-----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, S2TrsXjc9bOScamMNUax2RytZGy1PMnoUnAFt0C+1JIIqbCd9SobipNl/PyMiRBu LHlea0s1jNhJN20JFuuufQ== 0000903423-08-000446.txt : 20080520 0000903423-08-000446.hdr.sgml : 20080520 20080519185514 ACCESSION NUMBER: 0000903423-08-000446 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20080520 DATE AS OF CHANGE: 20080519 GROUP MEMBERS: D. E. SHAW & CO., L.L.C. GROUP MEMBERS: D. E. SHAW & CO., L.P. GROUP MEMBERS: DAVID E. SHAW? SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FOAMEX INTERNATIONAL INC CENTRAL INDEX KEY: 0000912908 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS FOAM PRODUCTS [3086] IRS NUMBER: 050473908 STATE OF INCORPORATION: DE FISCAL YEAR END: 1228 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48793 FILM NUMBER: 08846616 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: D. E. SHAW LAMINAR PORTFOLIOS, L.L.C. CENTRAL INDEX KEY: 0001263972 IRS NUMBER: 010577802 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 39TH FLOOR, TOWER 45 STREET 2: 120 WEST FORTY-FIFTH STREET CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2124780000 MAIL ADDRESS: STREET 1: 39TH FLOOR, TOWER 45 STREET 2: 120 WEST FORTY-FIFTH STREET CITY: NEW YORK STATE: NY ZIP: 10036 FORMER COMPANY: FORMER CONFORMED NAME: D.E. SHAW LAMINAR PORTFOLIOS, L.L.C. DATE OF NAME CHANGE: 20060928 FORMER COMPANY: FORMER CONFORMED NAME: DE SHAW LAMINAR PORTFOLIOS LLC DATE OF NAME CHANGE: 20030916 SC 13D/A 1 shawfoamex-13da9_0519.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 9)*

Foamex International Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

344123203

(CUSIP Number)

D. E. Shaw Laminar Portfolios, L.L.C.

Attn: Compliance Department

120 West Forty-Fifth Street

Floor 39, Tower 45

New York, NY 10036

212-478-0000

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

Copies to:

Richard J. Cooper

Cleary Gottlieb Steen & Hamilton LLP

One Liberty Plaza

New York, New York 10006

May 15, 2008

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 344123203			Page 1 of 4
	1	Name of Reporting Person D. E. Shaw Laminar Portfolios, L.L.C.
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) o (b) x
	3	SEC Use Only
	4	Source of Funds (See Instructions) WC
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
		o
	6	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With	7	Sole Voting Power -0-
	8	Shared Voting Power 21,767,377
	9	Sole Dispositive Power -0-
	10	Shared Dispositive Power 21,767,377
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 21,767,377
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
		o
	13	Percent of Class Represented by Amount in Row (11) 54.7%⁽¹⁾
	14	Type of Reporting Person (See Instructions) OO

(1) The calculation of the percentage of the shares of Common Stock beneficially owned by the Reporting Person is based on 39,814,137 shares of Common Stock and includes the sum of (i) the 24,949,597 outstanding shares of Common Stock reported in the Issuer’s Quarterly Report on Form 10-Q for the quarter ended March 30, 2008 and (ii) the 14,864,540 shares of Common Stock issuable to D. E. Shaw Laminar Portfolios, L.L.C. from the potential conversion of the Series D Preferred Stock, assuming a conversion price of $0.65 per share of Common Stock as further described in Amendment No. 8 to the Schedule 13D.

