As filed with the Securities and Exchange Commission on October 15, 2009
Registration No. 333-161935
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORMS-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LSB INDUSTRIES, INC.
(Exact Namename of Registrant)
Delaware | 73-1015226 | |
(State or Other Jurisdiction of Organization)Incorporation or | ( Identification Number) |
3503 NW 63rd Street, Suite 500
Oklahoma City, Oklahoma 73116
(405)235-4546
(Address, including zip code,Including Zip Code, and telephone numberTelephone Number, Including Area Code, of registrant’s principal executive offices)
Michael J. Foster, Esq.
Senior Vice President and General Counsel
LSB Industries, Inc.
3503 NW 63rd Street, Suite 500
Oklahoma City, Oklahoma 73107
(405)235-4546
(Name, address, including zip codeAddress, Including Zip Code, and telephone number, including area codeTelephone Number, Including Area Code, of Agent forFor Service)
Copies to:
Robert L. Kimball
Vinson & Winters, LLP
2001 Ross Avenue, Suite 3900
Dallas, Texas 75201-2975
(214)220-7700
Approximate date of commencement of proposed sale to the public: Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
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 CommissionSEC pursuant to Rule 462(e) under the Securities Act, check the following box. o
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, anon-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer” andfiler,” “smaller reporting company,” and “emerging growth company” in Rule12b-2 of the Exchange Act (Check one):
Large accelerated filer | ☐ | Accelerated filer | ☒ | |||
Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not check if a smaller reporting company) Smaller reporting company o
CALCULATION OF REGISTRATION FEE | ||||
Title of Each Class of Securities to be Registered (1) | Amount to be Registered(1) | Proposed Maximum Offering Price per Unit(2)(3) | Proposed Maximum Aggregate Offering Price(2)(3) | Amount of Registration Fee(4) |
Common stock, $0.10 par value, per share(5) | – | (6) | (6) | (6) |
Rights attached to above shares of Common Stock under Rights Agreement(5) | – | $0.00 | $0.00 | $0.00 |
Preferred stock(7) | – | (6) | (6) | (6) |
Debt securities | – | (6) | (6) | (6) |
Warrants | – | (6) | (6) | (6) |
Units of the securities listed above | – | (6) | (6) | (6) |
Total | $200,000,000 | $11,160(8) |
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered(1) | Amount to be Registered | Proposed Maximum Offering Price per Share(1) | Proposed Maximum Offering Price (1) | Amount of Registration Fee | ||||
Common Stock, $0.10 par value per share | 4,069,324 | $7.69 | $31,293,101.56 | $3,792.72(2) | ||||
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(1) |
The proposed maximum offering price per |
A filing fee of |
The registrantRegistrant hereby amends this registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until the registrantRegistrant shall file a further amendment which specifically states that this registration statementRegistration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statementRegistration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. WeThese securities may not sell these securitiesbe sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it iswe are not soliciting an offeroffers to buy these securities in any statejurisdiction where the offer or sale is not permitted.
Subject to Completion, dated November 2, 2018
4,069,324 Shares
LSB INDUSTRIES, INC.
COMMON STOCK
This prospectus relates to the Common Stock)
We are not selling any shares of two or moreour common stock and we will not receive any proceeds from the sale of the foregoing securities,shares by the selling stockholder. We have agreed to pay certain registration expenses, other than underwriting discounts and wecommissions.
The selling stockholder may offer and sell these securities from time to time in onesell, transfer or more offerings. Each shareotherwise dispose of any or all of their shares of common stock includes an attached Right under our Renewed Rights Agreement, dated December 2, 2008,in a number of different ways and at varying prices. See “Plan of Distribution” for more information.
We may amend or supplement this prospectus from time to time by filing amendments or supplements as described under “Description of Capital Stock—Preferred Share Rights Plan.
Our common stock is listed on the New York Stock Exchange (the “NYSE”) under the symbol “LXU.” On October 12, 2009,30, 2018, the last reported sale price of our common stock as reported on the NYSE was $13.85$7.68 per share.
Investing in these securitiesour common stock involves certain risks. See the information included and incorporated by reference in this prospectus and the accompanying prospectus supplement for a discussionhigh degree of the factorsrisk. Before buying any shares, you should carefully consider before deciding to purchase these securities. Seeread the discussion of material risks of investing in our common stock in “Risk Factors” beginning on page 3.
Neither the Securities and Exchange Commission (“SEC”(the “SEC”) nor any state securities commission has approved or disapproved of these securities or passed upon the adequacyaccuracy or accuracyadequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is ______________, 2009, 2018.
Material U.S. Federal Income Tax Considerations forNon-U.S. Holders |
26 | ||||
27 |
This prospectus is part of a registration statement that we have filed with the SEC pursuant to which the selling stockholder named herein may, from time to time, offer and sell or otherwise dispose of the shares of our common stock covered by this prospectus. You should not assume that the information contained in this prospectus is accurate on any date subsequent to the date set forth on the front cover of this prospectus or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus is delivered or shares of common stock are sold or otherwise disposed of on a later date. It is important for you to read and consider all information contained in this prospectus, including the documents incorporated by reference therein, in making your investment decision. You should also read and consider the information in the documents to which we have referred you under the caption “Where You Can Find More Information” in this prospectus.
We have not authorized any dealer, salesman or other person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any of our shares of common stock other than the shares of our common stock covered hereby, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
This prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond our control. See “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”
Unless the context otherwise requires, references in this prospectus to “LSB,” “the company,Company,” “we,” “our,” and “us” refer to LSB Industries, Inc., a Delaware corporation, and its consolidated subsidiaries.
This summary highlights information or make any representationscontained elsewhere in connection with this offeringprospectus, is not complete, and does not contain all of the information that you should consider before making your investment decision. You should carefully read the entire prospectus, including the information presented under the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” and the consolidated financial statements and the notes thereto and other than those contained ordocuments incorporated by reference in this prospectus before making an investment decision.
Overview
LSB manufactures and any accompanyingsells chemical products for the agricultural, mining, and industrial markets. The Company owns and operates facilities in Cherokee, Alabama, El Dorado, Arkansas and Pryor, Oklahoma, and operates a facility for Covestro LLC in Baytown, Texas. LSB’s products are sold through distributors and directly to end customers throughout the United States.
Recent Events
Exchange of Series E Preferred and Series F Preferred for SeriesE-1 Preferred and SeriesF-1 Preferred
As previously announced and in connection with our senior notes refinancing transactions completed on April 25, 2018 (the “Refinancing Transactions”), we entered into a letter agreement (the “Letter Agreement”) with the selling stockholder identified in this prospectus supplementto extend the date upon which a holder of our Series E 14% cumulative, redeemable Class C preferred stock (“Series E Preferred”) has the right to elect to have such holder’s shares of Series E Preferred redeemed by us from August 2, 2019 to October 25, 2023. The Letter Agreement, which was filed as Exhibit 10.1 to our Current Report onForm 8-K filed with the SEC on May 1, 2018, also provided for the adjustment of certain other terms relating to the Series E Preferred, including an increase in the per annum dividend rate payable in respect of the Series E Preferred (a) by 0.50% on the third anniversary of the Refinancing Transactions, (b) by an additional 0.50% on the fourth anniversary of the Refinancing Transactions and (c) by an additional 1.0% on the fifth anniversary of the Refinancing Transactions.
