EXHIBIT O
Amendment No. 1 to Agreement and Plan of Merger
This Amendment No. 1 (this "Amendment") to the Agreement and Plan of
Merger (the "Merger Agreement"), dated as of June 25, 1998, by and among Trace
International Holdings, Inc., a Delaware corporation ("Parent"), Trace Merger
Sub, Inc., a Delaware corporation("Sub"), and Foamex International Inc., a
Delaware corporation (the "Company"), is being entered into as of July 6, 1998.
WHEREAS, Parent, Sub and the Company desire to amend the Merger
Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
Section 1. Amendment to Section 5.1(e)(iii). Section 5.1(e)(iii) of the
Merger Agreement is hereby amended and restated as follows: "(iii) (A) enter
into or modify or amend any employment agreement or arrangement with any officer
or director of the Company or any of its Subsidiaries, other than in the
ordinary course of business consistent with past practice or (B) enter into or
modify or amend any severance agreement with, or grant any severance or
termination pay to, any officer or director of the Company or any of its
Subsidiaries, except in the ordinary course of business consistent with past
practice or as required by any applicable Legal Requirement or in connection
with the Xxxxx restructuring or Contracts in effect on the date hereof; or".
Section 2. Amendment to Sections 5.1(g)(iii) and (iv). Sections
5.1(g)(iii) and (iv) of the Merger Agreement are hereby amended and restated as
follows: "(iii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for any material
obligations of any other person (other than a Subsidiary of the Company or as
set forth on Section 5.1 of the Company's Disclosure Schedule); (iv) make any
loans, advances or capital contributions to, or investments in, any other person
(other than to the Subsidiaries of the Company, pursuant to the Merger Agreement
or as set forth on Section 5.1 of the Company's Disclosure Schedule (provided
the ownership structure of such Subsidiary has not changed from that existing on
the date hereof) or customary advances to employees); or".
Section 3. No Further Amendment. Except as otherwise provided herein,
the Merger Agreement shall remain unchanged and in full force and effect and as
amended hereby is ratified by the parties hereto.
Section 4. Effect of Amendment. From and after the execution of this
Amendment by the parties hereto, any references to the Merger Agreement shall be
deemed a reference to the Merger Agreement as amended hereby.
Section 5. Governing Law. This Amendment and the legal relations
between the parties hereto will be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to the choice of law
principles thereof.
Section 6. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 7. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and shall in no way be construed to
define, limit, describe, explain, modify, amplify, or add to the interpretation,
construction or meaning of any provision of, or scope or intent of, this
Amendment or the Merger Agreement nor in any way affect this Amendment or the
Merger Agreement.
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IN WITNESS WHEREOF, each of the undersigned has caused this Amendment
to be signed on his own behalf or by a duly authorized officer, as the case may
be, as of the date first above written.
TRACE INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
TRACE MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
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