with a Shareholders Rights Plan providing for the issuance of such Series A Preferred Stock under certain circumstances and (y) any other class of Preferred Stock hereafter created, and (ii) senior to the Common Stock, par value $.0l per share, of the Corporation (the "Common Stock"). The securities described in clauses (i) and (ii) are referred to herein as "Junior Stock". -1- SECTION 3. DIVIDENDS AND DISTRIBUTIONS. --------------------------- (a) The holders of shares of Series B Preferred Stock, in preference to the holders of Common Stock, and of any other Junior Stock, shall be entitled to receive, when and as declared by the Board of Directors, out of any funds legally available for the purpose, cash dividends in an amount per share (rounded to the nearest cent), subject to the provisions for adjustment set forth in Section 7, equal to 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend or distribution payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock. (b) The Corporation shall declare a dividend or distribution on the shares of Series B Preferred Stock as provided in paragraph (a) of this Section 3 immediately after it declares such dividend or distribution on the Common Stock (other than a dividend or distribution payable in shares of Common Stock) and shall pay such dividend or distribution on the shares of Series B Preferred Stock immediately before paying any dividend or distribution on the Common Stock (other than a dividend or distribution payable in shares of Common Stock). (c) The Board of Directors may fix a record date for the determination of holders of shares of Series B Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof and in the case of dividends and distributions declared pursuant to paragraph (b) of this Section 3, shall be the same date as the record date for the determination of holders of Common Stock entitled to receive payment of a dividend or distribution triggering declaration of the dividend or distribution declared pursuant to paragraph (b) of this Section 3. (d) Dividends paid on the shares of Series B Preferred Stock in an amount less than the total amount of such dividends at the time payable on such shares shall be allocated pro rata on a share by share basis among all such shares at the time outstanding. SECTION 4. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any --------------------------------------- liquidation, dissolution or winding up of the Corporation (which shall not include any transaction covered by Section 5), no distribution shall be made to the holders of any Junior Stock (either as to dividends or upon liquidation, dissolution or winding up) unless, prior thereto, the holders of shares of Series B Preferred Stock shall have received an amount per share, subject to the provisions for adjustment set forth in Section 7, equal to $100, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment; provided, that the holders of shares of -------- Series B Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to be distributed per share to holders of shares of Common Stock. SECTION 5. CONSOLIDATION, MERGER, ETC. In case the -------------------------- Corporation shall enter into any consolidation, merger, combination, exchange or other transaction in which the Common Stock is exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series B Preferred Stock shall at the same time be -2- similarly exchanged or changed in an amount per share, subject to the provisions for adjustment set forth in Section 7, equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. SECTION 6. CONVERSION. ---------- (a) Any holder of shares of Series B Preferred Stock shall have the right, at its option, at any time, to convert, for no further consideration, subject to the provisions for adjustment set forth in Section 7 and the proviso set forth below, any or all of such holder's shares of Series B Preferred Stock into such number of fully paid and non-assessable shares of Common Stock as is equal to the product of (x) the number of shares of Series B Preferred Stock being so converted multiplied by (y) 100; provided that, until the termination -------- of (a) the Credit Agreement, dated as of June 12, 1997, as amended and restated as of February 27, 1998, as further amended and restated as of June 29, 1999, as amended or as may be amended, among Foamex L.P., FMXI, Inc., the lenders named therein, the issuing banks named therein, and Citicorp USA, Inc. and The Bank of Nova Scotia, as administrative agents (the "Foamex L.P. Credit Agreement"), (b) the Credit Agreement, dated as of February 27, 1998, as amended or as may be amended, among Foamex Carpet Cushion, Inc., the lenders named therein, the issuing banks named therein, and Citicorp USA, Inc. and The Bank of Nova Scotia, as administrative agents (the "Foamex Carpet Credit Agreement"), (c) the Indenture, dated as of June 12, 1997, as supplemented from time to time, by and among Foamex L.P., Foamex Capital Corporation, General Felt Industries, Inc., Foamex Fibers, Inc. and The Bank of New York, as trustee (the "June 1997 Indenture") and (d) the Indenture, dated as of December 23, 1997, as supplemented from time to time, by and among Foamex L.P., Foamex Capital Corporation, General Felt Industries, Inc., Foamex Fibers, Inc., Foamex LLC, Crain Holdings Corp. and the Bank of New York, as trustee (the "December 1997 