UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)
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)
February 9, 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)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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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) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
------------------------- ---------- -------------------------------------------
7 SOLE VOTING POWER
NUMBER 5,475,526
OF ---------- --------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
EACH ---------- -------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9
WITH 5,475,526
---------- -------------------------------------------
SHARED DISPOSITIVE POWER
10
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,475,526
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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)
22.40% (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 7 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 5,422,526
EACH ---------- -------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9
WITH 0
---------- -------------------------------------------
SHARED DISPOSITIVE POWER
10
5,422,526
------------------------- ---------- -------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,422,526
-------- -----------------------------------------------------------------------
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)
22.18% (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 7 Pages
Explanatory Note
This Amendment No. 2 ("Amendment No. 2") amends Amendment No. 1 to the
Statement on Schedule 13D filed with the Securities and Exchange Commission on
February 8, 2005 by The Bank of Nova Scotia (the "Bank"). Unless otherwise
defined herein, all capitalized terms shall have the meanings ascribed to them
in Amendment No. 1 to the Schedule 13D.
Item 4. Purpose of Transaction.
Item 4 is hereby amended by deleting the last three paragraphs thereof
and replacing them with the following:
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 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. Effective February
7, 2005, the Bank suspended selling of additional shares under the Sales Plan,
having disposed of a suitable portion of the Bank's holding of Company Common
Stock pursuant to the Sales Plan. The Bank intends to review its investment in
the Company on a continuing basis and may terminate, reinstate or amend the
Sales Plan in the future.
During the period from December 15, 2004 through February 4, 2005,
274,900 shares of Company Common Stock were sold by the Bank pursuant to the
Sales Plan.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended and restated as follows:
(a) As of February 4, 2005, the Bank beneficially owned 5,475,526
shares of Company Common Stock, 5,422,526 of which are held in the name of its
Nominee. The total number of shares beneficially owned by the Bank represents in
the aggregate approximately 22.40% 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 5,475,526
shares of Company Common Stock described in (a) above.
Page 4 of 7 Pages
(c) Except as described in Item 4, the Bank has not effected any
transaction in the Company Common Stock during the past 60 days.
(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 28.54% of the Company Common Stock.
Page 5 of 7 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 14, 2005 THE BANK OF NOVA SCOTIA
By: /s/ Robert L. Brooks
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Name: Robert L. Brooks
Title: Senior Executive Vice-President,
Treasury and Operations
Page 6 of 7 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 14, 2005 CALDER & CO.
By: /s/ W.R. Ebbels
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Name: W.R. Ebbels
Title: Partner
Page 7 of 7 Pages