In furtherance of the Letter Agreement and pursuant to the terms thereof, on October 18, 2018, we entered into a Securities Exchange Agreement (the “Exchange Agreement”) with the selling stockholder identified in this prospectus. The Exchange Agreement provided for the exchange of (i) existing Series E Preferred held by the selling stockholder for shares of newly createdSeries E-1 cumulative, redeemable Class C preferred stock of the Company(“Series E-1 Preferred”) and (ii) existing Series F redeemable Class C preferred stock of the Company (“Series F Preferred”) held by the selling stockholder for a share of newly createdSeries F-1 redeemable Class C preferred stock of the Company, in each case on aone-share-for-one-share basis (the “Preferred Exchange”).
On October 18, 2018, the Company and the selling stockholder completed the Preferred Exchange. Pursuant thereto, the selling stockholder (i) surrendered all of its shares of Series E Preferred and was issued 139,768 shares ofSeries E-1 Preferred and (ii) surrendered its one share of Series F Preferred and was issued one share ofSeries F-1 Preferred.
Apart from implementing the adjustments contemplated by the Letter Agreement, which will increase the per annum dividend rate payable on the preferred stock in future years as described above, the terms of theSeries E-1 Preferred andSeries F-1 Preferred are substantively identical to the terms of thenow-retired Series E Preferred and Series F Preferred, respectively. The dividend rate on theSeries E-1 Preferred at issuance is 14.0% per annum.
Amendments to Registration Rights Agreement and Board Representation and Standstill Agreement
As described in our Current Report on Form8-K filed with the SEC on October 19, 2018, in connection with the offering described hereinPreferred Exchange, we and the relevant counterparties amended the Registration Rights Agreement and the Board Representation and Standstill Agreement (each as defined below), which agreements were previously entered into as part of the Private Placement (as defined below). The amendments modify the Registration Rights Agreement and the Board Representation and Standstill Agreement in part by replacing the references therein to Series E Preferred and if given or made, such information or representations must not be relied upon as having been authorized by us. Neither this prospectus nor any prospectus supplement shall constitute an offer to sell or a solicitation of an offer to buy offered securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation. Neither the delivery of this prospectus or any prospectus supplement nor any sale made hereunder shall under any circumstances imply that the information contained or incorporated by reference herein or in any prospectus supplement is correct as of any date subsequentSeries F Preferred with references to the date hereof or of such prospectus supplement.
Corporate Information
Our business, financial condition, results of operations and prospects may have changed materially since those dates.
THE OFFERING
Common stock offered by the selling stockholder | 4,069,324 shares of common stock held by the selling stockholder. | |
Common stock outstanding | 28,618,441 shares (1). | |
Selling stockholder | LSB Funding LLC. See “Selling Stockholder” for further discussion. | |
Use of proceeds | We will not receive any proceeds from the sale of shares of our common stock by the selling stockholder in this offering. See “Use of Proceeds.” | |
Risk factors | Investing in our common stock involves risks. You should read carefully the “Risk Factors” section of this prospectus for a discussion of factors that you should carefully consider before deciding to invest in shares of our common stock. | |
NYSE ticker symbol | “LXU” |
(1) | Excludes 2,662,244shares held in treasury and includes the 4,069,324 shares that the selling stockholder is offering pursuant to this prospectus. |
An investment in our securities involves a registration statement we filed withhigh degree of risk. In addition to the SEC. Thisother information included in this prospectus, omits some information containedyou should carefully consider each of the risk factors set forth in the registration statement in accordanceour most recent Annual Report on Form10-K and subsequent Quarterly Reports on Form10-Q on file with the SEC, rules and regulations. You should review the information and exhibits in the registration statement for further information on us and our consolidated subsidiaries and the securities wewhich are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualifiedincorporated by reference to those filings. Youinto this prospectus. See “Incorporation of Certain Information by Reference.” Before making an investment decision, you should review the complete document to evaluatecarefully consider these statements.
The risks included in this prospectus and the documents we have incorporated by reference into this prospectus are not the only risks we face. We may experience additional risks and uncertainties not currently known to us, or as a result of developments occurring in the future. Conditions that we currently deem to be immaterial may also materially and adversely affect our business, financial condition, cash flows and liquidity if we are unable to replace a customer on substantially similar terms.
Risks Related to Our Common Stock and financial condition.
The Russians have requested that the suspension agreement be changed to only require that the prices of its imported AN reflect the Russian producers full production costs, plus profit. The Russian producers of AN could benefit from state set prices of natural gas, the principal raw material for AN, which could be less than what U.S. producers are required to pay for their natural gas. Other factors, however, such as transportation costs may partially offset natural gas and production cost advantages. This change, if accepted by the United States, could result in a substantial increase in the amount of AN imported into the United States from Russia at prices that could be less than the cost to produce AN by U.S. producers plus a profit. Russia is the world’s largest producer of fertilizer grade AN, and we are led to believe that it has substantial excess AN production capacity.
The trading price of our voting preferredcommon stock (1,000,000may decline for many reasons, some of which shares have .875 votes per share,are beyond our control, including, among others:
our results of operations and financial condition;
changes in expectations as to our future results of operations and prospects, including financial estimates and projections by securities analysts and investors;
results of operations that vary from those expected by securities analysts and investors;
strategic actions by our competitors;
strategic decisions by us, our clients or 875,000 votes), which together votesour competitors, such as a classacquisitions, divestitures, spin-offs, joint ventures, strategic investments or changes in business strategy;
changes in applicable laws and represent approximately 20.2%regulations;
changes in accounting principles;
announcements of the voting powerclaims against us by third parties;
future sales of our issuedcommon stock by us, the selling stockholder, significant stockholders or our directors or executive officers;
the realization of any risks described under this “Risk Factors” section or those incorporated by reference;
additions or departures of key management personnel;
changes in general market and outstanding voting securities aseconomic conditions;
volatile and unpredictable developments, includingman-made, weather-related and other natural disasters, catastrophes or terrorist attacks in the geographic regions in which we operate; and
increased competition, or the performance, or the perceived or anticipated performance, of that date. our competitors.
In addition, the Golsen Group also beneficially owned optionsstock market in general, including recently, has experienced significant volatility that often has been unrelated to the operating performance of companies whose shares are traded. These market fluctuations could adversely affect the trading price of our common stock, regardless of our actual operating performance. As a result, the trading price of our common stock may decline, and otheryou may not be able to sell your shares at or above the price you pay to purchase them, or at all. Further, we could be the subject of securities class action litigation due to any such stock price volatility, which could divert management’s attention and adversely affect our results of operations.
Future sales of our common stock could reduce our stock price, and any additional capital raised by us through the sale of equity or convertible securities may dilute your ownership in us.
We may sell additional shares of common stock in subsequent public or private offerings. We may also issue additional shares of common stock or convertible securities. As of October 19, 2018, we had 28,618,441 outstanding shares of common stock, excluding 2,662,244 shares held in treasury. This number includes the 4,069,324 shares that allowed its membersthe selling stockholder is offering pursuant to acquire an additional 208,500this prospectus, which may be resold immediately in the public market.
We cannot predict the size of future issuances of our common stock or securities convertible into common stock or the effect, if any, that future issuances and sales of shares of our common stock within 60 days of July 31, 2009. Thus, the Golsen Group may be considered to effectively control us. As a result, the ability of other stockholders to influence our management and policies could be limited.
There is an increased potential for short sales of our common stock due to the potential sales of the shares offered by this prospectus, which could materially affect the market price of the stock.
