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 Xxxxxxx, Xxxxx & Co. (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 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, 2,631,000 shares 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, the Seller shall sell, transfer, assign and convey
the Shares to the Purchaser, and the Purchaser shall purchase the Shares from
the Seller, at a purchase price of US$0.30 per share, for an aggregate cash
purchase price of US$789,300.00 (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 Xxxxxxx, Sachs & Co., 00 Xxxxx 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).
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, 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) 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.
(e) 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.
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
their 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.
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(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 the Shares are not 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.
(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.
(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 of 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.
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(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:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
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) Publicity. The parties agree to consult with each other to coordinate
the issuance of any press release or similar public announcement or
communication relating to the execution or performance of this Agreement or to
the transactions contemplated hereby, provided however, neither the Seller nor
the Purchaser shall be required to consult with the other with respect to any
regulatory filing it shall make.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties.
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(g) 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.
(h) 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.
(i) 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
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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
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XXXXXXX, SACHS & CO.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Managing Director
