Table of
Contents
As filed with the Securities and Exchange Commission on October 29,
2010.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Owens-Illinois, Inc.
(Exact name of registrant as specified in its charter)
Delaware
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22-2781933
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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One Michael Owens Way
Perrysburg, Ohio 43551-2999
(567) 336-5000
(Address, including zip code, and
telephone number, including area
code, of registrants principal executive offices)
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James W. Baehren
Senior Vice President Strategic Planning,
General Counsel and Secretary
One Michael Owens Way
Perrysburg, Ohio 43551-2999
(567) 336-5000
(Name, address, including zip code, and
telephone number,
including area code, of agent for service)
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Copy to:
Scott C. Herlihy, Esq.
Latham & Watkins LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004
(202) 637-2200
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement.
If
the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
o
If
any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box.
x
If
this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
o
If
this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
x
If
this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2
of the Exchange Act.
Large accelerated filer
x
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Accelerated filer
o
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Non-accelerated filer
o
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Smaller reporting company
o
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered
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Amount
to be
registered (1)
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Proposed
maximum
offering price
per share (2)
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Proposed
maximum
aggregate
offering price (2)
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Amount of
registration
fee (2)
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Common Stock, $0.01 par value per share
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14,534,298
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$
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27.52
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$
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399,983,881
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$
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28,518.85
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(1)
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Represents
the number of shares of our common stock (the Common Stock) issuable upon
exchange of 3.00% Exchangeable Senior Notes due 2015 (the Notes) of
Owens-Brockway Glass Container Inc., an indirect, wholly-owned subsidiary, at
an exchange rate corresponding to the initial exchange rate of 21.0642 shares
of our Common Stock per $1,000 principal amount of the Notes.
In accordance with Rule 416(a) under the
Securities Act of 1933, as amended (the Securities Act), this Registration
Statement covers any additional shares of Common Stock as may be issued in
connection with any stock dividend, stock split, recapitalization or other
similar transaction.
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(2)
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Estimated in accordance
with Rule 457(c) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The Proposed maximum
offering price per share is based upon the average of the high and low prices
for the Companys Common Stock as reported on the New York Stock Exchange on
October 26, 2010 ($27.52).
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Table
of Contents
PROSPECTUS
Owens-Illinois, Inc.
COMMON STOCK
On
May 7, 2010 and May 20, 2010, Owens-Brockway Glass Container Inc. (
Owens-Brockway
),
our indirect, wholly-owned subsidiary, issued and sold $690,000,000 3.00%
Exchangeable Senior Notes due 2015, which we refer to as the Notes, in a
private placement exempt from registration under the Securities Act. Upon an exchange of a Note, Owens-Brockway
will pay an amount of cash and we will deliver a number of shares of our Common
Stock, if any, to the exchange holder for each $1,000 principal amount of Notes
exchanged based on a formula tied to the trading price of our Common
Stock. The exchange rate for the Notes
initially equals 21.0642 shares of our Common Stock per $1,000 principal amount
of the Notes. Exchanging holders may use
this prospectus to re-sell from time to time shares of our Common Stock
issuable upon exchange of the Notes. We
will not receive any of the proceeds from the sale of our Common Stock by the
selling stockholders.
Our
Common Stock is listed for trading on the New York Stock Exchange under the
symbol OI. On October 28, 2010, the
closing sale price of our Common Stock as reported on the New York Stock
Exchange was $27.50 per share.
Investing in our Common Stock involves risks. Please read Risk Factors beginning on page
3 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is October 29, 2010.
Table
of Contents
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
You should rely only on the information contained or incorporated by
reference in this prospectus and in any prospectus supplement. We have not authorized any other person to
provide you with different information.
If anyone provides you with different or inconsistent information, you
should not rely on it. No offer of the
securities covered by this prospectus is being made in any jurisdiction where
the offer is not permitted. You should
assume that the information appearing in this prospectus, any prospectus
supplement and any other document incorporated by reference is accurate only as
of the date on the front cover of those documents. Our business, financial condition, results of
operations and prospects may have changed since those dates.
Under no circumstances should the delivery to you of this prospectus
create any implication that the information contained in this prospectus is
correct as of any time after the date of this prospectus.
Unless
otherwise indicated or unless the context otherwise requires, all references in
this prospectus to O-I, OI Inc., Owens-Illinois, the Company, we, us,
and our mean Owens-Illinois, Inc. and its wholly owned subsidiaries,
including Owens-Illinois Group, Inc.