Downward pressure on the market price of our common stock that may result from sales of our common stock offered by this prospectus could encourage short sales of our common stock by market participants. Generally, short selling means selling a security, contract or commodity not owned by the seller. The seller is committed to eventually purchase the financial instrument previously sold. Short sales are used to capitalize on an expected decline in the security’s price. Such sales of our common stock could have a tendency to depress the price of the stock, which could increase the potential for short sales.
Because we currently have no plans to pay cash dividends on our common stock, you may not receive any return on investment unless you sell your common stock for a price greater than that which you paid for it.
We currently do not expect to pay any cash dividends on our common stock. Any future determination to pay cash dividends or other distributions on our common stock will be at the discretion of our board of directors and could impairwill be dependent on our earnings, financial condition, operation results, capital requirements, and contractual, regulatory and other restrictions, including restrictions contained in the senior secured credit facility or agreements governing any existing and future outstanding indebtedness we or our subsidiaries may incur, on the payment of dividends by us or by our subsidiaries to us, and other factors that our board of directors deems relevant. As a result, you may not receive any return on an investment in our common stock unless you sell our common stock for a price greater than that which you paid for it.
Our ability to raise capital in the future may be limited, which could make us unable to fund our capital requirements.
Our business and operations may consume resources faster than we anticipate, or we may require additional funds to pursue acquisition or expansion opportunities. In the future, we may need to raise additional funds through the issuance of new equity securities, debt or a combination of both. Additional financing may not be available on favorable terms or at all. If adequate funds are not available on acceptable terms, we may be unable to fund our capital requirements. If we issue new debt securities, the debt holders would have rights senior to common stockholders to make claims on our assets, and the terms of any debt could restrict our operations, including our ability to pay dividends on our common stock. If we issue additional equity securities, existing stockholders may experience dilution. Our board is authorized to issue preferred stock which could have rights and preferences senior to those of our common stock. Because our decision to issue securities in any future offering will depend on market conditions and other factors beyond our control, we cannot predict or estimate the amount, timing or nature of our future offerings. Thus, our stockholders bear the risk of our future securities offerings reducing the market price of equity or equity-related securities. No prediction can be made as to the effect, if any, that future sales of shares ofour common stock, diluting their interest or being subject to rights and preferences senior to their own.
If securities analysts do not publish research or reports about our business or if they downgrade or provide negative outlook on our stock or our sector, our stock price and trading volume could decline.
The trading market for our common stock relies in part on the research and reports that industry or financial analysts publish about us or our business. We do not control these analysts. Furthermore, if one or more of the analysts who do cover us downgrade or provide negative outlook on our stock or our industry, or the availabilitystock of any of our competitors, or publish inaccurate or unfavorable research about our business, the price of our stock could decline. If one or more of these analysts cease coverage of our business or fail to publish reports on us regularly, we could lose visibility in the market, which in turn could cause our stock price or trading volume to decline.
Anti-takeover provisions in our organizational documents could delay or prevent a change of control.
Certain provisions of our Restated Certificate of Incorporation, as amended (our “Certificate of Incorporation”) and Amended and Restated Bylaws, as amended (our “Bylaws”), may have an anti-takeover effect and may delay, defer or prevent a merger, acquisition, tender offer, takeover attempt or other change of control transaction that a stockholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares held by our stockholders. These provisions provide for, among other things:
a classified board of common stockdirectors with staggered three-year terms;
the ability of our board of directors to issue, and determine the rights, powers and preferences of, one or more series of preferred stock;
advance notice for future sale will havenominations of directors by stockholders and for stockholders to include matters to be considered at our annual meetings; and
certain limitations on convening special stockholder meetings.
Further, as a Delaware corporation, we are also subject to provisions of Delaware law, which may impair a takeover attempt that our stockholders may find beneficial. These anti-takeover provisions and other provisions under Delaware law could discourage, delay or prevent a transaction involving a change in control of our Company, including actions that our stockholders may deem advantageous, or negatively affect the trading price of our common stock. Such future salesThese provisions could also significantly reduce the percentage ownership of our existing common stockholders.
This prospectus and the documents that we incorporate by reference in the prospectus contain statements that are considered “forward-looking statements” within the meaning of Section 27A of the United States securities laws.Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements, including statements about industry trends and other matters that do not relate strictly to historical facts, are based on management’s expectations and assumptions, and are often identified by such forward-looking terminology as “expect,” “look,” “believe,” “anticipate,” “estimate,” “seek,” “may,” “trend,” “target,” and “goal” or similar statements or variations of such terms. Forward-looking statements may include, among other things, statements regarding:
projections of revenue, margins, expenses, earnings from operations, cash flows or other financial items;
plans, strategies and objectives of management for future operations, including statements relating to developments or performance of our products;
future economic conditions or performance;
the outcome of outstanding claims or legal proceedings;
assumptions underlying any of the foregoing; and
any other statements that address activities, events or developments that we intend, expect, project, believe or anticipate will or may occur in the future, including, without limitation, the forward-looking future; and
statements described under the heading “Special Note Regarding Forward Looking Statements” in our Annual Report on Form10-K for the year ended December 31, 20082017 (“Form10-K”), and in our Quarterly Reports on Form10-Q for the fiscal quarters ended March 31, 2009, and2018, June 30, 2009 (as amended by Amendment No. 1 to Form 10-Q/A, filed August 14, 2009) (collectively, “Forms 10-Q”)2018 and September 30, 2018, in each case, filed with the SEC, each of which isare hereby incorporated herein by reference.
Forward-looking statements are subject to various risks and uncertainties, which change over time, are based on management’s expectations and assumptions at the time the statements are made, and are not guarantees of future results. Our management’s expectations and assumptions, and the continued validity of the forward-looking statements, are subject to change due to a broad range of factors affecting the national and global economies, the financial markets, as well as factors specific to us and our subsidiaries, as discussed under the heading “Risk Factors” in our Form10-K and Forms 10-QForm10-Qs and other filings with the SEC and incorporated into this prospectus by reference:
Actual outcomes and results may differ materially from what is expressed in our forward-looking statements and from our historical financial results due to the factors discussed above and elsewhere in this prospectus, including, without limitation, our Form10-K and Forms 10-Q,Form10-Qs, or in our other SEC filings. Forward-looking statements should not be relied upon as representing our expectations or beliefs as of any time subsequent to the time this prospectus is filed with the SEC. Unless specifically required by law, we undertake no obligation to revise the forward-looking statements contained in this prospectus to reflect events after the time it is filed with the SEC. The factors discussed above are not intended to be a complete summary of all risks and uncertainties that may affect our businesses. Though we strive to monitor and mitigate risk, we cannot anticipate all potential economic, operational and financial developments that may adversely affect our operations and our financial results.
Forward-looking statements should not be viewed as predictions, and should not be the primary basis upon which investors evaluate us. Any of our investors should consider all risks and uncertainties disclosed in our SEC filings, described above under the section entitled “Where You Can Find More Information,” all of which are accessible on the SEC’s website at http://www.sec.gov. We note that all website addresses given in this prospectus are for information only and are not intended to be an active link or to incorporate any website information into this document.
PRIVATE PLACEMENT OF COMMON STOCK WARRANTS
The following description is a summary and is qualified in its entirety by reference to the Securities Purchase Agreement, the Warrants, the Registration Rights Agreement (all as defined below), the Letter Agreement, the Exchange Agreement, the Certificate of Designations setting forth the rights, preferences, privileges and restrictions applicable to the SeriesE-1
On December 4, 2015, we entered into a securities purchase agreement (the “Securities Purchase Agreement”) with LSB INDUSTRIES, INC.
