exv4w4






Exhibit 4.4




EXECUTION COPY




 





AMENDED AND RESTATED




REGISTRATION RIGHTS AGREEMENT




by and between




MERRILL LYNCH PCG, INC.




and




LIBBEY INC.




 






Dated as of October 28, 2009




 




 









 





Table of Contents




	 	 	 	 	 	 	 
	1.

	 	Certain Definitions
	 	 	1	 
	 
	 	 	 	 	 	 
	2.

	 	Shelf Registration Statements
	 	 	5	 
	 
	 	 	 	 	 	 
	3.

	 	Demand Registrations
	 	 	6	 
	 
	 	 	 	 	 	 
	4.

	 	Piggyback Registrations
	 	 	7	 
	 
	 	 	 	 	 	 
	5.

	 	Other Registration Provisions
	 	 	8	 
	 
	 	 	 	 	 	 
	6.

	 	Other Registrations
	 	 	9	 
	 
	 	 	 	 	 	 
	7.

	 	Selection of Underwriters
	 	 	9	 
	 
	 	 	 	 	 	 
	8.

	 	Holdback Agreements
	 	 	10	 
	 
	 	 	 	 	 	 
	9.

	 	Procedures
	 	 	10	 
	 
	 	 	 	 	 	 
	10.

	 	Registration Expenses
	 	 	16	 
	 
	 	 	 	 	 	 
	11.

	 	Indemnification.
	 	 	16	 
	 
	 	 	 	 	 	 
	12.

	 	Rule 144
	 	 	18	 
	 
	 	 	 	 	 	 
	13.

	 	Transfer of Registration Rights
	 	 	19	 
	 
	 	 	 	 	 	 
	14.

	 	Conversion or Exchange of Other Securities
	 	 	19	 
	 
	 	 	 	 	 	 
	15.

	 	Miscellaneous
	 	 	19	 







 











 





          This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of October 28, 2009, is
entered into by and between LIBBEY INC., a Delaware corporation (the “Company”), and
MERRILL LYNCH PCG, Inc., a Delaware corporation (the “Stockholder”).



Recitals




          WHEREAS, the Stockholder and the Company entered into that certain Registration Rights
Agreement, dated as of June 16, 2006 (the “Registration Rights Agreement”), by and between
the Stockholder and the Company;



          WHEREAS, concurrent with the execution of this Agreement, the Stockholder and the Company are
entering into a Debt Exchange Agreement, as of the date hereof, by and among the Stockholder, the
Company and Libbey Glass Inc. (the “Exchange Agreement”) pursuant to which the Company is
issuing to the Stockholder (i) 933,145 shares (the “Exchange Shares”) of the common stock,
par value $0.01 per share of the Company (the “Common Stock”) and (ii) a warrant to
purchase 3,466,856 shares of Common Stock at a price of $0.01 per share;



          WHEREAS, pursuant and subject to the terms and conditions of the Exchange Agreement, the
Company may issue one or more Exchange Warrants (as defined below) which may be exercised by the
Stockholder for Warrant Shares (as defined below);



          WHEREAS, the Stockholder currently owns a warrant to purchase 485,309 shares of Common Stock,
such shares subject to the Registration Rights Agreement; and



          WHEREAS, the Stockholder and the Company have agreed to amend and restate the Registration
Rights Agreement as set forth herein.



Agreement




          In consideration of the mutual covenants and agreements herein contained and other good and
valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to
this Agreement hereby agree as follows:



          1. Certain Definitions.



          In addition to the terms defined elsewhere in this Agreement, the following terms shall have
the following meanings:



 









 





          “Affiliate” of any Person means any other Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with, such
Person. The term “control” (including the terms “controlling,” “controlled by” and “under common
control with”) as used with respect to any Person means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.



          “Agreement” means this Amended and Restated Registration Rights Agreement, including
all amendments, modifications and supplements and any exhibits or schedules to any of the
foregoing, and shall refer to this Amended and Restated Registration Rights Agreement as the same
may be in effect at the time such reference becomes operative.



          “Blackout Period” has the meaning set forth in Section 8(e) hereof.



          “Business Day” means any day, except a Saturday, Sunday or legal holiday on which
banking institutions in The City of New York are authorized or obligated by law or executive order
to close.



          “Common Stock” means common stock, par value $0.01 per share, of the Company.



          “Company” has the meaning set forth in the introductory paragraph and includes any
other Person referred to in the second sentence of Section 15(c) hereof.



          “Control Rights” has the meaning set forth in Section 9(a) hereof.



          “Delay Period” has the meaning set forth in Section 5(b) hereof.



          “Demand Registration” has the meaning set forth in Section 3(a) hereof.



          “Demand Registration Statement” has the meaning set forth in Section 3(a)
hereof.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



          “Exchange Shares” has the meaning set forth in the Preamble hereof.



          “Exchange Warrants” has the meaning set forth in the Exchange Agreement.



          “FINRA” means the Financial Industry Regulatory Authority.



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          “Full Cooperation” means, in connection with any underwritten offering, where, in
addition to the cooperation otherwise required by this Agreement, (a) members of senior management
of the Company (including the chief executive officer and chief financial officer, if requested)
fully cooperate with the underwriter(s) in connection therewith and make themselves available to
participate in “road-show” and other customary marketing activities in such locations (domestic and
foreign) as reasonably recommended by the underwriter(s) (including one-on-one meetings with
prospective purchasers of the Registrable Common Stock) and (b) the Company prepares preliminary,
final and free-writing prospectuses for use in connection therewith containing such additional
information as reasonably requested by the underwriter(s) (in addition to the minimum amount of
information required by law, rule or regulation).



          “Fully Marketed Underwritten Offering” means an underwritten offering in which there
is Full Cooperation.



