sv3
As filed with the Securities and Exchange Commission on May 25, 2010
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
incorporation or organization)
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(I.R.S. Employer
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
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large Accelerated Filer o
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Accelerated Filer o
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Non-Accelerated Filer þ
(Do not check if a smaller reporting company)
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Smaller reporting company 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 (1) |
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registered (1) (2) |
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Unit (1) (2) |
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Price (1) (2) |
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Registration Fee (3) |
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Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Warrants to Purchase Debt Securities, Common
Stock, Preferred Stock or Depositary Shares
Rights to Purchase Common Stock or Preferred Stock
Securities Purchase Contracts
Securities Purchase Units
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$ |
150,000,000 |
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$ |
150,000,000 |
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10,695 |
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(1) |
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Pursuant to Form S-3 General Instruction II.D, the amount registered by class does not need
to be specified. |
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(2) |
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An unspecified number of the securities of each identified class of securities is being
registered for possible issuance from time to time at indeterminate prices. Separate
consideration may or may not be received for securities that are issuable on exercise,
conversion or exchange of other securities or that are issued in units or represented by
depositary shares. |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o)
of the Securities Act. In accordance with Rule 457(p) under the Securities Act, the
registrant has offset against the $10,695 filing fee due in connection with the initial filing
of this registration statement $10,695 of unused filing fee under the registrants
registration statement on Form S-3 (File No. 333-151657) filed on June 13, 2008, which
registration statement was subsequently withdrawn on May 25, 2010. |
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. We may not sell these
securities 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 MAY 25, 2010
PROSPECTUS
$150,000,000
Libbey Inc.
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Warrants to Purchase Debt Securities, Common Stock, Preferred Stock or Depositary Shares
Rights to Purchase Common Stock or Preferred Stock
Securities Purchase Contracts
Securities Purchase Units
We may offer and sell the securities from time to time in one or more offerings. This
prospectus provides you with a general description of the securities we may offer.
Each time we sell securities, we will provide a supplement to this prospectus that contains
specific information about the offering and the amounts, prices and terms of the securities. The
supplement may also add, update or change information contained in this prospectus. You should
carefully read this prospectus and the accompanying prospectus supplement before you invest in any
of our securities.
We may offer and sell the following securities:
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debt securities; |
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common stock; |
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preferred stock; |
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warrants to purchase debt securities, common stock, preferred stock or depositary shares; |
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rights to purchase common stock or preferred stock; |
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securities purchase contracts; |
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securities purchase units; and |
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depositary shares. |
The securities may be offered directly by us, through agents designated from time to time by
us or to or through underwriters or dealers. If any agents, dealers or underwriters are involved
in the sale of any of the securities, their names and any applicable purchase price, fee,
commission or discount arrangement between or among them will be set forth, or will be calculable
from the information set forth, in the applicable prospectus supplement. We provide more
information about how we may sell our securities in the section titled Plan of Distribution on
page 21. No securities may be sold without delivery of this prospectus and the applicable
prospectus supplement describing the method and terms of the offering of such securities.
Our
common stock is listed for trading on the NYSE Amex under the symbol
LBY. On May 24,
2010, the closing price of our common stock on the NYSE Amex was
$13.43 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 , 2010
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission, or SEC, using a shelf registration process. Under this process, we may sell
debt securities; common stock; preferred stock; warrants to purchase debt securities, common stock,
preferred stock or depositary shares; rights to purchase common stock or preferred stock;
securities purchase contracts; securities purchase units; and depositary shares. This prospectus
only provides you with a general description of the securities that we may offer. Each time we
sell securities, we will provide a supplement to this prospectus that contains specific information
about the terms of the securities. The prospectus supplement may also add, update or change
information contained in this prospectus. Before purchasing any securities, you should carefully
read both this prospectus and the accompanying prospectus supplement and any free writing
prospectus prepared by or on behalf of us, together with the additional information described under
the heading Where You Can Find More Information.
You should rely only on the information contained or incorporated by reference in this
prospectus and in any applicable supplement to this prospectus. We have not authorized any other
person to provide you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus and the accompanying prospectus supplement and any
free writing prospectus prepared by or on behalf of us is accurate only as of the date on their
respective covers. Our business, financial condition, results of operations and prospects may have
changed since that date.
1
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 making an investment decision. Unless the context
indicates otherwise, references in this prospectus to we, us, our, Libbey and the company
refer to Libbey Inc., its predecessors and its wholly owned subsidiaries.
The Company
Based in Toledo, Ohio, Libbey operates glass tableware manufacturing plants in the United
States, Mexico, China, Portugal and the Netherlands. Our product portfolio consists of an extensive
line of high quality, machine-made glass tableware, including casual glass beverageware, in
addition to ceramic dinnerware, metalware, and plasticware. We sell our products to foodservice,
retail, industrial and business-to-business customers in over 100 countries, with our core North
American market accounting for approximately 76% of our sales. We are the largest manufacturer and
marketer of casual glass beverageware in North America for the foodservice and retail channels.
Additionally, we manufacture casual glass beverageware in Europe and have a growing presence in
Asia. We have a robust portfolio of glass tableware brands, with Libbey® and Crisa® enjoying
leading market positions and strong recognition in North America and Royal Leerdam® and Crisal
Glass® enjoying strong recognition among customers within their respective key trade channels in
Europe. In addition, in North America we market a range of products across complementary
foodservice categories under the Syracuse® China, World® Tableware and Traex® brands.
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.
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.
2
RISK FACTORS
Investment in any securities offered pursuant to this prospectus involves risks. 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 Section 27A of
the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act.