WHERE YOU CAN FIND MORE
INFORMATION
We
have filed a registration statement on Form S-3, of which this prospectus
is a part, with the Securities and Exchange Commission (SEC) that registers
the issuance and sale of the securities offered by this prospectus under the
Securities Act. The registration
statement, including the attached exhibits, contains additional relevant
information about us. The rules and
regulations of the SEC allow us to omit some information included in the
registration statement from this prospectus.
We
file annual, quarterly, and other reports, proxy statements and other
information with the SEC under the Securities Exchange Act of 1934, as amended,
which we refer to as the Exchange Act.
Our SEC filings are available to the public through the SECs website at
http://www.sec.gov
and are also
available free of charge through our web site at
http://www.o-i.com
as soon as reasonably practicable after we file them with, or furnish them to,
the SEC. Other than the specific
documents incorporated by reference, information on our web site is not
incorporated into this prospectus or our other securities filings and does not
form a part of this prospectus. You may
also read and copy any materials we file with the SEC at the
1
Table of Contents
SECs
public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room.
INCORPORATION BY REFERENCE
The
SEC allows us to incorporate by reference into this prospectus information
that we file with them. This means that
we can disclose important information to you by referring you to another
document filed separately with the SEC.
The information incorporated by reference is considered to be part of
this prospectus. We incorporate by
reference the documents listed below, other than any portions of the respective
filings that were furnished (pursuant to Item 2.02 or Item 7.01 of current
reports on Form 8-K or other applicable SEC rules) rather than filed:
·
our annual report on Form 10-K for the
year ended December 31, 2009 as filed with the SEC on February 10,
2010;
·
our quarterly report on Form 10-Q for
the quarter ended March 31, 2010, as filed with the SEC on April 29,
2010;
·
our quarterly report on Form 10-Q for
the quarter ended June 30, 2010, as filed with the SEC on July 29,
2010;
·
our quarterly report on Form 10-Q for
the quarter ended September 30, 2010, as filed with the SEC on October 28,
2010; and
·
our current reports on Form 8-K, as
filed with the SEC on May 7, 2010, May 21, 2010 and October 28,
2010.
All
documents that we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this prospectus and until the offerings
hereunder are completed will be deemed to be incorporated by reference into
this prospectus and will be a part of this prospectus from the date of the
filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this prospectus will be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained in this prospectus or
in any other subsequently filed document that also is or is deemed to be
incorporated by reference in this prospectus modifies or supersedes that
statement. Any statement that is
modified or superseded will not constitute a part of this prospectus, except as
so modified or superseded.
You
may request a copy of these filings (other than an exhibit to a filing unless
that exhibit is specifically incorporated by reference into that filing), at no
cost, by writing to us at the following address or calling the following
number:
Owens-Illinois, Inc.
One Michael Owens Way
Perrysburg, Ohio 43551-2999
(567) 336-5000
Attn: Investor Relations
FORWARD-LOOKING STATEMENTS
This
document contains forward looking statements within the meaning of Section 21E
of the Securities Exchange Act of 1934 and Section 27A of the Securities
Act of 1933. Forward-looking statements reflect the Companys current
expectations and projections about future events at the time, and thus involve
uncertainty and risk. It is possible the Companys future financial performance
may differ from expectations due to a variety of factors including, but not
limited to the following: (1) foreign currency fluctuations relative to
the U.S. dollar, (2) changes in capital availability or cost, including
interest rate fluctuations, (3) the general political, economic and
competitive conditions in markets and countries where the Company has its
operations, including the announced expropriation of the Companys operations
in Venezuela, disruptions in capital markets, disruptions in the supply chain,
competitive pricing pressures, inflation or deflation, and changes in tax rates
and laws, (4) consumer preferences for alternative forms of packaging, (5) fluctuations
in raw material and labor costs, (6) availability of raw materials, (7) costs
and availability of energy, (8) transportation costs, (9) the ability
of
2
Table of Contents
the
Company to raise selling prices commensurate with energy and other cost
increases, (10) consolidation among competitors and customers, (11) the
ability of the Company to integrate operations of acquired businesses and
achieve expected synergies, (12) unanticipated expenditures with respect to
environmental, safety and health laws, (13) the performance by customers of their
obligations under purchase agreements, and (14) the timing and occurrence of
events which are beyond the control of the Company, including any expropriation
of the Companys Venezuelan operations and events related to asbestos-related
claims. It is not possible to foresee or identify all such factors. Any
forward-looking statements in this document are based on certain assumptions
and analyses made by the Company in light of its experience and perception of
historical trends, current conditions, expected future developments, and other
factors it believes are appropriate in the circumstances. Forward-looking
statements are not a guarantee of future performance and actual results or
developments may differ materially from expectations. While the Company continually
reviews trends and uncertainties affecting the Companys results of operations
and financial condition, the Company does not assume any obligation to update
or supplement any particular forward-looking statements contained in this
document.
