SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated April 20, 2006 (this "Agreement"), by
and among The Bank of Nova Scotia, a Canadian chartered bank
incorporated under the laws of Canada (the "Seller"), and D. E. Shaw Laminar
Portfolios, L.L.C. (the "Purchaser").
WHEREAS, the Seller beneficially owns 5,475,526 shares of common stock, par
value US$0.01 per share (the "Common Stock"), of Foamex International Inc. (the
"Company");
WHEREAS, the Seller beneficially owns 15,000 shares of Series B Preferred
Stock, par value US$1.00 per share (the "Preferred Stock"), of the Company;
WHEREAS, the Seller desires to sell, transfer, assign, and convey to the
Purchaser, and the Purchaser desires to purchase from the Seller upon the terms
and subject to the conditions set forth herein, 2,494,526 shares of Common Stock
(the "Common Shares"); and
WHEREAS, the Seller desires to sell, transfer, assign, and convey to the
Purchaser, and the Purchaser desires to purchase from the Seller upon the terms
and subject to the conditions set forth herein, 15,000 shares of Preferred Stock
(the "Preferred Shares" and together with the Common Shares, the "Shares").
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF SECURITIES
On the date hereof, the Seller shall sell, transfer, assign and convey
the Common Shares to the Purchaser, and the Purchaser shall purchase the Common
Shares from the Seller, at a purchase price of US$0.30 per share, for an
aggregate cash purchase price of US$748,357.80 (the "Common Purchase Price").
Such sale shall be subject to the terms and conditions set forth herein.
On the date hereof, the Seller shall sell, transfer, assign and convey the
Preferred Shares to the Purchaser, and the Purchaser shall purchase the
Preferred Shares from the Seller, at a purchase price of US$30.00 per share, for
an aggregate cash purchase price of US$450,000.00 (the "Preferred Purchase
Price" and together with the Common Purchase Price, the "Purchase Price"). Such
sale shall be subject to the terms and conditions set forth herein.
2. CLOSING
(a) The closing of the purchase and sale of the Shares (the "Closing")
shall take place at the offices of X. X. Xxxx & Co., L.P., 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, on the date hereof or on such date as shall be
mutually agreed by the Seller and the Purchaser, as soon as reasonably
practicable.
(b) At the Closing, such sale and purchase shall be effected by the
Purchaser delivering to the Seller the Purchase Price. The Purchase Price shall
be paid in cash by wire transfer in immediately available funds to an account
designed by the Seller. At the Closing, or
as promptly as practicable thereafter (the "Settlement Date"), the Seller shall
deliver duly executed certificates or other instruments evidencing the Shares
purchased on the date hereof, in each case with appropriate instruments of
transfer attached (duly endorsed or otherwise in form sufficient for transfer
and reasonably satisfactory to the Purchaser).
3. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE SELLER
The Seller represents and warrants to, and covenants with, the
Purchaser that:
(a) The Seller is duly formed, validly existing and in good standing under
the laws of its jurisdiction of organization.
(b) The Seller has full legal right, power and authority to execute,
deliver, and perform its obligations under this Agreement in accordance with its
terms, and the execution, delivery and performance of this Agreement by the
Seller and the consummation by the Seller of the transactions contemplated
hereby have been duly authorized by all necessary action on behalf of the
Seller. This Agreement has been duly executed and delivered by the Seller and
constitutes a legally valid and binding agreement of the Seller, enforceable
against the Seller in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including without limitation all laws
relating to fraudulent transfers).
(c) Subject to the restrictive legend set forth on the certificates
evidencing the Shares and the terms of the Certificate of Designations of Series
B Preferred Stock of the Company, including restrictions on convertibility of
the Preferred Stock set forth therein, the Seller has valid and good title to
the Shares, and the Shares are owned by the Seller free and clear of any
security interest, lien, claim or other encumbrance (collectively,
"Encumbrances"). Upon delivery of the Shares to the Purchaser on the Settlement
Date, against payment therefor as contemplated hereby, the Seller will deliver
the Shares to the Purchaser free and clear of any Encumbrance.
(d) Until the Settlement Date, the Seller shall execute all certificates,
instruments, documents or agreements to further effectuate the delivery of the
Shares pursuant to this Agreement.
(e) There is no investment banker, broker, finder or other intermediary who
is entitled to any fee or commission upon consummation of the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Seller.
(f) Neither the Seller, nor any of its officers, directors, employees,
agents, stockholders or partners has either directly or indirectly, including
through a broker or finder (a) engaged in any general solicitation, or (b)
published any advertisement in connection with the offer and sale of the Shares.