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 any
accompanying prospectus supplement, and 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 intend to use the net proceeds from the sale of the securities offered by us under this
prospectus for general corporate purposes, including repaying, redeeming or repurchasing debt,
acquisitions, share repurchases, capital expenditures and working capital. When a particular
series of securities is offered, the prospectus supplement relating to that series will set forth
our intended use for the net proceeds we receive from the sale of the securities. Pending the
application of the net proceeds, we may invest the proceeds in short-term, interest-bearing
instruments or other investment-grade securities
RATIO OF EARNING TO FIXED CHARGES
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Three Months Ended |
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Year Ended December 31, |
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March 31, |
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2005 |
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2006 |
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2007 |
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2008 |
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2009 |
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2009 |
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2010 |
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Ratio of Earnings
to Fixed Charges |
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1.1 |
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(5) |
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6.5 |
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Due to our loss in 2005, the ratio coverage was less than 1:1. We would have needed
to generate additional earnings of $21.9 million to achieve a coverage ratio of 1:1. |
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Due to our loss in 2006, the ratio coverage was less than 1:1. We would have needed to
generate additional earnings of $32.2 million to achieve a coverage ratio of 1:1. |
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Due to our loss in 2008, the ratio coverage was less than 1:1. We would have needed to
generate additional earnings of $74.1 million to achieve a coverage ratio of 1:1. |
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Due to our loss in 2009, the ratio coverage was less than 1:1. We would have needed to
generate additional earnings of $26.0 million to achieve a coverage ratio of 1:1. |
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Due to our loss for the three months ended March 31, 2009, the ratio coverage was less
than 1:1. We would have needed to generate
additional earnings of $29.3 million to achieve a coverage ratio of 1:1. |
These computations include us and our consolidated subsidiaries. For purposes of
determining the ratio of earnings to fixed charges, earnings are defined as earnings before income
taxes, noncontrolling interest, income from investees and extraordinary items, plus fixed charges
and distributed income from investees less interest capitalized. Fixed charges include interest
expense on all indebtedness, interest capitalized and one fifth of rental expense on operating
leases representing a portion of rental expense deemed attributable to interest.
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DILUTION
We will set forth in a prospectus supplement the following information regarding any material
dilution of the equity interests of investors purchasing securities in an offering under this
prospectus:
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the net tangible book value per share of our equity securities before and after the
offering; |
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the amount of the increase in such net tangible book value per share attributable to
the cash payments made by purchases in the offering; and |
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the amount of the immediate dilution from the public offering price which will be
absorbed by such purchasers. |
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DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of our debt securities. When we offer
to sell a particular series of debt securities, we will describe the specific terms of the series
in a supplement to this prospectus. We will also indicate in the prospectus supplement whether the
general terms and provisions described in this prospectus apply to a particular series of debt
securities. To the extent the information contained in the prospectus supplement differs from this
summary description, you should rely on the information in the prospectus supplement.
The debt securities will be issued under an indenture between a trustee and us. We have
summarized the general features of the debt securities to be governed by the indenture. The
summary is not complete and is qualified in its entirety by reference to the form of indenture
filed as an exhibit to the registration statement of which this prospectus is a part. The form of
indenture may be amended prior to the execution and issuance of any debt securities thereunder. We
encourage you to read the indenture and you should read the indenture for provisions that may be
important to you. Capitalized terms used in the summary have the meanings specified in the
indenture.
General
The terms of each series of debt securities will be established by or pursuant to a resolution
of our board of directors, or a committee thereof, and set forth or determined in the manner
provided in a resolution of our board of directors, in an officers certificate or by a
supplemental indenture. The particular terms of each series of debt securities will be described
in a prospectus supplement relating to such series, including any pricing supplement or term sheet.
We may issue an unlimited amount of debt securities under the indenture that may be in one or
more series with the same or various maturities, at par, at a premium or at a discount. We will
set forth in a prospectus supplement, including any pricing supplement or term sheet, relating to
any series of debt securities being offered, the aggregate principal amount and the following terms
of the debt securities, if applicable:
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the title of the debt securities; |
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the price or prices (expressed as a percentage of the principal amount) at which we will
sell the debt securities; |
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any limit on the aggregate principal amount of the debt securities; |
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the date or dates on which we will pay the principal on the debt securities; |
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the rate or rates (which may be fixed or variable) per annum or the method used to
determine the rate or rates (including any commodity, commodity index, stock exchange index
or financial index) at which the debt securities will bear interest, the date or dates from
which interest will accrue, the date or dates on which interest will commence and be
payable and any regular record date for the interest payable on any interest payment date; |
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the place or places where principal of, and premium and interest on, the debt securities
will be payable; |
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the terms and conditions upon which we may redeem the debt securities; |
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking
fund or analogous provisions or at the option of a holder of debt securities; |
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the dates on which and the price or prices at which we will repurchase debt securities
at the option of the holders of debt securities and other detailed terms and provisions of
these repurchase obligations; |
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the denominations in which the debt securities will be issued, if other than
denominations of $2,000 and any integral multiple of $1,000; |
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whether the debt securities will be issued in the form of certificated debt securities
or global debt securities; |
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the portion of principal amount of the debt securities payable upon declaration of
acceleration of the maturity date, if other than the principal amount; |
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the currency of denomination of the debt securities; |
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the designation of the currency, currencies or currency units in which payment of
principal of, and premium and interest on, the debt securities will be made; |
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if payments of principal of, and premium or interest on, the debt securities will be
made in one or more currencies or currency units other than that or those in which the debt
securities are denominated, the manner in which the exchange rate with respect to these
payments will be determined; |
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the manner in which the amounts of payment of principal of, and premium or interest on,
the debt securities will be determined, if these amounts may be determined by reference to
an index based on a currency or currencies other than that in which the debt securities are
denominated or designated to be payable or by reference to a commodity, commodity index,
stock exchange index or financial index; |
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any provisions relating to any security provided for the debt securities; |
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any addition to or change in the events of default described in this prospectus or in
the indenture with respect to the debt securities and any change in the acceleration
provisions described in this prospectus or in the indenture with respect to the debt
securities; |
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any addition to or change in the covenants described in this prospectus or in the
indenture with respect to the debt securities; |
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any depositaries, interest rate calculation agents, exchange rate calculation agents or
other agents with respect to the debt securities; and |
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any other terms of the debt securities, which may modify, delete, supplement or add to
any provision of the indenture as it applies to that series. |
In addition, the indenture does not limit our ability to issue convertible or subordinated
debt securities. Any conversion or subordination provisions of a particular series of debt
securities will be set forth in the resolution of our board of directors, the officers certificate
or supplemental indenture related to that series of debt securities and will be described in the
relevant prospectus supplement. Such terms may include provisions for conversion, either
mandatory, at the option of the holder or at our option, in which case the number of shares of
common stock or other securities to be received by the holders of debt securities would be
calculated as of a time and in the manner stated in the prospectus supplement.
