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UnlessABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the context otherwise requires, referencesSecurities and Exchange Commission (the “Commission”), using a “shelf” registration process. Under this shelf registration process, we may offer to sell any of the securities, or any combination of the securities, described in this prospectus, in each case in one or more offerings, up to “LSB,” “the company,” “we,” “our,”a total dollar amount of $200,000,000.
This prospectus provides you only with a general description of the securities that we may offer. Each time securities are sold under the shelf registration statement, we will provide a prospectus supplement that will contain specific information about the terms of those securities and “us”the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement. You should read both this prospectus and any prospectus supplement, including all documents incorporated by reference herein and therein, together with the additional information described under “Where You Can Find More Information” below.
The information contained in this prospectus is not complete and may be changed. You should rely only on the information provided in or incorporated by reference in this prospectus or in any prospectus supplement, or documents to which we otherwise refer you. We have not authorized anyone else to LSB Industries, Inc., a Delaware corporation, and its consolidated subsidiaries.
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Noprovide you with different information.We have not authorized any dealer, agent or other person has been authorized to give any information or to make any representations in connection with this offeringrepresentation other than those contained or incorporated by reference in this prospectus and any accompanying prospectus supplement in connection with the offering described herein and therein, and, if given or made, suchsupplement. You must not rely upon any information or representations mustrepresentation 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 subsequent to the date hereof or of such prospectus supplement.
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as the SEC, utilizing a “shelf” registration process. Under this shelf registration process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings. We may offer any of the following securities: debt securities, preferred stock, common stock, and units comprised of two or more of the foregoing securities. We may also offer warrants to purchase debt securities, preferred stock or common stock.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one or more prospectus supplements that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and the accompanying prospectus supplement together with the additional information described under the heading “Where You Can Find More Information” below.
You should rely only on the information contained in or incorporated by reference in this prospectus anyor an accompanying prospectus supplement or in any related free writing prospectus filed by us with the SEC. We have not authorized anyone to provide you with different information.supplement. This prospectus and the accompanying prospectus supplement, if any, do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities described into which they relate, nor do this prospectus and the accompanying prospectus supplement, orif any, constitute an offer to sell or the solicitation of an offer to buy such securities in any circumstances in whichjurisdiction to any person to whom it is unlawful to make such offer or solicitation is unlawful.in such jurisdiction. You should not assume that the information appearing in this prospectus, any prospectus supplement and the documents incorporated by reference is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at http://www.lsb-okc.com. Our website is not a part of this prospectus. You may also read and copy any document we file at the SEC’s public reference room, 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room.
Because our common stock is listed on the New York Stock Exchange, you may also inspect reports, proxy statements and other information about us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance 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 we 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 qualified by reference to those filings. You should review the complete document to evaluate these statements.
The SEC allows us to incorporate by reference much of the information we file with them, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below (in each case, other than those documents or the
portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed:· | Annual Report on Form 10-K for the fiscal year ended December 31, 2008 filed on March 13, 2009; |
· | Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2009, filed on May 11, 2009; |
· | Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2009, filed August 6, 2009, as amended by Amendment No. 1 to Quarterly Report on Form 10-Q/A filed August 14, 2009; |
· | Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2009, filed November 5, 2009; |
· | Current Reports on Form 8-K, filed on March 19, March 24, April 17, May 11, May 13, May 20, June 29, July 8, July 20, August 7, August 26, September 16, October 9, November 4, and November 5, 2009; |
· | All our filings pursuant to the Securities Exchange Act of 1934, as amended, or the Exchange Act, after the date of filing of the initial registration statement and prior to the effectiveness of the registration statement; |
· | All documents and reports that we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus; and |
· | Description of our common stock and associated rights to purchase Series A junior participating preferred stock, which we refer to as our “Series A Preferred Stock,” contained in our Registration Statement on Form 8-A filed pursuant to Section 12(b) of the Exchange Act as filed with SEC on January 2, 2009, including any subsequent amendments or reports filed for the purpose of updating such description. |
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
LSB Industries, Inc.
