UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Foamex International Inc.
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(Name of Issuer)
Common Stock, $0.01 Par Value Per Share
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(Title of Class of Securities)
344123997
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(CUSIP Number)
Mr. Robert L. Brooks
Senior Executive Vice-President, Treasury and Operations
The Bank of Nova Scotia
44 King Street West
Scotia Plaza, 64th floor
Toronto, Ontario, Canada
M5H 1H1
(416) 866-6163
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 31, 2005
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(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 ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the
following box [ ].
SCHEDULE 13D
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CUSIP No. 344123997
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1 NAME OF REPORTING PERSONS
The Bank of Nova Scotia
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
------- ------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ ]
------- ------------------------------------------------------------------------
3 SEC USE ONLY
------- ------------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
Not Applicable
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
------- ------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
------------------------- ---------- -------------------------------------------
7 SOLE VOTING POWER
NUMBER 5,496,426
OF ---------- --------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
EACH ---------- -------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9
WITH 5,496,426
---------- -------------------------------------------
SHARED DISPOSITIVE POWER
10
0
------- ------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,496,426
------- ------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [X]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.49% (calculated on the basis of 24,444,617 shares of voting common
stock outstanding, as reported on the Issuer's Form 10-Q for the quarter
ended September 26, 2004).
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14 TYPE OF REPORTING PERSON (See Instructions)
BK
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(Continued on following pages)
Page 2 of 17 Pages
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CUSIP No. 344123997
------------------------------------------
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1 NAME OF REPORTING PERSONS
Calder & Co.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
-------- -----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ ]
-------- -----------------------------------------------------------------------
3 SEC USE ONLY
-------- -----------------------------------------------------------------------
SOURCE OF FUNDS (See Instructions)
4
Not Applicable
-------- -----------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
-------- -----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York, United States
------------------------- ---------- -------------------------------------------
7 SOLE VOTING POWER
NUMBER 0
OF ---------- --------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 5,443,426
EACH ---------- -------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9
WITH 0
---------- -------------------------------------------
SHARED DISPOSITIVE POWER
10
5,443,426
------------------------- ---------- -------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,443,426
-------- -----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [X]
-------- -----------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.27% (calculated on the basis of 24,444,617 shares of voting common
stock outstanding, as reported on the Issuer's Form 10-Q for the
quarter ended September 26, 2004).
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14 TYPE OF REPORTING PERSON (See Instructions)
PN
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(Continued on following pages)
Page 3 of 17 Pages
Explanatory Note
This Amendment No. 1 ("Amendment No. 1") amends and restates the Statement
on Schedule 13D (the "Schedule 13D") filed with the Securities and Exchange
Commission on November 8, 2000 by The Bank of Nova Scotia (the "Bank"). Unless
otherwise defined herein, all capitalized terms shall have the meanings ascribed
to them in the Schedule 13D.
Item 1. Security and Issuer.
This Amendment No. 1 to the 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 Amendment No. 1 is being filed by The Bank of Nova Scotia, 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
Page 4 of 17 Pages
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 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
Page 5 of 17 Pages
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 had become the owner of 5,750,426 shares of
Company Common Stock and 15,000 shares of Company Preferred Stock, of which
5,697,426 of such shares of Company Common Stock and all of the 15,000 shares of
Company Preferred Stock were held through its Nominee.
The foregoing descriptions of the Settlement and the Share Exchange
Agreement 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 was previously filed as
Exhibits 99.1, 99.2, 99.3, 99.4 and 99.5 to the Schedule 13D, and is
incorporated herein by reference.
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.
On December 15, 2004, the Bank entered into a written sales plan (the
"Sales Plan") with Morgan Stanley & Co. Incorporated, acting as agent for the
Bank ("Morgan Stanley"), for the purpose of establishing a trading plan that
complies with the requirements of Rule 10b5-1(c) under the Securities Exchange
Act of 1934, as amended. Pursuant to, but subject to the terms and conditions
of, the Sales Plan and the requirements of Rule 144 of the Securities Act of
1933, as amended, Morgan Stanley may sell in the open market, on behalf of the
Bank, up to the maximum number of shares of Company Common Stock permitted under
the volume limitations of Rule 144(e), in any given time period. The maximum
number of shares that potentially could
Page 6 of 17 Pages
be sold under the Sales Plan is 5,697,426. If not earlier terminated in
accordance therewith, the Sales Plan will terminate on the earlier to occur of
(i) the date on which all the shares covered by the Sales Plan are sold or (ii)
December 15, 2006.