We may issue debt securities that provide for an amount less than their stated principal
amount to be due and payable upon declaration of acceleration of their maturity pursuant to the
terms of the indenture. We will provide you with information on the
U.S. federal income tax
considerations and other special considerations applicable to any of these debt securities in the
applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities in a foreign currency or
currencies or a foreign currency unit or units, or if the principal of, and premium and interest
on, any series of debt securities is payable in a foreign currency or currencies or a foreign
currency unit or units, we will provide you with information on the restrictions, elections,
U.S. federal income tax considerations, specific terms and other information with respect to that issue of debt
securities and such foreign currency or currencies or foreign currency unit or units in the
applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in
the name of The Depository Trust Company, as Depositary, or a nominee (we will refer to any debt
security represented by a global debt security as a book-entry debt security), or a certificate
issued in definitive registered form (we will refer to any debt security represented by a
certificated security as a certificated debt security) as set forth in the applicable prospectus
supplement. Except as set forth under the heading Global Securities below, book-entry securities
will not be issuable in certificated form.
6
You may transfer or exchange certificated debt securities at any office we maintain for this
purpose in accordance with the terms of the indenture. No service charge will be made for any
transfer or exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection with a transfer or
exchange.
You may effect the transfer of certificated debt securities and the right to receive the
principal of, and any premium and interest on, certificated debt securities only by surrendering
the certificate representing those certificated debt securities and either reissuance by us or the
trustee of the certificate to the new holder or the issuance by us or the trustee of a new
certificate to the new holder.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will
not contain any provisions which may afford holders of the debt securities protection in the event
we have a change in control or in the event of a highly leveraged transaction (whether or not such
transaction results in a change in control), which could adversely affect holders of debt
securities.
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable
to any issue of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of our properties and assets to, any person, which we refer to as a successor
person, unless:
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we are the surviving corporation or the successor person (if other than Libbey)
expressly assumes our obligations on the debt securities and under the indenture; |
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immediately after giving effect to the transaction, no event of default, and no event
which, after notice or lapse of time, or both, would become an event of default, shall have
occurred and be continuing under the indenture; and |
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certain other conditions are met. |
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Notwithstanding the above, any subsidiary of Libbey may consolidate with, merge into or transfer
all or part of its properties to Libbey or another subsidiary of Libbey. |
Events of Default
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Event of default means, with respect to any series of debt securities, any of the following: |
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default in the payment of any interest upon any debt security of that series when it
becomes due and payable, and continuance of that default for a period of 30 days (unless
the entire amount of the payment is deposited by us with the trustee or with a paying agent
prior to the expiration of the 30-day period); |
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default in the payment of principal of or premium on any debt security of that series
when due and payable; |
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default in the performance or breach of any other covenant or warranty by us in the
indenture (other than a covenant or warranty that has been included in the indenture solely
for the benefit of a series of debt securities other than that series), which default
continues uncured for a period of 90 days after we receive written notice from the trustee
or we and the trustee receive written notice from the holders of not less than a majority
in principal amount of the outstanding debt securities of that series as provided in the
indenture; |
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certain events of bankruptcy, insolvency or reorganization of Libbey; and |
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any other event of default provided with respect to debt securities of that series that
is described in the applicable prospectus supplement accompanying this prospectus. |
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No event of default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of
default with respect to any other series of debt securities. The occurrence of an event of default
may constitute an event of default under our bank credit agreements in existence from time to time.
In addition, the occurrence of certain events of default or an acceleration under the indenture
may constitute an event of default under certain of our other indebtedness outstanding from time to
time.
If an event of default with respect to debt securities of any series at the time outstanding
occurs and is continuing, then the trustee or the holders of not less than a majority in principal
amount of the outstanding debt securities of that series may, by a notice in writing to us (and to
the trustee if given by the holders), declare to be due and payable immediately the principal (or,
if the debt securities of that series are discount securities, that portion of the principal amount
as may be specified in the terms of that series) of, and accrued and unpaid interest, if any, on
all debt securities of that series. In the case of an event of default resulting from certain
events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, on all outstanding debt securities will become and be
immediately due and payable without any declaration or other act on the part of the trustee or any
holder of outstanding debt securities. At any time after a declaration of acceleration with
respect to debt securities of any series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a majority in principal amount of
the outstanding debt securities of that series may rescind and annul the acceleration if all events
of default, other than the non-payment of accelerated principal and interest, if any, with respect
to debt securities of that series, have been cured or waived as provided in the indenture. We refer
you to the prospectus supplement relating to any series of debt securities that are discount
securities for the particular provisions relating to acceleration of a portion of the principal
amount of such discount securities upon the occurrence of an event of default.
The indenture provides that the trustee will be under no obligation to exercise any of its
rights or powers under the indenture at the request of any holder of outstanding debt securities
unless the trustee receives indemnity satisfactory to it against any loss, liability or expense.
Subject to certain rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the trustee or exercising any trust or
power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security of any series will have any right to institute any proceeding,
judicial or otherwise, with respect to the indenture or for the appointment of a receiver or
trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing event of
default with respect to debt securities of that series; and |
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the holders of at least a majority in principal amount of the outstanding debt
securities of that series have made written request, and offered reasonable indemnity, to
the trustee to institute the proceeding as trustee, and the trustee has not received from
the holders of a majority in principal amount of the outstanding debt securities of that
series a direction inconsistent with that request and has failed to institute the
proceeding within 60 days. |
Notwithstanding the foregoing, the holder of any debt security will have an absolute and
unconditional right to receive payment of the principal of, and any premium and interest on, that
debt security on or after the due dates expressed in that debt security and to institute suit for
the enforcement of payment.