INDUSTRY AND MARKET DATA
We
have obtained some industry and market share data from third-party sources that
we believe are reliable. In many cases,
however, we have made statements in this prospectus (or in documents
incorporated by reference in this prospectus) regarding our industry and our
position in the industry based on estimates made based on our experience in the
industry and our own investigation of market conditions. We believe these estimates to be accurate as
of the date of this prospectus. However,
this information may prove to be inaccurate because of the method by which we
obtained some of the data for our estimates or because this information cannot
always be verified with complete certainty due to the limits on the
availability and reliability of raw data, the voluntary nature of the data
gathering process and other limitations and uncertainties. As a result, you should be aware that the
industry and market data included or incorporated by reference in this
prospectus, and estimates and beliefs based on that data, may not be
reliable. We cannot guarantee the
accuracy or completeness of any such information.
OWENS-ILLINOIS, INC.
We
are the largest manufacturer of glass containers in the world, with the leading
position in Europe, North America, South America and Asia Pacific. Established in 1903, O-I employs more than
24,000 people with 81 plants in 22 countries.
In 2009, net sales were $7.1 billion.
RISK FACTORS
The
securities to be offered by this prospectus may involve a high degree of
risk. When considering an investment in
any of the securities, you should consider carefully all of the risk factors
described under the caption Risk Factors in our Annual Report on Form 10-K
for the year ended December 31, 2009, or any other document filed by us
with the SEC after the date of this prospectus (including, but not limited to,
subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q
and Current Reports on Form 8-K, or amendments to such reports). If applicable, we will include in any
prospectus supplement a description of those significant factors that could
make the offering described in the prospectus supplement speculative or risky.
USE OF PROCEEDS
We
will not receive any of the proceeds from the sale of shares of Common Stock by
the selling stockholders.
SELLING STOCKHOLDERS
The
following table, as it may be amended by supplements to this prospectus, sets
forth information, as of the date hereof, with respect to the selling
stockholders and the number of shares of our Common Stock that would become
beneficially owned by each stockholder should we issue our Common Stock to such
selling stockholder that may be offered pursuant to this prospectus upon the
exchange or redemption of Owens-Brockways 3.00% Exchangeable Senior Notes due
2015. The number of shares of our Common
3
Table of Contents
Stock
issuable upon the exchange or redemption of the Notes shown in the table below
assumes exchange of the full amount of Notes held by each selling stockholder
at the maximum exchange rate of 21.0642 shares of our Common Stock per $1,000
principal amount of Notes and a cash payment in lieu of any fractional share. The exchange rate is subject to adjustment in
certain events but is not adjusted for accrued interest. As a result, the number of shares issuable
upon exchange of the Notes may increase or decrease in the future.
No
estimate can be given as to the number of shares of our Common Stock that each
selling stockholder will own after the sale of any shares under this
prospectus, because the selling stockholders may offer all, some or none of
their respective shares. No selling
stockholder named in the table below owns or will own more than 1% of our
outstanding Common Stock before or after the offering.
Stockholder Name
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Number of Shares of
Common Stock
Beneficially Owned
Prior to Offering (1)
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Number of Shares of
Common Stock to be
Offered (2)
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Percentage
Ownership of
Common Stock
After Offering (3)
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KBC Financial Products USA Inc.
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1,685
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1,685
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*
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Columbia
Convertible Securities Fund
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94,789
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94,789
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*
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Ellsworth
Fund Ltd.
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10,532
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10,532
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*
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Bankcroft
Fund Ltd.