In connection with the Refinancing Transactions completed on April 25, 2018, the Company entered into the Letter Agreement with the selling stockholder to extend the date upon which a holder of Series E Preferred has the right to elect to have such holder’s shares of Series E Preferred redeemed by the Company from August 2, 2019 to October 25, 2023. The Letter Agreement also provided for the adjustment of certain other terms relating to the Series E Preferred, including an increase in the per annum dividend rate payable in respect of the Series E Preferred (a) by 0.50% on the third anniversary of the Refinancing Transactions, (b) by an additional 0.50% on the fourth anniversary of the Refinancing Transactions and (c) by an additional 1.0% on the fifth anniversary of the Refinancing Transactions. In furtherance of the Letter Agreement and as expressly contemplated by Section 3 and Section 5(a) therein, the Company and the selling stockholder entered into the Preferred Exchange, which was completed on October 18, 2018. Pursuant thereto, the selling stockholder (i) surrendered all of its shares of Series E Preferred and was issued 139,768 shares of SeriesE-1 Preferred and (ii) surrendered its one share of Series F Preferred and was issued one share of SeriesF-1 Preferred.
Apart from implementing the adjustments contemplated by the Letter Agreement, which will increase the per annum dividend rate payable on the preferred stock in future years as described above, the terms of the SeriesE-1 Preferred and SeriesF-1 Preferred are substantively identical to the terms of thenow-retired Series E Preferred and Series F Preferred, respectively. The per annum dividend rate on the SeriesE-1 Preferred at issuance is 14.0% per annum.
In connection with the Securities Purchase Agreement, on December 4, 2015, we entered into the registration rights agreement (the “Registration Rights Agreement”) with the selling stockholder relating to the registered resale of the common stock issuable upon exercise of the Warrants and certain other common stock. Pursuant to the Registration Rights Agreement, the Company was required to file or cause to be filed a manufacturing, marketingregistration statement for such registered resale within nine months following the Closing Date and engineering company, operating through our subsidiaries. Our wholly-owned subsidiary, ThermaClime, through its subsidiaries, ownswas required to use commercially reasonable efforts to cause the registration statement to become effective as soon as practicable thereafter. In certain circumstances, the selling stockholder will have piggyback registration rights and rights to request an underwritten offering as described in the Registration Rights Agreement. The selling stockholder will cease to have registration rights under the Registration Rights Agreement on the later of the tenth anniversary of the Closing Date and the date on which the Registrable Securities (as defined in the Registration Rights Agreement) covered by the Registration Statement (as defined in the Registration Rights Agreement) cease to be Registrable Securities. The Exchange Agreement amends the Registration Rights Agreement in part by replacing the references therein to the Series E Preferred with references to the SeriesE-1 Preferred.
Each Warrant afforded the holder the opportunity to purchase one share of common stock at a substantial portionwarrant exercise price of $0.10. The original expiration date for the Warrants was on December 4, 2025.
The selling stockholder exercised the Warrants in full by means of an exercise notice dated May 19, 2016. The selling stockholder elected a cashless, or net, exercise as permitted in the Warrants. The selling stockholder was issued 4,069,324 shares of common stock.
Pursuant to the Securities Purchase Agreement and the Registration Rights Agreement, we are registering 4,069,324 shares of our following core businesses:common stock issued to the selling stockholder upon the exercise of the Warrants in 2016.
The shares of our common stock being offered by this prospectus are solely for the account of the selling stockholder. We believe our Climate Control Business has developed leadership positions in certain niche marketswill not receive any proceeds from the sale of these shares by offering extensive product lines, customized products and improved technologies. Under this focused strategy, we have developed what we believe to be the most extensive lineselling stockholder.
This prospectus covers the public resale of geothermal and water source heat pumps and hydronic fan coilsthe shares of common stock purchased in the United States. Further,Private Placement by the selling stockholder named below, which we believe that we were a pioneer in the use of geothermal technology in the climate control industry and have used itrefer to create what we believe to be the most energy efficient
The table below presents information regarding the selling stockholder and the Shares that the selling stockholder may offer and sell from time to time under the ticker symbol “LXU.” Our principal executive offices are located at 16 South Pennsylvania, Oklahoma City, Oklahoma 73107, and our telephone number is (405) 235-4546.
The following table sets forth our ratios of earnings to fixed charges and combined fixed charges and preferred stock dividends for forth:
the periods indicated. For the purpose of computing these consolidated ratios, “earnings” consist of income from continuing operations before provisions for income taxes and equity in earnings of affiliate plus fixed charges and distributed income from affiliate. “Fixed charges” consist of (a) interest expense including amortization of capitalized expenses relating to indebtedness and excluding realized and unrealized gains or losses on interest rate financial instruments that are reported as interest expense and (b) the interest portion of net rent expense which is deemed to be representativename of the interest factor. “Preferred stock dividends” consistselling stockholder;
the number of Shares owned by the amount of pre-tax earnings requiredselling stockholder prior to pay dividends on our preferred stock. A detailed computation table can be found in Exhibit 12 to this registration statement.
the number of Shares that may be offered by the selling stockholder pursuant to this prospectus;
the number of Shares owned by the selling stockholder following the sale of any Shares covered by this prospectus; and
the percentage of common stock owned by the selling stockholder following the sale of any Shares covered by this prospectus.
All information with respect to common stock ownership of the selling stockholder has been furnished by or on behalf of the selling stockholder and is as of October 19, 2018. We believe, based on information supplied by the selling stockholder, that except as may otherwise be indicated in the applicable prospectus supplement. General corporate purposesfootnotes to the table below, the selling stockholder has sole voting and dispositive power with respect to the common stock reported as beneficially owned by it. Because the selling stockholder identified in the table may include the acquisition of companiessell some or businesses, repayment and refinancing of debt, working capital and capital expenditures. We may temporarily invest the net proceeds in investment-grade, interest-bearing securities until they are used for their stated purpose. We have not determined the amount of net proceeds to be used specifically for such purposes. As a result, our management will retain broad discretion over the allocationall of the net proceeds.
Name of Selling Stockholder | Number of Shares of Common Stock Owned Prior to Offering(1) | Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus | Number of Shares of Common Stock Beneficially Owned After Offering | Percentage of Common Stock Owned After Offering | ||||||||||||
LSB Funding LLC(2) | 4,069,324 | 4,069,324 | 0 | 0 | % |
We have determined beneficial ownership in accordance with the rules of the SEC. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the selling stockholder named in the table above has sole voting and investment power with respect to all shares of |
that it beneficially owns, subject to applicable community property laws. Represents 4,069,324 shares of |
(2) | The address of the selling stockholder is 350 Park Avenue, 14th Floor, New York, New York 10022. The selling stockholder owns one share of SeriesF-1 Preferred, which entitles the selling stockholder to a number of votes equal to 456,225 shares (the “Voting Shares”) of common stock, provided, that the number of votes that may be cast by the SeriesF-1 Preferred shall be automatically reduced by redemption or |
The following description of our common stock and preferred stock, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the common stock and preferred stock that we may offer, in the case of our common stock, under this prospectus. It may not contain all the information that is important to you. For the complete terms of our common stock and preferred stock, please refer to our Restated Certificate of Incorporation, as amended (our “Certificate of Incorporation”), and our Amended and Restated Bylaws(our “Bylaws”),Bylaws, which are incorporated by reference into the registration statement which includes this prospectus. The Delaware General Corporation Law may also affect the terms of these securities.
Authorized capital stock
Our authorized capital stock consists of
75,000,000 shares of common stock, $0.10 par value per share;
250,000 shares of preferred stock, $100 par value per share (“Preferred Stock”); and
5,000,000 shares of Class C Preferred Stock, no par value (“Class C Preferred Stock”).