During the period from December 15, 2004 to January 31, 2005, 254,000
shares of Company Common Stock were sold by the Bank pursuant to the Sales Plan.
Effective February 7, 2005, the Company suspended selling of additional
shares under the Sales Plan until further notice.
Item 5. Interest in Securities of the Issuer.
(a) As of January 31, 2005, the Bank beneficially owns 5,496,426
shares of Company Common Stock, 5,443,426 of which are held in the name of its
Nominee. The total number of shares beneficially owned by the Bank represent in
the aggregate approximately 22.49% of the outstanding shares of Company Common
Stock. The calculation of the foregoing percentage is based on 24,444,617 shares
of Company Common Stock disclosed as outstanding as of November 1, 2004 by the
Company in its quarterly report on Form 10-Q for the quarterly period ended
September 26, 2004.
(b) The Bank holds sole power to vote and to dispose of the
5,496,426 shares of Company Common Stock described in (a) above.
(c) Except as described in Item 4, the Bank has not effected any
transaction in the Company Common Stock during the past 60 days from January 31,
2005.
(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
shares of Company Common Stock held by the Bank.
(e) Not applicable.
As of the date hereof, the Bank beneficially owns 15,000 shares of Company
Preferred Stock, which are held on behalf of the Bank in the name of its
Nominee. Such 15,000 shares of Company Preferred Stock are convertible into an
aggregate of 1,500,000 shares of Company Common Stock upon the occurrence of 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 28.62% 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.
Page 7 of 17 Pages
Item 7. Materials to be Filed as Exhibits.
The following document is attached as an exhibit hereto:
Exhibit 99.7 - Sales Plan between The Bank of Nova Scotia and Morgan Stanley &
Co. Incorporated, dated December 15, 2004.
Page 8 of 17 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated:
February 8, 2005 THE BANK OF NOVA SCOTIA
By: /s/ Russell Morgan
------------------------------
Name: Russell Morgan
Title: Senior Vice President,
Investments
Page 9 of 17 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated:
February 8, 2005 CALDER & CO.
By: /s/ W.R. Ebbels
--------------------------------
Name: W.R. Ebbels
Title: Partner
Page 10 of 17 Pages
APPENDIX A
Information Concerning Executive Officers and
Directors of The Bank of Nova Scotia
NAME OF CORPORATE OFFICERS PRESENT POSITION WITH THE BANK CITIZENSHIP
Richard E. Waugh President and Canada
Chief Executive Officer
Robert W. Chisholm Vice-Chairman Canada
W. David Wilson Vice-Chairman Canada
Robert L. Brooks Senior Executive Vice-President, Canada,
Treasury & Operations Ireland
Sarabjit S. Marwah Senior Executive Vice-President and Canada
Chief Financial Officer
Deborah M. Alexander Executive Vice-President, General Canada
Counsel and Secretary
Peter C. Cardinal Executive Vice-President, Latin America Canada
Alberta G. Cefis Executive Vice-President, Canada
Retail Lending Services
Sylvia D. Chrominska Executive Vice-President, Canada
Human Resources and Public, Corporate
and Government Affairs
Wendy G. Hannam Executive Vice-President, Domestic Canada
Branch Banking
Timothy P. Hayward Executive Vice-President and Chief Canada
Administrative Officer, International
Banking
Christopher J. Hodgson Executive Vice-President, Canada
Wealth Management
Dieter W. Jentsch Executive Vice-President, Canada
Commercial Banking
Stephen D. McDonald Executive Vice-President, Canada
Deputy Chairman, Scotia Capital and
U.S. Country Head
Barbara F. Mason Executive Vice-President, Marketing Canada
and Sales and Service
Robert H. Pitfield Executive Vice-President, Canada
International Banking
Page 11 of 17 Pages
Luc A. Vanneste Executive Vice-President and Chief Auditor Canada
Albert E. Wahbe Executive Vice-President, Canada
Electronic Banking
Warren K. Walker Head, Global Risk Management Canada
The business address for Executive Officers of the Bank is:
44 King St. West, Toronto, Ontario, Canada M5H 1H1
Page 12 of 17 Pages
NAME OF (Non-Officer) PRINCIPAL OCCUPATION AND ADDRESS CITIZENSHIP
CORPORATE DIRECTORS
Arthur R.A. Scace Chairman of the Board Canada
The Bank of Nova Scotia
Chairman of the Board 44 King St. West
Toronto, Ontario, Canada
M5H 1H1
Ronald A. Brenneman President and CEO Canada
Petro-Canada
P O Box 2844, Station "M"
150-6th Avenue S.W.