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10,532
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10,532
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*
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Camden
Asset Management, L.P. (Bank of America Pension Plan)
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38,969
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38,969
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*
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Camden
Asset Management, L.P. (Citigroup Pension Plan)
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5,266
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5,266
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*
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Camden
Asset Management, L.P. (Equity Overlay Fund, LLC)
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13,692
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13,692
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*
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Camden
Asset Management, L.P. (John Deere Pension Plan Trust)
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8,426
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8,426
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*
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Camden
Asset Management, L.P. (Hollowbattle)
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148,503
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148,503
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*
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Camden
Asset Management, L.P. (Redbourn Partners, Ltd.)
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125,332
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125,332
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*
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Camden
Asset Management, L.P. (Yawlfarer #1)
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15,798
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15,798
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*
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Camden
Asset Management, L.P. (Yawlfarer #2)
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12,639
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12,639
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*
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OConnor
Global Convertible Bond Master Limited
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21,064
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21,064
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*
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OConnor
Global Multi-Strategy Alpha Master Limited
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|
575,052
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575,052
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*
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OConnor
Global Convertible Arbitrage II Master Limited
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75,304
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75,304
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*
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Table of Contents
OConnor
Opportunistic Strategies Limited
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34,229
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|
34,229
|
|
*
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Man
Umbrella SICAV
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|
57,926
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|
57,926
|
|
*
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|
Alcon
Laboratories
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|
10,152
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|
10,152
|
|
*
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|
HFR
CA Opportunity Master Trust
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|
23,950
|
|
23,950
|
|
*
|
|
The
Advent Convertible Arbitrage Master Fund
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|
344,778
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|
344,778
|
|
*
|
|
The
Advent Convertible Arbitrage Fund , Cayman Fund II
|
|
84,193
|
|
84,193
|
|
*
|
|
San
Francisco City and County Employee Retirement System
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|
35,598
|
|
35,598
|
|
*
|
|
Occidental
Petroleum Corporation
|
|
8,931
|
|
8,931
|
|
*
|
|
British
Virgin Islands Social Security Board
|
|
5,708
|
|
5,708
|
|
*
|
|
Independence
Blue Cross (KHPE Advent Convertible)
|
|
20,600
|
|
20,600
|
|
*
|
|
Pro
Mutual
|
|
21,316
|
|
21,316
|
|
*
|
|
The
Police and Fire Retirement System of the City of Detroit
|
|
11,016
|
|
11,016
|
|
*
|
|
Trustmark
Insurance Company
|
|
2,296
|
|
2,296
|
|
*
|
|
Nextera
Energy
|
|
37,431
|
|
37,431
|
|
*
|
|
Metropolitan
Washington Airports Authority Retirement Plan Police & Fire
|
|
1,053
|
|
1,053
|
|
*
|
|
Metropolitan
Washington Airports Authority Retirement General Employees Plan
|
|
1,790
|
|
1,790
|
|
*
|
|
Domestic &
Foreign Missionary Society DFMS
|
|
2,885
|
|
2,885
|
|
*
|
|
Institutional
Benchmark Series Ltd
|
|
41,770
|
|
41,770
|
|
*
|
|
Altma
Fund SICAV p.l.c. in respect of Advent Convertible Arbitrage Sub-Fund
(INOCAP)
|
|
14,766
|
|
14,766
|
|
*
|
|
Teachers
Retirement System of the City of New York 267
|
|
29,890
|
|
29,890
|
|
*
|
|
New
York City Employees Retirement System
|
|
36,377
|
|
36,377
|
|
*
|
|
Teachers
Retirement System of the City of New York 269
|
|
25,445
|
|
25,445
|
|
*
|
|
New
York City Police
|
|
19,589
|
|
19,589
|
|
*
|
|
5
Table of Contents
Pension
Fund
|
|
|
|
|
|
|
|
New
York City Fire Department Pension Fund
|
|
9,521
|
|
9,521
|
|
*
|
|
California
Health Care Foundation
|
|
17,146
|
|
17,146
|
|
*
|
|
Partners
Group Alternative Strategies PCC Limited Gold Zeta Cell
|
|
22,981
|
|
22,981
|
|
*
|
|
MABSTOA
|
|
4,023
|
|
4,023
|
|
*
|
|
State
of Alaska
|
|
17,672
|
|
17,672
|
|
*
|
|
New
York City MTA
|
|
10,026
|
|
10,026
|
|
*
|
|
Advent/Claymore
Enhanced Growth & Income Fund
|
|
19,379
|
|
19,379
|
|
*
|
|
GM
IMCO Trust
|
|
64,456
|
|
64,456
|
|
*
|
|
LGT
MM CONV BOND FUND CH0638-G
|
|
13,481
|
|
13,481
|
|
*
|
|
Oyster
Global Convertibles
|
|
45,498
|
|
45,498
|
|
*
|
|
Advent
Global Phoenix Convertible Fund
|
|
14,428
|
|
14,428
|
|
*
|
|
Insurance
Australia Group
|
|
32,649
|
|
32,649
|
|
*
|
|
Advent
Global Phoenix High Grade Convertible Fund
|
|
29,700
|
|
29,700
|
|
*
|
|
BMW
Suzuka Annapurna
|
|
22,749
|
|
22,749
|
|
*
|
|
State
of Maryland
|
|
4,212
|
|
4,212
|
|
*
|
|
* Denotes
less than 1%.
