sv3
As filed with the Securities and Exchange Commission on November 30, 2007
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LIBBEY INC.
(Exact name of registrant as specified in its charter)
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Delaware
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34-1559357 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification Number) |
300 Madison Avenue
Toledo, Ohio 43604
(419) 325-2100
(Address, including zip code, and telephone number, including area code, of
registrants principal executive offices)
John F. Meier
Chairman and Chief Executive Officer
Libbey Inc.
300 Madison Avenue
Toledo, Ohio 43604
(419) 325-2100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies To:
Christopher D. Lueking, Esq.
Latham & Watkins LLP
233 South Wacker Drive, Suite 5800
Chicago, IL 60606
(312) 876-7700
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, other than
securities offered only in connection with dividend or interest reinvestment plans, check the
following box. þ
If this form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Securities and
Exchange Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Each Class of |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Amount of |
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Securities to be Registered |
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Registered |
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Share (1) |
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Price (1)(2) |
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Registration Fee |
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Common Stock, par value $0.01 per share
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485,309 shares
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$15.63
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$7,585,380 |
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$233 |
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(1) |
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Calculated pursuant to Rule 457(c) of the rules and regulations under the Securities Act with
respect to common stock to be registered hereunder based on the average of the high and low
sale prices of our common stock reported on the New York Stock Exchange on November 29, 2007. |
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This Registration Statement shall also cover any additional shares of common stock which
become issuable by reason of any stock dividend, stock split or other similar transaction
effected without receipt of consideration which results in an increase in the number of the
outstanding shares of common stock of the registrant. |
The registrant hereby amends this registration statement on such date or dates as may be
necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement
shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be changed. These securities may not be
sold until the registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and it is not soliciting offers
to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 30, 2007
PROSPECTUS
485,309 Shares
Libbey Inc.
Common Stock
This prospectus relates to up to 485,309 shares of our common stock, par value $0.01 per
share, which may be offered for sale from time to time by the selling stockholder named in this
prospectus. The selling stockholder may sell the shares of common stock described in this
prospectus in a number of different ways and at varying prices. We provide more information about
how the selling stockholder may sell its shares of common stock in the section titled Plan of
Distribution on page 9. We will not receive any of the proceeds from the sale of the shares of
common stock sold by the selling stockholder. We will bear all expenses of the offering of common
stock, except that the selling stockholder will pay any applicable underwriting fees, discounts or
commissions and transfer taxes.
Our common stock is listed for trading on the New York Stock Exchange under the symbol LBY.
On November 29, 2007, the closing price of our common stock on the New York Stock Exchange was
$15.80 per share.
Investing in our securities involves risks. See Risk Factors on page 3.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2007
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a resale registration statement that we filed with the Securities
and Exchange Commission, or SEC, using a shelf registration process. The selling stockholder may
offer and sell, from time to time, an aggregate of up to 485,309 shares of our common stock under
the prospectus. In some cases, the selling stockholder will also be required to provide a
prospectus supplement containing specific information about the selling stockholder and the terms
on which it is offering and selling our common stock. We may also add, update or change in a
prospectus supplement any information contained in this prospectus. You should read this
prospectus and any accompanying prospectus supplement, as well as any post-effective amendments to
the registration statement of which this prospectus is a part, together with the additional
information described under Where You Can Find More Information before you make any investment
decision.
You should rely only on the information contained in this prospectus. Neither we nor the
selling stockholder have authorized anyone to provide you with information different from that
contained in this prospectus or additional information. This prospectus is offering to sell, and
seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are
permitted. The information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or any sale of our common stock.
Our business, financial condition, results of operations and prospects may have subsequently
changed since the date of this prospectus or any prospectus supplement or the date of any document
incorporated by reference.
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PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus or in documents
incorporated herein by reference. You should read the entire prospectus carefully, including the
section entitled Risk Factors, before deciding to invest in our common stock.
The Company
Libbey Inc. is a leading supplier of tableware products in the U.S. and Canada, in addition to
supplying tableware products to other key export markets. We have the largest manufacturing,
distribution and service network among glass tableware manufacturers in the Western Hemisphere. We
design and market, under our LIBBEY®, Crisa®, Royal Leerdam®, World® Tableware, Syracuse® China and
Traex® brand names, an extensive line of high-quality glass tableware, ceramic dinnerware, metal
flatware, hollowware and serveware, and plastic items for sale primarily in the foodservice,
retail, business-to-business and industrial markets. Through our subsidiary B.V. Koninklijke
Nederlandsche Glasfabriek Leerdam (Royal Leerdam), we manufacture and market high-quality glass
stemware under the Royal Leerdam® brand name. Through our subsidiary Crisal-Cristalaria Automática
S.A. (Crisal), we manufacture glass tableware in Portugal and market it worldwide. We also
manufacture and market ceramic dinnerware under the Syracuse® China brand name through our
subsidiary Syracuse China. Through our World Tableware subsidiary, we import and sell metal
flatware, hollowware and serveware and ceramic dinnerware. We design, manufacture and distribute an
extensive line of plastic items for the foodservice industry under the Traex® brand name through
our subsidiary Traex Company. We are the largest glass tableware manufacturer in Latin America
through our Crisa subsidiary.
