SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
LIBBEY INC.
(Name of Issuer)
LIBBEY INC. (ISSUER)
(Name of Filing Person (Identifying Status as Offeror, Issuer or Other Person))
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
529898108
(CUSIP Number of Class of Securities)
ARTHUR H. SMITH, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
LIBBEY INC.
300 MADISON AVENUE, P.O. BOX 10060
TOLEDO, OHIO 43604
(419) 325-2100
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Filing Person(s))
COPY TO:
CHRISTOPHER D. LUEKING, ESQ.
LATHAM & WATKINS
233 S. WACKER DRIVE, SUITE 5800
CHICAGO, ILLINOIS 60606
(312) 876-7700
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
---------------------- ----------------------
$39,750,000 $7,950
* Calculated solely for the purpose of determining the amount of the
filing fee, based upon the purchase of 1,500,000 shares of common
stock, $0.01 par value, at the maximum tender offer price of $26.50 per
share.
** Previously paid.
[ ] Check box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by registration
statement number, or the form or schedule and the date of its filing.
Amount Previously Paid: Not applicable. Filing party: Not applicable.
Form or Registration No.: Not applicable. Date Filed: Not applicable.
[ ] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ ] third-party tender offer subject to Rule 14d-1
[X] issuer tender offer subject to Rule 13e-4
[ ] going private transaction subject to Rule 13e-3
[ ] amendment to Schedule 13D under Rule 13d-2
Check the following box if the filing is a final amendment reporting the results
of the tender offer [ ]
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This Amendment No. 1 to the Tender Offer Statement on Schedule
TO relates to the offer by Libbey Inc., a Delaware corporation ("Libbey"), to
purchase up to 1,500,000 shares, or such lesser number of shares as are properly
tendered, of its common stock, $0.01 par value, at a price not greater than
$26.50 nor less than $23.50 per share, net to the seller in cash, without
interest, as specified by stockholders tendering their shares. Libbey's offer is
being made upon the terms and subject to the conditions set forth in the Offer
to Purchase dated February 18, 2003 and in the related Letter of Transmittal,
which, as amended or supplemented from time to time, together constitute the
offer. This Amendment No. 1 to the Tender Offer Statement on Schedule TO is
filed to satisfy the reporting requirements of Rule 13e-4(c) promulgated under
the Securities Exchange Act of 1934, as amended. Copies of the Offer to Purchase
and the related Letter of Transmittal were previously filed with the Schedule TO
as Exhibits (a)(1)(i) and (a)(1)(ii).
The information in the Offer to Purchase and the related
Letter of Transmittal is incorporated in this Amendment No. 1 to the Schedule TO
by reference to all of the applicable items in the Schedule TO, except that such
information is hereby amended and supplemented to the extent specifically
provided herein.
Items 1, 4, 6 and 11.
Items 1, 4, 6 and 11 of the Schedule TO, which incorporate by
reference the information contained in the Offer to Purchase, are hereby amended
and supplemented as follows:
(1) Footnote (1) included under the beneficial ownership table
found on page 27 under Section 11 ("Interests of Directors and Executive
Officers; Transactions and Arrangements Concerning the Shares") of the Offer to
Purchase is amended by adding the following sentence to the end of this
footnote:
The telephone number at this address is (419) 325-2100.
(2) The Summary of the Offer to Purchase is amended by
deleting the sentence after the first bullet under the caption "Are there any
conditions to the tender offer?" found on page 2 of the Offer to Purchase and
replacing it with the following:
o No decrease in the price of our common stock of more
than 10% measured from the close of trading on
February 14, 2003, the last trading day prior to the
commencement of the tender offer, and the close of
trading on the last trading day prior to expiration
of the tender offer shall have occurred.
(3) The Summary of the Offer to Purchase is amended by adding
the following after the first bullet under the caption "Are there any conditions
to the tender offer?" found on page 2 of the Offer to Purchase:
o No decline in the Dow Jones Industrial Average, the
Nasdaq National Market Composite Index or the
Standard & Poor's Index of 500 Industrial Companies
in excess of 15% measured from the close of trading
on February 14, 2003 shall have occurred.
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(4) Section 2 ("Purpose of the Offer; Certain Effects of the
Offer") of the Offer to Purchase is amended by adding the following after the
last paragraph under the subheading "Certain Effects of the Tender Offer":
Except as disclosed in this Offer to Purchase, we
currently have no plans, proposals or negotiations underway
that relate to or would result in:
o any extraordinary transaction, such as a merger,
reorganization or liquidation, involving us or any of
our subsidiaries;
o any purchase, sale or transfer of an amount of our
assets or any of our subsidiaries' assets which is
material to us and our subsidiaries, taken as a
whole;
o any material change in our present Board of Directors
or management or any plans or proposals to change the
number or the terms of directors (although we may
fill vacancies arising on the Board) or to change any
material term of the employment contract of any
executive officer;
o any material change in our present dividend policy,
our capitalization, corporate structure or business;
o any class of our equity securities ceasing to be
authorized to be quoted on the NYSE;
o any class of our equity securities becoming eligible
for termination of registration under Section 12(g)
of the Exchange Act;
o the suspension of our obligation to file reports
under Section 13 of the Exchange Act;
o the acquisition or disposition by any person of our
securities; or
o any changes in our charter, bylaws or other governing
instruments or other actions that could impede the
acquisition of control of us.