CUSIP No. 344123203			Page 2 of 4
	1	Name of Reporting Person D. E. Shaw & Co., L.P.
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) o (b) x
	3	SEC Use Only
	4	Source of Funds (See Instructions) AF
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
		o
	6	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With	7	Sole Voting Power -0-
	8	Shared Voting Power 21,965,607
	9	Sole Dispositive Power -0-
	10	Shared Dispositive Power 21,965,607
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 21,965,607
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
		o
	13	Percent of Class Represented by Amount in Row (11) 55.2%⁽¹⁾
	14	Type of Reporting Person (See Instructions) IA, PN

CUSIP No. 344123203			Page 3 of 4
	1	Name of Reporting Person D. E. Shaw & Co., L.L.C.
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) o (b) x
	3	SEC Use Only
	4	Source of Funds (See Instructions) AF
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
		o
	6	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With	7	Sole Voting Power -0-
	8	Shared Voting Power 21,767,377
	9	Sole Dispositive Power -0-
	10	Shared Dispositive Power 21,767,377
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 21,767,377
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
		o
	13	Percent of Class Represented by Amount in Row (11) 54.7%⁽¹⁾
	14	Type of Reporting Person (See Instructions) OO

CUSIP No. 344123203			Page 4 of 4
	1	Name of Reporting Person David E. Shaw
	2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) o (b) x
	3	SEC Use Only
	4	Source of Funds (See Instructions) AF
	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
		o
	6	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With	7	Sole Voting Power -0-
	8	Shared Voting Power 21,965,607
	9	Sole Dispositive Power -0-
	10	Shared Dispositive Power 21,965,607
	11	Aggregate Amount Beneficially Owned by Each Reporting Person 21,965,607
	12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
		o
	13	Percent of Class Represented by Amount in Row (11) 55.2%⁽¹⁾
	14	Type of Reporting Person (See Instructions) IN

AMENDMENT NO. 9 TO SCHEDULE 13D

This Amendment No. 9 to Schedule 13D amends and supplements the Schedule 13D filed with the Securities and Exchange Commission on April 20, 2006, as amended by Amendment No. 1 to Schedule 13D, dated as of July 19, 2006, Amendment No. 2 to Schedule 13D, dated as of October 13, 2006, Amendment No. 3 to Schedule 13D, dated as of November 30, 2006, Amendment No. 4 to Schedule 13D, dated as of February 14, 2007, Amendment No. 5 to Schedule 13D, dated as of August 23, 2007, Amendment No. 6 to Schedule 13D, dated as of February 20, 2008, Amendment No. 7 to Schedule 13D, dated as of April 4, 2008, and Amendment No. 8 to Schedule 13D, dated as of April 23, 2008 (as amended, the “Schedule 13D”). Capitalized terms used herein which are not defined herein have the meanings given to such terms in the Schedule 13D. Except as otherwise provided herein, all Items of the Schedule 13D remain unchanged.

Item 3.

Source and Amount of Funds or Other Consideration

Item 3 of the Schedule 13D is hereby supplemented as follows:

In acquiring an additional 856,832 shares of Common Stock as described below in Item 6, Laminar expended $556,940.80 of its working capital.

DESCO LP received (i) 179,488 shares of Common Stock and (ii) stock options (right to buy), which upon vesting are exercisable for 100,705 shares of Common Stock. The shares and stock options received by DESCO LP, employer of Seth Charnow and David Lyon, were issued by the Issuer in a transaction exempt under Rule 16(b)(3) of the Act as compensation for each of Seth Charnow’s and David Lyon’s service as a director of the Issuer. No separate consideration was paid for the shares or the stock options. The stock options vest in three installments: 34% on May 12, 2009, 67% on May 12, 2010, and 100% on May 12, 2011.

Item 5.

Interest in Securities of the Issuer

Items 5(a) and 5(b) of the Schedule 13D are hereby replaced as follows:

(a), (b) Based on information provided by the Issuer in its Quarterly Report on Form 10-Q for the quarter ended March 30, 2008, there were 24,949,597 shares of Common Stock outstanding as of May 5, 2008.