If any securities are outstanding under the indenture, the indenture requires us, within 120
days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with
the indenture. The indenture provides that the trustee may withhold notice to the holders of debt
securities of any series of any default or event of default (except in payment on any debt
securities of that series) with respect to debt securities of that series if it in good faith
determines that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We may modify and amend the indenture with the consent of the holders of at least a majority
in principal amount of the outstanding debt securities of each series affected by the modifications
and amendments. We may not make any modification or amendment without the consent of each holder
of each affected debt security then outstanding if that amendment will:
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reduce the amount of debt securities whose holders must consent to an amendment or
waiver; |
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reduce the rate of or extend the time for payment of interest (including default
interest) on any debt security; |
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reduce the principal of or premium on or change the fixed maturity of any debt security
or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or
analogous obligation with respect to any series of debt securities; |
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reduce the principal amount of discount securities payable upon acceleration of
maturity; |
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waive a default in the payment of the principal of, or premium or interest on, any debt
security (except a rescission of acceleration of the debt securities of any series by the
holders of at least a majority in aggregate principal amount of the then outstanding debt
securities of that series and a waiver of the payment default that resulted from such
acceleration); |
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make the principal of, or premium or interest on, any debt security payable in currency
other than that stated in the debt security; |
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make any change to certain provisions of the indenture relating to, among other things,
the right of holders of debt securities to receive payment of the principal of, and premium
and interest on, those debt securities and to institute suit for the enforcement of any
such payment and to waivers or amendments; or |
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waive a redemption payment with respect to any debt security. |
Except for certain specified provisions, the holders of at least a majority in principal
amount of the outstanding debt securities of any series may on behalf of the holders of all debt
securities of that series waive our compliance with provisions of the indenture. The holders of a
majority in principal amount of the outstanding debt securities of any series may on behalf of the
holders of all the debt securities of such series waive any past default under the indenture with
respect to that series and its consequences, except a default in the payment of the principal of,
or any premium or interest on, any debt security of that series; provided, however, that the
holders of a majority in principal amount of the outstanding debt securities of any series may
rescind an acceleration and its consequences, including any related payment default that resulted
from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise provided by the terms of the
applicable series of debt securities, we may be discharged from any and all obligations in respect
of the debt securities of any series (except for certain obligations to register the transfer or
exchange of debt securities of such series, to replace stolen, lost or mutilated debt securities of
such series, and to maintain paying agencies and certain provisions relating to the treatment of
funds held by paying agents). We will be so discharged upon the deposit with the trustee, in
trust, of money and/or U.S. government obligations or, in the case of debt securities denominated
in a single currency other than U.S. dollars, foreign government obligations, that, through the
payment of interest and principal in accordance with their terms, will provide money in an amount
sufficient in the opinion of a nationally recognized firm of independent public accountants to pay
and discharge each installment of principal of, premium and interest on and any mandatory sinking
fund payments in respect of the debt securities of that series on the stated maturity of those
payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an
opinion of counsel to the effect that we have received from, or there has been published by, the
United States Internal Revenue Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable U.S. federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the holders of the debt
securities of that series will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would
have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants. The indenture provides that, unless otherwise provided by
the terms of the applicable series of debt securities, upon compliance with certain conditions:
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we may omit to comply with the covenant described under the heading Consolidation,
Merger and Sale of Assets and certain other covenants set forth in the indenture, as well
as any additional covenants which may be set forth in the applicable prospectus supplement;
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any omission to comply with those covenants will not constitute a default or an event of
default with respect to the debt securities of that series, or covenant defeasance. |
The conditions include:
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depositing with the trustee money and/or U.S. government obligations or, in the case of
debt securities denominated in a single currency other than U.S. dollars, foreign
government obligations, that, through the payment of interest and principal in accordance
with their terms, will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants to pay and discharge each installment of
principal of, premium and interest on and any mandatory sinking fund payments in respect of
the debt securities of that series on the stated maturity of those payments in accordance
with the terms of the indenture and those debt securities; and |
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delivering to the trustee an opinion of counsel to the effect that the holders of the
debt securities of that series will not recognize income, gain or
loss for U.S.
federal income tax purposes as a result of the deposit and related covenant defeasance and
will be subject to U.S. federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if the deposit and related
covenant defeasance had not occurred. |
Covenant Defeasance and Events of Default. In the event we exercise our option to effect
covenant defeasance with respect to any series of debt securities and the debt securities of that
series are declared due and payable because of the occurrence of any event of default, the amount
of money and/or U.S. government obligations or foreign government obligations on deposit with the
trustee will be sufficient to pay amounts due on the debt securities of that series at the time of
their stated maturity but may not be sufficient to pay amounts due on the debt securities of that
series at the time of the acceleration resulting from the event of default. In such a case, we
would remain liable for those payments.
Foreign government obligations means, with respect to debt securities of any series that are
denominated in a currency other than U.S. dollars:
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direct obligations of the government that issued or caused to be issued such currency
for the payment of which obligations its full faith and credit is pledged which are not
callable or redeemable at the option of the issuer thereof; or |
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obligations of a person controlled or supervised by or acting as an agency or
instrumentality of that government the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by that government which are not callable
or redeemable at the option of the issuer thereof. |
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with,
the internal laws of the State of New York.
10
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.
Our authorized capital stock consists 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 March 31, 2010, we had:
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16,162,306 shares of common stock outstanding; and |
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an aggregate of 176,271 shares of our common stock reserved for issuance pursuant to
future grants under our 2006 Omnibus Incentive Plan. As of April 30, 2010, an aggregate
of 181,271 shares of our common stock were reserved for issuance pursuant to future
grants under our 2006 Omnibus Incentive Plan. Our shareholders approved our Amended and
Restated Libbey Inc. 2006 Omnibus Incentive Plan, which reserved an additional 1,460,000
shares of our common stock for issuance pursuant to future grants, on May 6, 2010. |
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.
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 March 31, 2010, 2010, 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
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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
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is The Bank of New York Mellon Trust
Company, N.A.
NYSE Amex
Our common stock is listed for trading on the NYSE Amex 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
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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 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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DESCRIPTION OF WARRANTS
This section describes the general terms of the warrants that we may offer and sell by this
prospectus. This prospectus and any accompanying prospectus supplement will contain the material
terms and conditions for each warrant. The accompanying prospectus supplement may add, update or
change the terms and conditions of the warrants as described in this prospectus.
General
We may issue warrants to purchase debt securities, preferred stock or common stock or
depositary shares. Warrants may be issued independently or together with any securities and may be
attached to or separate from those securities. The warrants will be issued under warrant
agreements to be entered into between us and a bank or trust company, as warrant agent, all of
which will be described in the prospectus supplement relating to the warrants we are offering. The
warrant agent will act solely as our agent in connection with the warrants and will not have any
obligation or relationship of agency or trust for or with any holders or beneficial owners of
warrants.
Debt Warrants
We may issue warrants for the purchase of our debt securities. As explained below, each debt
warrant will entitle its holder to purchase debt securities at an exercise price set forth in, or
to be determinable as set forth in, the related prospectus supplement. Debt warrants may be issued
separately or together with debt securities.