(1) This includes shares of our Common Stock
issuable upon the exchange of the Notes and shares held by the selling
stockholder prior to exchange of any Notes.
(2) The number of shares in the column Number
of Shares of Common Stock to be Offered represents all of the shares of Common
Stock that the selling stockholder may offer under this prospectus. The resale
shares may be offered from time to time by the selling stockholder.
(3) This is based on
163,635,632 s
hares of our Common Stock outstanding on September 30,
2010, and assumes that the selling stockholder sells all of the resale shares
offered pursuant to this prospectus supplement.
The term selling
stockholders also includes persons who obtain Common Stock from the selling
stockholders as a gift, on foreclosure of a pledge, in a distribution or
dividend of assets by an entity to its equity holders or in another private
transaction.
Except as set forth
above, none of the selling stockholders has, or within the past three years has
had, any position, office or other material relationship with us or, insofar as
we are aware, any of our predecessors or affiliates.
With respect to
selling stockholders that are affiliates of broker-dealers, we believe that
such entities acquired their Notes and underlying Common Stock in the ordinary
course of business and, at the time of the purchase of the Notes and underlying
Common Stock, such selling stockholders had no agreements or undertakings,
directly or indirectly, with any person to distribute the Notes or underlying
Common Stock. To the extent that we
become aware that such entities did not acquire their Notes or underlying
Common Stock in the ordinary course of business or did have such an agreement
or understanding, we will file a post-effective amendment to the registration
statement of which this prospectus is a part to designate such affiliate as an underwriter
within the meaning of the Securities Act.
6
Table
of Contents
PLAN OF DISTRIBUTION
Resales
by Selling Stockholders
We
are registering the shares of Common Stock on behalf of the selling
stockholders pursuant to the terms of a Registration Rights Agreement entered
into in connection with the offering of the $690,000,000 3.00% Exchangeable
Senior Notes due 2015.
The
term selling stockholders also includes persons who obtain Common Stock from
the selling stockholders as a gift, on foreclosure of a pledge, in a
distribution or dividend of assets by an entity to its equity holders or in
another private transaction.
Types
of Sale Transactions
The
selling stockholders may sell the shares of Common Stock offered by this
prospectus at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, at negotiated prices or at fixed prices that
may be changed. Sales of shares of our Common Stock by the selling stockholders
may occur from time to time in one or more of the following types of
transactions (which may involve crosses or block transactions):
·
through the New York Stock Exchange or any
other securities exchange that quotes the Common Stock;
·
in the over-the-counter market;
·
in transactions other than on those exchanges
or in the over-the-counter market (including negotiated transactions and other
private transactions);
·
in short sales (sales of shares completed by
delivery of borrowed stock) of the Common Stock, in transactions to cover short
sales or otherwise in connection with short sales;
·
by pledge to secure debts and other
obligations or on foreclosure of a pledge;
·
through put or call options, including the
writing of exchange-traded call options, or other hedging transactions related
to the Common Stock; or
·
in a combination of any of the above
transactions.
Selling
stockholders may enter into hedging transactions from time to time in which a
selling stockholder may:
·
enter into transactions with a broker-dealer
or any other person in connection with which such broker-dealer or other person
will engage in short sales of Common Stock, in which case such broker-dealer or
other person may use shares of Common Stock received from the selling
stockholder to close out its short positions;
·
sell Common Stock short itself and redeliver
shares offered by this prospectus to close out its short positions or to close
out stock loans incurred in connection with its short positions;
·
enter into option or other types of
transactions that require the selling stockholder to deliver Common Stock to a
broker-dealer or any other person, who will then resell or transfer the Common
Stock under this prospectus; or
·
loan or pledge the Common Stock to a
broker-dealer or any other person, who may sell the loaned shares or, in an
event of default in the case of a pledge, sell the pledged shares under this
prospectus.