          “Governmental Entity” means any national, federal, state, municipal, local,
territorial, foreign or other government or any department, commission, board, bureau, agency,
regulatory authority or instrumentality thereof, or any court, judicial, administrative or arbitral
body or public or private tribunal.



          “Person” means any individual, sole proprietorship, partnership, limited liability
company, joint venture, trust, unincorporated organization, association, corporation, institution,
public benefit corporation, Governmental Entity or any other entity.



          “Piggyback Registration” has the meaning set forth in Section 4(a) hereof.



          “Piggyback Registration Statement” has the meaning set forth in Section 4(a)
hereof.



          “Prospectus” means the prospectus or prospectuses forming a part of, or deemed to form
a part of, or included in, or deemed included in, any Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus or prospectuses.



          “Registrable Common Stock” means (i) all shares of Common Stock issued or issuable
upon exercise of the Warrant, (ii) the Exchange Shares, (iii) the Warrant Shares, (iv) any other
security into or for which the Common Stock referred to in clauses (i) through (iv) has been
converted, substituted or exchanged, and any security issued or issuable with respect thereto upon
any stock dividend or stock split or in connection with a combination of shares, reclassification,
recapitalization, merger, consolidation or other reorganization or otherwise, until the date after
which such shares of Common Stock may be sold pursuant to Rule 144 under the Securities Act without
the limitations on volume, manner of sale or current information requirements set forth thereunder,
provided, should any such limitations or requirements



3









 





subsequently apply, such shares of Common Stock shall again be deemed to be Registrable Common
Stock at such time and the Stockholder shall then again be entitled to all rights and privileges
under this Agreement without delay or condition.




          “Registration Expenses” has the meaning set forth in Section 10(a) hereof.



          “Registration Statement” means any registration statement of the Company that covers
any of the Registrable Common Stock pursuant to the provisions of this Agreement, including the
preliminary and final Prospectus, amendments and supplements to such Registration Statement,
including post-effective amendments, all exhibits and all materials incorporated by reference in
such Registration Statement.



          “Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC as a replacement thereto having substantially the same effect as such rule.



          “Rule 415” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC as a replacement thereto having substantially the same effect as such rule.



          “SEC” means the Securities and Exchange Commission.



          “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



          “Shelf Registration Statement” has the meaning set forth in Section 2(a)
hereof.



          “Stockholder” has the meaning set forth in the introductory paragraph and its
permitted transferees having rights under the Agreement pursuant to Section 13(a) hereto.



          “Suspension Notice” has the meaning set forth in Section 9(e) hereof.



          “underwritten registration or underwritten offering” means an offering in which
securities of the Company are sold to one or more underwriters (as defined in Section 2(a)(11) of
the Securities Act) for resale to the public.



          “Unit Purchase Agreement” means the Unit Purchase Agreement, dated June 9, 2006,
between the Company and the Stockholder.



          “Warrant” has the meaning set forth in the Unit Purchase Agreement.



          “Warrant Shares” has the meaning set forth in the Exchange Agreement.



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          2. Shelf Registration Statements.



          (a) Right to Request Registration. At any time after the date hereof, at the request
of the Stockholder and subject to the last sentence of this paragraph, the Company shall use its
best efforts to promptly file one or more registration statements on Form S-3 or such other form
under the Securities Act then available to the Company providing for the resale pursuant to Rule
415 from time to time by the Stockholder of such number of shares of all Registrable Common Stock
requested by the Stockholder to be registered thereby (including the Prospectus, amendments and
supplements to the shelf registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such shelf registration statement, each a “Shelf
Registration Statement”). Such Shelf Registration Statements shall be on Form S-1 or Form S-3
depending on the Company’s Form S-3 eligibility at such time; provided that if such Shelf
Registration Statement is on Form S-1 and the Company subsequently becomes eligible to register the
resale of securities on Form S-3, the Company shall promptly amend such Shelf Registration
Statement to Form S-3 or file a new Shelf Registration Statement on Form S-3. The Company shall
use its best efforts to cause each Shelf Registration Statement to be declared effective by the SEC
as promptly as practicable following such filing. The Company shall maintain the effectiveness of
each Shelf Registration Statement, or a replacement Shelf Registration Statement if necessary under
the Securities Act, until the first date as of which all the shares of Registrable Common Stock
included in such Shelf Registration Statement have been sold (including the shares of Common Stock
issuable upon exercise of the Series II Exchange Warrants and the final tranche of the Series III
Exchange Warrants (each as defined in the Exchange Agreement). Not later than (x) 30 days
following each of the (i) Closing Date (as defined in the Exchange Agreement), (ii) the date of
issuance of any Series II Exchange Warrants and (iii) the final tranche of the Series III Exchange
Warrants, the Company shall file a Shelf Registration Statement, and (y) on the 181st
day following each of (i) the Closing Date, (ii) the date of issuance of any Series II Exchange
Warrants and (iii) the final tranche of the Series III Exchange Warrants, the Company shall file a
second Shelf Registration Statement naming the Stockholder or an Affiliate of the Stockholder as an
underwriter in the Plan of Distribution contained therein. Notwithstanding the foregoing, if the
Company shall obtain the express permission of FINRA to include the Stockholder or an Affiliate of
the Stockholder as an underwriter in the Plan of Distribution contained in a Shelf Registration
Statement pursuant to clause (x) of the preceding sentence (which permission shall be confirmed
with respect to each Shelf Registration Statement required by the prior sentence but may include
that the Stockholder or applicable Affiliate may not act as underwriter for a period of 180 days
following the filing of the applicable Shelf Registration Statement), the Stockholder shall waive
the requirement that a corresponding Shelf Registration Statement pursuant to the applicable
subsection of clause (y) of the preceding sentence be filed, provided that should subsequent
action or advice of FINRA be taken or provided to the contrary, this sentence shall no longer apply
and the rights of the Stockholder under the previous sentence shall be reinstated in their
entirety.