The customers for our tableware products include approximately 500 foodservice distributors in
the U.S. and Canada. In the retail market, we sell to mass merchants, department stores, retail
distributors, national retail chains and specialty houseware stores. In addition, our industrial
market primarily includes customers that use glass containers for candle and floral applications,
craft stores and gourmet food packaging companies. In Europe, we market glassware to close to 60
distributors and decorators that service the highly developed business-to-business sector where
products are customized with company logos for promotional and resale purposes by large breweries
and distilleries. We also have other customers who use our products for promotional or other
private uses. No single customer accounts for 10 percent or more of our sales, although the loss of
any of our major customers could have a meaningful effect on us.
Our business has three reportable segments from which we derive revenue from external
customers: North American Glass, North American Other and International. We believe this
segmentation is appropriate based upon our growing focus on the global market, managements
operating decisions and performance assessment.
Our principal executive offices are located at 300 Madison Avenue, Toledo, Ohio 43604, and our
telephone number at that address is (419) 325-2100. Our website can be found at
www.libbey.com. The information contained in, or that can be accessed through, our website
is not part of this prospectus or any accompanying prospectus supplement. Unless the context
indicates otherwise, references in this prospectus to we, us, our and the company refer to
Libbey Inc., its predecessors and its wholly owned subsidiaries.
We have numerous trademarks, patents and copyrights in the United States and in certain
foreign countries. All trademarks, trade names and service marks appearing in this prospectus are
the property of their respective owners.
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RISK FACTORS
Investment in our common stock involves a high degree of risk. Before making an investment
decision, you should carefully consider the specific risks described under the heading Risk
Factors in any applicable prospectus supplement and under the caption Risk Factors in any of our
filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange
Act of 1934, as amended, or the Exchange Act, which are incorporated herein by reference. Each of
the risks described in these headings could adversely affect our business, financial condition,
results of operations and prospects, and could result in a complete loss of your investment. For
more information, see Where You Can Find More Information.
FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement, including the information we
incorporate by reference, contain forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Any statements about our expectations, beliefs, plans,
objectives, assumptions or future events or performance are not historical facts and are
forward-looking statements. Such statements are based on managements beliefs and assumptions and
on information currently available to our management. You can identify most forward-looking
statements by the use of words such as anticipates, believes, could, estimates, expects,
intends, may, plans, potential, predicts, projects, and similar expressions intended to
identify forward-looking statements, although not all forward-looking statements contain these
identifying words. Among the factors that could cause actual results to differ materially from
those indicated in the forward-looking statements are risks and uncertainties inherent in our
business, including but not limited to, general economic, business and financing conditions, labor
relations, governmental action, competitor pricing activity, expense volatility and other risks
described under the heading Risk Factors in our most recent annual and quarterly reports filed
with the SEC and in other documents incorporated herein by reference, as well as any amendments
thereto reflected in subsequent filings with the SEC.
Given these uncertainties, you should not place undue reliance on these forward-looking
statements. Also, forward-looking statements represent our managements beliefs and assumptions
only as of the date of the relevant document. We may not actually achieve the plans, intentions or
expectations disclosed in our forward-looking statements. Actual results or events could differ
materially from the plans, intentions and expectations disclosed in the forward-looking statements
we make. We undertake no obligation to update or revise any forward-looking statements, whether as
a result of new information, future events or otherwise.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares by the selling
stockholder.
DESCRIPTION OF CAPITAL STOCK
The following summary of the rights of our capital stock is not complete and is subject to and
qualified in its entirety by reference to our Restated Certificate of Incorporation and Amended and
Restated Bylaws, copies of which are filed as exhibits to our registration statement on Form S-3,
of which this prospectus forms a part. See Where You Can Find More Information.
As of November 21, 2007, our authorized capital stock consisted of 50,000,000 shares of
common stock, $0.01 par value per share, and 5,000,000 shares of preferred stock in one or more
series, $0.01 par value per share.
Common Stock
As of November 21, 2007, we had:
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14,556,589 shares of common stock outstanding, not including the 485,309 shares
described in this prospectus; and |
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an aggregate of 1,007,275 shares of our common stock reserved for issuance pursuant to
future grants under our 2006 Omnibus Incentive Plan. |
Voting Rights
Holders of our common stock are entitled to one vote per share on all matters to be voted upon
by the stockholders. Holders of our common stock are not entitled to cumulative voting rights with
respect to the election of directors, which means that the holders of a majority of the shares
voted can elect all of the directors then standing for election.