The Subject Shares (defined below in this Item 5) reported on this Schedule 13D are comprised of (i) 6,902,837 shares of Common Stock owned by Laminar, (ii) 14,864,540 shares of Common Stock that Laminar has the right to acquire upon conversion of the Series D Preferred Stock (assuming conversion of all the shares of Series D Preferred Stock held by Laminar at a conversion price of $0.65 per share of Common Stock as further described in Amendment No. 8 to the Schedule 13D) and (iii) 198,230 shares of Common Stock owned by DESCO LP.

Using the sum of (i) the number of outstanding shares of Common Stock reported by the Issuer to the public and (ii) the number of shares of Common Stock issuable to Laminar upon conversion of the Series D Preferred Stock (assuming conversion of all the shares of Series D Preferred Stock held by Laminar at a conversion price of $0.65 per share of Common Stock as further described in Amendment No. 8 to the Schedule 13D), which sum is equal to 39,814,137 (the “Total Share Count”), the 21,767,377 shares of Common Stock beneficially owned by Laminar or issuable to Laminar upon conversion of the Series D Preferred Stock (assuming conversion of all the shares of Series D Preferred Stock held by Laminar at a conversion price of $0.65 per share of Common Stock as further described in Amendment No. 8 to the Schedule 13D) (the “Laminar Shares”) represent approximately 54.7% of the Total Share Count, the 198,230 shares of Common Stock beneficially owned by DESCO LP (the “DESCO LP Shares,” and together with the Laminar Shares, the “Subject Shares”) represent approximately 0.5% of the Total Share Count, and the 21,965,607 Subject Shares represent approximately 55.2% of the Total Share Count.

Laminar will have the power to vote or to direct the vote of (and the power to dispose or direct the disposition of) the Laminar Shares and DESCO LP will have the power to vote or to direct the vote of (and the power to dispose or direct the disposition of) the DESCO LP Shares.

DESCO LP as Laminar’s investment adviser and DESCO LLC as Laminar’s managing member may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Laminar Shares. As managing member of DESCO LLC, DESCO II, Inc. may be deemed to have the shared power to vote or to direct the vote of (and the shared power to dispose or direct the disposition of) the Laminar Shares. As general partner of DESCO LP, DESCO, Inc. may be deemed to have the shared power to vote or to direct the vote of (and the shared power to dispose or direct the disposition of) the Subject Shares. None of DESCO LLC, DESCO, Inc., or DESCO II, Inc., owns any shares of Common Stock of the Issuer directly and each such entity disclaims beneficial ownership of the Subject Shares. DESCO LP does not own any of the Laminar Shares directly and disclaims beneficial ownership of the Laminar Shares.

David E. Shaw does not own any shares of the Issuer directly. By virtue of David E. Shaw’s position as president and sole shareholder of DESCO, Inc., which is the general partner of DESCO LP, and by virtue of David E. Shaw’s position as president and sole shareholder of DESCO II, Inc., which is the managing member of DESCO LLC, David E. Shaw may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Subject Shares and, therefore, David E. Shaw may be deemed to be the indirect beneficial owner of the Subject Shares. David E. Shaw disclaims beneficial ownership of the Subject Shares.

As of the date hereof, neither any Reporting Person, nor to the best knowledge of any Reporting Person, any of the persons set forth in Item 2, owns any shares of Common Stock other than the Subject Shares.

Item 5(c) of the Schedule 13D is hereby supplemented as follows:

(c) The trading dates, number of shares of Common Stock purchased or sold and the price per share for all transactions by Laminar in the Common Stock of the Issuer made within the past 60 days that were privately negotiated transactions are set forth below:

Name	Date	Number of Shares Purchased	Price Per Share
Laminar	5/15/08	856,832	$0.65

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 of the Schedule 13D is hereby supplemented as follows:

On May 15, 2008, Laminar entered into a Securities Purchase Agreement (the “Purchase Agreement”) with Par-Four Master Fund, Ltd. and Sunrise Partners Limited Partnership pursuant to which Laminar purchased 856,832 additional shares of Common Stock. A copy of the Purchase Agreement is attached hereto as Exhibit 3.