5









 





          (b) Number of Fully Marketed Underwritten Offerings. The Stockholder shall be
entitled to request an aggregate of three (3) Fully Marketed Underwritten Offerings pursuant to the
Shelf Registration Statements; provided, that the Stockholder shall be entitled to request an
additional Fully Marketed Underwritten Offering following the issuance of any Series II Exchange
Warrants and an additional Fully Marketed Underwritten Offering following the issuance of any
Series III Exchange Warrants. If the Stockholder then holding a majority of the outstanding
Registrable Shares request a Fully Marketed Underwritten Offering, the Company shall cause there to
occur Full Cooperation in connection therewith, but in no event shall Merrill Lynch PCG, Inc. be
prevented from requesting a Fully Marketed Underwritten Offering (should any such Fully Marketed
Underwritten Offering remain) so long as it holds any shares of Registrable Common Stock. Except
as provided in this Section 2(b) or as otherwise provided in the Exchange Agreement, there
shall be no limitation on the number of sales or takedowns off any of the Shelf Registration
Statements. Notwithstanding anything to the contrary contained herein, the Company shall not be
obligated to complete more than one Fully Marketed Underwritten Offering or Demand Registration (as
defined below) in any 90-day period.



          3. Demand Registrations.



          (a) Right to Request Registration. Any time after the date hereof, if there exists no
effective Shelf Registration Statement (i) naming the Stockholder as a broker and underwriter,
other than as a result of FINRA restrictions prohibiting the filing of a resale registration
statement that so names the Stockholder, in which case it shall be sufficient to have a Shelf
Registration Statement effective that covers the resale of the Registrable Common Stock but does
not so name the Stockholder or (ii) containing a plan of distribution that provides for a form of
transaction then contemplated to be undertaken by the Stockholder, the Stockholder then holding a
majority of the outstanding Registrable Shares may request registration for resale under the
Securities Act of all or part of the Registrable Common Stock pursuant to a Registration Statement
separate from the Shelf Registration Statements (a “Demand Registration”). As promptly as
practicable after such request, but in any event within 30 days of such request by such
Stockholder, the Company shall file a registration statement registering for resale such number of
shares of Registrable Common Stock held by the Stockholder as requested to be so registered
(including the Prospectus, amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all material incorporated by
reference or deemed to be incorporated by reference, if any, in such registration statement, a
“Demand Registration Statement”). In connection with each such Demand Registration, the Company
shall cause there to occur Full Cooperation.



          (b) Number of Demand Registrations. The Stockholder will be entitled to request a
total of three (3) Demand Registrations pursuant to Section 3(a), in each case, minus the
number of Fully Marketed Underwritten Offerings completed off of the Shelf Registration Statement;
provided, that the Stockholder shall be entitled to an additional Demand Registration following the
issuance of any Series II Exchange Warrants and an additional Demand Registration following the
issuance of any Series III Exchange Warrants. A registration shall not count as



6









 





one of the permitted Demand Registrations pursuant to Section 3(a) (i) until the
related Demand Registration Statement has become effective or (ii) if there was not Full
Cooperation in connection therewith. Notwithstanding anything to the contrary contained herein,
the Stockholder may not request more than one Fully Marketed Underwritten Offering or Demand
Registration in any 90-day period.




          4. Piggyback Registrations.



          (a) Right to Piggyback. Whenever the Company proposes to publicly sell or register
for sale any of its common equity securities pursuant to a Registration Statement (a “Piggyback
Registration Statement”) under the Securities Act (other than a registration statement on Form
S-8 or on Form S-4 or any similar successor forms thereto), whether for its own account or for the
account of one or more securityholders of the Company (a “Piggyback Registration”), the
Company shall give prompt written notice to the Stockholder of its intention to effect such sale or
registration and, subject to Sections 4(b) and 4(c), shall include in such
transaction all Registrable Common Stock with respect to which the Company has received a written
request from the Stockholder for inclusion therein within 15 days after the receipt of the
Company’s notice. The Company may postpone or withdraw the filing or the effectiveness of a
Piggyback Registration at any time in its sole discretion, without prejudice to the Stockholder’s
right to immediately request a Shelf Registration Statement or a Demand Registration Statement
hereunder. A Piggyback Registration shall not be considered a Shelf Registration Statement, a
Demand Registration Statement or a Fully Marketed Underwritten Offering for purposes of Section
2 or Section 3 of this Agreement.



          (b) Priority on Primary Registrations. If a Piggyback Registration is initiated as an
underwritten primary registration on behalf of the Company, and the managing underwriter advises
the Company in writing that in its opinion the number of securities requested to be included in
such registration exceeds the number that can be sold in such offering without having an adverse
effect on such offering, including the price at which such securities can be sold, then the Company
shall include in such registration the maximum number of shares that such underwriter advises can
be so sold without having such effect, allocated (i) first, to the securities the Company proposes
to sell, (ii) second, the Registrable Common Stock requested to be included therein by the
Stockholder, and (iii) third, among other securities requested to be included in such registration
by other securityholders of the Company on such basis as such holders may agree among themselves
and the Company.



          (c) Priority on Secondary Registrations. If a Piggyback Registration is initiated as
an underwritten registration on behalf of holders of the Company’s securities, and the managing
underwriter advises the Company in writing that in its opinion the number of securities requested
to be included in such registration exceeds the number that can be sold in such offering without
having an adverse effect on such offering, including the price at which such securities can be
sold, then the Company shall include in such registration the maximum number of shares that such
underwriter advises can be so sold without having such effect, allocated (i) first, to the



7









 





Common Stock requested to be included in such registration by the initiating holders, pro rata
among such holders on the basis of the number of shares requested to be registered by such holders
and (ii) second, to Registrable Common Stock requested to be included in such registration by the
Stockholder and (iii) third, to other securities requested to be included in such registration by
the Company and other security holders, pro rata among such holder(s) on the basis of the number of
shares requested to be registered by them.