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Dividends
Subject to limitations under Delaware law and preferences that may apply to any outstanding
shares of preferred stock, holders of our common stock are entitled to receive ratably such
dividends or other distributions, if any, as may be declared by our board of directors out of funds
legally available therefor.
Liquidation
In the event of our liquidation, dissolution or winding up, holders of our common stock are
entitled to share ratably in all assets remaining after payment of liabilities, subject to the
liquidation preference of any outstanding preferred stock.
Rights and Preferences
Our common stock has no preemptive, conversion or other rights to subscribe for additional
securities. There are no redemption or sinking fund provisions applicable to our common stock.
The rights, preferences and privileges of holders of common stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any series of preferred stock that we
may designate and issue in the future.
Fully Paid and Non-Assessable
All outstanding shares of our common stock are validly issued, fully paid and non-assessable.
Preferred Stock
As of November 21, 2007, we had no shares of preferred stock outstanding.
Our board of directors is authorized, subject to the limits imposed by the Delaware General
Corporation Law, or the DGCL, to fix or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund provisions, if any),
the redemption price or prices, the liquidation preferences, any other designations, preferences
and relative, participating, optional or other special rights, and any qualifications, limitations
or restrictions thereof, of any wholly unissued series of preferred stock, and the number of shares
constituting any such unissued series and the designation thereof, or any of them; and to increase
or decrease the number of shares of any series subsequent to the issue of shares of that series,
but not below the number of shares of such series then outstanding. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease shall resume the status
which they had prior to the adoption of the resolution originally fixing the number of shares of
such series.
Registration Rights Agreement
On June 16, 2006, a warrant to purchase 485,309 shares of our common stock was issued to
Merrill Lynch PCG, Inc., a Delaware corporation, or Merrill Lynch, the selling stockholder named in
this prospectus. In connection with the issuance of the warrant, we entered into a registration
rights agreement with Merrill Lynch, dated as of June 16, 2006. On June 18, 2007, pursuant to
Section 2(a) of the registration rights agreement, Merrill Lynch requested that we file a
registration statement with the SEC to register all of the shares of our common stock underlying
the warrant so that those shares may be publicly resold by Merrill Lynch. We will maintain the
effectiveness of the registration statement of which this prospectus is a part for the earlier of
(a) 18 months in the aggregate, subject to certain adjustments, or (b) the first date as of which
all the shares of common stock included in the registration statement have been sold.
Expenses of Registration
Other than underwriting fees, discounts and commissions, we will pay all expenses relating to
this registration. We will also pay, or reimburse, Merrill Lynch for up to $100,000 in legal fees
and disbursements that Merrill Lynch reasonably incurs in connection with the registration
statement and the sale of the common stock pursuant thereto.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is The Bank of New York. The transfer
agent and registrar for any series or
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class of preferred stock will be set forth in the applicable prospectus supplement.
New York Stock Exchange
Our common stock is listed for trading on the New York Stock Exchange under the symbol LBY.
Delaware Takeover Statute
We are subject to Section 203 of the DGCL. This statute regulating corporate takeovers
prohibits a Delaware corporation from engaging in any business combination with any interested
stockholder for three years following the date that the stockholder became an interested
stockholder, unless:
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prior to the date of the transaction, the board of directors of the corporation approved
either the business combination or the transaction that resulted in the stockholder becoming
an interested stockholder; |
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the interested stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for purposes of determining the
number of shares outstanding (a) shares owned by persons who are directors and also officers
and (b) shares owned by employee stock plans in which employee participants do not have the
right to determine confidentially whether shares held subject to the plan will be tendered
in a tender or exchange offer; or |
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on or subsequent to the date of the transaction, the business combination is approved by
the board and authorized at an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is
not owned by the interested stockholder. |
Section 203 defines a business combination to include:
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any merger or consolidation involving the corporation and the interested stockholder; |
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any sale, transfer, pledge or other disposition involving the interested stockholder of
10% or more of the assets of the corporation; |
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subject to exceptions, any transaction that results in the issuance or transfer by the
corporation of any stock of the corporation to the interested stockholder; or |
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the receipt by the interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or through the corporation. |
In general, Section 203 defines an interested stockholder as any entity or person beneficially
owning 15% or more of the outstanding voting stock of the corporation and any entity or person
affiliated with or controlling or controlled by the entity or person.
Restated Certificate of Incorporation and Amended and Restated Bylaw Provisions
Provisions of our Restated Certificate of Incorporation and Amended and Restated Bylaws may
have the effect of making it more difficult for a third party to acquire, or discourage a third
party from attempting to acquire, control of our company by means of a tender offer, a proxy
contest or otherwise. These provisions may also make the removal of incumbent officers and
directors more difficult. These provisions are intended to discourage certain types of coercive
takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control
of us to first negotiate with us. These provisions could also limit the price that investors might
be willing to pay in the future for shares of our common stock. These provisions may make it more
difficult for stockholders to take specific corporate actions and could have the effect of delaying
or preventing a change in control of Libbey. The amendment of any of these anti-takeover
provisions would require approval by holders of at least 80% of our outstanding common stock
entitled to vote on such amendment.