Indenture" and, together with the Foamex L.P. Credit Agreement, the Foamex Carpet Credit Agreement and the June 1997 Indenture, the "Credit Agreements and Indentures") or until amendments to the Credit Agreements and Indentures, including amendments to Section 11.01(m) of the Foamex L.P. Credit Agreement, Section 11.01(l) of the Foamex Carpet Credit Agreement, Section 4.15 of the June 1997 Indenture, and Section 4.15 of the December 1997 Indenture, eliminate the consequences on a "change in control", such conversion would not result in any holder of shares of Series B Preferred Stock becoming, after giving effect to such conversion, the Beneficial Owner (as defined below) of 25% or more of the Voting Stock (as defined below) of the Corporation. For purposes of this Certificate of Designations, "Voting Stock" and "Beneficial Owner" each have the meaning set forth in the Foamex L.P. Credit Agreement and the Foamex Carpet Credit Agreement. (b) Notwithstanding any limitation contained in paragraph (a) of this Section 6, in the event of any offer or series of related offers to purchase or exchange any shares of Common Stock, the consummation of which would result in an aggregate of 25% or more of the then outstanding Common Shares being purchased or exchanged, which offer or series of related offers do not include an offer for the Series B Preferred Stock that is at least, per share, equal to 100 times the consideration per share offered for the Common Stock, any holder of the Series B Preferred Stock shall have the right, at its option, beginning not less than five business days prior to the publicly announced expiration of such offer, to convert, for no further consideration, subject to the provisions for adjustment set forth in Section 7, any or all of such holder's shares -3- of Series B Preferred Stock into such number of fully paid and non-assessable shares of Common Stock as is equal to the product of (X) the number of shares of Series B Preferred Stock being so converted multiplied by (Y) 100. (c) The issuance by the Corporation of shares of Common Stock upon a conversion of Series B Preferred Stock into shares of Common Stock shall be effective as of the surrender of the certificate or certificates for the Series B Preferred Stock (or depositary receipts issued pursuant to Section 11 hereof) to be converted, duly assigned or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers relating thereto). On and after the effectiveness of conversion, the person or persons entitled to receive the Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock whether or not the Corporation has complied with the provisions hereof. SECTION 7. EFFECT OF COMMON STOCK SPLITS, ETC. In the event ---------------------------------- the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of it dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event under Sections 3, 4, 5 or 6 shall be adjusted by multiplying each such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. SECTION 8. REDEMPTION. The shares of Series B Preferred ---------- Stock shall not be redeemable. SECTION 9. VOTING RIGHTS. Holders of shares of Series B ------------- Preferred Stock shall not be entitled or permitted to vote on any matter required or permitted to be voted upon by the stockholders of the Corporation, except as otherwise required under Delaware law. Except as set forth herein, or as otherwise provided by Delaware law, holders of shares of Series B Preferred Stock shall have no special voting rights and their consent shall not be required for taking any corporate action. SECTION 10. CERTAIN RESTRICTIONS. Whenever dividends or -------------------- distributions payable on the shares of Series B Preferred Stock as provided in Section 3 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series B Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any Junior Stock; or (ii) redeem, purchase or otherwise acquire for consideration any shares of Series B Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of shares of the Corporation upon such terms as the Board of Directors, after con- -4- sideration of the respective annual dividend rates and the relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. SECTION 11. FRACTIONAL SHARES. The Corporation may issue ----------------- fractions and certificates representing fractions of shares of Series B Preferred Stock in integral multiples of 1/100th of a share of Series B Preferred Stock, or in lieu thereof, at the election of the Board of Directors at the time of the first issue of any shares of Series B Preferred Stock, evidence such fractions by depositary receipts, pursuant to an appropriate agreement between the Corporation and a depository selected by it; provided that -------- such agreement shall provide that the holders of such depositary receipts shall have all rights, privileges and preferences to which they would be entitled as beneficial owners of shares of Series B Preferred Stock. In the event that fractional shares of Series B Preferred Stock are issued, the holders thereof shall have all the rights provided herein of holders of full shares of Series B Preferred Stock in the proportion which such fraction bears to a full share. SECTION 12. REACQUIRED SHARES. Any shares of Series B ----------------- Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, or in any other Certificate