Common Stock
On July 31, 2009, 21,484,308October 19, 2018, 28,618,441 shares of our common stock were issued and outstanding, excluding 3,867,4622,662,244 shares held in treasury. All outstanding shares of our common stock will, when issued, beare duly authorized, fully paid and nonassessable.
Dividends. Subject to preferential dividend rights of any other class or series of stock, the holders of shares of our common stock are entitled to receive dividends, including dividends of our stock, if, as and when declared by our board of directors, subject to any limitations applicable by law and to the rights of the holders, if any, of our preferred stock.
Liquidation. In the event we are liquidated, dissolved or our affairs are wound up, after we pay or make adequate provision for all of our known debts and liabilities, each holder of our common stock will be entitled to share ratably in all assets that remain, subject to any rights that are granted to the holders of any class or series of preferred stock.
Voting Rights.
Other Rights and Restrictions.
The rights, powers, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of holders of shares of our outstanding preferred stock and of any series of preferred stock which we may designate and issue in the future.
Listing. Our common stock is listed on the New York Stock Exchange under the symbol “LXU.”
Transfer Agent and Registrar.
Preferred Stock
Under our Certificate of Incorporation we have authority, subject to any limitations prescribed by law and without further stockholder approval, to issue from time to time up to 250,000 shares of Preferred Stock, and 5,000,000 shares of Class C Preferred Stock. Our board of directors has authorized 350,000 shares of Series A Junior Participating Class C Preferred (“Series A Preferred Stock”) for issuance under our stockholder rights plan. See “—Preferred Share Rights Plan” below.
The Preferred Stock and Class C Preferred Stock are issuable in one or more series, each with such designations, preferences, rights, qualifications, limitations and restrictions as our board of directors may determine in resolutions providing for their issuance. As of July 31, 2009,October 19, 2018, the following shares of Preferred Stock and Class C Preferred Stock are authorized:
20,000 shares of our Series B 12% cumulative, convertible preferred stock, $100 par value (“Series B Preferred”), of which 20,000 shares are issued and outstanding;
1,000,000 shares of our Series D 6% cumulative, convertible Class C preferred stock no par value (“Series D Preferred”), of which 1,000,000 shares are issued and outstanding;
139,768 shares of our SeriesE-1 14% cumulative, redeemable Class C preferred stock, no par value (“SeriesE-1 Preferred”), of which 139,768 shares are issued and outstanding; and
1 share of our SeriesF-1 redeemable Class C preferred stock, no par value (“SeriesF-1 Preferred”), of which one share is issued and outstanding.
The issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of us without further action by the stockholders and may adversely affect the voting and other rights of the holders of our common stock. The issuance of preferred stock with voting and conversion rights may adversely affect the voting power of the holders of common stock, including loss of voting control to others.
As of July 31, 2009,October 19, 2018, we had outstanding the following series of Preferred Stock and Class C Preferred Stock:
Series B Preferred, par value $100.
is entitled to receive cumulative cash dividends, when and as declared by our board of directors, at the annual rate of 12% of the par value of each outstanding share;
is entitled to one vote for each outstanding share on all matters submitted to a vote of shareholders and votes together with our common stock and each series of voting preferred stock as a single class or as otherwise required by law;
is convertible, at any time and at the option of the holder, into 33.3333 shares of our common stock, subject to adjustment under certain conditions; and
in the event of our liquidation, each outstanding share will be entitled to be paid its par value, plus accrued and unpaid dividends, before any payment is made to holders of our common stock, but will not be entitled to participate any further in our assets.
Series D Class C Preferred, no par value
has a liquidation preference of $1.00 per share;
is to receive cumulative cash dividends, when and if declared by our board of directors, at the rate of 6% per annum of the liquidation preferences;
shall be entitled to .875 votes on all matters submitted to a vote of shareholders and vote together with our common stock and each series of voting preferred stock as a single class or as otherwise required by law;
shall have the right to convert four shares of Series D Preferred into one share of our common stock (equivalent to a conversion price of $4 per share of our common stock), subject to adjustment under certain conditions;
in the event of our liquidation, dissolution or winding up or any reduction in our capital resulting from any distribution of assets to our shareholders, shall receive the sum $1.00, plus all accrued and unpaid dividends, before any amount is paid to holders of our common stock; and there shall be no mandatory or optional redemption of these shares. SeriesE-1 Preferred, no par value. All of the SeriesE-1 Preferred shares are owned by LSB Funding LLC. Each share of the SeriesE-1 Preferred affords the holder thereof the following rights: each share of SeriesE-1 Preferred is entitled to receive dividends that are cumulative and payable semi-annually, commencing November 1, 2018, in arrears at an annual rate of 14% of the liquidation value per share (such liquidation value as of October 19, 2018 was approximately $1,476 per share of SeriesE-1 Preferred). As further described above under “Prospectus Summary—Recent Events—Exchange of Series E Preferred and Series F Preferred for SeriesE-1 Preferred and SeriesF-1 Preferred,” in connection with the Refinancing Transactions and the completion of the Preferred Exchange, the per annum dividend rate payable in respect of the SeriesE-1 Preferred is scheduled to increase (a) by 0.50% on the third anniversary of the Refinancing Transactions, (b) by an additional 0.50% on the fourth anniversary of the Refinancing Transactions and (c) by an additional 1.0% on the fifth anniversary of the Refinancing Transactions; We also must declare a dividend on the SeriesE-1 Preferred on a pro rata basis with our common stock. As long as LSB Funding LLC holds at least 10% of the SeriesE-1 Preferred, we may not declare dividends on our common stock and other preferred stocks unless and until dividends have been declared and paid on the SeriesE-1 Preferred for the then current dividend period in cash;
at any time on or after October 25, 2023, each SeriesE-1 Holder has the right to elect to have such holder’s shares redeemed by LSB at a redemption price per share equal to the Liquidation Preference of such share as of the redemption date. The SeriesE-1 Preferred has a liquidation preference per share equal to the sum of (i) the quotient obtained by dividing $206,335,049 by 139,768 (subject to adjustment for any stock split, stock dividend, stock combination or similar transaction with respect to the SeriesE-1 Preferred), which as of October 19, 2018 was approximately $1,476, plus (ii) accrued and unpaid dividends thereon plus (iii) the participation rights value (the “Liquidation Preference”). Additionally, LSB, at its option, may redeem the SeriesE-1 Preferred at any time at a redemption price per share equal to the Liquidation Preference of such share as of the redemption date. Lastly, with receipt of (i) prior consent of the electing SeriesE-1 holder or a majority of shares of SeriesE-1 Preferred and (ii) all other required approvals, including under any principal U.S. securities exchange on which our common stock is then listed for trading, LSB can redeem the SeriesE-1 Preferred by the issuance of shares of common stock having an aggregate common stock price equal to the amount of the aggregate Liquidation Preference of such shares being redeemed in shares of common stock in lieu of cash at the redemption date; in the event of liquidation, the SeriesE-1 Preferred is entitled to receive its Liquidation Preference before any such distribution of assets or proceeds is made to or set aside for the holders of our common stock and any other Junior Stock (as defined below). In the event of a Change of Control (as defined in the SeriesE-1 COD), we must make an offer to purchase all of the shares of SeriesE-1 Preferred outstanding; with respect to the payment of dividends and distribution of assets upon liquidation, dissolution or winding up of LSB, whether voluntary or involuntary, all shares of SeriesE-1 Preferred shall rank (i) senior to the common stock, the Series B Preferred, the Series D Preferred, the Series 4 Junior Participating Class C Preferred Stock and any other class or series of stock of LSB (other than SeriesE-1 Preferred) that ranks junior to the SeriesE-1 Preferred either or both as to the payment of dividends and/or as to the distribution of assets on any liquidation, dissolution or winding up of the Company (the “Junior Stock”), (ii) on a parity with the other shares of SeriesE-1 Preferred and any other class or series of stock of LSB (other than SeriesE-1 Preferred) created after the date of the SeriesE-1 COD (that specifically ranks pari passu to the SeriesE-1 Preferred) and (iii) junior to any other class or series of stock of LSB created after the date of the SeriesE-1 COD that specifically ranks senior to the SeriesE-1 Preferred. SeriesF-1 Preferred, no par value. The sole SeriesF-1 Preferred share is owned by LSB Funding LLC. Such share has the following terms: no dividends shall be payable in respect