16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Telephone: (405) 235-4546
Attn: Corporate Secretary
An investment in our securities involves significant risks. You should carefully consider the risk factors contained herein and in any prospectus supplement as to risks regarding securities issued hereunder, and in our filings with the SEC, also, as well as all of the information contained in this prospectus
anyand the accompanying prospectus supplement,
andif any, is accurate on any date subsequent to the
documentsdate set forth on the front of such document or that
any information we
incorporatehave incorporated by reference
is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus and any accompanying prospectus supplement is delivered or securities are sold on a later date.References in this prospectus before you decide to invest inthe terms “the Company,” “LSB,” “we,” “our” and “us” or other similar terms mean LSB Industries, Inc. and our securities. The risks discussed in this prospectus could cause our business, operating results, prospectsconsolidated subsidiaries, unless we state otherwise or financial conditionthe context indicates otherwise.
References to be harmed. This could cause“Common Stock” refer to the market price of our common stock, to decline and could cause you to lose all or part of your investment.
Cost and the lack of availability of raw materials could materially affect our profitability and liquidity.
Our sales and profits are heavily affected by the costs and availability of primary raw materials. These primary raw materials, which are purchased from unrelated third parties, are subject to considerable price volatility. Historically, when there have been rapid increases in the cost of these primary raw materials, we have sometimes been unable to timely increase our sales prices to cover allpar value $0.10 per share, of the
higher costs incurred. While we periodically enter into futures/forward contracts to economically hedge against price increases in certain of these raw materials, there can be no assurance that we will effectively manage against price fluctuations in those raw materials.Company.i
Anhydrous ammonia, natural gas and sulfur represent the primary raw material feedstocks in the production of most of the products of the Chemical Business. Although our Chemical Business has a program to enter into contracts with certain customers that provide for the pass-through of raw material costs, we have a substantial amount of sales that do not provide for the pass-through of raw material costs. In addition, the Climate Control Business depends on raw materials such as copper and steel, which have shown considerable price volatility. As a result, in the future, we may not be able to pass along to all of our customers the full amount of any increases in raw material costs. There can be no assurance that future price fluctuations in our raw materials will not have an adverse effect on our financial condition, liquidity and results of operations.
Additionally, we depend on certain vendors to deliver the primary raw materials and other key components that are required in the production of our products. Any disruption in the supply of the primary raw materials and other key components could result in lost production or delayed shipments. We have suspended in the past, and could suspend in the future, production at our chemical facilities due to, among other things, the high cost or lack of availability of such primary raw materials. Accordingly, our financial condition, liquidity and results of operations could be materially affected in the future by the lack of availability of primary raw materials and other key components.
Our Climate Control and Chemical Businesses and their customers are sensitive to adverse economic cycles.
Our Climate Control Business can be affected by cyclical factors, such as interest rates, inflation and economic downturns. Our Climate Control Business depends on sales to customers in the construction and renovation industries, which are particularly sensitive to these factors. Due to the current recession, we have experienced and expect to continue to experience a decline in both commercial and residential construction. A decline in the economic activity in the United States has in the past, and could in the future, have a material adverse effect on us and our customers in the construction and renovation industries in which our Climate Control Business sells a substantial amount of its products. Such a decline could result in a decrease in revenues and profits, and an increase in bad debts, in our Climate Control Business and could have a material adverse effect on our operating results, financial condition and liquidity.
Our Chemical Business also can be affected by cyclical factors such as inflation, global energy policy and costs, global market conditions and economic downturns in specific industries. Certain sales of our Chemical Business are sensitive to the level of activity in the agricultural, mining, automotive and housing industries. Certain of our industrial and mining customers have been affected and we expect will continue to be affected by the current economic recession and could substantially reduce their purchases. A substantial decline in the activity of our Chemical Business has in the past, and could in the future, have a material adverse effect on the results of our Chemical Business and on our liquidity and capital resources.Weather conditions adversely affect our Chemical Business.
The agricultural products produced and sold by our Chemical Business have in the past, and could in the future, be materially affected by adverse weather conditions (such as excessive rains or drought) in the primary markets for our fertilizer and related agricultural products. If any of these unusual weather events occur during the primary seasons for sales of our agricultural products (March-June and September-November), this could have a material adverse effect on the agricultural sales of our Chemical Business and our financial condition and results of operation.