          5. Other Registration Provisions.



          (a) Priority on Registrations. If, in the case of a Fully Marketed Underwritten
Offering or a Demand Registration pursuant to Section 3 involving an underwritten offering,
the managing underwriter shall advise the Company that in its opinion the number of securities
requested to be included in such registration exceeds the number that can be sold in such offering
without having an adverse effect on such offering, including the price at which such securities can
be sold, then the Company shall include in such registration the maximum number of securities that
such underwriter advises can be so sold without having such effect, allocated (i) first, to
Registrable Common Stock requested by the Stockholder to be included in such registration and (ii)
second, among all securities requested to be included in such registration by any other Persons
having registration rights entitling them to be included in such offering (including securities to
be sold for the account of the Company) allocated among such Persons in such manner as they may
agree.



          (b) Restrictions on Registrations. The Company may postpone the filing or the
effectiveness of a Demand Registration Statement or the commencement of a Fully Marketed
Underwritten Offering if, based on the good faith judgment of the Company’s Board of Directors,
there is a reasonable likelihood that the disclosure to be contained in such Demand Registration
Statement or the Prospectus for such Fully Marketed Underwritten Offering, or any other action
required to be taken in connection with the Demand Registration or such Fully Marketed Underwritten
Offering, would materially and adversely affect or interfere with any material financing,
acquisition, merger, joint venture, disposition of assets (not in the ordinary course of business),
corporate reorganization or other similar material transaction involving the Company;
provided, however, that the Stockholder requesting such Demand Registration
Statement or Fully Marketed Underwritten Offering shall be entitled, at any time after receiving
notice of such postponement and before such Demand Registration Statement becomes effective or such
Fully Marketed Underwritten Offering is commenced, as applicable, to withdraw such request and, if
such request is withdrawn, such Demand Registration or Fully Marketed Underwritten Offering, as
applicable, shall not count as one of the permitted Demand Registrations or Fully Marketed
Underwritten Offerings, as applicable. The Company shall provide written notice to the Stockholder
of (x) any postponement of the filing or effectiveness of a Demand Registration Statement or the
commencement of a Fully Marketed Underwritten Offering, as applicable, pursuant to this Section
5(b), (y) the Company’s decision to file or seek effectiveness of such Demand Registration
Statement or commence such Fully Marketed Underwritten Offering, as applicable following such
postponement and (z) the effectiveness of



8









 





such Demand Registration Statement. The Company may defer the filing or effectiveness of a
particular Demand Registration Statement or the commencement of a Fully Marketed Underwritten
Offering, as applicable, pursuant to this Section 5(b) only once during any 12-month
period. Notwithstanding the provisions of this Section 5(b), the Company may not postpone
the filing or effectiveness of a Demand Registration Statement or the commencement of a Fully
Marketed Underwritten Offering, as applicable, past the date that is the earliest of (a) the date
upon which any disclosure of a matter the Board of Directors has determined would not be in the
best interest of the Company to be disclosed is disclosed to the public or ceases to be material
and (b) such date that, if such postponement continued, would result in there being more than 90
days in the aggregate in any 12-month period during which the filing or effectiveness of one or
more Registration Statements has been so postponed. The period during which filing or effectiveness
is so postponed hereunder is referred to as a “Delay Period.” The Company shall not file any
registration statement for sales of securities or commence a sale of securities on its own behalf
or on behalf of any other securityholder during any Delay Period.




          (c) Effective Period of Demand Registrations. After any Demand Registration filed
pursuant to this Agreement has become effective, the Company shall use its best efforts to keep
such Demand Registration Statement effective for a period of at least 180 days from the date on
which the SEC declares such Demand Registration Statement effective plus the duration of any Delay
Period and any Blackout Period, or such shorter period that shall terminate when all of the
Registrable Common Stock covered by such Demand Registration Statement has been sold pursuant to
such Demand Registration Statement in accordance with the plan of distribution set forth therein.



          6. Other Registrations.



          The Company shall not grant to any Person the right, other than as set forth herein and except
to employees of the Company with respect to registrations on Form S-8 (or any successor forms
thereto), to request the Company to register any securities of the Company except such rights as
are not more favorable than or inconsistent with the rights granted to the Stockholder and that do
not adversely affect the priorities set forth herein of the Stockholder.



          7. Selection of Underwriters.



          If any of the Registrable Common Stock covered by a Demand Registration Statement or a Shelf
Registration Statement is to be sold in an underwritten offering, the Stockholder shall have the
right to select the managing underwriter(s) to administer the offering subject to the prior
approval of the Company, which approval shall not be unreasonably withheld, conditioned or delayed.



9









 





          8. Holdback Agreements.



          (a) Each holder of Registrable Common Stock whose Registrable Common Stock is included in an
underwritten offering pursuant to a Piggyback Registration Statement pursuant to Section 4
hereof and the Company agree not to, and the Company shall exercise its reasonable best efforts to
obtain agreements (in the underwriters’ customary form) from its directors and executive officers
not to, directly or indirectly offer, sell, pledge, contract to sell, (including any short sale),
grant any option to purchase or otherwise dispose of any equity securities of the Company or enter
into any hedging transaction relating to any equity securities (each, a “Transfer”) of the Company
during the shorter of 75 days or such period of time advised by the underwriters, beginning on the
pricing date of any underwritten offering pursuant to any Piggyback Registration Statement. If
during any such period, any other party to a similar agreement is released from its restrictions on
Transfers, the Stockholder shall be automatically released from such restrictions as to any
Registrable Common Stock.



          (b) In the case of any underwritten offering by the Stockholder pursuant to Sections 2
or 3 hereof, upon the request of any underwriter, the Company shall agree, and shall use
its reasonable best efforts to cause its directors and executive officers to agree not to, directly
or indirectly, Transfer an equity securities of the Company the Company during the shorter of 90
days or such period of time advised by the underwriters, beginning on the pricing date of such
underwritten offering pursuant to any Registration Statement.