The debt warrants are to be issued under debt warrant agreements to be entered into between
us, and one or more banks or trust companies, as debt warrant agent, as will be set forth in the
prospectus supplement relating to the debt warrants being offered by the prospectus supplement and
this prospectus.
The particular terms of each issue of debt warrants, the debt warrant agreement relating to
the debt warrants and the debt warrant certificates representing debt warrants will be described in
the applicable prospectus supplement, including, as applicable:
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the title of the debt warrants; |
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the initial offering price; |
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the title, aggregate principal amount and terms of the debt securities purchasable upon
exercise of the debt warrants; |
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the currency or currency units in which the offering price, if any, and the exercise
price are payable; |
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the title and terms of any related debt securities with which the debt warrants are
issued and the number of the debt warrants issued with each debt security; |
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the date, if any, on and after which the debt warrants and the related debt securities
will be separately transferable; |
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the principal amount of debt securities purchasable upon exercise of each debt warrant
and the price at which that principal amount of debt securities may be purchased upon
exercise of each debt warrant; |
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if applicable, the minimum or maximum number of warrants that may be exercised at any
one time; |
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the date on which the right to exercise the debt warrants will commence and the date on
which the right will expire; |
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if applicable, a discussion of U.S. federal income tax, accounting or other
considerations applicable to the debt warrants; |
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whether the debt warrants represented by the debt warrant certificates will be issued in
registered or bearer form, and, if registered, where they may be transferred and
registered; |
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anti-dilution provisions of the debt warrants, if any; |
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redemption or call provisions, if any, applicable to the debt warrants; |
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any additional terms of the debt warrants, including terms, procedures and limitations
relating to the exchange and exercise of the debt warrants; and |
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the exercise price. |
Debt warrant certificates will be exchangeable for new debt warrant certificates of different
denominations and, if in registered form, may be presented for registration of transfer, and debt
warrants may be exercised at the corporate trust office of the debt warrant agent or any other
office indicated in the related prospectus supplement. Before the exercise of debt warrants,
holders of debt warrants will not be entitled to payments of principal of, premium, if any, or
interest, if any, on the debt securities purchasable upon exercise of the debt warrants, or to
enforce any of the covenants in the indenture.
Equity Warrants
We may issue warrants for the purchase of our equity securities, such as our preferred stock
or common stock. As explained below, each equity warrant will entitle its holder to purchase
equity securities at an exercise price set forth in, or to be determinable as set forth in, the
related prospectus supplement. Equity warrants may be issued separately or together with equity
securities.
The equity warrants are to be issued under equity warrant agreements to be entered into
between us and one or more banks or trust companies, as equity warrant agent, as will be set forth
in the prospectus supplement relating to the equity warrants being offered by the prospectus
supplement and this prospectus.
The particular terms of each issue of equity warrants, the equity warrant agreement relating
to the equity warrants and the equity warrant certificates representing equity warrants will be
described in the applicable prospectus supplement, including, as applicable:
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the title of the equity warrants; |
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the initial offering price; |
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the aggregate number of equity warrants and the aggregate number of shares of the equity
security purchasable upon exercise of the equity warrants; |
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the currency or currency units in which the offering price, if any, and the exercise
price are payable; |
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if applicable, the designation and terms of the equity securities with which the equity
warrants are issued, and the number of equity warrants issued with each equity security; |
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the date, if any, on and after which the equity warrants and the related equity security
will be separately transferable; |
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if applicable, the minimum or maximum number of the equity warrants that may be
exercised at any one time; |
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the date on which the right to exercise the equity warrants will commence and the date
on which the right will expire; |
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if applicable, a discussion of U.S. federal income tax, accounting or other
considerations applicable to the equity warrants; |
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anti-dilution provisions of the equity warrants, if any; |
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redemption or call provisions, if any, applicable to the equity warrants; |
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any additional terms of the equity warrants, including terms, procedures and limitations
relating to the exchange and exercise of the equity warrants; and |
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the exercise price. |
Holders of equity warrants will not be entitled, solely by virtue of being holders, to vote,
to consent, to receive dividends, to receive notice as shareholders with respect to any meeting of
shareholders for the election of directors or any other matter, or to exercise any rights
whatsoever as a holder of the equity securities purchasable upon exercise of the equity warrants.
15
DESCRIPTION OF RIGHTS
This section describes the general terms of the rights that we may offer and sell by this
prospectus. This prospectus and any accompanying prospectus supplement will contain the material
terms and conditions for each right. The accompanying prospectus supplement may add, update or
change the terms and conditions of the rights as described in this prospectus.
The particular terms of each issue of rights, the rights agreement relating to the rights and
the rights certificates representing rights will be described in the applicable prospectus
supplement, including, as applicable:
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the title of the rights; |
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the date of determining the stockholders entitled to the rights distribution; |
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the title, aggregate number of shares of common stock or preferred stock purchasable
upon exercise of the rights; |
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the exercise price; |
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the aggregate number of rights issued; |
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the date, if any, on and after which the rights will be separately transferable; |
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the date on which the right to exercise the rights will commence and the date on which
the right will expire; and |
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any other terms of the rights, including terms, procedures and limitations relating to
the distribution, exchange and exercise of the rights. |
Exercise of Rights
Each right will entitle the holder of rights to purchase for cash the principal amount of
shares of common stock or preferred stock at the exercise price provided in the applicable
prospectus supplement. Rights may be exercised at any time up to the close of business on the
expiration date for the rights provided in the applicable prospectus supplement. After the close
of business on the expiration date, all unexercised rights will be void.
Holders may exercise rights as described in the applicable prospectus supplement. Upon
receipt of payment and the rights certificate properly completed and duly executed at the corporate
trust office of the rights agent or any other office indicated in the prospectus supplement, we
will, as soon as practicable, forward the shares of common stock or preferred stock purchasable
upon exercise of the rights. If less than all of the rights issued in any rights offering are
exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to
or through agents, underwriters or dealers or through a combination of such methods, including
pursuant to standby underwriting arrangements, as described in the applicable prospectus
supplement.
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DESCRIPTION OF SECURITIES PURCHASE CONTRACTS AND SECURITIES PURCHASE UNITS
This section describes the general terms of the securities purchase contracts and securities
purchase units that we may offer and sell by this prospectus. This prospectus and any accompanying
prospectus supplement will contain the material terms and conditions for each securities purchase
contract and securities purchase unit. The accompanying prospectus supplement may add, update or
change the terms and conditions of the securities purchase contracts and securities purchase units
as described in this prospectus.