Selling
stockholders may use broker-dealers or other persons to sell their shares in
transactions that may include one or more of the following:
·
a block trade in which a broker-dealer or
other person may resell a portion of the block, as principal or agent, in order
to facilitate the transaction;
·
purchases by a broker-dealer or other person,
as principal, and resale by the broker-dealer or other person for its account;
or
·
ordinary brokerage transactions and
transactions in which a broker solicits purchasers.
Resales
by selling stockholders may be made directly to investors or through securities
firms acting as underwriters, brokers or dealers. When resales are to be made
through a securities firm, the securities firm may be engaged to act as the
selling stockholders agent in the resale of the shares of Common Stock by the
selling stockholder, or the securities firm may purchase shares of our Common
Stock from the selling stockholder as principal and thereafter resell those
shares from time to time. The fees earned by or paid to the securities firm may
be the normal stock exchange commission or negotiated commissions or
7
Table of Contents
underwriting
discounts to the extent permissible. The securities firm may resell the
securities through other securities dealers, and commissions or concessions to
those other dealers may be allowed.
The
selling stockholders and any agent, broker or dealer that participates in sales
of Common Stock offered by this prospectus may be deemed underwriters under
the Securities Act, and any commissions or other consideration received by any
agent, broker or dealer may be considered underwriting discounts or commissions
under the Securities Act.
Instead
of selling shares of Common Stock under this prospectus, the selling
stockholders may sell shares of Common Stock in compliance with the provisions
of Rule 144 or Regulation S under the Securities Act, if available.
Regulation
M
We
have informed the selling stockholders that the anti-manipulation provisions of
Regulation M under the Exchange Act may apply to their sales of Common Stock.
Prospectus
Delivery Requirements
Because
a selling stockholder may be deemed an underwriter, the selling stockholders
must deliver this prospectus and any supplements to this prospectus in the
manner required by the Securities Act. This might include delivery through the
facilities of the New York Stock Exchange in accordance with Rule 153
under the Securities Act.
Indemnification
The
selling stockholders may agree to indemnify any agent, broker or dealer that
participates in sales of Common Stock against liabilities arising under the
Securities Act from sales of Common Stock.
Expenses of this Offering
We
will pay all expenses in connection with the registration of the shares of
Common Stock covered by this prospectus. The selling stockholders are
responsible for all underwriting discounts and commissions and brokers fees.
DESCRIPTION OF COMMON STOCK
As
of the date of this prospectus, we are authorized to issue up to 250,000,000
shares of Common Stock, $0.01 par value per share. As of September 30, 2010, we had
163,635,632 shares of Common Stock outstanding.
The
following summary does not purport to be complete and is qualified in its
entirety by reference to the provisions of applicable law and to our Second
Restated Certificate of Incorporation (the Certificate), and
Third Amended and Restated Bylaws (the Bylaws)
.
Common Stock
Each holder of
Common Stock
is entitled to one vote for each share owned of
record on the election of directors and all other matters voted upon by
stockholders, and, except as described below, a majority vote is required for
all actions to be taken by stockholders.
There are no cumulative voting rights in the election of directors. Each
director to be elected by the stockholders is elected by the affirmative vote
of a majority of the votes cast with respect to such director by the shares
represented and entitled to vote therefore at a meeting of the stockholders for
the election of directors at which a quorum is present. The quorum required at any stockholders
meeting for consideration of any matter is a majority of the issued and
outstanding shares of
Common Stock
, represented in person or by proxy.
If the board of directors of OI Inc. determines that the number of nominees
exceeds the number of directors to be elected at such meeting, whether or not
the election becomes an uncontested election after such determination, each of
the directors to be elected at that meeting shall be elected by the affirmative
vote of a plurality of the votes cast by the shares represented and entitled to
vote at such meeting. In the event of a
liquidation, dissolution or winding-up of OI Inc., the holders of
Common Stock
are entitled to share equally and ratably in the
assets of OI Inc., if any, remaining after the payment of all debts and
liabilities of OI Inc. and the liquidation preference of any outstanding
preferred stock. The
Common Stock
has no pre-emptive rights and no redemption, sinking
fund or conversion provisions.