In particular, our Restated Certificate of Incorporation and Amended and Restated Bylaws
provide for the following:
Removal of Directors, Vacancies
Directors may be removed without cause; however, directors may be removed only by (a) a
majority vote of the directors then in
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office or (b) the affirmative vote of the stockholders holding at least 80% of the
outstanding shares of our capital stock entitled to vote in the election of directors. Vacancies
on our board of directors may be filled only by our board of directors.
No Cumulative Voting
Delaware law provides that stockholders are not entitled to the right to cumulative votes in
the election of directors unless our certificate of incorporation provides otherwise. Our
certificate of incorporation does not expressly provide for cumulative voting.
No Written Consent of Stockholders
Any action to be taken by our stockholders must be effected at a duly called annual or special
meeting and may not be effected by written consent.
Special Meetings of Stockholders
Special meetings of our stockholders may be called only by the board of directors, or a
majority of the members of the board of directors, or by a committee of the board of directors that
has been duly designated by the board of directors and whose power and authority, as provided in a
resolution of the board of directors or in the bylaws of the corporation, include the power to call
such meetings.
Amendment
The approval of not less than a majority of the outstanding shares of our capital stock
entitled to vote is required to amend the provisions of our Amended and Restated Bylaws by
stockholder action. However, to amend the provisions of our Restated Certificate of Incorporation
that are described above in this section, the approval of not less than 80% of the outstanding
shares of our capital stock entitled to vote is required. These provisions make it more difficult
to circumvent the anti-takeover provisions of our Restated Certificate of Incorporation and our
Amended and Restated Bylaws.
Issuance of Designated Preferred Stock
Our board of directors is authorized to issue, without further action by the stockholders, up
to 5,000,000 shares of designated preferred stock with rights and preferences, including voting
rights, designated from time to time by the board of directors. The existence of authorized but
unissued shares of preferred stock enables our board of directors to render more difficult or to
discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or
otherwise.
Limitation of Liability and Indemnification of Executive Officers and Directors
Delaware law authorizes corporations to limit or eliminate the personal liability of directors
to corporations and their stockholders for monetary damages for breaches of directors fiduciary
duties. Our certificate of incorporation includes a provision that eliminates, to the fullest
extent permitted by Delaware law, the personal liability of a director to our company or our
stockholders for monetary damages for any breach of fiduciary duty as a director. Subject to
certain limitations, our bylaws provide that we must indemnify our directors and executive officers
to the fullest extent permitted by Delaware law.
The limitation of liability and indemnification provisions in our certificate of incorporation
and bylaws may discourage stockholders from bringing a lawsuit against directors for breach of
their fiduciary duty. These provisions may also have the effect of reducing the likelihood of
derivative litigation against directors and officers, even though such an action, if successful,
might otherwise benefit us and our stockholders. In addition, your investment may be adversely
affected to the extent we pay the costs of settlement and damage awards against directors and
officers pursuant to these indemnification provisions.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to our directors, officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act, and is, therefore, unenforceable.
There is currently no pending material litigation or proceeding involving any of our
directors, officers or employees for which indemnification is sought.
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SELLING STOCKHOLDER
The following table provides the name of the selling stockholder and the number of shares of
our common stock offered by it under this prospectus. The information regarding shares
beneficially owned after the offering assumes the sale of all shares offered by the selling
stockholder.
The selling stockholder does not have any position, office or other material relationship with
us or any of our affiliates, nor has it had any position, office or material relationship with us
or any of our affiliates within the past three years, except for those listed in the footnotes to
the following table or otherwise disclosed in this prospectus. The number of shares beneficially
owned by the selling stockholder and its percentage ownership prior to the offering is based on the
485,309 shares underlying the warrant to purchase common stock issued to the selling stockholder on
June 16, 2006.
Information with respect to beneficial ownership has been furnished by the selling
stockholder. Beneficial ownership is determined in accordance with the rules of the SEC. Except as
indicated by footnote and subject to community property laws where applicable, to our knowledge,
the person named in the table below has sole voting and investment power with respect to all shares
of common stock shown as beneficially owned by such person.