Stock Purchase Contract and Stock Purchase Units
We may issue stock purchase contracts, representing contracts obligating holders to purchase
from us, and obligating us to sell to the holders, a specified number of shares of common stock or
preferred stock at a future date or dates, or a variable number of shares of common stock or
preferred stock for a stated amount of consideration. The price per share and the number of shares
of common stock or preferred stock may be fixed at the time the stock purchase contracts are issued
or may be determined by reference to a specific formula set forth in the stock purchase contracts.
Any such formula may include anti-dilution provisions to adjust the number of shares of common
stock or preferred stock issuable pursuant to the stock purchase contracts upon certain events.
The stock purchase contracts may be issued separately or as part of units consisting of a
stock purchase contract and, as security for the holders obligations to purchase the shares under
the stock purchase contracts, either (a) our debt securities, (b) our debt obligations of third
parties, including U.S. Treasury securities, or (c) preferred securities of a trust. The stock
purchase contracts may require us to make periodic payments to the holders of the stock purchase
units or vice versa, and such payments may be unsecured or prefunded on some basis. The stock
purchase contracts may require holders to secure their obligations in a specified manner, and in
certain circumstances, we may deliver newly issued prepaid stock purchase contracts upon release to
a holder of any collateral securing such holders obligations under the original stock purchase
contract.
Debt Purchase Contracts and Debt Purchase Units
We may issue debt purchase contracts, representing contracts obligating holders to purchase
from us, and obligating us to sell to the holders, a specified principal amount of debt securities
at a future date or dates. The purchase price and the interest rate may be fixed at the time the
debt purchase contracts are issued or may be determined by reference to a specific formula set
forth in the debt purchase contracts.
The debt purchase contracts may be issued separately or as part of units consisting of a debt
purchase contract and, as security for the holders obligations to purchase the securities under
the debt purchase contracts, either (a) our senior debt securities or subordinated debt securities,
(b) our debt obligations of third parties, including U.S. Treasury securities, or (c) preferred
securities of a trust. The debt purchase contracts may require us to make periodic payments to the
holders of the debt purchase units or vice versa, and such payments may be unsecured or prefunded
on some basis. The debt purchase contracts may require holders to secure their obligations in a
specified manner, and in certain circumstances, we may deliver newly issued prepaid debt purchase
contracts upon release to a holder of any collateral securing such holders obligations under the
original debt purchase contract.
The applicable prospectus supplement will describe the general terms of any purchase contracts
or purchase units and, if applicable, prepaid purchase contracts. The description in the
prospectus supplement will not purport to be complete and will be qualified in its entirety by
reference to (a) the purchase contracts, (b) the collateral arrangements and depositary
arrangements, if applicable, relating to such purchase contracts or purchase units and (c) if
applicable, the prepaid purchase contracts and the document pursuant to which such prepaid purchase
contracts will be issued. Material U.S. federal income tax considerations applicable to
the purchase contracts and the purchase units will also be discussed in the applicable prospectus
supplement.
17
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms of the depositary shares we may offer and sell by
this prospectus. This prospectus and any accompanying prospectus supplement will contain the
material terms and conditions for the depositary shares. The accompanying prospectus supplement
may add, update, or change the terms and conditions of the depositary shares as described in this
prospectus.
General
We may, at our option, elect to offer fractional or multiple shares of preferred stock, rather
than single shares of preferred stock (to be set forth in the prospectus supplement relating to a
particular series of preferred stock). In the event we elect to do so, depositary receipts
evidencing depositary shares will be issued to the public.
The shares of any class or series of preferred stock represented by depositary shares will be
deposited under a deposit agreement among us, a depositary selected by us, and the holders of the
depositary receipts. The depositary will be a bank or trust company having its principal office in
the United States and having a combined capital and surplus of at least $50,000,000. Subject to
the terms of the deposit agreement, each owner of a depositary share will be entitled, in
proportion to the applicable fraction of a share of preferred stock represented by such depositary
share, to all the rights and preferences of the shares of preferred stock represented by the
depositary share, including dividend, voting, redemption and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit
agreement. Depositary receipts will be distributed to those persons purchasing the fractional
shares of the related class or series of preferred shares in accordance with the terms of the
offering described in the related prospectus supplement.
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GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in a supplemental prospectus, the securities initially will be
issued in book-entry form and represented by one or more global notes or global securities
(collectively, global securities). The global securities will be deposited with, or on behalf
of, The Depository Trust Company, New York, New York, as depositary (DTC), and registered in the
name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual
certificates evidencing securities under the limited circumstances described below, a global
security may not be transferred except as a whole by the depositary to its nominee or by the
nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a
nominee of the successor depositary.
DTC has advised us that it is:
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a limited-purpose trust company organized under the New York Banking Law; |
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a banking organization within the meaning of the New York Banking Law; |
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a member of the Federal Reserve System; |
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a clearing corporation within the meaning of the New York Uniform Commercial Code; and |
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a clearing agency registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934. |
DTC holds securities that its participants deposit with DTC. DTC also facilitates the
settlement among its participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in participants accounts,
thereby eliminating the need for physical movement of securities certificates. Direct
participants in DTC include securities brokers and dealers, including underwriters, banks, trust
companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The
Depository Trust & Clearing Corporation (DTCC). DTCC is the holding company for DTC, National
Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered
clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC
system is also available to others, which we sometimes refer to as indirect participants, that
clear through or maintain a custodial relationship with a direct participant, either directly or
indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through direct participants,
which will receive a credit for the securities on DTCs records. The ownership interest of the
actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn
recorded on the direct and indirect participants records. Beneficial owners of securities will
not receive written confirmation from DTC of their purchases. However, beneficial owners are
expected to receive written confirmations providing details of their transactions, as well as
periodic statements of their holdings, from the direct or indirect participants through which they
purchased securities. Transfers of ownership interests in global securities are to be accomplished
by entries made on the books of participants acting on behalf of beneficial owners. Beneficial
owners will not receive certificates representing their ownership interests in the global
securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited by direct participants
with DTC will be registered in the name of DTCs partnership nominee, Cede & Co., or such other
name as may be requested by an authorized representative of DTC. The deposit of securities with
DTC and their registration in the name of Cede & Co. or such other nominee will not change the
beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of
the securities. DTCs records reflect only the identity of the direct participants to whose
accounts the securities are credited, which may or may not be the beneficial owners. The
participants are responsible for keeping account of their holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive payments and may transfer
securities only through the facilities of the depositary and its direct and indirect participants.