8
Table
of Contents
Provisions of Our Certificate of Incorporation and Bylaws
The Certificate also provides for a classified
board of directors consisting of three classes as nearly equal in size as
practicable. Each class holds office
until the third annual meeting for election of directors following the election
of such class. A director may be removed
without cause either by (i) a majority vote of the directors then in
office (including for purposes of calculating the number of directors then in
office, the director subject to such removal vote) or (ii) the affirmative
vote of stockholders holding at least 80% of the capital stock entitled to vote
for the election of directors.
Additionally, the provision relating to the classified board may be
amended only upon the vote of the holders of at least 80% of the capital stock
entitled to vote for the election of directors.
The Certificate also prohibits action by written consent of
stockholders.
Delaware Anti-Takeover Law
The
Company is subject to the business combination statute of the DGCL, an
anti-takeover law enacted in 1988. In general, Section 203 of the DGCL
prohibits a publicly-held Delaware corporation from engaging in a business
combination with an interested stockholder, for a period of three years
after the date of the transaction in which a person became an interested
stockholder, unless (i) prior to such date the board of directors of the
corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder, (ii) upon
consummation of the transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares outstanding those
shares owned (1) by persons who are directors and also officers and (2) employee
stock plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer, or (iii) at or subsequent to such time the business
combination is approved by the board of directors and authorized at an annual
or special meeting of stockholders, and not by written consent, by the
affirmative vote of a least 66 2/3% of the outstanding voting stock which is
not owned by the interested stockholder. A business combination includes
mergers, stock or asset sales and other transactions resulting in a financial
benefit to the interested stockholders. An interested stockholder is
generally a person who, together with affiliates and associates, owns (or
within three years, did own) 15% or more of the corporations voting stock.
Although Section 203 permits the Company to elect not to be governed by
its provisions, the Company to date has not made this election. As a result of
the application of Section 203, potential acquirers of the Company may be
discouraged from attempting to effect an acquisition transaction with the
Company, thereby possibly depriving holders of the Companys securities of
certain opportunities to sell or otherwise dispose of such securities at
above-market prices pursuant to such transactions.
LEGAL MATTERS
The
validity of the Common Stock offered in this prospectus will be passed upon for
us by Latham & Watkins LLP, Washington, DC.
EXPERTS
The
consolidated financial statements of OI Inc. appearing in OI Inc.s Annual
Report (Form 10-K) for the year ended December 31, 2009 (including
the financial statement schedule appearing therein), and the effectiveness of
OI Inc.s internal control over financial reporting as of December 31,
2009, have been audited by Ernst & Young LLP, independent registered
public accounting firm, as set forth in their reports thereon, included
therein, and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and auditing.
9
Table
of Contents
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 1.
Other Expenses of Issuance
and Distribution.
The
following table sets forth estimates of the costs and expenses, other than
selling or underwriting discounts and commissions, to be incurred by us in
connection with the issuance and distribution of the securities being
registered hereby.
SEC registration fee
|
|
$
|
28,518.85
|
|
Printing and engraving expenses*
|
|
$
|
1,500
|
|
Legal fees and expenses*
|
|
$
|
7,000
|
|
Accounting fees and expenses*
|
|
$
|
2,500
|
|
Miscellaneous*
|
|
$
|
1,500
|
|
Total
|
|
$
|
41,018.85
|
|
*
Estimated.
Item 2.
Indemnification of
Directors and Officers.
Delaware Corporations
OI
Inc. is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General
Corporation Law (DGCL) provides that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the persons conduct was unlawful. Section 145 further provides that a
corporation similarly may indemnify any such person serving in any such
capacity who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery
or such other court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all of
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
The
Certificate and Bylaws provide that indemnification shall be to the fullest
extent permitted by applicable law. As
permitted by Section 102(b)(7) of the DGCL, the Certificate provides
that, except under certain circumstances, directors shall not be personally
liable to OI Inc. or its stockholders for monetary damages for breach of
fiduciary duties as a director; however, such provision does not exonerate the
directors from liability under federal securities laws, and has no effect on
any nonmonetary remedies that may be available to OI Inc. or its stockholders.
II-1
Table of Contents
Item 3.
Exhibits.
The
exhibits listed in the accompanying Exhibit Index are filed (except where
otherwise indicated) as part of this registration statement.