Environmental and regulatory matters entail significant risk for us.
Our Chemical Business is subject to numerous environmental laws and regulations. The manufacture and distribution of chemical products are activities, which entail environmental risks and impose obligations under environmental laws and regulations, many of which provide for substantial fines and potential criminal sanctions for violations. Although we have established processes to monitor, review and manage our businesses to comply with the numerous environmental laws and regulations, our Chemical Business has in the past, and may in the future, be subject to fines, penalties and sanctions for violations and substantial expenditures for cleanup costs and other liabilities relating to the handling, manufacture, use, emission, discharge or disposal of effluents at or from the Chemical Business’ facilities. Further, a number of our Chemical Business’ facilities are dependent on environmental permits to operate, the loss or modification of which could have a material adverse effect on their operations and our financial condition.
We may be required to expand our security procedures and install additional security equipment for our Chemical Business in order to comply with current and possible future government regulations, including the Homeland Security Act of 2002.
The chemical industry in general, and producers and distributors of anhydrous ammonia and ammonium nitrate (“AN”) specifically, are scrutinized by the government, industry and public on security issues. Under current and proposed regulations, including the Homeland Security Act of 2002, we may be required to incur substantial additional costs relating to security at our chemical facilities and distribution centers, as well as in the transportation of our products. These costs could have a material impact on our financial condition, results of operations, and liquidity. The cost of such regulatory changes, if significant enough, could lead some of our customers to choose alternate products to anhydrous ammonia and AN, which would have a significant impact on our Chemical Business.
Proposed governmental laws and regulations relating to green house gas emissions may subject certain of our Chemical Business’ facilities to significant new costs and restrictions on their operations.
Certain of the manufacturing facilities within our Chemical Business use significant amounts of electricity, natural gas and other raw materials necessary for the production of their chemical products that result, or could result, in certain green house gas emissions into the environment. Federal and state courts and administrative agencies are considering the scope and scale of green house gas emission regulation. There are bills pending in Congress that would regulate green house gas emissions through a cap-and-trade system under which emitters would be required to buy allowances for offsets of emissions of green house gas. In addition, several states are considering various green house gas registration and reduction programs. Green house gas regulation could increase the price of the electricity purchased by these chemical facilities and increase costs for our use of natural gas, other raw materials (such as anhydrous ammonia), and other energy sources, potentially restrict access to or the use of natural gas and certain other raw materials necessary to produce certain of our chemical products and require us to incur substantial expenditures to retrofit these chemical facilities to comply with the proposed new laws and regulations regulating green house gas emissions, if adopted. Federal, state and local governments may also pass laws mandating the use of alternative energy sources, such as wind power and solar energy, which may increase the cost of energy use in certain of our chemical and other manufacturing operations. While future emission regulations or new laws appear likely, it is too early to predict how these regulations, if and when adopted, will affect our businesses, operations, liquidity or financial results.A substantial portion of our sales is dependent upon a limited number of customers.
During 2008 and the nine months ended September 30, 2009, five customers of our Chemical Business accounted for 51% and 41%, respectively, of its net sales and 29% and 20%, respectively, of our consolidated sales, and our Climate Control Business had one customer that accounted for 18% and 20%, respectively, of its net sales and 7% and 10%, respectively, of our consolidated sales. The loss of, or a material reduction in purchase levels by, one or more of these customers could have a material adverse effect on our business and our results of operations, financial condition and liquidity if we are unable to replace a customer on substantially similar terms.
There is intense competition in the Climate Control and Chemical industries.
Substantially all of the markets in which we participate are highly competitive with respect to product quality, price, design innovations, distribution, service, warranties, reliability and efficiency. We compete with a number of established companies that have greater financial, marketing and other resources. Competitive factors could require us to reduce prices or increase spending on product development, marketing and sales that would have a material adverse effect on our business, results of operation and financial condition.