          9. Procedures.



          (a) In connection with the registration and sale of Registrable Common Stock pursuant to this
Agreement, the Company shall use its best efforts to effect the registration and the sale of such
Registrable Common Stock in accordance with the Stockholder’s intended methods of disposition
thereof, and pursuant thereto the Company shall as expeditiously as possible:




          (i) prepare and file with the SEC a Registration Statement with respect to such
Registrable Common Stock and use its best efforts to cause such Registration
Statement to become effective as soon as practicable thereafter; and before filing a
Registration Statement or Prospectus or any amendments or supplements thereto
(including any prospectus supplement for a shelf takedown or otherwise reasonably
requested by the Stockholder or any underwiter), furnish to the Stockholder and the
underwriter or underwriters, if any, copies of all such documents proposed to be
filed, including documents incorporated by reference in the Prospectus and, if
requested by the Stockholder, the exhibits incorporated by reference, and the
Stockholder (and the underwriter(s), if any) shall have the opportunity to review
and comment thereon, and the Company will make such changes and additions thereto as
reasonably requested by the Stockholder (and the



10









 






underwriter(s), if any) prior to filing any Registration Statement or amendment
thereto or any Prospectus or any supplement thereto;




          (ii) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective for such period as is
necessary to complete the distribution of the securities covered by such
Registration Statement and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition by the
Stockholder thereof set forth in such Registration Statement and, in the case of a
Shelf Registration Statement, prepare such post-effective amendments and prospectus
supplements containing such disclosures as may be reasonably requested by the
Stockholder or any underwriter(s) in connection with each shelf takedown;




          (iii) furnish to the Stockholder such number of copies of such Registration
Statement, each amendment and supplement thereto, each Prospectus (including each
preliminary Prospectus and Prospectus supplement) and such other documents as the
Stockholder and any underwriter(s) may reasonably request in order to facilitate the
disposition of the Registrable Common Stock, provided, however, that
the Company shall have no such obligation to furnish copies of a final prospectus if
the conditions of Rule 172(c) under the Securities Act are satisfied by the Company;




          (iv) use its best efforts to register or qualify such Registrable Common Stock
under such other securities or blue sky laws of such jurisdictions (domestic or
foreign) as the Stockholder or any underwriter(s) reasonably requests and do any and
all other acts and things that may be reasonably necessary or advisable to enable
the Stockholder and any underwriter(s) to consummate the disposition in such
jurisdictions of the Registrable Common Stock (provided, that the Company will not
be required to (1) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph (iv), (2)
subject itself to taxation in any such jurisdiction or (3) consent to general
service of process in any such jurisdiction, unless reasonably required for
dispositions by the Stockholder or underwriter of Registrable Common Stock in such
jurisdictions);




          (v) make such filings with and pay such fees and expenses relating to FINRA as
the Stockholder and any underwriters(s) reasonably requests and do any and all other
things that may be reasonably necessary or advisable to enable the Stockholder and
any underwriter(s) to obtain FINRA approval with regard to any Registration
Statement or underwritten offering;



11









 






          (vi) notify the Stockholder and any underwriter(s), at any time when a
Prospectus relating thereto is required to be delivered under the Securities Act, of
the occurrence of any event as a result of which any Prospectus contains an untrue
statement of a material fact or omits any material fact necessary to make the
statements therein not misleading, and, at the request of the Stockholder or any
underwriter(s), the Company shall prepare a supplement or amendment to such
Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall
not contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;




          (vii) in the case of an underwritten offering, (i) enter into such agreements
(including underwriting agreements in customary form), (ii) take all such other
actions as the Stockholder or the underwriter(s) reasonably request in order to
expedite or facilitate the disposition of such Registrable Common Stock (including,
without limitation, causing senior management and other Company personnel to
cooperate with the Stockholder and the underwriter(s) in connection with performing
due diligence) and (iii) cause its counsel to issue opinions of counsel in form,
substance and scope as are customary in primary underwritten offerings, addressed
and delivered to the underwriter(s) and the Stockholder;




          (viii) in connection with each Demand Registration pursuant to Section
3 and each Fully Marketed Underwritten Offering requested by Investors under
Section 2, cause there to occur Full Cooperation and, in all other cases,
cause members of senior management of the Company to be available to participate in,
and to cooperate with the underwriter(s) in connection with customary marketing
activities (including select conference calls and one-on-one meetings with
prospective purchasers);




          (ix) make available for inspection by the Stockholder, any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent retained by the Stockholder or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company’s officers, directors, employees and independent
accountants to supply all information reasonably requested by the Stockholder,
underwriter, attorney, accountant or agent in connection with such Registration
Statement;




          (x) use its best efforts to cause all such Registrable Common Stock to be
listed on each securities exchange on which securities of the same class issued by
the Company are then listed or, if no such similar securities are then listed, on an
automated quotation system of a national securities association or the OTC Bulletin
Board. Following such time as the Company becomes eligible list its Common Stock on
the The New York Stock Exchange, the Nasdaq Global



12









 






Market or Nasdaq Capital Market, it shall use its reasonable best efforts to
promptly list its Common Stock, including the Registrable Common Stock on such
exchange;




          (xi) provide a transfer agent and registrar for all such Registrable Common
Stock not later than the effective date of such Registration Statement;




          (xii) if requested, cause to be delivered, immediately prior to the pricing of
any underwritten offering, immediately prior to effectiveness of each Registration
Statement (and, in the case of an underwritten offering, at the time of closing of
the sale of Registrable Common Stock pursuant thereto), letters from the Company’s
independent registered public accountants addressed to the Stockholder and each
underwriter, if any, stating that such accountants are independent public
accountants within the meaning of the Securities Act and the applicable rules and
regulations adopted by the SEC thereunder, and otherwise in customary form and
covering such financial and accounting matters as are customarily covered by letters
of the independent registered public accountants delivered in connection with
primary underwritten public offerings;




