As filed with the Securities and Exchange Commission on May 21, 2002
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
____________________
LIBBEY INC.
(Exact name of registrant as specified in its charter)
DELAWARE __________________ 34-1559357
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
300 MADISON AVENUE
TOLEDO, OHIO 43611
(Address of principal executive offices)
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LIBBEY INC. 2002 EMPLOYEE STOCK PURCHASE PLAN
(full title of the plan)
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Copy to:
ARTHUR H. SMITH CHRISTOPHER D. LUEKING
Vice President, General Counsel Latham & Watkins
and Secretary Sears Tower, Suite 5800
Libbey Inc. 233 South Wacker Drive
300 Madison Avenue Chicago, Illinois 60606
Toledo, Ohio 43611 (312) 876-7700
(419) 325-2100 Counsel to Registrant
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered (1) Offering Price Aggregate Registration
Per Share (2) Offering Price(2) Fee
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Common Stock, par value $.01 per share 450,000 $37.06 $16,677,000 $1,534.29
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Libbey Inc.
2002 Employee Stock Purchase Plan (the "ESPP") described herein.
(2) Estimated solely for purposes of computing the registration fee for the
shares registered hereunder. Pursuant to Rule 457(c), the proposed
Maximum Offering Price Per Share is based on the high and low trading
prices of the Company's common stock on the New York Stock Exchange on
May 17, 2002.
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed below have been filed by Libbey Inc., a Delaware
corporation (the "Company") with the Securities and Exchange Commission (the
"Commission") and are incorporated in this Registration Statement by reference:
a. Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 (the "2001 10-K");
b. The Company's Proxy Statement, dated March 29, 2002 for the
Annual Meeting of Stockholders held on May 2, 2002 and our 2001 Annual
Report to Stockholders that has been incorporated by reference into the
2001 10-K;
c. Our Current Report on Form 8-K dated April 24, 2002;
d. The Company's Quarterly Report on Forms 10-Q for the
quarterly period ended March 31, 2002;
e. All other reports filed by us pursuant to Sections 13(c),
or 14 of the Securities Exchange Act of 1934 since the end of our
fiscal year ended December 31, 2001; and
f. The description of our Common Stock contained in our
Registration Statement on Form S-1 filed on June 17, 1993 pursuant to
Section 12 of the Securities Exchange Act of 1934.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein, or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein, modifies or supersedes
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such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not required to be filed with this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General
Corporation law (the "DGCL"), which enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Reference also is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer, director,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such officer, director, employee or agent acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the corporation's best interests and, for criminal proceedings, had no
reasonable cause to believe that his or her conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him or her against the expenses which such officer or
director actually and reasonably incurred.
The Certificate of Incorporation and the Bylaws of the Company provide
for indemnification of officers and directors to the fullest extent permitted by
applicable law.
The Company may enter into contracts with its officers and directors
requiring the Company to indemnify such persons and to advance litigation
expenses to such persons to the
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fullest extent permitted by applicable law. Delaware law presently permits a
Delaware corporation (i) to indemnify any officer or director in any third-party
or governmental actions against them for expenses, judgments, fines and amounts
paid in settlement and, in derivative actions, for expenses, if the indemnitee
acted in good faith and in the manner he or she believed to be in or not opposed
to the best interest of such corporation, and (ii) to advance expenses in any
action, provided that such officer or director agrees to reimburse the
corporation if it is ultimately determined that he or she was not entitled to
indemnification. Such contracts may require the Company to (i) indemnify such
officers and directors upon receipt of an opinion of counsel in certain cases,
(ii) pay indemnity demands pending a determination of entitlement thereto, and
(iii) demonstrate, in any action brought thereunder, that such officer or
director was not entitled to indemnification under applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See EXHIBIT INDEX.
ITEM 9. UNDERTAKINGS
a. The undersigned registrant hereby undertakes:
(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 of 1933;
(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 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 and of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission 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;
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(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 (a)(1)(ii) and (a)(1)(iii)
shall not apply to information contained in periodic reports
filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, 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.
b. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant 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,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Toledo, Ohio, on May 21, 2002.
LIBBEY INC.
By: /s/ Arthur H. Smith
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Arthur H. Smith
Vice President, General Counsel and
Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints Arthur H. Smith and Kenneth G.
Wilkes, and each acting alone, his true and lawful attorneys-in-fact and agents,
with full power of resubstitution and substitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments or
supplements to this Registration Statement and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
necessary or appropriate to be done with respect to this Registration Statement
or any amendments or supplements hereto in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in their
respective capacities with Libbey Inc. and on the dates indicated.
SIGNATURES TITLES DATE
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/s/ John F. Meier Chairman of the Board of May 20, 2002
- ------------------------- Directors and Chief Executive
John F. Meier Officer (Principal Executive
Officer)
/s/ Richard I. Reynolds Executive Vice President, May 20, 2002
- ------------------------- Chief Operating Officer and
Richard I. Reynolds Director
/s/ Kenneth G. Wilkes Vice President and Chief May 20, 2002
- ------------------------- Financial Officer (Principal
Kenneth G. Wilkes Financial Officer and
Principal Accounting Officer)
/s/ William A. Foley Director May 17, 2002
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William A. Foley
/s/ Peter C. McC. Howell Director May 20, 2002
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Peter C. McC. Howell
/s/ Carol B. Moerdyk Director May 20, 2002
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Carol B. Moerdyk
/s/ Gary L. Moreau Director May 18, 2002
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Gary L. Moreau
/s/ Terence P. Stewart Director May 20, 2002
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Terence P. Stewart
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LIBBEY INC.
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4(a) Restated Certificate of Incorporation of the Company (filed as Exhibit
3.1 to the Registration Statement of the Company on Form S-1 (No.
33-61508) and incorporated herein by reference).
4(b) Restated By-laws of the Company (filed as Exhibit 3.2 to the
Registration Statement of the Company on Form S-1 (No. 33-61508) and
incorporated herein by reference).
4(c) The Libbey Inc. 2002 Employee Stock Purchase Plan of Libbey Inc.
5 Opinion of Latham & Watkins.
23(a) Consent of Independent Auditors.
23(b) Consent of Latham & Watkins (included in Exhibit 5).
24 Power of Attorney (included in the signature page to the Registration
Statement).
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