Calgary, Alberta, Canada
T2P 3E3
Choong Joong Chen Counsel Singapore
Rajah & Tann
Advocates & Solicitors (Attorneys)
4 Battery Road #26-01
Bank of China Building
Singapore 049908
N. Ashleigh Everett President Canada
Royal Canadian Securities Limited
800 - 240 Graham Avenue
Winnipeg, Manitoba, Canada
R3M 0J7
M. Keith Goodrich Corporate Director, Canada,
Retired Chairman USA
Moore Corporation Limited
574 North Burton Drive
Lake Forest, Illinois 60045
USA
John C. Kerr Chairman Canada
Lignum Investments Ltd.
1720 - 1111 West Georgia Street
Vancouver, British Columbia, Canada
V6E 4M3
Senator Member of the Senate of Canada Canada
Michael J.L. Kirby The Senate of Canada
Parliament Buildings
Room 471-S, Centre Block
Ottawa, Ontario, Canada
K1A 0A4
Page 13 of 17 Pages
NAME OF (Non-Officer) PRINCIPAL OCCUPATION AND ADDRESS CITIZENSHIP
CORPORATE DIRECTORS
Laurent Lemaire Executive Vice-Chairman of the Board Canada
Cascades Inc.
P.O. Box 30
404, rue Marie-Victorin
Kingsey Falls, Quebec, Canada
J0A 1B0
John T. Mayberry Corporate Director Canada
1982 Fieldgate Drive
Burlington, Ontario, Canada
L7P 3H6
The Honourable Advisor, Aird & Berlis LLP Canada
Barbara J. McDougall BCE Place
181 Bay Street, Suite 1800
P.O. Box 754
Toronto, Ontario, Canada
M5J 2T9
Elizabeth Parr-Johnston President Canada
Parr Johnston Economic and Policy
Consultants
217 Borgel's Drive
P.O. Box 219
Chester Basin, Nova Scotia, Canada
B0J 1K0
Gerald W. Schwartz Chairman & CEO Canada
Onex Corporation
161 Bay Street, 49th Floor
P.O. Box 700
Toronto, Ontario, Canada
M5J 2S1
Allan C. Shaw Chairman & CEO Canada
The Shaw Group Limited
P.O. Box 996
Halifax, Nova Scotia, Canada
B3J 2X1
Paul D. Sobey President & CEO Canada
Empire Company Limited
115 King Street
Stellarton, Nova Scotia, Canada
B0K 1S0
Page 14 of 17 Pages
NAME OF (Non-Officer) PRINCIPAL OCCUPATION AND ADDRESS CITIZENSHIP
CORPORATE DIRECTORS
Barbara S. Thomas Corporate Director USA
6 Belleview Boulevard
Unit 207
Belleair, Florida
U.S.A.
33756
Page 15 of 17 Pages
APPENDIX B
Information Concerning The Partners of Calder & Co.
NAME OF PARTNER PRINCIPAL OCCUPATION AND CITIZENSHIP
ADDRESS
Vilma Pindling Banker
The Bank of Nova Scotia U.S.A.
One Liberty Plaza
New York, NY 10006
William R. Ebbels Banker
The Bank of Nova Scotia Canada
One Liberty Plaza
New York, NY 10006
Warren Goshine Banker
The Bank of Nova Scotia U.S.A.
One Liberty Plaza
New York, NY 10006
Eric Sitcheran Banker
The Bank of Nova Scotia U.S.A.
One Liberty Plaza
New York, NY 10006
Ross Coomber Banker
The Bank of Nova Scotia Canada/U.K.
One Liberty Plaza
New York, NY 10006
Yasmin Prendergast Banker
The Bank of Nova Scotia U.S.A.
One Liberty Plaza
New York, NY 10006
Dorothy Jennings Banker
The Bank of Nova Scotia Canada/U.S.A./Jamaica
One Liberty Plaza
New York, NY 10006
Page 16 of 17 Pages
EXHIBIT INDEX
Exhibit 99.7 - Sales Plan between The Bank of Nova Scotia and Morgan Stanley
& Co. Incorporated, dated December 15, 2004.
Page 17 of 17 Pages