AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment"), is entered into as of June 13, 2006,
between FOAMEX INTERNATIONAL INC., a Delaware corporation (the "Company"), and
MELLON INVESTOR SERVICES LLC, as Rights Agent (the "Rights Agent"). Capitalized
terms used in this Amendment, which are not otherwise defined herein, are used
with the same meaning ascribed to such terms in the Agreement.
W I T N E S S E T H
WHEREAS, in connection with the Rights Agreement dated as of August 5,
2004, between the Company and the Rights Agent (the "Agreement"), the Board of
Directors of the Company deems it advisable and in the best interests of the
Company and its stockholders to amend the Agreement in accordance with Section
27 of the Agreement; and
WHEREAS, pursuant to its authority under Section 27 of the Agreement, the
Board of Directors of the Company has authorized and approved this Amendment to
the Agreement as of the date hereof.
NOW, THEREFORE, the Agreement is hereby amended as follows:
1. Amendments.
(a) The definition of "Acquiring Person" in Section 1(a) of the
Agreement is hereby deleted in its entirety and replaced to read as follows:
"Acquiring Person" shall mean any Person who, together with all Affiliates
and Associates of such Person, shall hereafter become the Beneficial Owner of
20% or more of the Common Shares then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary of the Company, (iii) any employee benefit plan of
the Company or any Subsidiary of the Company, or any entity holding Common
Shares for or pursuant to the terms of any such plan or for purposes of funding
or providing Common Shares to any such plan, (iv) any Scotia Stockholder (as
hereinafter defined) so long as such Scotia Stockholder is not the Beneficial
Owner of 25% or more of the Common Shares then outstanding, or (v) D.E. Shaw
Laminar Portfolios, L.L.C., Par IV Capital Management LLC, Paloma International
L.P., Sigma Capital Management, LLC or Xxxxxxx, Sachs & Co. (each such entity,
an "Excepted Entity"), any investment fund or account managed or controlled by
an Excepted Entity or its Affiliate or Associate, or any Affiliate or Associate
of an Excepted Entity. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as a result of an acquisition of Common Shares by the
Company, which acquisition, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such Person
to 20% or more (or, in the case of a Scotia Stockholder, 25% or more)
of the Common Shares then outstanding; provided, however, that if a Person shall
become the beneficial owner of 20% or more (or, in the case of a Scotia
Stockholder, 25% or more) of the Common Shares then outstanding by reason of
such share purchases by the Company and shall, after such share purchases,
become the Beneficial Owner of any additional Common Shares of the Company, then
such Person shall be deemed to be an "Acquiring Person". Notwithstanding the
foregoing, if the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an "Acquiring Person," as defined pursuant
to the foregoing provision, has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of Common Shares so that
such Person would no longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions, then such Person shall not be deemed to be an "Acquiring
Person" for any purposes of this Agreement.
(b) Sections 1(c)(ii) and (iii) of the Agreement are hereby deleted in
their entirety and replaced to read as follows:
(ii) that such Person or any of such Person's Affiliates or Associates,
directly or indirectly, has the right to vote, hold, acquire or dispose of, or
of which any of them, directly or indirectly, has "beneficial ownership" (as
determined pursuant to Rule 13d-3 of the Rules, as in effect on the Record Date)
(including, except as hereinafter provided, pursuant to any agreement,
arrangement or understanding, whether or not in writing); provided, however,
that a Person shall not be deemed to be the Beneficial Owner of, or to
beneficially own, any security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such security if such agreement,
arrangement or understanding arises solely from a revocable proxy given in
response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the Rules and is not also then
reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); and provided, further, that a Person (including any
Affiliates or Associates of such Person) shall not be deemed to be the
Beneficial Owner of, or to beneficially own, any security under this
subparagraph (ii) solely as a result of an agreement, arrangement or
understanding entered into with any other Person during, or in connection with,
the Company's chapter 11 case pending in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Case");
(iii) that are beneficially owned, directly or indirectly, by any other
Person (or any Affiliate or Associate thereof) with which such Person (or any of
such Person's Affiliates or Associates) has any agreement, arrangement or
understanding (whether or not in writing), for the purpose of, or with respect
to, acquiring, holding, voting (except as described in the proviso to
subparagraph (ii) of this paragraph (c)) or disposing of any voting securities
of the Company; provided, however, that a Person (including any Affiliates or
Associates of such Person) shall not be deemed to be the Beneficial Owner of, or
to beneficially own, any security under this subparagraph (iii) solely as a
result of an agreement, arrangement or understanding entered into with any other
Person during, or in connection with, the Bankruptcy Case; and
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2. Counterparts. This Amendment may be executed in any one or more
counterparts, each of which shall be deemed an original and all of which shall
together constitute the same Amendment.
3. Effectiveness. This Amendment shall be effective as of the date first
written above, and except as expressly set forth herein, the Rights Agreement,
as amended, shall remain in full force and effect and otherwise shall be
unaffected hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed effective as of the date first above written.
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Xxxxx: Executive Vice President
and General Counsel
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Client Relationship Executive
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