On May 12, 2008, DESCO LP received from the Issuer in a transaction exempt under Rule 16(b)(3) of the Act stock options (right to buy), which upon vesting are exercisable for 100,705 shares of Common Stock. The stock options were granted to DESCO LP, employer of Seth Charnow and David Lyon, as compensation for each of Seth Charnow’s and David Lyon’s service as a director of the Issuer. The stock options vest in three installments: 34% on May 12, 2009, 67% on May 12, 2010, and 100% on May 12, 2011.

Item 7.

Material to be filed as Exhibits

Exhibit 1

Power of Attorney, granted by David E. Shaw relating to D. E. Shaw & Co., Inc., in favor of the signatories hereto, among others, dated October 24, 2007.

Exhibit 2

Power of Attorney, granted by David E. Shaw relating to D. E. Shaw & Co. II, Inc., in favor of the signatories hereto, among others, dated October 24, 2007.

Exhibit 3

Securities Purchase Agreement, dated May 15, 2008, by and among Par-Four Master Fund, Ltd. and Sunrise Partners Limited Partnership, and D. E. Shaw Laminar Portfolios, L.L.C.

SIGNATURES

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned, severally and not jointly, certifies that the information set forth in this statement is true, complete and correct. Powers of Attorney, dated October 24, 2007, granted by David E. Shaw in favor of Anne Dinning, Rochelle Elias, Julius Gaudio, John Liftin, Louis Salkind, Stuart Steckler, Maximilian Stone and Eric Wepsic are attached hereto as Exhibit 1 and Exhibit 2 and incorporated herein by reference.

Dated: May 19, 2008

D. E. SHAW LAMINAR PORTFOLIOS, L.L.C.
By:	D. E. SHAW & CO., L.L.C.,
	as managing member

	By: /s/ Rochelle Elias
Name: Rochelle Elias Title: Chief Compliance Officer


D. E. SHAW & CO., L.P.

By:	/s/ Rochelle Elias
Name: Rochelle Elias Title: Chief Compliance Officer

D. E. SHAW & CO., L.L.C.

By:	/s/ Rochelle Elias
Name: Rochelle Elias Title: Chief Compliance Officer

DAVID E. SHAW

By:	/s/ Rochelle Elias
Name: Rochelle Elias Title: Attorney-in-Fact for David E. Shaw

EX-1 2 shawfoamex-13da9ex1_0519.htm

Exhibit 1

POWER OF ATTORNEY

FOR CERTAIN FILINGS

UNDER THE SECURITIES EXCHANGE ACT OF 1934

I, David E. Shaw, hereby make, constitute and appoint each of:

Anne Dinning,

Rochelle Elias,

Julius Gaudio,

John Liftin,

Louis Salkind,

Stuart Steckler,

Maximilian Stone, and

Eric Wepsic,

acting individually, as my agent and attorney-in-fact, with full power of substitution, for the purpose of, from time to time, executing in my name and/or my capacity as President of D. E. Shaw & Co., Inc. (acting for itself or as the general partner of D. E. Shaw & Co., L. P., and general partner, managing member, or manager of other entities, any of which in turn may be acting for itself or other entities) all documents, certificates, instruments, statements, other filings, and amendments to the forgoing (collectively, “documents”) determined by such person to be necessary or appropriate to comply with ownership or control-person reporting requirements imposed by any United States or non-United States governmental or regulatory authority, including without limitation Forms 3, 4, 5, and 13F and Schedules 13D and 13G required to be filed with the Securities and Exchange Commission; and delivering, furnishing or filing any such documents to or with the appropriate governmental or regulatory authority. Any such determination shall be conclusively evidenced by such person’s execution, delivery, furnishing and/or filing of the applicable document.