See Section 8, Section 9, Section 10 and Section 11.
(5) Section 1 ("Number of Shares; Proration") of the Offer to
Purchase is amended by adding the following sentence prior to the last sentence
in the third paragraph of such section found on page 9 of the Offer to Purchase:
We will announce by press release the single per share
purchase price that we have selected to pay for shares
properly tendered and not properly withdrawn as promptly as
practicable after such determination has been made.
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(6) The section entitled "Determination of Validity; Rejection
of Shares; Waiver of Defects; No Obligation to Give Notice of Defects" found on
page 17 of the Offer to Purchase is amended by adding the following sentence
after the third sentence of such section:
In the event a condition is waived with respect to any
particular stockholder, the same condition will be waived with
respect to all stockholders.
(7) The first paragraph under Section 7 ("Conditions of the
Offer") of the Offer to Purchase found on page 21 is amended by deleting the
parenthetical "(including any action or omission to act by us)" in the first
sentence of such paragraph.
(8) The penultimate paragraph under Section 7 ("Conditions of
the Offer") of the Offer to Purchase found on page 22 is amended by deleting the
parenthetical "(including any action or omission to act by us)" found in the
first sentence of such paragraph.
(9) The information set forth in subparagraph (2) under the
first bullet point in Section 7 ("Conditions of the Offer") found on page 21 of
the Offer to Purchase is amended by deleting the condition described in
subparagraph (2) and replacing it with the following:
(2) in our reasonable judgment, could materially and adversely
affect our and our subsidiaries' business, condition
(financial or otherwise), income, operations or prospects,
taken as a whole, or materially impair our ability to
repurchase up to 1,500,000 shares of our common stock in the
tender offer;
(10) The information set forth in subparagraph (3) under the
second bullet point in Section 7 ("Conditions of the Offer") found on page 21 of
the Offer to Purchase is amended by deleting the condition described in
subparagraph (3) and replacing it with the following:
(3) materially impair our ability to repurchase up to
1,500,000 shares of our common stock in the tender offer; or
(11) The information set forth in subparagraph (4) under the
second bullet point in Section 7 ("Conditions of the Offer") found on page 21 of
the Offer to Purchase is amended by deleting the condition described in
subparagraph (4) and replacing it with the following:
(4) materially and adversely affect our and our subsidiaries'
business, condition (financial or otherwise), income,
operations or prospects, taken as a whole;
(12) The information set forth in Section 7 ("Conditions of
the Offer") of the Offer to Purchase is amended by deleting the condition
described in subparagraph (5) found on page 22 under the third bullet of such
section and replacing it with the following:
(5) any decrease in the market price of our common stock of
more than 10% measured from the close of trading on February
14, 2003, the last trading day prior to the commencement of
the tender offer, and the close of trading on the last trading
day prior to the expiration of the tender offer or any changes
in the general
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political, market, economic or financial conditions in the
United States or abroad that could have, in our reasonable
judgment, a material adverse effect on our or our
subsidiaries' business, condition (financial or otherwise),
income, operations or prospects, taken as a whole, or on the
trading in the shares of our common stocks;
(13) The information set forth in Section 7 ("Conditions of
the Offer") of the Offer to Purchase is amended by adding the following
condition after subparagraph (5) found on page 22 under the third bullet of such
section:
(6) any decline in the Dow Jones Industrial Average, the
Nasdaq National Market Composite Index or the Standard &
Poor's Index of 500 Industrial Companies in excess of 15%
measured from the close of trading on February 14, 2003;
(14) Subparagraph (6) found on page 22 under the third bullet
of Section 7 ("Conditions of the Offer") of the Offer to Purchase is amended by
deleting "(6)" and replacing it with "(7)".
(15) The second paragraph under the subheading "Incorporation
by Reference" under Section 10 ("Certain Information Concerning Us") of the
Offer to Purchase found on page 26 is amended by deleting such paragraph in its
entirety and replacing it with the following sentence:
We incorporate by reference the above documents.
(16) The last paragraph under the subheading "Tax Return
Disclosure and Investor List Requirements" under Section 13 ("Certain United
States Federal Income Tax Consequences") of the Offer to Purchase found on page
34 is amended by deleting the first sentence of this paragraph in its entirety.
Letter of Transmittal
The Letter of Transmittal sent to all stockholders in
connection with the offer is amended by deleting item (d) of the stockholder's
representations and warranties found on page 4 of the Letter of Transmittal and
replacing it with the following:
(d) the undersigned agrees to all of the terms of the tender
offer.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: March 3, 2003 LIBBEY INC.
By: /s/ Kenneth A. Boerger
-----------------------------------
Name: Kenneth A. Boerger
Title: Vice President and Treasurer