of the SeriesF-1 Preferred; the SeriesF-1 Preferred has voting rights (the “SeriesF-1 Voting Rights”) to vote as a single class on all matters which the common stock have the right to vote and is entitled to a number of votes currently equal to 456,225 shares of common stock (provided, that the number of votes that may be cast by the SeriesF-1 Preferred shall be automatically reduced by redemption or exchange of SeriesE-1 Preferred for common stock or if all the SeriesE-1 Preferred are redeemed or exchanged for common stock, cash or otherwise, the SeriesF-1 Voting Rights will be reduced to zero); the SeriesF-1 Preferred will be automatically redeemed by LSB, in whole and not in part, for $0.01 immediately following the date upon which the SeriesF-1 Voting Rights have been reduced to zero; in the event of liquidation, the SeriesF-1 Preferred is entitled to receive its liquidation preference of $100 before any such distribution of assets or proceeds is made to or set aside for the holders of common stock and any other stock junior to the SeriesF-1 Preferred; with respect to the distribution of assets upon liquidation, dissolution or winding up of LSB, whether voluntary or involuntary, the SeriesF-1 Preferred ranks (i) senior to the common stock and (ii) junior to Series B Preferred, Series D Preferred, Series 4 Junior Participating Class C Preferred Stock, SeriesE-1 Preferred and any other class or series of stock of LSB after the date of the Certificate of Designations setting forth the rights, preferences, privileges and restrictions applicable to the SeriesF-1 Preferred, as filed with the Secretary of State of the State of Delaware that specifically ranks senior to the SeriesF-1 Preferred. Pursuant to our Certificate of Incorporation we are authorized to issue “blank check” preferred stock, which may be issued from time to time in one or more series upon authorization by our board of directors. Our board of directors, without further approval of the stockholders, is authorized to fix the dividend rights and terms, conversion rights, voting rights, redemption rights and terms, liquidation preferences, and any other rights, preferences, privileges and restrictions applicable to each series of the preferred stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes could, among other things, adversely affect the voting power or rights of the holders of our common stock and, under certain circumstances, make it more difficult for a third party to gain control of us, discourage bids for our common stock at a premium or otherwise adversely affect the market price of the common stock. The summaries above of selected provisions of our common stock and preferred stock are qualified entirely by the provisions of our Certificate of Incorporation, our Bylaws and our debt agreements, all of which are included or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You should read our Certificate of Incorporation, our Preferred Share Rights Plan We maintain a preferred share rights plan, which is governed by a Renewed Rights Agreement, dated December 2, 2008, Each Right entitles the registered holder to purchase from us oneone-hundredth of a share of our Series A Preferred Stock, at an initial purchase price of $47.75 per Until the earlier of transferable apart from our common stock. Under the Renewed Rights Plan, a person is also deemed to beneficially own shares of our common stock that are the subject of a derivative transaction entered into, or a derivative security acquired by, such person, which gives such person the economic equivalent of ownership. As soon as practicable after the Rights become exercisable, separate Rights certificates would be issued and the Rights would become transferable apart from our common stock. The Rights held by the person or group who triggers the Rights shall be null and void and are not exercisable. The Rights will not become exercisable ornon-redeemable based on the common stock held or beneficially owned by any of the following persons or entities (“Excluded Persons”): LSB; any of our subsidiaries; any employee benefit plan of LSB or our subsidiaries; any entity holding common stock for or pursuant to any employee benefit plan of LSB or our subsidiaries; any member of the “Golsen Group,” which are (a) Jack E. Golsen, (b) his wife and children, (c) the spouse and children of Jack E. Golsen’s children, (d) the estate, executor administrator, guardian or custodian of person’s described in (a), (b) and (c) above, (e) any corporation, partnership, limited liability company, other entity or trust of which at least 80% of the voting stock, membership or equity interest (or, as to trusts, presumptive interest in principle and income) is beneficially owned by persons described in (a), (b), (c) and (d) above, and (f) certain other affiliates, or associates of the persons described in (a), (b), (c) and (d) above; any person whom our board of directors determines acquired 15% or more of the common stock inadvertently (including, without limitation, (a) any person who was unaware that he, she or it was the beneficial owner of a percentage of the common stock that would otherwise cause such person to trigger the Rights or (b) such person was unaware of the extent of its beneficial ownership of common stock but had no actual knowledge of the consequences of such and had no intention on influencing control of us) and such person divests, within 10 business days from the date of the board’s determination a sufficient number of shares (or derivative common shares) so as to no longer beneficially own 15% of the common stock; or any person who acquires beneficial ownership of 15% or more of the common stock solely as the result of purchases by us of common stock, unless such person shall, after such share repurchase by us, become the beneficial owner of an additional 1% or more of the then outstanding shares of our common stock. The Renewed Rights Agreement provides that, until the Distribution Date (or earlier redemption or expiration of the Rights): the Rights will be transferred with and only with our common stock; new common stock certificates issued after the Record Date, upon transfer or new issuance of common stock by us will contain a notation incorporating the Renewed Rights Agreement by reference; and the surrender for transfer of any certificates for common stock, even without such notation (or a copy of this Summary of Rights) being attached thereto, will also constitute the transfer of Rights associated with the common stock represented by such certificate. As soon as practicable following the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”) will be mailed to the holders of record of the common stock as of the close of business on the Distribution Date and such separate Right Certificates alone will evidence the Rights. The Rights are not exercisable until the Distribution Date. The Rights will expire on January 4, 2019 (the “Final Expiration Date”), unless the Final Expiration Date is extended or unless the Rights are earlier redeemed by us, in each case, as described below. In the event that any person becomes an Acquiring Person (except pursuant to a tender or exchange offer which is for all outstanding shares of common stock at a price and on terms which a majority of certain members of the If an acquiring company were to merge or otherwise combine with us, or we were to sell 50% or more of our assets or earning power, each Right then outstanding would “flip-over” and thereby would become a right to buy that number of shares of common stock of the acquiring company which at the time of such transaction would have a market value of two times the exercise price of the Right. The acquirer who triggered the Rights is excluded from the ability to “flip-over.” A merger or other combination would not entitle the Rights to “flip-over” if such transaction is consummated with a person or group who acquired our common stock pursuant to a Permitted Offer (as defined below), the price per share of common stock paid to all holders of common stock is not less than the price per share of common stock pursuant to the Permitted Offer, and the form of consideration offered in such transaction is the same as the form of consideration paid pursuant to the Permitted Offer. “Permitted Offer” is a tender or exchange offer for all shares of our common stock at a price and on terms that a majority of the board of directors, who are not officers or the person or group who could trigger the exercisability of the Rights, The Purchase Price payable, and the number of Series A Preferred Stock, our common stock or other securities or property issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent dilution: in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Series A Preferred Stock; upon the grant to holders of the Series A Preferred Stock of certain rights or warrants to subscribe for or purchase Series A Preferred Stock at a price, or securities convertible into Series A Preferred Stock with a conversion price, less than the then current market price of the Series A Preferred Stock; or upon the distribution to holders of the Series A Preferred Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends paid out of earnings or retained earnings or dividends payable in Series A Preferred Stock) or of subscription rights or warrants (other than those referred to above). The number of outstanding Rights and the number of oneone-hundredths of a Preferred Share issuable upon exercise of each Right are also subject to adjustment in the event of a stock split of our common stock or a stock dividend on the common stock payable in common stock or subdivisions, consolidations or combinations of our common stock occurring, in any such case, prior to the Distribution Date. Any Rights that are beneficially owned by At any time after a person becomes an Acquiring Person and prior to the acquisition by such Person (or affiliate or associate of an Acquiring Person) of 50% or more of our outstanding common stock, our board of directors may exchange the Rights (other than Rights owned by such Acquiring Person which have become void), in whole or in part, at an exchange ratio of one share of our common stock, or With certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least 1% in such Purchase Price. No fractional Series A Preferred Stock will be issued (other than fractions which are integral multiples of oneone-hundredth of a Preferred Share, which may, at our election, be evidenced by depositary receipts) and in lieu thereof, an adjustment in cash will be made based on the market price of the Series A Preferred Stock on the last trading day prior to the date of exercise. At any time prior to the earlier of the Distribution Date or Final Expiration Date, our board of directors may redeem the Rights in whole, but not in part, at a price of $0.01 per Right (the “Redemption Price”), adjusted to reflect any stock split, stock dividend or similar transaction, and payable, at the option of the Company, either in cash, shares of our common stock, or any other form of consideration deemed appropriate by our board of directors. The redemption of the Rights may be made effective at such time, on such basis and with such conditions as our board of directors in its sole discretion may establish. Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holder of Rights will be to receive the Redemption Price. The terms of the Renewed Rights Agreement and the Rights may be amended by us without the consent of the holders of the Rights, in order to cure any ambiguity, to correct or supplement any provision contained therein which may be defective or inconsistent with any other provisions contained therein, or to make any other changes or amendments to the provisions contained therein which we may deem necessary or desirable, except that from and after such time as any person becomes an Acquiring Person, no such amendment may adversely affect the interests of the holders of the Rights (other than the Acquiring Person or any affiliate or associate of the Acquiring Person). No amendment to the Renewed Rights Agreement or our Rights shall be made which changes the redemption price or the number of Series A Preferred Stock or shares of common stock for which a Right is exercisable or exchangeable. Until a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of LSB, including, without limitation, the right to vote or to receive dividends. Anti-Takeover Effects of Delaware Law, Our Some provisions of Delaware law, our Certificate of Incorporation and our Bylaws contain provisions that could make the following transactions more difficult: acquisitions of us by means of a tender offer, a proxy contest or These provisions are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us first negotiate with us. We believe that the Delaware Law Section 203 of the the transaction is approved by the board of directors before the date the interested stockholder attained that status; upon consummation of the transaction that 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; or on or after such time the business combination is approved by the board of directors and authorized at a meeting of stockholders by at leasttwo-thirds of the An interested stockholder is defined as a person who, together with any affiliates or associates of such person, beneficially owns, directly or indirectly, 15% or more of the outstanding voting shares of a Delaware corporation. The term “business combination” is broadly defined to include a broad array of transactions, including mergers, consolidations, sales or other dispositions of assets having a total value in excess of 10% of the consolidated assets of the corporation or all of the outstanding stock of the corporation, and some other transactions that would increase the Our Certificate of Incorporation and Provisions of our Among other things, our Certificate of Incorporation and provide for the provide that all vacancies, including newly created directorships, may, except as otherwise required by law or, provide that our Certificate of Incorporation and Bylaws may be amended by the provide that special meetings of our stockholders may only be called by our chairman or by a majority of the directors then in office; provide that the affirmative vote of the holders of not less thantwo-thirds of the outstanding voting stock of LSB voting as a single class shall be required for the approval or authorization of any
provide that our Bylaws can be amended by our board of directors. Limitations of Liability and Indemnification Matters Our Certificate of Incorporation limits the for any breach of their duty of loyalty to us or our stockholders; for acts or omissions not in for unlawful payment of for any transaction from which the director derived an improper personal benefit. Any amendment, repeal or modification of these provisions will be prospective only and would not affect any limitation on liability of a director for acts or omissions that occurred prior to any such amendment, repeal or modification. Our Bylaws also provide that we will indemnify our directors and officers to the The limitation of liability and indemnification provisions in our Certificate of Incorporation and Bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit us and our stockholders. A stockholder’s investment may be Transfer Agent and Registrar The transfer agent and registrar for our common stock is Computershare Limited. Listing Our common stock is listed on the MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FORNON-U.S. HOLDERS The following is a summary of This summary does not address all aspects of U.S. federal income taxation that may be relevant tonon-U.S. holders in light of their personal circumstances. In addition, this summary does not address the Medicare tax on certain investment income, U.S. federal estate or gift tax laws, any state, local ornon-U.S. tax laws or any tax treaties. This summary also does not address tax considerations applicable to investors that may be subject to special treatment under the U.S. federal income tax laws, such as: banks, insurance companies or other financial institutions; tax-exempt or governmental organizations; qualified foreign pension funds (or any dealers in securities or foreign currencies; persons whose functional currency is not the U.S. dollar; “controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to traders in securities persons subject to the alternative minimum tax; partnerships or other pass-through entities for U.S. federal income tax purposes persons deemed to sell our common stock under the constructive sale provisions of the Code; persons that acquired our common stock through the exercise of employee stock options or otherwise as compensation or through atax-qualified retirement plan; certain former citizens or long-term residents of the United States; real estate investment trusts or regulated investment companies; and persons that hold our common stock as part of a straddle, appreciated financial position, synthetic security, hedge, conversion transaction or other integrated investment or risk reduction transaction. PROSPECTIVE INVESTORS ARE ENCOURAGED TO CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATION, AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL,NON-U.S. OR OTHER TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY. Non-U.S. Holder Defined For purposes of this discussion, a“non-U.S. holder” is a beneficial owner of our common stock that is not for U.S. federal income tax purposes a partnership or any of the following: an individual who is a citizen or resident of the United States; a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the an estate the income of which is subject to a trust (i) the administration of which is subject to the primary supervision of a U.S. court and which has one or more If a partnership (including an entity or Distributions We do not expect to pay any distributions on our common stock in the Dividends paid to anon-U.S. holder that are effectively connected with a trade or business conducted by thenon-U.S. holder in the Gain on Disposition of Common Stock Subject to the discussions below under “—Backup Withholding and Information Reporting” and “—Additional Withholding Requirements under FATCA,” anon-U.S. holder generally will not be subject to U.S. federal income or withholding tax on any gain realized upon the sale or other thenon-U.S. holder is the gain is effectively connected with our common stock constitutes a United States real property interest by reason of Anon-U.S. holder described in the first bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such Anon-U.S. holder whose gain is described in the Generally, a corporation is a USRPHC if the fair market value of preceding paragraph), and a 15% withholding tax would apply to the gross proceeds from such disposition. Non-U.S. holders should consult their tax advisors with respect to the application of the foregoing rules to their ownership and disposition of our common stock. Backup Withholding and Information Reporting Any dividends paid to anon-U.S. holder must be reported annually to the IRS and to thenon-U.S. holder. Copies of these information returns may be made available to the tax authorities in the country in which thenon-U.S. holder resides or is established. Payments of dividends to anon-U.S. holder generally will not be subject to backup withholding if thenon-U.S. holder establishes an exemption by properly certifying itsnon-U.S. status on an IRSForm W-8BEN or IRSForm W-8BEN-E (or other applicable or successor form). Payments of the proceeds from a sale or other disposition