          (xiii) make generally available to its stockholders a consolidated earnings
statement (which need not be audited) for the 12 months beginning after the
effective date of a Registration Statement as soon as reasonably practicable after
the end of such period, which earnings statement shall satisfy the requirements of
an earning statement under Section 11(a) of the Securities Act;




          (xiv) promptly notify the Stockholder and the underwriter or underwriters, if
any:




(1) when the Registration Statement, any pre-effective amendment, the
Prospectus or any Prospectus supplement or post-effective amendment
to the Registration Statement has been filed and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective;




(2) of any written request by the SEC for amendments or supplements
to the Registration Statement or any Prospectus or of any inquiry by
the SEC relating to the Registration Statement or the Company’s
status as a well-known seasoned issuer;




(3) of the notification to the Company by the SEC of its initiation
of any proceeding with respect to the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement; and



13









 






(4) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any Registrable Common Stock
for sale under the applicable securities or blue sky laws of any
jurisdiction; and




          (xv) Take all such actions (a) as may be reasonably necessary, including
obtaining opinions of counsel satisfactory to the transfer agent for the Common
Stock, to remove the restrictive legends from any shares of Registrable Common Stock
and reissue certificates evidencing such shares of Registrable Common Stock, upon
(1) the sale of such shares or (2) at such time as all conditions for the removal of
such legends under the federal securities laws have been satisfied and (b) at such
time where the Stockholder beneficially owns, and has the existing or contingent
right to receive upon exercise of any existing or contingent warrants, 7% or less of
the outstanding Common Stock (and has beneficially owned 10% or less of the Common
Stock for the prior 3-month period), and does not have affiliate status based on
other criteria, provide an opinion of counsel or instruction acceptable to the
Company’s transfer agent stating that any restrictive legend on the Registrable
Common Stock may be removed or, with respect to Warrant Shares, that such Warrant
Shares may be issued without restrictive legends. Such other criteria may include
additional voting or approval rights in the conduct of the affairs of the Company
beyond the Stockholder’s proportionate rights as a holder of Common Stock, the right
to designate one or more members of the Company’s Board of Directors or management
of the Company or any other special rights in the Stockholder’s capacity as a
Stockholder of the Company (without regard to any limitations that may be included
under the terms of indebtedness of the Company to the Stockholder) that by their
terms allow the Stockholder disproportionate input into the conduct of the Company’s
operations (collectively, “Control Rights”). The parties hereto acknowledge
that, as of the date hereof, and, upon consummation of the transactions contemplated
by the Exchange Agreement, no such Control Rights exist or shall result therefrom.



          (b) The Company represents and warrants that no Registration Statement (including any
amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein, or
necessary to make the statements therein not misleading (except that the Company makes no
representation or warranty with respect to information relating to the Stockholder furnished to the
Company by or on behalf of the Stockholder specifically for use therein).



          (c) The Company shall make available to the Stockholder (i) promptly after the same is
prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each
Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and
each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC
or the staff of the SEC (or other governmental agency or self-regulatory



14









 





body or other body having jurisdiction, including any domestic or foreign securities
exchange), and each item of correspondence from the SEC or the staff of the SEC (or other
governmental agency or self-regulatory body or other body having jurisdiction, including any
domestic or foreign securities exchange), in each case relating to such Registration Statement or
to any of the documents incorporated by reference therein, and (ii) such number of copies of each
Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such
other documents as the Stockholder or any underwriter may reasonably request in order to facilitate
the disposition of the Registrable Common Stock. The Company will promptly notify the Stockholder
of the effectiveness of each Registration Statement or any post-effective amendment or the filing
of any supplement or amendment to such Registration Statement or of any Prospectus supplement. The
Company will promptly respond to any and all comments received from the SEC, with a view towards
causing each Registration Statement or any amendment thereto to be declared effective by the SEC as
soon as practicable and shall file an acceleration request, if necessary, as soon as practicable
following the resolution or clearance of all SEC comments or, if applicable, following notification
by the SEC that any such Registration Statement or any amendment thereto will not be subject to
review.




          (d) The Company may require the Stockholder to furnish to the Company any other information
regarding the Stockholder and the distribution of such securities as the Company reasonably
determines, based on the advice of counsel, is required to be included in any Registration
Statement.



          (e) The Stockholder agrees that, upon notice from the Company of the happening of any event as
a result of which the Prospectus included (or deemed included) in such Registration Statement
contains an untrue statement of a material fact or omits any material fact necessary to make the
statements therein not misleading (a “Suspension Notice”), the Stockholder will forthwith
discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a
reasonable length of time not to exceed twenty (20) days until the Stockholder is advised in
writing by the Company that the use of the Prospectus may be resumed and is furnished with a
supplemented or amended Prospectus as contemplated by Section 8(a) hereof;
provided, however, that such postponement of sales of Registrable Common Stock by
the Stockholder shall not exceed sixty (60) days in the aggregate in any 12 month period. If the
Company shall give the Stockholder any Suspension Notice, the Company shall extend the period of
time during which the Company is required to maintain the applicable Registration Statements
effective pursuant to this Agreement by the number of days during the period from and including the
date of the giving of such Suspension Notice to and including the date the Stockholder either is
advised by the Company that the use of the Prospectus may be resumed or receives the copies of the
supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout
Period”). In any event, the Company shall not be entitled to deliver more than a total of
three (3) Suspension Notices in any 12-month period. The Company shall not file any registration
statement for sales of securities or commence a sale of securities on its own behalf or on behalf
of any other securityholder during any Blackout Period.