Potential increase of imported ammonium nitrate from Russia
In 2000, the United States and Russia entered into a suspension agreement limiting the quantity of, and setting the minimum prices for, fertilizer grade AN sold from Russia into the United States.
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.
For 2008, net sales of fertilizer grade AN accounted for 18% and 10% of our Chemical Business net sales and consolidated net sales, respectively. If the suspension agreement is changed, as discussed above, this change could result in Russia substantially increasing the amount of AN sold in the United States at prices less than the U.S. producers are required to charge in order to cover their cost plus a profit, and could have an adverse effect on our revenues and operating results.
Potential increase of imported urea ammonium nitrate (UAN)
A large percentage of the domestic UAN market is supplied by imports. Significant additional UAN production in the Caribbean is expected to begin in 2010, and such UAN production is expected to be marketed in the United States. This increased foreign production of UAN is expected to have a lower cost of production than UAN produced in the United States, and could have an adverse impact on the domestic UAN market, and the domestic fertilizer market in general, including the UAN and fertilizer markets of our Chemical Business, by increasing supply and possibly reducing prices.
We are effectively controlled by the Golsen Group.
Jack E. Golsen, our Chairman of the Board and Chief Executive Officer (“CEO”), members of his immediate family (spouse and children), including Barry H. Golsen, our Vice Chairman and President, entities owned by them and trusts for which they possess voting or dispositive power as trustee (collectively, the “Golsen Group”) beneficially owned as of November 10, 2009, an aggregate of 3,594,843 shares of our common stock and 1,020,000 shares of our voting preferred stock (1,000,000 of which shares have .875 votes per share, or 875,000 votes), which together votes as a class and represent approximately 20.3% of the voting power of our issued and outstanding voting securities as of that date. In addition, the Golsen Group also beneficially owned options and other convertible securities that allowed its members to acquire an additional 208,500 shares of our common stock within 60 days of November 10, 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.
Loss of key personnel could negatively affect our business.
We believe that our performance has been and will continue to be dependent upon the efforts of our principal executive officers. We cannot promise you that our principal executive officers will continue to be available. Jack E. Golsen has an employment agreement with us. No other principal executive has an employment agreement with us. The loss of some of our principal executive officers could have a material adverse effect on us. We believe that our future success will depend in large part on our continued ability to attract and retain highly skilled and qualified personnel.
We may have inadequate insurance.
While we maintain liability insurance, including certain coverage for environmental contamination, it is subject to coverage limits and policies may exclude coverage for some types of damages (which may include warranty and product liability claims). Although there may currently be sources from which such coverage may be obtained, it may not continue to be available to us on commercially reasonable terms or the possible types of liabilities that may be incurred by us may not be covered by our insurance. In addition, our insurance carriers may not be able to meet their obligations under the policies or the dollar amount of the liabilities may exceed our policy limits. Even a partially uninsured claim, if successful and of significant magnitude, could have a material adverse effect on our business, results of operations, financial condition and liquidity.
Many of our insurance policies are written by Chartis, Inc., a subsidiary AIG, and AIG has experienced and is continuing to experience financial difficulties.
It has been publicly reported that American International Group, Inc. (“AIG”) has experienced significant financial difficulties and is continuing to experience significant financial difficulties. AIG is a holding company for several different subsidiary insurance companies, which are now known as Chartis, Inc. Chartis provides many of our casualty, workers compensation and other insurance policies, including, but not limited to, our general liability policy, which includes certain pollution coverage, excess umbrella policy, and officer and director liability policy covering us and our officers and directors against certain securities’ law claims. We are currently involved in certain legal proceedings in which a subsidiary of AIG has agreed to defend and to indemnify us and our subsidiaries against loss under a reservation of rights, including one matter involving one of our executive officers. In the event of a failure of AIG and/or its subsidiaries, it is unknown whether AIG or the applicable subsidiary that is the insurer under our policies or the applicable regulatory authorities can comply with the insurer’s obligations under our policies. Further, in the event of a failure by AIG and/or its subsidiaries, we could be required to replace these policies. If it becomes necessary to replace the policies written by Chartis, it may difficult or impossible to replace these policies or, if we can replace these policies, to replace them on substantially similar terms as our existing insurance policies.