This power of attorney shall be valid from the date hereof and replaces the power granted on February 24, 2004, which is hereby cancelled.

IN WITNESS HEREOF, I have executed this instrument as of the date set forth below.

Date: October 24, 2007

DAVID E. SHAW, as President of D. E. Shaw & Co., Inc.

/s/David E. Shaw

New York, New York

EX-2 3 shawfoamex-13da9ex2_0519.htm

Exhibit 2

POWER OF ATTORNEY

FOR CERTAIN FILINGS

UNDER THE SECURITIES EXCHANGE ACT OF 1934

I, David E. Shaw, hereby make, constitute and appoint each of:

Anne Dinning,

Rochelle Elias,

Julius Gaudio,

John Liftin,

Louis Salkind,

Stuart Steckler,

Maximilian Stone, and

Eric Wepsic,

acting individually, as my agent and attorney-in-fact, with full power of substitution, for the purpose of, from time to time, executing in my name and/or my capacity as President of D. E. Shaw & Co. II, Inc. (acting for itself or as the managing member of D. E. Shaw & Co., L.L.C. and general partner, managing member, or manager of other entities, any of which in turn may be acting for itself or other entities) all documents, certificates, instruments, statements, other filings, and amendments to the forgoing (collectively, “documents”) determined by such person to be necessary or appropriate to comply with ownership or control-person reporting requirements imposed by any United States or non-United States governmental or regulatory authority, including without limitation Forms 3, 4, 5, and 13F and Schedules 13D and 13G required to be filed with the Securities and Exchange Commission; and delivering, furnishing or filing any such documents to or with the appropriate governmental or regulatory authority. Any such determination shall be conclusively evidenced by such person’s execution, delivery, furnishing and/or filing of the applicable document.

This power of attorney shall be valid from the date hereof and replaces the power granted on February 24, 2004, which is hereby cancelled.

IN WITNESS HEREOF, I have executed this instrument as of the date set forth below.

Date: October 24, 2007

DAVID E. SHAW, as President of D. E. Shaw & Co. II, Inc.

/s/David E. Shaw

New York, New York

EX-3 4 shawfoamex-13da9ex3_0519.htm

Exhibit 3

SECURITIES PURCHASE AGREEMENT

SECURITIES PURCHASE AGREEMENT, dated May 15, 2008 (this “Agreement”), by and among Par-Four Master Fund, Ltd. (the “Master Fund”) and Sunrise Partners Limited Partnership (“Sunrise Partners” and, together with the Master Fund, the “Sellers”), and D. E. Shaw Laminar Portfolios, L.L.C. (the “Purchaser”).

WHEREAS, the Sellers beneficially own an aggregate amount of 856,832 shares of common stock, par value US$0.01 per share (the “Common Stock”), of Foamex International Inc. (the “Company”); and

WHEREAS, the Sellers desire to sell, transfer, assign, and convey to the Purchaser, and the Purchaser desires to purchase from the Sellers, upon the terms and subject to the conditions set forth herein, 856,832 shares, in the aggregate, of Common Stock (the “Shares”).

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto hereby agree as follows:

1.	PURCHASE AND SALE OF SECURITIES

(a) On the date hereof, each of the Sellers shall sell, transfer, assign and convey to the Purchaser, and the Purchaser shall purchase from each of the Sellers, the number of Shares set forth next to such Sellers’ name on Schedule A hereto, at a purchase price of US$0.65 per share, for an aggregate cash purchase price of US$556,940.80 (the “Purchase Price”), to be paid to each Seller in the amounts set forth in Schedule A. Such sale shall be subject to the terms and conditions set forth herein.

2.	CLOSING

(a) The closing of the purchase and sale of the Shares (the “Closing”) shall take place at the offices of D. E. Shaw & Co., L.P., 120 West 45th Street, New York, New York 10036, on the date hereof or on such date as shall be mutually agreed by the Sellers and the Purchaser, as soon as reasonably practicable.