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the Offering |
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of Shares |
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the Offering |
Name |
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Percent |
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Being Offered |
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Percent |
Merrill Lynch PCG, Inc.(1) |
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485,309 |
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3.230 |
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485,309 |
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On June 16, 2006, Merrill Lynch PCG, Inc. purchased $102 million aggregate principal amount
of 16% senior subordinated secured pay-in-kind notes due 2011 of Libbey Glass, Inc. |
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PLAN OF DISTRIBUTION
The selling stockholder may sell the shares from time to time on any stock exchange or
automated interdealer quotation system on which the shares are listed, in the over-the-counter
market, in privately negotiated transactions or otherwise, at fixed prices that may be changed, at
market prices prevailing at the time of sale, at prices related to prevailing market prices or at
prices otherwise negotiated. The selling stockholder may sell the shares by one or more of the
following methods, without limitation:
(a) block trades in which the broker or dealer so engaged will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to facilitate the
transaction;
(b) purchases by a broker or dealer as principal and resale by the broker or dealer for its
own account pursuant to this prospectus;
(c) an exchange distribution in accordance with the rules of any stock exchange on which the
shares are listed;
(d) ordinary brokerage transactions and transactions in which the broker solicits purchases;
(e) privately negotiated transactions;
(f) short sales;
(g) through the writing of options on the shares, whether or not the options are listed on an
options exchange;
(h) through the distribution of the shares by any selling stockholder to its partners, members
or stockholders; and
(i) any combination of any of these methods of sale.
The selling stockholder may also transfer the shares by gift. We do not know of any
arrangements by the selling stockholder for the sale of any of the shares.
The selling stockholder may engage brokers and dealers, and any brokers or dealers may arrange
for other brokers or dealers to participate in effecting sales of the shares. These brokers or
dealers may act as principals, or as an agent of the selling stockholder. Broker-dealers may agree
with the selling stockholder to sell a specified number of the shares at a stipulated price per
share. If the broker-dealer is unable to sell shares acting as agent for the selling stockholder,
it may purchase as principal any unsold shares at the stipulated price. Broker-dealers who acquire
shares as principals may thereafter resell the shares from time to time in transactions on any
stock exchange or automated interdealer quotation system on which the shares are then listed, at
prices and on terms then prevailing at the time of sale, at prices related to the then-current
market price or in negotiated transactions. Broker-dealers may use block transactions and sales to
and through broker-dealers, including transactions of the nature described above. The selling
stockholder may also sell the shares in accordance with Rule 144 under the Securities Act of 1933,
as amended (the Securities Act), rather than pursuant to this prospectus, regardless of whether
the shares are covered by this prospectus.
To the extent required under the Securities Act, the aggregate amount of the selling
stockholders shares being offered and the terms of the offering, the names of any agents, brokers,
dealers or underwriters and any applicable commission with respect to a particular offer will be
set forth in an accompanying prospectus supplement. Any underwriters, dealers, brokers or agents
participating in the distribution of the shares may receive compensation in the form of
underwriting discounts, concessions, commissions or fees from a selling stockholder and/or
purchasers of selling stockholders shares for whom they may act (which compensation as to a
particular broker-dealer might be in excess of customary commissions).
The selling stockholder and any underwriters, brokers, dealers or agents that participate in
the distribution of the shares may be deemed to be underwriters within the meaning of the
Securities Act, and any discounts, concessions, commissions or fees received by them and any profit
on the resale of the shares sold by them may be deemed to be underwriting discounts and
commissions.
The selling stockholder may enter into hedging transactions with broker-dealers and the
broker-dealers may engage in short sales of the shares in the course of hedging the positions they
assume with the selling stockholder, including, without limitation, in connection with
distributions of the shares by those broker-dealers. The selling stockholder may enter into option
or other transactions with broker-dealers that involve the delivery of the shares offered hereby to
the broker-dealers, who may then resell or otherwise transfer those shares. The selling
stockholder may also loan or pledge the shares offered hereby to a broker-dealer and the
broker-dealer may sell the shares offered hereby so loaned or upon a default may sell or otherwise
transfer the pledged shares offered hereby.
8
We have agreed to indemnify in certain circumstances the selling stockholder and any
underwriters of the shares covered by the registration statement, against certain liabilities,
including liabilities under the Securities Act. The selling stockholder has agreed to indemnify us
in certain circumstances against certain liabilities, including liabilities under the Securities
Act.
The shares offered hereby were originally issued to the selling stockholder pursuant to an
exemption from the registration requirements of the Securities Act. We agreed to register the
shares under the Securities Act and to keep the registration statement of which this prospectus is
a part effective for a specified period of time. We have agreed to pay all expenses in connection
with this offering, including the fees and expenses of counsel to the selling stockholder, but not
including underwriting discounts, concessions, commissions or fees of the selling stockholder.
We will not receive any proceeds from sales of any shares by the selling stockholder.
We cannot assure you that the selling stockholder will sell all or any portion of the shares
offered hereby.
LEGAL MATTERS
The validity of the shares offered by this prospectus will be passed upon for us by Latham &
Watkins LLP, Chicago, Illinois.