We have not paid dividends on our outstanding common stock in many years.
Although we have paid dividends on our outstanding series of preferred stock (two of the three outstanding series of preferred stock are owned by the Golsen Group), we have not paid cash dividends on our outstanding common stock in many years, and we do not currently anticipate paying cash dividends on our outstanding common stock. However, our board of directors has not made a decision whether or not to pay such dividends in 2009.
Terrorist attacks and other acts of violence or war, and natural disasters (such as hurricanes, pandemic health crisis, etc.), have and could negatively impact the U.S. and foreign companies, the financial markets, the industries where we operate, our operations and profitability.
Terrorist attacks and natural disasters (such as hurricanes) have in the past, and can in the future, negatively affect our operations. We cannot predict further terrorist attacks and natural disasters in the United States and elsewhere. These attacks or natural disasters have contributed to economic instability in the United States and elsewhere, and further acts of terrorism, violence, war or natural disasters could further affect the industries where we operate, our ability to purchase raw materials, our business, results of operations and financial condition. In addition, terrorist attacks and natural disasters may directly impact our physical facilities, especially our chemical facilities, or those of our suppliers or customers and could impact our sales, our production capability and our ability to deliver products to our customers. In the past, hurricanes affecting the Gulf Coast of the United States have negatively impacted our operations and those of our customers. The consequences of any terrorist attacks or hostilities or natural disasters are unpredictable, and we may not be able to foresee events that could have an adverse effect on our operations.
We are a holding company and depend, in large part, on receiving funds from our subsidiaries to fund our indebtedness.
Because we are a holding company and operations are conducted through our subsidiaries, principally ThermaClime, Inc. (“ThermaClime”) and its subsidiaries, our ability to make scheduled payments of principal and interest on our indebtedness depends, in large part, on the operating performance and cash flows of our subsidiaries and the ability of our subsidiaries to make distributions and pay dividends to us. Under its loan agreements, ThermaClime and its subsidiaries may only make distributions and pay dividends to us under limited circumstances and in limited amounts.
Our net operating loss carryforwards are subject to certain limitations and examination.
We had generated significant net operating loss (“NOL”) carryforwards from certain historical losses. As of December 31, 2008, we have utilized all of the remaining federal NOL carryforwards and a portion of our state NOL carryforwards. The utilization of these NOL carryforwards has reduced our income tax liabilities. The federal tax returns for 1994 through 2004 remain subject to examination for the purpose of determining the amount of remaining tax NOL and other carryforwards. With few exceptions, the 2006-2008 years remain open for all purposes of examination by the IRS and other major tax jurisdictions.
Future issuance or potential issuance of our common stock could adversely affect the price of our common stock, our ability to raise funds in new stock offerings and dilute your percentage interest in our common stock.
Future sales of substantial amounts of our common stock or equity-related securities in the public market, or the perception that such sales could occur, could adversely affect prevailing trading prices of our common stock and could impair our ability to raise capital through future offerings of equity or equity-related securities. No prediction can be made as to the effect, if any, that future sales of shares of common stock or the availability of shares of common stock for future sale will have on the trading price of our common stock. Such future sales could also significantly reduce the percentage ownership of our existing common stockholders.
We are subject to a variety of factors that could discourage other parties from attempting to acquire us.
Our certificate of incorporation provides for a staggered board of directors and, except in limited circumstances, a two-thirds vote of outstanding voting shares to approve a merger, consolidation or sale of all, or substantially all, of our assets. In addition, we have entered into severance agreements with our executive officers and some of the executive officers of our subsidiaries that provide, among other things, that if, within a specified period of time after the occurrence of a change in control of our company, these officers are terminated, other than for cause, or the officer terminates his employment for good reason, we must pay such officer an amount equal to 2.9 times the officer’s average annual gross salary for the last five years preceding the change in control.
We have authorized and unissued (including shares held in treasury) 53,742,792 shares of common stock and 4,229,490 shares of preferred stock as of November 10, 2009. These unissued shares could be used by our management to make it more difficult, and thereby discourage an attempt to acquire control of us.