by anon-U.S. holder of our common stock effected by or through a U.S. office of a broker generally will be subject to information reporting and backup withholding (at the applicable rate) unless thenon-U.S. holder establishes an exemption by properly certifying itsnon-U.S. status on an IRS FormW-8BEN or IRSForm W-8BEN-E (or other applicable or successor form) and certain other conditions are met. Information reporting and backup withholding generally will not apply to any payment of the proceeds from a sale or other disposition of our common stock effected outside the United States by anon-U.S. office of a broker. However, unless such broker has documentary evidence in its records that thenon-U.S. holder is not a United States person and certain other conditions are met, or thenon-U.S. holder otherwise establishes an exemption, information reporting will apply to a payment of the proceeds of the disposition of our common stock effected outside the United States by such a broker if it has certain relationships within the United States. Backup withholding is not an additional tax. Rather, the U.S. federal income tax liability (if any) of persons subject to backup withholding will be reduced by the amount of tax withheld. If backup withholding results in an overpayment of taxes, a refund may be obtained, provided that the required information is timely furnished to the IRS. Additional Withholding Requirements under FATCA Sections 1471 through 1474 of the Code, and the U.S. Treasury regulations and administrative guidance issued thereunder (“FATCA”), impose a 30% withholding tax on any dividends paid on our common stock and on the gross proceeds from a disposition of our common stock (if such disposition occurs after December 31, 2018), in each case if paid to a “foreign financial institution” or a“non-financial foreign entity” (each as defined in the Code) (including, in some cases, when such foreign financial institution ornon-financial foreign entity is acting as an intermediary), unless (i) in the case of INVESTORS CONSIDERING THE PURCHASE OF The selling stockholder may, The selling stockholder may ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of purchases by a broker-dealer as principal and resale by the broker-dealer for its account; an exchange distribution in accordance with the privately negotiated transactions; short sales effected after the through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; broker-dealers may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share; and a combination of any such methods of sale.
The selling stockholder may agree to indemnify an underwriter, broker-dealer or agent against certain liabilities related to the selling of its shares, including liabilities arising under the Securities Act. Under the registration rights agreement entered into with the selling stockholder, we have agreed to indemnify the selling stockholder against certain liabilities related to the sale of the common stock, including certain liabilities arising under the Securities Act. Under the registration rights agreement, we have also agreed to pay the costs, expenses and fees of registering the shares of common stock. All underwriting fees, discounts and selling commissions or similar fees or arrangements allocable to the sale of the shares of common stock will be The selling stockholder is subject to the applicable provisions of the Exchange Act, and the rules and regulations under the Exchange Act, including Regulation M. This regulation may limit the timing of purchases and sales of any of the shares of common stock offered in this prospectus To the extent required, this prospectus may be amended and/or supplemented from time to time to describe a specific plan of distribution. Instead of selling the shares of common stock under this prospectus, the selling stockholder may sell Under the We cannot assure you that the selling stockholder will sell all or any portion of our common stock offered hereby. Under the Registration Rights Agreement entered into with the selling stockholder, we agreed to
Elkins L.L.P., Dallas, Texas. Any underwriter will be advised about other issues relating to any offering by its own legal counsel. The consolidated financial statements of LSB Industries, Inc. appearing in LSB Industries, Inc.’s Annual Report WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly, current and other reports and other information with the SEC. Our SEC filings are available to the public from commercial document retrieval services and through the SEC’s website athttp://www.sec.gov. Our common stock is listed on the New York Stock Exchange under the symbol “LXU.” Our reports and other information filed with the SEC can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. We also make available free of charge on our internet website atwww.lsbindustries.com, our Annual Reports on Form10-K, our Quarterly Reports on Form10-Q, our Current Reports on Form8-K and any amendments to those reports, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Information contained on our website is not incorporated by reference into this prospectus and you should not consider information contained on our website as part of this prospectus. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE The SEC allows us to “incorporate by reference” the information we have filed with the SEC. This means we can disclose important information to you without actually including the specific information in this prospectus by referring to those documents. The information incorporated by reference is an important part of this prospectus. If information in incorporated documents conflicts with information in this prospectus, you should rely on the most recent information. If information in an incorporated document conflicts with information in another incorporated document, you should rely on the most recent incorporated document. We incorporate by reference the documents listed below. our annual report on Form10-K for the year ended December 31, 2017; our quarterly reports on Form10-Q for the quarters ended March 31, 2018, June 30, 2018 and September 30, 2018; our current reports on Form8-K filed with the SEC on March 30, 2018, April 20, 2018, April 25, 2018, May 1, 2018, May 24, 2018 and October 19, 2018; the information specifically incorporated by reference into our annual report on Form10-K for the year ended December 31, 2017, from our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 23, 2018; and the description of our common stock contained in our Registration Statement on Form8-A, filed on October 24, 2008 including any amendments or reports filed for the purpose of updating the description. All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of this offering, shall be deemed to be incorporated by reference into this prospectus. All filings filed by us pursuant to the Exchange Act after the date of the initial filing of this registration statement and prior to the effectiveness of such registration statement (excluding information furnished pursuant to Items 2.02 and 7.01 of Form8-K) shall also be deemed to be incorporated by reference into the prospectus. We will provide a copy of these filings (including certain exhibits that are specifically incorporated by reference therein) to each person, including any beneficial owner, to whom a prospectus is delivered. You may request a copy of any or all of these filings at no cost, by writing or calling us at: 3503 NW 63rd Street, Suite 500 Oklahoma City, Oklahoma 73116 (405)235-4546 Attention: Michael J. Foster mfoster@lsbindustries.com Copies of certain information filed by us with the SEC, including our annual report and quarterly reports, are also available on our website at www.lsbindustries.com. Information contained on our website or that can be accessed through our website is not incorporated by reference herein. You should read the information relating to us in this prospectus together with the information in the documents incorporated by reference. Nothing contained herein shall be deemed to incorporate information furnished to, but not filed with, the SEC. 4,069,324 Shares LSB INDUSTRIES, INC. Common Stock Prospectus , 2018 PART II INFORMATION NOT REQUIRED IN PROSPECTUS
The following table sets forth the expenses payable by the Registrant expected to be incurred in connection with the issuance and distribution of
Section Section To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section Any indemnification under subsections (a) and (b) of Section 145 of the DGCL (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 145. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. The indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. II-1 Section 145 of the DGCL also empowers a corporation The Certificate of Incorporation also contains indemnification rights for the directors and In addition, the DGCL permits the Company and its subsidiaries to purchase and maintain insurance on behalf of any person who The general effect of the
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The undersigned registrant hereby undertakes:
Provided,however , that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in
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II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933,
POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Mark T. Behrman and Michael Foster, and each of them, as his or her true and lawfulattorneys-in-fact and agents, each with the full power of substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto saidattorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary and desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all the saidattorneys-in-fact and agents, or their or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933,
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