EXPERTS
The consolidated financial statements appearing in our Annual Report (Form 10-K) for the year
ended December 31, 2006 (including the schedule appearing therein), and our managements assessment
of the effectiveness of internal control over financial reporting as of December 31, 2006 included
therein, have been audited by Ernst & Young LLP, independent registered public accounting firm, as
set forth in their reports thereon, included therein, and incorporated herein by reference, which
as to the years 2005 and 2004 are based in part on the reports of Galaz, Yamazaki, Ruiz Urquiza,
S.C., member of Deloitte Touche Tohmatsu. Such consolidated financial statements and managements
assessment are incorporated herein by reference in reliance upon such reports given on the
authority of such firm as experts in accounting and auditing.
The combined financial statements of Vitrocrisa Holding, S. de R.L. de C.V. and Subsidiaries,
Crisa Libbey, S.A. de C.V. and Crisa Industrial, L.L.C. as of and for the year ended December 31,
2005, incorporated by reference in this Registration Statement on Form S-3, have been audited by
Galaz, Yamazaki, Ruiz Urquiza, S.C., member of Deloitte Touche Tohmatsu, an independent registered
public accounting firm, as stated in their report dated April 14, 2006, which is incorporated by
reference herein, and has been so incorporated in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
LIMITATION ON LIABILITY AND DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our restated certificate of incorporation and amended and restated bylaws provide that we will
indemnify our directors and officers, and may indemnify our employees and other agents, to the
fullest extent permitted by the Delaware General Corporation Law. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors, officers and
controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that,
in the opinion of the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act, and file annual,
quarterly and special reports, proxy statements and other information with the SEC. You may read
and copy any reports, proxy statements and other information we file at the SECs public reference
room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room. You may also access filed documents at the SECs
web site at www.sec.gov.
This prospectus is part of a registration statement on Form S-3 that we have filed with the
SEC under the Securities Act. Pursuant to the SEC rules, this prospectus, which forms a part of
the registration statement, does not contain all of the information in such registration statement.
You may read or obtain a copy of the registration statement, including exhibits, from the SEC in
the manner described above.
The SEC allows us to incorporate by reference the information we file with them, which means
that we can disclose important
9
information to you by referring you to those documents instead of having to repeat this
information in this prospectus. The information incorporated by reference is considered to be part
of this prospectus, and information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the
date of this prospectus and the termination of the offering:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2006, filed on
March 16, 2007; |
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our Quarterly Report on Form 10-Q for the three months ended March 31, 2007, filed on May
10, 2007; |
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our Quarterly Report on Form 10-Q for the three and six months ended June 30, 2007, filed
on August 9, 2007; |
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our Quarterly Report on Form 10-Q for the three and nine months ended September 30, 2007,
filed on November 9, 2007; |
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our Proxy Statement on Schedule 14A for the annual stockholders meeting held on May 3,
2007, filed on April 2, 2007; |
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our Current Reports on Form 8-K filed on June 21, 2006, January 17, 2007, February 15,
2007, February 16, 2007, April 24, 2007, May 9, 2007, May 22, 2007, July 31, 2007, November
1, 2007, and November 30, 2007; and |
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the description of our common stock contained in our registration statement on Form S-1
filed with the SEC on June 17, 1993 including any amendments or reports filed for the
purpose of updating the description. |
Any statement incorporated herein shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
You may request a free copy of any of the documents incorporated by reference in this
prospectus by writing to us or telephoning us at the address and telephone number set forth below.
Libbey Inc.
Attn: Corporate Secretary
300 Madison Avenue
Toledo, Ohio 43604
(419) 325-2100
You may also access all of the documents above and incorporated by reference into this
prospectus free of charge at our website www.libbey.com. The reference to our website does not
constitute incorporation by reference of the information contained on such website.
10
485,309 Shares
LIBBEY INC.
Common Stock
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The following table sets forth our best estimate as to our anticipated costs and expenses
expected to be paid by us in connection with a distribution of shares registered hereby. All
amounts are estimates except for the SEC registration fee:
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SEC registration fee |
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$ |
233 |
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Printing and engraving expenses |
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2,500 |
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Legal fees and expenses |
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50,000 |
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Accounting fees and expenses |
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10,000 |
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Transfer Agent fees and expenses |
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2,500 |
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Miscellaneous |
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756 |
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Total |
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$ |
65,989 |
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ITEM 15. Indemnification of Directors and Officers.
Delaware law authorizes corporations to limit or eliminate the personal liability of directors
to corporations and their stockholders for monetary damages for breaches of directors fiduciary
duties. Our certificate of incorporation includes a provision that eliminates, to the fullest
extent permitted by Delaware law, the personal liability of a director to our company or our
stockholders for monetary damages for any breach of fiduciary duty as a director. Subject to
certain limitations, our bylaws provides that we must indemnify our directors and executive
officers to the fullest extent permitted by Delaware law.