We have adopted a preferred share purchase plan, which is designed to protect us against certain creeping acquisitions, open market purchases and certain mergers and other combinations with acquiring companies.
The foregoing provisions and agreements are designed to discourage a third party tender offer, proxy contest, or other attempts to acquire control of us and could have the effect of making it more difficult to remove incumbent management.
Delaware has adopted an anti-takeover law which, among other things, will delay for three years business combinations with acquirers of 15% or more of the outstanding voting stock of publicly-held companies (such as us), unless;· | prior to such time the board of directors of the corporation approved the business combination that results in the stockholder becoming an invested stockholder; |
· | the acquirer owned at least 85% of the outstanding voting stock of such company prior to commencement of the transaction; |
· | two-thirds of the stockholders, other than the acquirer, vote to approve the business combination after approval thereof by the board of directors; or |
· | the stockholders of the corporation amends its articles of incorporation or by-laws electing not to be governed by this provision. |
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 Form 10-K for the year ended December 31, 2008 (“Form 10-K”)2020, and in our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2009,2020, June 30, 2009 (as amended by Amendment No. 1 to Form 10-Q/A, filed August 14, 2009),2020 and September 30, 2009 (collectively, “Forms 10-Q”)2021 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 Form 10-K and Forms 10-QForm 10-Qs and other filings with the SEC and incorporated into this prospectus by reference:
· | decline in general economic conditions, both domestic and foreign, |
· | material reduction in revenues, |
· | material changes in interest rates, |
· | ability to collect in a timely manner a material amount of receivables, |
· | increased competitive pressures, |
· | changes in federal, state and local laws and regulations, especially environmental regulations, or in interpretation of such, pending, |
· | additional releases (particularly air emissions) into the environment, |
· | material increases in equipment, maintenance, operating or labor costs not presently anticipated by us, |
· | the requirement to use internally generated funds for purposes not presently anticipated, |
· | the inability to pay or secure additional financing for planned capital expenditures, |
· | material changes in the cost of certain precious metals, anhydrous ammonia, natural gas, copper and steel, |
· | changes in competition, |
· | the loss of any significant customer, |
· | changes in operating strategy or development plans, |
· | inability to fund the working capital and expansion of our businesses, |
· | changes in the production efficiency of our facilities, |
· | adverse results in any of our pending litigation, |
· | modifications to or termination of the suspension agreement between the United States and Russia, |
· | activating operations at the Pryor Facility, |
· | inability to obtain necessary raw materials, and |
· | other factors described under “Risk Factors” in this prospectus and in the other documents we have filed with the SEC and that are incorporated herein by reference, including, without limitation, the factors described under “Business,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and elsewhere in our Form 10-K and Forms 10-Q and that may be discussed from time to time in other reports filed with the SEC subsequent to the registration statement of which this prospectus is a part. |
Therefore, actualreference.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 Form 10-K and Forms 10-Q,Form 10-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.
ii
THE COMPANY
Company Overview
LSB INDUSTRIES, INC.
LSB Industries, Inc. was formedmanufactures and sells chemical products for the agricultural, mining, and industrial markets. The Company owns and operates facilities in 1968 as an Oklahoma corporation, and became a Delaware corporation in 1977. We are a manufacturing, marketing and engineering company, operating through our subsidiaries. Our wholly-owned subsidiary, ThermaClime, through its subsidiaries, owns a substantial portion of our following core businesses:
· | Climate Control Business manufactures and sells a broad range of air conditioning and heating products in the niche markets we serve consisting of geothermal and water source heat pumps, hydronic fan coils, large custom air handlers and other related products used to control the environment in commercial and residential new building construction, renovation of existing buildings and replacement of existing systems. |
· | Chemical Business manufactures and sells nitrogen based chemical products produced from four plants located in Arkansas,Cherokee, Alabama, Texas and Oklahoma for the industrial, mining and agricultural markets. Our products include industrial and fertilizer grade ammonium nitrate, urea ammonium nitrate, nitric acid in various concentrations, nitrogen solutions and various other products. |
We believe our Climate Control Business has developed leadership positions in certain niche markets 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 line of geothermal and water source heat pumps and hydronic fan coils in the United States. Further, we believe that we were a pioneer in the use of geothermal technology in the climate control industry and have used it to create what we believe to be the most energy efficient climate control systems commercially available today. We employ highly flexible production capabilities that allow us to custom design units for new construction as well as the retrofit and replacement markets.Our Chemical Business has four chemical production facilities located in El Dorado, Arkansas, Cherokee, Alabama Baytown, Texas and Pryor, Oklahoma. OurOklahoma, and operates a facility for Covestro LLC in Baytown, Texas. LSB’s products include industrialare sold through distributors and fertilizer grade ammonium nitrate (“AN”), urea ammonium nitrate (“UAN”), nitric acid in various concentrations, nitrogen solutionsdirectly to end customers throughout the United States and various other products. Our Chemical Business is a supplier to someparts of the world’s leading chemicalMexico and industrial companies. By focusing on specific geographic areas, we have developed freight and distribution advantages over many of our competitors, and we believe our Chemical Business has established leading regional market positions, a key element in the success of this business.