We will maintain an office or agency in the Borough of Manhattan, the City of New York, where
notices and demands in respect of the securities and the indenture may be delivered to us and where
certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance of notices and other communications by DTC to direct participants, by direct
participants to indirect participants and by direct participants and indirect participants to
beneficial owners will be governed by arrangements among them, subject to any legal requirements in
effect from time to time.
19
Redemption notices will be sent to DTC. If less than all of the securities of a particular
series are being redeemed, DTCs practice is to determine by lot the amount of the interest of each
direct participant in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to
the securities. Under its usual procedures, DTC will mail an omnibus proxy to us as soon as
possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede
& Co. to those direct participants to whose accounts the securities of such series are credited on
the record date, identified in a listing attached to the omnibus proxy.
So long as securities are in book-entry form, we will make payments on those securities to the
depositary or its nominee, as the registered owner of such securities, by wire transfer of
immediately available funds. If securities are issued in definitive certificated form under the
limited circumstances described below, we will have the option of paying interest by check mailed
to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the
United States designated in writing to the applicable trustee at least 15 days before the
applicable payment date by the persons entitled to payment.
Redemption proceeds, distributions and dividend payments on the securities will be made to
Cede & Co., or such other nominee as may be requested by an authorized representative of DTC.
DTCs practice is to credit direct participants accounts upon DTCs receipt of funds and
corresponding detail information from us on the payment date in accordance with their respective
holdings shown on DTC records. Payments by participants to beneficial owners will be governed by
standing instructions and customary practices, as is the case with securities held for the account
of customers in bearer form or registered in street name. Those payments will be the
responsibility of participants and not of DTC or us, subject to any statutory or regulatory
requirements in effect from time to time. Payment of redemption proceeds, distributions and
dividend payments to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC, is our responsibility, disbursement of payments to direct participants is
the responsibility of DTC, and disbursement of payments to the beneficial owners is the
responsibility of direct and indirect participants.
Except under the limited circumstances described below, purchasers of securities will not be
entitled to have securities registered in their names and will not receive physical delivery of
securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its
participants to exercise any rights under the securities and the indenture.
The laws of some jurisdictions may require that some purchasers of securities take physical
delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge
beneficial interests in securities.
DTC may discontinue providing its services as securities depository with respect to the
securities at any time by giving reasonable notice to us. Under such circumstances, in the event
that a successor depository is not obtained, securities certificates are required to be printed and
delivered.
As noted above, beneficial owners of a particular series of securities generally will not
receive certificates representing their ownership interests in those securities. However, if:
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DTC notifies us that it is unwilling or unable to continue as a depositary for the
global security or securities representing such series of securities or if DTC ceases to
be a clearing agency registered under the Securities Exchange Act at a time when it is
required to be registered and a successor depositary is not appointed within 90 days of the
notification to us or of our becoming aware of DTCs ceasing to be so registered, as the
case may be; |
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we determine, in our sole discretion, not to have such securities represented by one or
more global securities; or |
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an Event of Default under the indenture has occurred and is continuing with respect to
such series of securities, |
we will prepare and deliver certificates for such securities in exchange for beneficial
interests in the global securities. Any beneficial interest in a global security that is
exchangeable under the circumstances described in the preceding sentence will be exchangeable for
securities in definitive certificated form registered in the names that the depositary directs. It
is expected that these directions will be based upon directions received by the depositary from its
participants with respect to ownership of beneficial interests in the global securities.
We have obtained the information in this section and elsewhere in this prospectus concerning
DTC and DTCs book-entry system from sources that are believed to be reliable, but we take no
responsibility for the accuracy of this information.
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PLAN OF DISTRIBUTION
We may sell the offered securities from time to time by one or more of the following methods,
without limitation:
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through agents; |
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through underwriters or dealers; |
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directly to one or more purchasers; or |
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through a combination of any of these methods of sale. |
We may offer securities to the public through underwriting syndicates represented by managing
underwriters or through underwriters without an underwriting syndicate. If underwriters are used
for the sale of securities, the securities will be acquired by the underwriters for their own
account. The underwriters may resell the securities in one or more transactions, including in
negotiated transactions at a fixed public offering price or at varying prices determined at the
time of sale. In connection with any such underwritten sale of securities, underwriters may
receive compensation from us in the form of discounts, concessions or commissions. Underwriters
may sell securities to or through dealers, and the dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agents. Such compensation may be in excess of customary discounts,
concessions or commissions. Underwriting compensation will not exceed 8% for any offering under
this Registration Statement.
If we use an underwriter or underwriters in the sale of particular securities, we will execute
an underwriting agreement with those underwriters at the time of sale of those securities. To the
extent required by law, the names of the underwriters will be set forth in the prospectus
supplement used by the underwriters to sell those securities. Unless otherwise indicated in the
prospectus supplement relating to a particular offering of securities, the obligations of the
underwriters to purchase the securities will be subject to customary conditions precedent and the
underwriters will be obligated to purchase all of the securities offered if any of the securities
are purchased.
In effecting sales, brokers or dealers engaged by us may arrange for other brokers or dealers
to participate. Broker-dealers may receive discounts, concessions or commissions from us (or, if
any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. Such compensation may be in excess of customary discounts, concessions or commissions.
If dealers are utilized in the sale of securities, the names of the dealers and the terms of the
transaction will be set forth in a prospectus supplement, if required.
We may also sell securities from time to time through agents. We will name any agent involved
in the offer or sale of such shares and will list commissions payable to these agents in a
prospectus supplement, if required. These agents will be acting on a best efforts basis to solicit
purchases for the period of their appointment, unless we state otherwise in any required prospectus
supplement.
We may sell securities directly to purchasers. In this case, we and they may not engage
underwriters or agents in the offer and sale of such shares.
We may enter agreements under which underwriters, dealers and agents who participate in the
distribution of securities may be entitled to indemnification by us against various liabilities,
including liabilities under the Securities Act, and to contribution with respect to payments which
the underwriters, dealers or agents may be required to make.