The limitation of liability and indemnification provisions in our certificate of incorporation
and bylaws may discourage stockholders from bringing a lawsuit against directors for breach of
their fiduciary duty. These provisions may also have the effect of reducing the likelihood of
derivative litigation against directors and officers, even though such an action, if successful,
might otherwise benefit us and our stockholders. In addition, your investment may be adversely
affected to the extent we pay the costs of settlement and damage awards against directors and
officers pursuant to these indemnification provisions.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to our directors, officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act, and is, therefore, unenforceable.
There is currently no pending material litigation or proceeding involving any of our
directors, officers or employees for which indemnification is sought.
ITEM 16. Exhibits.
(a) Exhibits.
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2.0
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Asset Purchase Agreement dated as of September 22, 1995 by and among The Pfaltzgraff Co.,
The Pfaltzgraff Outlet Co., Syracuse China Company of Canada Ltd., LG Acquisition Corp. and
Libbey Canada Inc., Acquisition of Syracuse China Company (filed as Exhibit 2.0 to Libbey
Inc.s Current Report on Form 8-K dated September 22, 1995 and incorporated herein by
reference). |
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2.1
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Asset Purchase Agreement dated as of December 2, 2002 by and between Menasha Corporation and
Libbey Inc. (filed as Exhibit 2.2 to Libbey Inc.s Annual Report on Form 10-K for the
year-ended December 31, 2002, and incorporated herein by reference). |
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2.2
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Stock Purchase Agreement dated as of December 31, 2002 between BSN Glasspack N.V. and
Saxophone B.V. (filed as Exhibit 2.3 to Libbey Inc.s Annual Report on Form 10-K for the
year-ended December 31, 2002, and incorporated herein by reference). |
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3.1
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Restated Certificate of Incorporation of Libbey Inc. (filed as Exhibit 3.1 to Libbey Inc.s
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993 and incorporated herein by
reference). |
II-1
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3.2
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Amended and Restated By-Laws of Libbey Inc. (filed as Exhibit 3.2 to Libbey Inc.s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993 and incorporated herein by
reference). |
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3.3
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Certificate of Incorporation of Libbey Glass Inc. (incorporated by reference to Exhibit 3.3
to Libbey Glass Inc.s Registration Statement on Form S-4; File No. 333-139358). |
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3.4
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Amended and Restated By-Laws of Libbey Glass Inc. (incorporated by reference to Exhibit 3.4
to Libbey Glass Inc.s Registration Statement on Form S-4; File No. 333-139358). |
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4.1
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Certificate of Incorporation of Libbey Glass Inc. (incorporated by reference to Exhibit 3.3). |
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4.2
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Amended and Restated By-Laws of Libbey Glass Inc. (incorporated by reference to Exhibit 3.4). |
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4.3
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Warrant, issued June 16, 2006 (filed as Exhibit 4.7 to Libbey Inc.s Current Report on Form
8-K filed June 21, 2006 and incorporated herein by reference). |
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4.4
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Registration Rights Agreement, dated June 16, 2006, among Libbey Inc. and Merrill Lynch PCG,
Inc. (filed as Exhibit 4.8 to Libbey Inc.s Current Report on Form 8-K filed June 21, 2006
and incorporated herein by reference). |
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5.1*
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Opinion of Latham & Watkins
LLP. |
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23.1*
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Consent of Ernst & Young LLP. |
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23.2*
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Consent of Galaz, Yamazaki, Ruiz
Urquiza, S.C., member of Deloitte Touche Tohmatsu. |
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23.3*
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Consent of Latham & Watkins
LLP (included in Exhibit 5.1). |
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24.1*
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Power of Attorney (included on the signature page hereto). |
ITEM 17. Undertakings.
We hereby undertake:
1. To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information
in the registration statement;
Provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by us pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
II-2
2. That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
4. That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) each prospectus filed by us pursuant to Rule 424(b)(3) shall be deemed to be part of
the registration statement as of the date the filed prospectus was deemed part of and included
in the registration statement; and
(ii) each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or a prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such effective date.
5. That, for the purpose of determining our liability under the Securities Act to any
purchaser in the initial distribution of the securities, we undertake that in a primary offering
of our securities pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, we will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of ours relating to the offering required to
be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of us
or used or referred to by us;
(iii) the portion of any other free writing prospectus relating to the offering
containing material information about us or our securities provided by or on behalf of us; and
(iv) any other communication that is an offer in the offering made by us to the
purchaser.
We hereby undertake that, for purposes of determining any liability under the Securities Act,
each filing of our annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to our directors, officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by us of expenses
incurred or paid by one of our directors, officers or controlling persons in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by us is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, Libbey Inc. certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Toledo, State of Ohio, on November 30, 2007.
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LIBBEY INC.
