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As filed with the Securities and Exchange Commission on January 9, 1997
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
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LIBBEY INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 34-1559357
(State of incorporation) (I.R.S. Employer Identification No.)
P.O. BOX 10060
300 MADISON AVENUE
TOLEDO, OHIO 43699-0060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
LIBBEY INC. LONG-TERM SAVINGS PLAN & TRUST
(FULL TITLE OF THE PLAN)
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Arthur H. Smith Copies to: Carl E. Witschy, Esq.
Vice President, General Counsel and Secretary Latham & Watkins
Libbey Inc. 233 South Wacker, Suite 5800
P.O. Box 10060 Chicago, Illinois 60606
300 Madison Avenue (312) 876-7700
Toledo, Ohio 43699-0060
(419) 325-2100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Amount to be offering price per aggregate offering Amount of registration
Title of securities to be registered (1) registered share (2) price fee
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Common Stock, par value $.01 per share 200,000 shares $27.3125 $5,462,500 $1,655.30
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<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this Registration Statement also
covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) For purposes of computing the registration fee only. Pursuant to Rule
457(h), the Proposed Maximum Offering Price Per Share is based upon the
average of the high and low prices reported on the New York Stock
Exchange for the Company's Common Stock on January 6, 1997 as set forth
in Rule 457(c).
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by Libbey
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission"), are incorporated herein by reference and made a part hereof:
(a) The Company's annual report on Form 10-K for the year ended
December 31, 1995;
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since December 31, 1995.
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form S-1 as filed with the
Commission on April 23, 1993 and all amendments thereto.
All reports and other documents subsequently filed by the Company or
the Libbey Inc. Long-Term Savings Plan & Trust (the "Plan") pursuant to Sections
13, 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of the
filing of such reports and documents.
For purposes of this Registration Statement, any statement contained in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. 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 applicable.
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
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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 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. The contracts
also 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.
The undersigned registrant hereby undertakes to submit the Plan and any
amendments thereto to the Internal Revenue Service ("IRS") in order to secure a
determination letter in a timely manner and will make all changes required by
the IRS in order to qualify the Plan under Section 401 of the Internal Revenue
Code.
See Index to Exhibits.
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:
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(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)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-8, and the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 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 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 this 9th day of January, 1997.
Libbey Inc.
By: /s/ Arthur H. Smith
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Arthur H. Smith
Vice-President, General Counsel and
Secretary
POWER OF ATTORNEY
We the undersigned directors and officers of Libbey Inc. and
each of us, do hereby constitute and appoint Arthur H. Smith and Kenneth G.
Wilkes, or either of them, our true and lawful attorneys and agents, each with
full power of substitution, to do any and all acts and things in our name and
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities listed below, which
attorneys and agents or any of them may deem necessary or advisable to enable
said corporation to comply with the Securities Act of 1933, as amended, and any
rules, regulations, and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, including specifically, but
without limitation, power and authority to sign for us or any of us in our names
in the capacities indicated below, any and all amendments (including
post-effective amendments) hereto; and we do hereby ratify and confirm all that
said attorneys and agents, or their substitute or substitutes, or any of them,
shall 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.
Signature Title Date
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/s/ John F. Meier Chairman of the Board and January 9, 1997
- ------------------------- Chief Executive Officer
John F. Meier
/s/ Richard I. Reynolds Executive Vice President, January 9, 1997
- ------------------------- Chief Operating Officer and
Richard I. Reynolds Director
/s/ Kenneth G. Wilkes Vice President, Chief January 9, 1997
- ------------------------- Financial Officer and
Kenneth G. Wilkes Treasurer
/s/ William A. Foley Director January 6, 1997
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William A. Foley
/s/ Joseph H. Lemieux Director January 7, 1997
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Joseph H. Lemieux
S-1
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Director
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Terry L. Wilkison
Director
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Peter C. McC. Howell
/s/ Gary L. Moreau Director January 7, 1997
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Gary L. Moreau
S-2
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PLAN SIGNATURE
Pursuant to the requirements of the Securities Act, the Libbey Inc.
Long-Term Savings Plan & Trust 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 the 9th day of January, 1997.
LIBBEY INC. LONG-TERM SAVINGS PLAN & TRUST
By: Plan Administrator
By: /s/ George W. Templin
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George W. Templin
Libbey Inc. Employee Benefits Committee
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EXHIBIT INDEX
Exhibit
Number Description
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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) Libbey Inc. Long-Term Savings Plan & Trust.
4(d) Adoption Agreement for Libbey Inc. Long-Term Savings Plan &
Trust.
5 Opinion of Latham & Watkins regarding the legality of the
securities being offered.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of Latham & Watkins (included in that opinion filed as
Exhibit 5).
24 Power of Attorney (included in the signature pages of the
Registration Statement).