If underwriters or dealers are used in the sale, until the distribution of the securities is
completed, rules of the SEC may limit the ability of any underwriters to bid for and purchase the
securities. As an exception to these rules, representatives of any underwriters are permitted to
engage in transactions that stabilize the price of the securities. These transactions may consist
of bids or purchases for the purpose of pegging, fixing or maintaining the price of the securities.
If the underwriters create a short position in the securities in connection with the offering
(that is, if they sell more securities than are set forth on the cover page of the prospectus
supplement) the representatives of the underwriters may reduce that short position by purchasing
securities in the open market.
We make no representation or prediction as to the direction or magnitude of any effect that
the transactions described above may have on the price of the securities. In addition, we make no
representation that the representatives of any underwriters will engage in these transactions or
that these transactions, once commenced, will not be discontinued without notice.
21
LEGAL MATTERS
The validity of the securities offered by this prospectus has been passed upon for us by
Latham & Watkins LLP, Chicago, Illinois.
EXPERTS
The consolidated financial statements of Libbey Inc. appearing in Libbey Inc.s Annual Report
(Form 10-K) for the year ended December 31, 2009 (including the schedule appearing therein), and
the effectiveness of Libbey Inc.s internal control over financial reporting as of December 31,
2009, 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. Such
consolidated financial statements are incorporated herein by reference in reliance upon such
reports given on the authority of such firm as experts in accounting and auditing.
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 certain 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 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. We are
not, however, incorporating by reference any documents or portions thereof, whether specifically
listed below or filed in the future, that are not deemed filed with the SEC, including any
information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or certain exhibits furnished
pursuant to Item 9.01 of Form 8-K:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed on
March 15, 2010; |
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our Quarterly Report on Form 10-Q for the three months ended March 31, 2010, filed on
May 10, 2010; |
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our Current Reports on Form 8-K filed on February 12, 2010, April 23, 2010 and May 11,
2010; and |
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the description of our common stock contained in our
registration statement on Form 8-A
filed with the SEC on December 31, 2009, 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.
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LIBBEY INC.
Debt Securities
Common Stock
Preferred Stock
Warrants to Purchase Debt Securities, Common Stock, Preferred Stock
or Depositary Shares
Rights to Purchase Common Stock or Preferred Stock
Securities Purchase Contracts
Securities Purchase Units
Depositary Shares
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 14. |
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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 securities registered hereby. All
amounts are estimates except for the SEC registration fee:
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SEC registration fee |
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10,695 |
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Printing and engraving expenses |
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30,000 |
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Legal fees and expenses |
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120,000 |
* |
Accounting fees and expenses |
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45,000 |
* |
Transfer Agent fees and expenses |
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15,000 |
* |
Miscellaneous |
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1,000 |
* |
Total |
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221,695 |
* |
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ITEM 15. |
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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,
we have been informed 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.
(a) A list of exhibits filed with this registration statement on Form S-3 is set forth on the
Exhibit Index and is incorporated herein by reference.
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;
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(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.
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
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(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.
The undersigned registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust
Indenture Act (Act) in accordance with the rules and regulations prescribed by the Commission
under section 305(b)2 of the Act.
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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 May 25, 2010.
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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 John F. Meier, Gregory T. Geswein and Susan A. Kovach, 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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May 25, 2010 |
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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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May 25, 2010 |
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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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May 25, 2010 |
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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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May 25, 2010 |
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/s/ William A. Foley
William A. Foley
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Director
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May 25, 2010 |
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/s/ Peter C. McC. Howell
Peter C. McC. Howell
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Director
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May 25, 2010 |
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/s/ Carol B. Moerdyk
Carol B. Moerdyk
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Director
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May 25, 2010 |
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|
|
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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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May 25, 2010 |
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|
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/s/ Carlos V. Duno
Carlos V. Duno
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Director
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May 25, 2010 |
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/s/ Deborah G. Miller
Deborah G. Miller
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Director
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May 25, 2010 |
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/s/ Jean-René Gougelet
Jean-René Gougelet
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Director
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May 25, 2010 |
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/s/ John C. Orr
John C. Orr
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Director
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May 25, 2010 |
INDEX TO EXHIBITS
|
|
|
1.1*
|
|
Form of Underwriting Agreement |
|
|
|
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, as amended as set forth in Libbey Inc.s Form 8-K filed on
February 7, 2005, both of which filings are incorporated herein by
reference). |
|
|
|
4.1
|
|
Form of stock certificate for the common stock, par value $0.01 per
share, of the Company (filed as an exhibit to Libbey Inc.s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993 and incorporated
herein by reference). |
|
|
|
4.2
|
|
Form of stock certificate for the preferred stock, par value $0.01 per
share, of the Company (Filed as an exhibit to Libbey Inc.s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993 and incorporated
herein by reference). |
|
|
|
4.3
|
|
Form of Indenture. |
|
|
|
4.4*
|
|
Form of Note. |
|
|
|
4.5*
|
|
Form of Warrant Agreement. |
|
|
|
4.6
|
|
Form of Warrant Certificate (to be included in
Exhibit 4.5). |
|
|
|
4.7*
|
|
Form of Deposit Agreement. |
|
|
|
4.8
|
|
Form of Depositary Receipt (to be
included in Exhibit 4.7). |
|
|
|
4.9*
|
|
Form of Purchase Contract. |
|
|
|
4.10*
|
|
Form of Purchase Unit. |
|
|
|
4.11*
|
|
Form of Rights Agreement. |
|
|
|
5.1
|
|
Opinion of Latham & Watkins LLP |
|
|
|
12.1
|
|
Statement Regarding the Computation of Ratio of Earnings to Fixed Charges. |
|
|
|
23.1
|
|
Consent of Ernst & Young LLP. |
|
|
|
23.2
|
|
Consent of Latham & Watkins LLP (included in Exhibit 5.1) |
|
|
|
24.1
|
|
Power of Attorney (included on the signature page hereto). |
|
|
|
25.1**
|
|
Statement of Eligibility of Trustee on Form T-1 |
|
|
|
* |
|
To be filed by amendment or as an exhibit to a current report of the registrant on Form 8-K and
incorporated herein by reference. |
|
** |
|
To be incorporated by reference to a subsequent filing in accordance with
Section 305 (b)(2) of the Trust Indenture Act of 1939, as amended. |