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4. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PURCHASER
The Purchaser represents and warrants to, and covenants with, the Seller
that:
(a) The Purchaser is duly formed, validly existing and in good standing
under the laws of its jurisdiction of organization.
(b) The Purchaser has full legal right, power and authority to execute,
deliver, and perform its obligations under this Agreement in accordance with its
terms, and the execution, delivery and performance of this Agreement by the
Purchaser and the consummation by the Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary action on behalf of the
Purchaser. This Agreement has been duly executed and delivered by the Purchaser
and constitutes a legally valid and binding agreement of the Purchaser,
enforceable against the Purchaser in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally (including without limitation
all laws relating to fraudulent transfers).
(c) There is no investment banker, broker, finder or other intermediary who
is entitled to any fee or commission upon consummation of the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Purchaser.
(d) The Purchaser is an accredited investor as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Securities Act") or is a "qualified institutional buyer" as defined in Rule
144A(a)(1) of the Securities Act.
(e) The Shares to be acquired by the Purchaser will be acquired for
investment for the Purchaser's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same.
(f) The Purchaser understands that as of the date hereof the Shares have
not been, and will not be, registered under the Securities Act. The Purchaser
understands that the Shares are restricted securities under applicable U.S.
federal and state securities laws and that, pursuant to these laws, the
Purchaser must hold the Shares indefinitely unless they are registered with the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
The Purchaser further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Shares, and on requirements relating to the Company which are outside of
the Purchaser's control, and which the Company is under no obligation and may
not be able to satisfy.
(g) Neither the Purchaser, nor any of its officers, directors, employees,
agents, stockholders or partners has either directly or indirectly, including
through a broker or finder (a) engaged in any general solicitation, or (b)
published any advertisement in connection with the offer and sale of the Shares.
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(h) The Purchaser understands that the certificates representing the Shares
bear a legend substantially as follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT AND SUCH LAWS."
5. SURVIVAL
The respective agreements, representations, warranties, covenants and other
statements made by or on behalf each party hereto pursuant to this Agreement
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any party, and shall survive delivery of and payment for the
Shares; provided, that the representations and warranties of the Seller and the
Purchaser shall not survive after the Settlement Date. All other sections of
this Agreement shall remain in full force and effect after the Settlement Date
including without limitation Section 6(d).
6. GENERAL PROVISIONS
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
(b) Interpretation. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
(c) Notices. All communications under this Agreement shall be in writing
and shall be delivered by hand or facsimile or mailed by overnight courier or by
registered or certified mail, postage prepaid, as follows:
(i) if to the Purchaser:
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D. E. Shaw Laminar Portfolios, L.L.C.
39th Floor, Tower 45
000 Xxxx 00xx Xx.
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Attention: Xxxxxxx Xxxx
With a copy to: General Counsel
Fax No.: 000-000-0000
(ii) if to the Seller:
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx
Xxxxxx Plaza, 64th Floor
Toronto, Ontario, Canada M5H 1H1
Attention: Xx. Xxxxxxx Xxxxxx
Fax No.: 000-000-0000
Any party hereto may from time to time change its address or fax number for
notices under this Section 6(c) by giving notice of such changed address to the
other parties hereto. Any notice addressed in accordance with this Section 6(c)
shall be deemed to be given: if delivered by hand or facsimile, on the date of
such delivery; if mailed by courier, on the first business day following the
date of such mailing; and if mailed by registered or certified mail, on the
third business day after the date of such mailing.
(d) Expenses and Taxes. All fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such fees, costs or expenses.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties.
(f) Entire Agreement; Amendment. This Agreement constitutes the entire
understanding of the parties hereto and supersedes all prior understandings
among such parties. This Agreement may be amended with (and only with) the
written consent of the Seller and the Purchaser. There are no agreements (other
than as expressly stated in this Agreement) between Seller and the Purchaser.
Nothing in this Agreement shall be construed to create a partnership between the
parties to this Agreement, and neither party shall have the power to obligate or
bind the other in any manner.
(g) Severability. If any term or provision of this Agreement or the
application of any such term or provision to any person or circumstance shall be
held invalid, illegal, void or unenforceable in any respect by a court of
competent jurisdiction, the remaining terms and provisions of this Agreement
shall remain in full force and effect, unless such invalidity, illegality,
voidness or unenforceability would substantially impair the benefits of such
remaining provisions of any party hereto.
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(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.
SELLER
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Managing Director
and Head of Investments
IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be duly executed as of the date first written above.
PURCHASER
D. E. SHAW LAMINAR PORTFOLIOS, L.L.C.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