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By: |
/s/ John F. Meier
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John F. Meier |
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Chairman and Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Terrence J. Keating, John R. Murphy and David K. Armstrong, and each of
them acting individually, as his true and lawful attorneys-in-fact and agents, each with full power
of substitution, for him in any and all capacities, to sign any and all amendments to this
registration statement, including post-effective amendments or any abbreviated registration
statement and any amendments thereto filed pursuant to Rule 462(b) increasing the number of
securities for which registration is sought, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and
agents, with full power of each to act alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith, as fully for all
intents and purposes as he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or his or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ John F. Meier
John F. Meier
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Chairman, Chief Executive Officer
(Principal Executive Officer)
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November 30, 2007 |
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/s/ Richard I. Reynolds
Richard I. Reynolds
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Executive Vice President, Chief
Operating Officer and Director
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November 30, 2007 |
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/s/ Gregory T. Geswein
Gregory T. Geswein
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Vice President,
Chief Financial Officer
(Principal Financial Officer)
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November 30, 2007 |
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/s/ Scott M. Sellick
Scott M. Sellick
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Chief Accounting Officer
(Principal Accounting Officer)
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November 30, 2007 |
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/s/ William A. Foley
William A. Foley
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Director
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November 30, 2007 |
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/s/ Peter C. McC. Howell
Peter C. McC. Howell
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Director
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November 30, 2007 |
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/s/ Carol B. Moerdyk
Carol B. Moerdyk
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Director
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November 30, 2007 |
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Signature |
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Title |
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Date |
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/s/ Terence P. Stewart
Terence P. Stewart
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Director
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November 30, 2007 |
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/s/ Carlos V. Duno
Carlos V. Duno
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Director
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November 30, 2007 |
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/s/ Deborah G. Miller
Deborah G. Miller
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Director
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November 30, 2007 |
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/s/ Jean-René Gougelet
Jean-René Gougelet
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Director
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November 30, 2007 |
INDEX TO EXHIBITS
|
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2.0
|
|
Asset Purchase Agreement dated as of September 22, 1995 by and among The Pfaltzgraff Co.,
The Pfaltzgraff Outlet Co., Syracuse China Company of Canada Ltd., LG Acquisition Corp. and
Libbey Canada Inc., Acquisition of Syracuse China Company (filed as Exhibit 2.0 to Libbey
Inc.s Current Report on Form 8-K dated September 22, 1995 and incorporated herein by
reference). |
|
|
|
2.1
|
|
Asset Purchase Agreement dated as of December 2, 2002 by and between Menasha Corporation and
Libbey Inc. (filed as Exhibit 2.2 to Libbey Inc.s Annual Report on Form 10-K for the
year-ended December 31, 2002, and incorporated herein by reference). |
|
|
|
2.2
|
|
Stock Purchase Agreement dated as of December 31, 2002 between BSN Glasspack N.V. and
Saxophone B.V. (filed as Exhibit 2.3 to Libbey Inc.s Annual Report on Form 10-K for the
year-ended December 31, 2002, and incorporated herein by reference). |
|
|
|
3.1
|
|
Restated Certificate of Incorporation of Libbey Inc. (filed as Exhibit 3.1 to Libbey Inc.s
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993 and incorporated herein by
reference). |
|
|
|
3.2
|
|
Amended and Restated By-Laws of Libbey Inc. (filed as Exhibit 3.2 to Libbey Inc.s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993 and incorporated herein by
reference). |
|
|
|
3.3
|
|
Certificate of Incorporation of Libbey Glass Inc. (incorporated by reference to Exhibit 3.3
to Libbey Glass Inc.s Registration Statement on Form S-4; File No. 333-139358). |
|
|
|
3.4
|
|
Amended and Restated By-Laws of Libbey Glass Inc. (incorporated by reference to Exhibit 3.4
to Libbey Glass Inc.s Registration Statement on Form S-4; File No. 333-139358). |
|
|
|
4.1
|
|
Certificate of Incorporation of Libbey Glass Inc. (incorporated by reference to Exhibit 3.3). |
|
|
|
4.2
|
|
Amended and Restated By-Laws of Libbey Glass Inc. (incorporated by reference to Exhibit 3.4). |
|
|
|
4.3
|
|
Warrant, issued June 16, 2006 (filed as Exhibit 4.7 to Libbey Inc.s Current Report on Form
8-K filed June 21, 2006 and incorporated herein by reference). |
|
|
|
4.4
|
|
Registration Rights Agreement, dated June 16, 2006, among Libbey Inc. and Merrill Lynch PCG,
Inc. (filed as Exhibit 4.8 to Libbey Inc.s Current Report on Form 8-K filed June 21, 2006
and incorporated herein by reference). |
|
|
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5.1*
|
|
Opinion of Latham & Watkins LLP. |
|
|
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23.1*
|
|
Consent of Ernst & Young LLP. |
|
|
|
23.2*
|
|
Consent of Galaz, Yamazaki, Ruiz Urquiza, S.C., member of Deloitte Touche Tohmatsu. |
|
|
|
23.3*
|
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Consent of Latham & Watkins LLP (included in Exhibit 5.1). |
|
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24.1*
|
|
Power of Attorney (included on the signature page hereto). |