(b) At the Closing, such sale and purchase shall be effected by the Purchaser delivering to the Sellers the Purchase Price. The Purchase Price shall be paid in cash by wire transfer in immediately available funds to the accounts designed by the Sellers. At the Closing, or as promptly as practicable thereafter (the “Settlement Date”), the Sellers shall deliver duly executed certificates or other instruments evidencing the Shares purchased on the date hereof, in each case with appropriate instruments of transfer attached (duly endorsed or otherwise in form sufficient for transfer and reasonably satisfactory to the Purchaser).

3.	REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE SELLER

Each of the Sellers represents and warrants to, and covenants with, the Purchaser that:

(a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization.

(b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers).

(c) The Seller has valid and good title to the Shares, and the Shares are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance (collectively, “Encumbrances”). Upon delivery of the Shares to the Purchaser on the Settlement Date, against payment therefor as contemplated hereby, the Seller will deliver the Shares to the Purchaser free and clear of any Encumbrance.

(d) Until the Settlement Date, the Seller shall execute any certificate, instrument, document or agreement reasonably requested by the Purchaser in connection with the delivery of the Shares pursuant to this Agreement.

(e) There is no investment banker, broker, finder, or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller.

(f) Neither the Seller, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

(g) Seller is a “qualified institutional buyer” as defined in Rule 144A(a)(1) of the Securities Act of 1933, as amended.

(h) Seller acknowledges that Purchaser has a related person serving as a director on the Company’s board who, as a result, may have access to information about the Shares and the Company (including, without limitation, information relating to the business, assets, liabilities, results of operation, financial condition, prospects, legal proceedings, and other aspects of the Company) that may include material, non-public information. Although both parties believe that each party’s related person has substantially equal access to information about the Shares and the Company that is made available to the Company’s board, both parties understand and acknowledge that one party (together with its related persons and other affiliates) may have material non-public information relating to the Shares or the Company that the other party does not possess.

- 2 -

(i) Seller is (i) together with its professional advisers, a sophisticated investor with respect to the Shares and the Company, and is capable of evaluating the risks associated with a transaction involving the Shares and the Company, including the risk of transacting on the basis of potentially inferior information, and (ii) capable of sustaining any loss resulting there from without material injury.

(j) Seller acknowledges and agrees that Purchaser shall have no liability arising from this transaction, and it hereby to the extent permitted by law waives and releases any claims it may have against the other party arising from this transaction.

(k) Seller acknowledges that the Purchaser has not given any investment advice or opinion on whether the transaction in the Shares described herein is prudent.

4.	REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PURCHASER

The Purchaser represents and warrants to, and covenants with, each of the Sellers that:

(a) The Purchaser is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization.

(b) The Purchaser has full legal right, power, and authority to execute, deliver, and perform its obligations under this Agreement in accordance with its terms, and the execution, delivery and performance of this Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Purchaser. This Agreement has been duly executed and delivered by the Purchaser and constitutes a legally valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers).

(c) There is no investment banker, broker, finder or other intermediary who is entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser.

(d) Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

(e) Purchaser is a “qualified institutional buyer” as defined in Rule 144A(a)(1) of the Securities Act of 1933, as amended.

(f) Purchaser acknowledges that the Sellers have a related person serving as a director on the Company’s board who, as a result, may have access to information about the Shares and the Company (including, without limitation, information relating to the business, assets, liabilities, results of operation, financial condition, prospects, legal proceedings, and other

- 3 -

aspects of the Company) that may include material, non-public information. Although both parties believe that each party’s related person has substantially equal access to information about the Shares and the Company that is made available to the Company’s board, both parties understand and acknowledge that one party (together with its related persons and other affiliates) may have material non-public information relating to the Shares or the Company that the other party does not possess.