15











 





          (f) The Company shall not permit any officer, director, underwriter, broker or any other
person acting on behalf of the Company to use any free writing prospectus (as defined in Rule 405
under the Securities Act) in connection with any registration statement covering Registrable Common
Stock, without the prior written consent of the Stockholder and any underwriter.



          10. Registration Expenses.



          (a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees (including SEC registration fees
and FINRA filing fees), fees and expenses of compliance with securities or blue sky laws, listing
application fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing
Prospectuses in preliminary and final form as well as any supplements thereto, and fees and
disbursements of counsel for the Company and all accountants and other Persons retained by the
Company (all such expenses being herein called “Registration Expenses”) (but not including
any underwriting discounts or commissions or transfer taxes, if any, attributable to the sale of
Registrable Common Stock), shall be borne by the Company. In addition, the Company shall pay its
internal expenses (including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for listing the securities
to be registered on each securities exchange on which they are to be listed.



          (b) In connection with each registration initiated hereunder (whether a Shelf Registration
Statement or a Piggyback Registration), the Company shall pay, or shall reimburse the Stockholder
for, the reasonable fees and disbursements of one law firm chosen by the Stockholder as its counsel
in connection with each Registration Statement and sale of Registrable Common Stock pursuant
thereto; provided, however, that each such reimbursement shall not exceed $200,000
in the aggregate (plus an additional $50,000, if Series II Exchange Warrants, and a further $50,000
if any Series III Exchange Warrants are issued, for a maximum additional amount of $100,000) with
respect to each Registration Statement or underwritten offering.



          (c) The obligation of the Company to bear the expenses described in Section 9(a) and
to pay or reimburse the Stockholder for the expenses described in Section 9(b) shall apply
irrespective of whether a registration, once properly requested becomes effective, is withdrawn or
suspended, is converted to another form of registration and irrespective of when any of the
foregoing shall occur or whether any sales of Registrable Common Stock ultimately take place.



          11. Indemnification.



          (a) The Company shall indemnify, to the fullest extent permitted by law, the Stockholder and
its officers, directors, employees and Affiliates and each Person who controls the Stockholder
(within the meaning of the Securities Act) against all losses, claims, damages, liabilities and
expenses arising out of or based upon any untrue or alleged untrue statement of



16









 




material fact contained in any Registration Statement, Prospectus, preliminary Prospectus, road show or any
“issuer free writing prospectus” (as defined in Securities Act Rule 433) or any amendment thereof
or supplement thereto or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading or any violation or alleged
violation by the Company of the Securities Act, the Exchange Act or applicable “blue sky” laws,
except insofar as the same are made in reliance and in conformity with information relating to the
Stockholder furnished in writing to the Company by the Stockholder expressly for use therein. In
connection with a sale of securities pursuant to which a broker-dealer marketing such shares would
be considered an underwriter, the Company shall indemnify such underwriter(s), their officers,
employees and directors and each Person who controls such underwriter(s) (within the meaning of the
Securities Act) at least to the same extent as provided above with respect to the indemnification
of the Stockholder.




          (b) In connection with any Registration Statement in which the Stockholder is participating,
the Stockholder shall furnish to the Company in writing such information as the Company reasonably
determines, based on the advice of counsel, is required to be included in any such Registration
Statement or Prospectus and, shall indemnify, to the fullest extent permitted by law, the Company,
its officers, employees, directors, Affiliates, and each Person who controls the Company (within
the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses
arising out of or based upon any untrue or alleged untrue statement of material fact contained in
the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only to the extent that the
same are made in reliance and in conformity with information relating to the Stockholder furnished
in writing to the Company by the Stockholder expressly for use therein.



          (c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless
in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be unreasonably
withheld). If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by this Agreement effected
without its written consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement. An indemnifying party who is
not entitled to, or elects not to, assume the defense of



17









 




a claim shall not be obligated to pay the fees and expenses of more than one counsel (in addition to any local counsel) for all
parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party there may be one or more legal or equitable defenses available to
such indemnified party that are in addition to or may conflict with those available to another
indemnified party with respect to such claim. Failure to give prompt written notice shall not
release the indemnifying party from its obligations hereunder.




          (d) The indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and shall survive the transfer of
securities.



          (e) If the indemnification provided for in or pursuant to this Section 11 is due in
accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in
respect of any losses, claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified Person as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in connection with the
statements or omissions that result in such losses, claims, damages, liabilities or expenses as
well as any other relevant equitable considerations. The relative fault of the indemnifying party
on the one hand and of the indemnified Person on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party, and by such party’s relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. In no
event shall the liability of the Stockholder be greater in amount than the amount of net proceeds
received by the Stockholder upon such sale.



          12. Rule 144.



          The Company covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder,
and it will take such further action as the Stockholder may reasonably request to make available
adequate current public information with respect to the Company meeting the current public
information requirements of Rule 144(c) under the Securities Act, to the extent required to enable
the Stockholder to sell Registrable Common Stock without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of the Stockholder, the Company will deliver to the Stockholder a
written statement as to whether it has complied with such information and requirements.



18









 





          13. Transfer of Registration Rights.



          (a) The Stockholder may transfer all or any portion of its then-remaining rights, including if
such rights lapse and are subsequently reinstated under this Agreement to any Person (each, a
“transferee”). Any transfer of registration rights pursuant to this Section 13
shall be effective upon receipt by the Company of (x) written notice from the Stockholder stating
the name and address of any transferee and identifying the amount of Registrable Common Stock with
respect to which the rights under this Agreement are being transferred and the nature of the rights
so transferred and (y) a written agreement from the transferee to be bound by all of the terms of
this Agreement. In connection with any such transfer, the term “Stockholder” as used in this
Agreement shall, where appropriate to assign such rights to such transferee, be deemed to refer to
the transferee holder of such Registrable Common Stock. The Stockholder and such transferees may
exercise the registration rights hereunder in such proportion (not to exceed the then-remaining
rights hereunder) as they shall agree among themselves.



