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As filed with the Securities and Exchange Commission on December 1, 2006.
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LIBBEY INC.
(Exact name of registrant as specified in its charter )
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Delaware
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34-1559357 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
300 Madison Avenue
Toledo, Ohio 43604
(Address of principal executive offices)
LIBBEY INC. 2006 OMNIBUS INCENTIVE PLAN
(full title of the plan)
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Copy to : |
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Susan A. Kovach
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Christopher Lueking |
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Vice President, General Counsel
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Latham & Watkins |
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and Secretary
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Sears Tower, Suite 5800 |
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Libbey Inc.
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233 South Wacker Drive |
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300 Madison Avenue
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Chicago, Illinois 60606 |
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Toledo, Ohio 43604
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(312) 876-7700 |
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(419) 325-2100
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Counsel to Registrant |
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed Maximum |
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Maximum |
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Amount of |
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Title of Each Class of |
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Amount to be |
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Offering Price |
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Aggregate |
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Registration |
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Securities to be Registered |
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Registered (1) |
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Per Share (2) |
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Offering Price |
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Fee (3) |
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Common Stock, par value $.01 per share |
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3,033,306 shares |
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$ |
19.43 |
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$ |
58,927,118 |
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$ |
4,114 |
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(1) |
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The Libbey Inc. 2006 Omnibus Incentive Plan (the Plan) authorizes the issuance of a
maximum of 749,240 shares of common stock, par value $.01 per share (the Common Stock) of
Libbey Inc. (the Company) plus shares authorized for issuance under the Amended and Restated
Libbey Inc. Stock Option Plan for Key Employees and the Amended and Restated 1999 Equity
Participation Plan of Libbey Inc. (collectively, the Prior Plans) less awards under the
Prior Plans between January 1, 2006 and May 4, 2006. This
Registration Statement registers 3,033,306 shares of Common Stock of the Company for issuance pursuant to the Plan,
which represents 749,240 newly registered shares issuable under the
Plan and 2,284,066 shares from the Prior Plans which were previously registered on Form S-8 filed by the Company
on June 20, 1994 (Registration No. 33-80448),
October 17, 1995 (Registration No. 33-98237), November 1, 2000 and September 30, 2004. Pursuant to Rule 416(a) of
the Securities Act, this Registration also covers any additional shares of the Companys
Common Stock that may become issuable under the Plan by reason of any substitutions or
adjustments to shares to account for any change in corporate capitalization, such as a merger,
consolidation, reorganization , recapitalization, separation, partial or complete liquidation,
stock dividend, stock split, reverse stock split, split up, spin-off, or other distribution of
stock or property of the Company, combination or exchange of shares of Common Stock, dividend
in kind, or other like change in capital structure. |
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(2) |
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The Proposed Maximum Offering Price is based on: (i) the weighted average exercise price per
share of $27.3855 as to 1,507,826 outstanding but unexercised options to purchase Common Stock
under the Prior Plans, and (ii) of $11.56 (the average of the high and low prices for the Common Stock quoted
on the New York Stock Exchange on November 28, 2006) as to the
1,525,480 shares available for future grants. |
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(3) |
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Pursuant to Rule 457(p) of the Securities Act, the total filing fee for all securities
registered herein of $6,306 is offset by the filing fee totaling $2,192 previously paid with
respect to shares of Common Stock registered on Form S-8 on September 30, 2004, file no.
333-119413. |
TABLE OF CONTENTS
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. The Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2005
(the 2005 10-K);
b. The Companys Proxy Statement, dated March 29, 2006 for the Annual Meeting of
Stockholders held on May 4, 2006 which incorporates by reference the Companys 2005 Annual
Report to Stockholders contained in the 2005 10-K;
c. The Companys Quarterly Report on Form 10-Q for the quarterly periods ended March
31, 2006, June 30, 2006, and September 30, 2006;
d. The Companys Current Reports on Form 8-K filed with the SEC on January 5, 2006;
April 3, 2006, including its amendment filed on April 5, 2006; April 6, 2006, including its
amendment filed on April 11, 2006; May 15, 2006; June 2, 2006; June 7, 2006; June 8, 2006;
June 12, 2006; June 21, 2006; July 28, 2006; August 24, 2006; and October 3, 2006.