(g) Purchaser is (i) together with its professional advisers, a sophisticated investor with respect to the Shares and the Company, and is capable of evaluating the risks associated with a transaction involving the Shares and the Company, including the risk of transacting on the basis of potentially inferior information, and (ii) capable of sustaining any loss resulting there from without material injury.

(h) Purchaser acknowledges and agrees that Seller shall have no liability arising from this transaction, and it hereby to the extent permitted by law waives and releases any claims it may have against the other party arising from this transaction.

(i) Purchaser acknowledges that neither Seller has given any investment advice or opinion on whether the transaction in the Shares described herein is prudent.

5.	SURVIVAL

The respective agreements, representations, warranties, covenants and other statements made by or on behalf each party hereto pursuant to this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any party, and shall survive delivery of and payment for the Shares; provided, that the representations and warranties of the Sellers and the Purchaser shall not survive after the Settlement Date. All other sections of this Agreement shall remain in full force and effect after the Settlement Date including without limitation Section 6(d).

6.	GENERAL PROVISIONS

(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State.

(b) Interpretation. The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

(c) Notices. All communications under this Agreement shall be in writing and shall be delivered by hand or facsimile or mailed by overnight courier or by registered or certified mail, postage prepaid, as follows:

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	(i)	if to the Purchaser: D. E. Shaw Laminar Portfolios, L.L.C. 39^th Floor, Tower 45 0 West 45^th St. [confirm address] New York, NY 10036 Attention: Jenny Bachtell Fax No.: 212-845-1879
(ii)		if to the Sellers: Par-Four Master Fund, Ltd. c/o Par-Four Investment Management, L.L.C. 50 Tice Boulevard Woodcliff Lake, New Jersey 07677 Attention: Ed Labrenz Fax No.: 201-573-7535 Sunrise Partners Limited Partnership Two American Lane Greenwich, Connecticut 06836 Attention: Michael Berner Fax No.: 203-861-3210

Any party hereto may from time to time change its address or fax number for notices under this Section 6(c) by giving notice of such changed address to the other parties hereto. Any notice addressed in accordance with this Section 6(c) shall be deemed to be given: if delivered by hand or facsimile, on the date of such delivery; if mailed by courier, on the first business day following the date of such mailing; and if mailed by registered or certified mail, on the third business day after the date of such mailing.

(d) Expenses and Taxes. All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees, costs or expenses.

(e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties.

(f) Entire Agreement; Amendment. This Agreement constitutes the entire understanding of the parties hereto and supersedes all prior understandings among such parties. This Agreement may be amended with (and only with) the written consent of the Seller and the Purchaser. There are no agreements (other than as expressly stated in this Agreement) between the Sellers and the Purchaser. Nothing in this Agreement shall be construed to create a partnership between the parties to this Agreement, and neither party shall have the power to obligate or bind the other in any manner.

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(g) Severability. If any term or provision of this Agreement or the application of any such term or provision to any person or circumstance shall be held invalid, illegal, void or unenforceable in any respect by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain in full force and effect, unless such invalidity, illegality, voidness or unenforceability would substantially impair the benefits of such remaining provisions of any party hereto.

(h) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement.

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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the date first written above.

	SELLERS

	PAR-FOUR MASTER FUND, LTD.


	By: /s/ Edward Labrenz
		Name: Edward Labrenz Title: Authorized Signatory


	SUNRISE PARTNERS LIMITED PARTNERSHIP

	By: Paloma Partners Company LLC
	Its: General Partner

	By: /s/ Michael J. Berner
		Name: Michael J. Berner Title: Vice President


	PURCHASER

	D. E. SHAW LAMINAR PORTFOLIOS, L.L.C.


	By: /s/ Daniel Posner
		Name: Daniel Posner Title: Authorized Signatory

Schedule A

Seller	Number of Shares	Purchase Price
Par-Four Master Fund, Ltd.	428,416	$278,470.40
Sunrise Partners Limited Partnership	428,416	$278,470.40

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