Item 4.
Undertakings.
A. The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(a)
To include any prospectus required by section 10(a)(3) of the Securities
Act of 1933;
(b)
To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and
(c)
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 this registration statement;
provided, however
, that paragraphs A(l)(a), A(1)(b) and
A(1)(c) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the SEC by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
(a)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement: and
(b)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in
a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5)
That, for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are
II-2
Table of Contents
offered
or sold to such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(a)
Any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
(b)
Any free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
(c)
The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
(d)
Any other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
B. The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrants annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plans annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
C. Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant, or otherwise, the
registrant has been advised that in the opinion of the SEC 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.
D. The undersigned registrant hereby undertakes:
(1)
For purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus or any prospectus supplement
filed as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus or prospectus supplement filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus or prospectus
supplement 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.
II-3
Table of
Contents
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, Owens-Illinois, Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Perrysburg, State of Ohio, on October 29, 2010.
|
OWENS-ILLINOIS, INC.
|
|
|
|
|
|
|
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By:
|
/s/
James W. Baehren
|
|
|
James
W. Baehren
|
|
|
Senior
Vice President Strategic Planning,
General Counsel and Secretary
|
KNOW
ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors
of Owens-Illinois, Inc. hereby constitutes and appoints James W. Baehren
and Edward C. White his true and lawful attorney-in-fact and agent, with full
power of substitution and re-substitution, for him and on his behalf and in his
name, place and stead, in any and all capacities, to sign, execute and file
this registration statement under the Securities Act of 1933, as amended, and
any or all amendments (including, without limitation, post-effective
amendments), with all exhibits and any and all documents required to be filed
with respect thereto, with the Securities and Exchange Commission or any
regulatory authority, granting unto such attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same,
as fully to all intents and purposes as he himself might or could do, if
personally present, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do
or cause to be done.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
Signature
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Title
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Date
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|
|
/s/
Albert P. L. Stroucken
|
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President, Chief Executive Officer and Chairman of the Board of
Directors (Principal Executive Officer)
|
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October 29,
2010
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|
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/s/
Edward C. White
|
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Senior Vice President and Chief Financial Officer (Principal
Financial Officer)
|
|
October 29,
2010
|
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/s/
Gary F. Colter
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Director
|
|
October 29,
2010
|
|
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|
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/s/
Jay L. Geldmacher
|
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Director
|
|
October 29,
2010
|
|
|
|
|
|
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|
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|
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/s/
Peter S. Hellman
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Director
|
|
October 29,
2010
|
|
|
|
|
|
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|
|
|
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/s/
David H. Y. Ho
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Director
|
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October 29,
2010
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II-4
Table of Contents
Signature
|
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Title
|
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Date
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/s/
Anastasia D. Kelly
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Director
|
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October 29,
2010
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/s/
John J. McMackin, Jr.
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Director
|
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October 29,
2010
|
|
|
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/s/
Corbin A. McNeill, Jr.
|
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Director
|
|
October 29,
2010
|
|
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|
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/s/
Hugh H. Roberts
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Director
|
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October 29,
2010
|
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/s/
Helge H. Wehmeier
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Director
|
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October 29,
2010
|
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|
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/s/
Dennis K. Williams
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Director
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October 29,
2010
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/s/
Thomas L. Young
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Director
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October 29,
2010
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II-5
Table
of Contents
EXHIBIT INDEX
Exhibit
No.
|
|
Exhibit
|
|
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3.1
|
|
Second Restated
Certificate of Incorporation of the Company, dated April 23, 2009
(incorporated by reference to Exhibit 3.1 of the Companys Quarterly
Report on Form 10-Q for the quarter ended March 31, 2009).
|
|
|
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3.2
|
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Third Amended and
Restated By-laws of Owens-Illinois, Inc., effective as of April 29,
2010 (incorporated by reference to Exhibit 3.1 of the Companys Current
Report on Form 8-K filed on April 27, 2009).
|
|
|
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5.1*
|
|
Opinion
of Latham & Watkins LLP regarding legality of the securities being
registered.
|
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23.1*
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Consent
of Ernst & Young LLP.
|
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23.2*
|
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Consent
of Latham & Watkins LLP (included in Exhibit 5.1).
|
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24.1*
|
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Power
of Attorney (included as a part of the signature page of the
Registration Statement).
|
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