          (b) After such transfer, the Stockholder shall retain its rights under this Agreement with
respect to all other Registrable Common Stock owned by the Stockholder. Upon the request of the
Stockholder, the Company shall execute a Registration Rights Agreement with such transferee or a
proposed transferee substantially similar to the applicable sections of this Agreement.



          14. Conversion or Exchange of Other Securities.



          If the Stockholder offers Registrable Common Stock by forward sale, or any options, rights,
warrants or other securities issued by it or any other person that are offered with, convertible
into or exercisable or exchangeable for any Registrable Common Stock, the Registrable Common Stock
subject to such forward sale or underlying such options, rights, warrants or other securities shall
be eligible for registration pursuant to Sections 2, 3 and 4 of this
Agreement.



          15. Miscellaneous.



          (a) Notices. All notices, requests, consents and other communications required or
permitted hereunder shall be in writing and shall be hand delivered or mailed postage prepaid by
registered or certified mail or by facsimile transmission (with immediate telephone confirmation
thereafter) and, in the case of the Stockholder, shall also be sent via e-mail,


If to the Company:



Libbey Inc.

Attn: Susan Kovach, General Counsel

300 Madison Avenue

Toledo, Ohio 43604

Facsimile No.: 419-325-2585

Email: susan.kovach@libbey.com




19









 







with a copy to (which shall not constitute notice):



Latham & Watkins LLP

Sears Tower, Suite 5800

233 South Wacker Drive

Chicago, IL 60606

Attention: Christopher Lueking

Facsimile No.: 312-993-9767

Email: Christopher.Lueking@lw.com



If to the Stockholder:



Bank of America Merrill Lynch

Merrill Lynch PCG, Inc.



One Bryant Park

3rd Floor

New York, New York 10036

Attention: Robert Voreyer

Email: bob.voreyer@baml.com



with copies to (which shall not constitute notice):



2 World Financial Center

25th Floor

New York, NY 10281

Attn: Gerard Haugh

Facsimile No: (212) 236-2568

Email: Gerard_Haugh@ml.com



Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036-6522

Attention: Robert Copen

Facsimile: (212) 735-2000

Email: rcopen@skadden.com




     If to a transferee Stockholder, to the address of such transferee Stockholder set forth in the
transfer documentation provided to the Company;



20









 




in each case with copies to (which shall not
constitute notice):



Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036-6522

Attention: Robert Copen, Esq.

Facsimile No.: (212) 735-2000



or at such other address as such party each may specify by written notice to the others, and each
such notice, request, consent and other communication shall for all purposes of the Agreement be
treated as being effective or having been given when delivered personally, upon one Business Day
after being deposited with a courier if delivered by courier, upon receipt of confirmation if
transmitted by facsimile or email, or, if sent by mail, at the earlier of its receipt or 72 hours
after the same has been deposited in a regularly maintained receptacle for the deposit of United
States mail, addressed and postage prepaid as aforesaid.




          (b) No Waivers. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.



          (c) Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns. If the
outstanding Common Stock is converted into or exchanged or substituted for other securities issued
by any other Person, as a condition to the effectiveness of the merger, consolidation,
reclassification, share exchange or other transaction pursuant to which such conversion, exchange,
substitution or other transaction takes place, such other Person shall automatically become bound
hereby with respect to such other securities constituting Registrable Common Stock and, if
requested by the Stockholder or a permitted transferee, shall further evidence such obligation by
executing and delivering to the Stockholder and such transferee a written agreement to such effect
in form and substance satisfactory to the Stockholder.



          (d) Governing Law. The internal laws, and not the laws of conflicts (other than
Section 5-1401 of the General Obligations Law of the State of New York), of New York shall govern
the enforceability and validity of this Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties.



          (e) Exclusive Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby may only be brought in any federal or state court located in the
County and State of New York, and each of the parties hereby consents to the exclusive jurisdiction
of such courts (and of the appropriate appellate courts therefrom) in any such suit,



21









 




action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in
any such court or that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process on such party as
provided in Section 14(a) shall be deemed effective service of process on such party.




          (f) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.



          (g) Counterparts; Effectiveness. This Agreement may be executed in any number of
counterparts (including by facsimile or .PDF) and by different parties hereto in separate
counterparts, with the same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall constitute one and
the same instrument. This Agreement shall become effective when each party hereto shall have
received counterparts hereof signed by all of the other parties hereto.



          (h) Entire Agreement. This Agreement contains the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes and replaces all other
prior agreements, written or oral, among the parties hereto with respect to the subject matter
hereof.



          (i) Captions. The headings and other captions in this Agreement are for convenience
and reference only and shall not be used in interpreting, construing or enforcing any provision of
this Agreement.



          (j) Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to affect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.



          (k) Amendments. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given, without the written consent of the Company and the
Stockholder.



22









 





          (l) Aggregation of Stock. All Registrable Common Stock held by or
acquired by any Affiliated Persons will be aggregated together for the purpose of determining the
availability of any rights under this Agreement.



          (m) Equitable Relief. The parties hereto agree that legal remedies may be inadequate
to enforce the provisions of this Agreement and that equitable relief, including specific
performance and injunctive relief, may be used to enforce the provisions of this Agreement.



[Signature Page Follows]





23












 





          IN WITNESS WHEREOF, this Registration Rights Agreement has been duly executed by each of the
parties hereto as of the date first written above.



	 	 	 	 	 
	LIBBEY INC.

 	 	 
	By:  	/s/
Gregory T Geswein	 	 
	 	Gregory T. Geswein	 	 
	 	VP, Chief Financial Officer	 	 
	 
	MERRILL LYNCH PCG, INC.

 	 	 
	By:  	/s/
Gerard M. Haugh	 	 
	 	Name:  	Gerard M. Haugh	 	 
	 	Title:  	Vice President