e. All other reports filed by the Company pursuant to Sections 13(c) or 14 of the
Securities Exchange Act of 1934, as amended (the Exchange Act), since the end of the
fiscal year ended December 31, 2005; and
f. The description of the Companys Common Stock contained in the Registration
Statement on Form 8-A filed on July 16, 1993 pursuant to Section 12 of the Exchange Act.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act 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 such statement. Any
statement so modified or
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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 directors fiduciary
duty, except (i) for any breach of the directors 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 corporations 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 Restated Certificate of Incorporation and the Amended and Restated 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
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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
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Exhibit |
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Sequentially |
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Description of Exhibit |
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4(a) |
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Restated Certificate of Incorporation of the Company |
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N/A |
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(filed as Exhibit 3.1 to the Companys Quarterly Report |
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on Form 10-Q for the quarter ended June 30, 1993 and |
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incorporated herein by reference). |
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4(b) |
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Amended and Restated By-laws of the Company (filed as |
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N/A |
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Exhibit 3.2 to the Companys Quarterly Report on Form |
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10-Q for the quarter ended June 30, 1993 and |
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incorporated herein by reference). |
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4(c) |
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The Libbey Inc. 2006 Omnibus Incentive Plan (filed as |
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N/A |
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Exhibit A to the Company Proxy Statement filed on March |
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29, 2006 and incorporated herein by reference). |
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Opinion of Latham & Watkins. |
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23(a) |
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Consent of Independent Registered Public Accounting Firm. |
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23(b) |
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Consent of Latham & Watkins (included in Exhibit 5). |
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Power of Attorney (included in the signature page to the |
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Registration Statement). |
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Item 9. Undertakings
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(a) |
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The undersigned registrant hereby undertakes: |
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(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 of 1933, as amended (the Securities Act); |
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(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
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effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
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)(i) and (a)(1)(ii) shall not apply to information
contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this Registration Statement.
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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. |
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(3) |
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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 registrants annual report pursuant to
section 13(a) or section 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 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 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
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 December 1, 2006.
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LIBBEY INC.
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By: |
/s/
Susan A. Kovach |
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Susan A. Kovach |
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Vice President, General Counsel and Secretary |
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby
constitutes and appoints Susan A. Kovach and Scott M. Sellick, 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 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, this Registration Statement has been signed by
the following persons in their respective capacities with Libbey Inc. and on the dates indicated.
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Signatures |
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Titles |
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Date |
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Chairman of the Board of
Directors and Chief
Executive Officer
(Principal Executive
Officer)
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, 2006 |
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/s/ Richard I. Reynolds
Richard I. Reynolds
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Executive Vice
President, Chief
Operating Officer and
Director
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November 29, 2006 |
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/s/ Scott M. Sellick
Scott M. Sellick
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Vice President, Chief
Financial Officer
(Principal Accounting
Officer)
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November 30, 2006 |
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Director
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, 2006 |
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/s/ William A. Foley
William A. Foley
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Director
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November 30, 2006 |
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Director
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, 2006 |
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Director
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, 2006 |
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/s/ Carol B. Moerdyk
Carol B. Moerdyk
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Director
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November 30, 2006 |
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/s/ Gary L. Moreau
Gary L. Moreau
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Director
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November 30, 2006 |
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/s/ Terence P. Stewart
Terence P. Stewart
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Director
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November 30, 2006 |
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LIST OF EXHIBITS
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Exhibit |
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Number |
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Description of Exhibit |
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4(a)
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Restated Certificate of Incorporation of the Company (filed as
Exhibit 3.1 to the Companys Quarterly Report on Form 10-Q for the
quarter ended June 30, 1993 and incorporated herein by reference). |
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4(b)
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Amended and Restated By-laws of the Company (filed as Exhibit 3.2
to the Companys Quarterly Report on Form 10-Q for the quarter
ended June 30, 1993 and incorporated herein by reference). |
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4(c)
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The Libbey Inc. 2006 Omnibus Incentive Plan (filed as Exhibit A to
the Company Proxy Statement filed on March 29, 2006 and
incorporated herein by reference). |
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5
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Opinion of Latham & Watkins. |
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23(a)
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Consent of Independent Registered Public Accounting Firm. |
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23(b)
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Consent of Latham & Watkins (included in Exhibit 5). |
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24
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Power of Attorney (included in the signature page to the
Registration Statement). |
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