of Designations creating a series of Preferred Stock or any similar stock or as otherwise required by law. SECTION 13. RESERVATION. The Corporation shall at all times ----------- reserve and keep available out of its authorized and unissued shares of Common Stock, solely for issuance upon the conversion of the Series B Preferred Stock, free from any preemptive rights or other obligations such number of shares of Common Stock as shall from time to time be issuable upon the conversion of all of the Series B Preferred Stock outstanding. SECTION 14. AMENDMENT. The Certificate of Incorporation of the --------- Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series B Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series B Preferred Stock, voting together as a single class. -5- IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the Corporation by its [Title] and attested by its Secretary this 31st day of October, 2000. - ---- FOAMEX INTERNATIONAL INC. By: /s/ G. L. Karpinski --------------------------------------- Name: G. L. Karpinski Title: Sr. Vice President ATTEST: /s/ Gregory J. Christian - ------------------------------ Name: Gregory J. Christian Title: Secretary -6- EX-99.5 6 0006.txt PARTNERSHIP AGREEMENT OF CALDER & CO. Exhibit 99.5 PARTNERSHIP AGREEMENT OF CALDER & CO. Memorandum of Agreement made this 9th day of Nov., 1995 between William Ebbels, Janice Currie, Jules Cohen, Vilma Pindling and Warren Goshine. WITNESSETH: 1. The parties hereto agree to form a partnership and as from the date hereof for the purpose and upon the terms and conditions hereinafter set forth under the firm name of "CALDER & CO." 2. The business of the partnership shall be limited to the holding in the partnership name of securities for the account and subject to the order of the Bank of Nova Scotia and its various branches and agencies in Canada and elsewhere, as well as for account and convenience of customers of said bank and save as expressly authorized or directed by the said Bank no partner shall in the name of the firm directly or indirectly engage in the business of trading securities or the purchase or sale thereof. 3. The services of each of the partners necessary to carry out the objects of the partnership shall be their only contribution to the partnership, and no partner shall be entitled to receive a salary from the partnership for such services. 4. The management and control of the entire business of the partnership shall be vested exclusively in the partners. 5. For the purpose of the sale, transfer or assignment of securities, the signature of all the partners shall be necessary except where the partnership signature is guaranteed by the Bank of Nova Scotia, in which case the firm name may be signed by any one of the partners. 6. The partnership shall continue until terminated by mutual agreement of a majority of the then partners and the Bank, provided, however, that any partner may withdraw from the partnership at any time by giving ten (10) days notice in writing to the other partners and to the Bank of his intention so to do. In the event that any partner should die, become incapacitated or withdraw from the partnership or should cease to be an employee of the Bank, his interest in the partnership and in its assets, shall forthwith cease, and the remaining partner(s) shall be entitled to continue the business and to use the partnership's name, subject to the provisions of the statutes of the State of New York relating thereto. The death, retirement or withdrawal of any partner from the partnership, or the admission of any new partner(s) thereto, shall not effect dissolution of the partnership and the partnership shall continue notwithstanding the same. New members may be admitted to the partnership with the consent of a majority of the then partners and that of the Bank, but not otherwise. 7. There shall at all times be no less than three (3) partners required to conduct the business of the partnership. In the event that there are less than three (3) partners, -2- the remaining partners shall forthwith take steps to see to it that an additional partner or additional partners are admitted to the partnership. 8. Other than as set out to the contrary above, all decisions that are taken relating to the business of the partnership, must be executed by the mutual consent of at least three partners. IN WITNESS WHEREOF, we have hereunto set our several hands this 9th day of November 1995. /s/ William R. Ebbels ------------------------ William R. Ebbels /s/ Janice Currie ------------------------ Janice Currie /s/ Jules Cohen ------------------------ Jules Cohen /s/ Vilma Pindling ------------------------ Vilma Pindling /s/ Warren Goshine ------------------------ Warren Goshine -3- EX-99.6 7 0007.txt JOINT FILING AGREEMENT Exhibit 99.6 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree that this Statement on Schedule 13D with respect to the beneficial ownership of shares of Common Stock of Foamex International Inc. is filed jointly, on behalf of each of them. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Dated: November 8, 2000 THE BANK OF NOVA SCOTIA By: /s/ D. N. Gillespie -------------------------------- Name: D. N. Gillespie Title: Managing Director CALDER & CO. By: /s/ W. R. Ebbels ---------------------------------- Name: W. R. Ebbels Title: Partner -----END PRIVACY-ENHANCED MESSAGE-----