Canada.Corporate Information
Our common stock is listed on the New York Stock Exchange under the ticker symbol “LXU.” Our principal executive offices are located at 16 South Pennsylvania,3503 NW 63rd Street, Suite 500, Oklahoma City, Oklahoma 73107,73116, and our telephone number is (405) 235-4546.
We purchased an aggregate website address is www.lsbindustries.com. Neither our website nor any information contained on our website is part of 243,600 sharesthis prospectus.
RISK FACTORS
Investing in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our common stock on November 6, 9, and 10, 2009. The aggregate purchase price was approximately $2,827,430, representing an average purchase price of approximately $11.607 per share. The shares were purchased on the open market in accordance with Rule 10b-18securities will contain a discussion of the Securities Exchange Act of 1934, as amended, and pursuantrisks applicable to an investment in our stock repurchase plan (the “Repurchase Plan”), which was adopted bysecurities. Prior to making a decision about investing in our Board of Directors on March 11, 2008. The purchase price was funded out of our working capital. The Repurchase Plan authorizes us to buy an unstipulated number of shares of our common stocksecurities, you should carefully consider the specific factors discussed under the heading “Risk Factors” in open market and privately negotiated transactions for an indefinite period of time. The Repurchase Plan is to remain in effect until such time as the Board of Directors decide to end it.
The following table sets forth our ratios of earnings to fixed charges and combined fixed charges and preferred stock dividends for 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 representativeapplicable prospectus supplement, together with all of the interest factor. “Preferred stock dividends” consist of the amount of pre-tax earnings required to pay dividends on our preferred stock. A detailed computation table can be found in Exhibit 12 to this registration statement.
| Nine
Months
Ended
September 30,
2009
| | Nine
Months
Ended
September 30,
2008
| | Year Ended |
December 31,
2008
| | December 31,
2007
| | December 31,
2006
| | December 31,
2005
| | December 31,
2004
|
Ratio of earnings to fixed charges | 6.5:1 | | 6.7:1 | | 5.6:1 | | 4.1:1 | | 2.0:1 | | 1.4:1 | | 1.0:1 |
| | | | | | | | | | | | | |
Ratio of earnings to combined fixed charges and preferred stock dividends(1)
| 6.0:1
| | 6.4:1
| | 5.4:1
| | 3.0:1
| | 1.7:1
| | 1.2:1
| | –
|
| | | | | | | | | | | | | |
(1) | Earnings were insufficient to cover fixed charges and preferred stock dividends by $1,995,000 for the year ended December 31, 2004. |
The earnings and fixed chargesother information contained or incorporated by reference in the above ratiosprospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under the heading “Risk Factors” in our most recent Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q and other documents that we file with the Commission, which are calculated usingincorporated herein by reference as described in this prospectus under the definitionsheading “Where You Can Find More Information”. The risks and uncertainties we have described in such documents are not the only risks that we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations.
USE OF PROCEEDS
Unless otherwise set forth by Regulation S-K under the Securities Act of 1933.
Wein an applicable prospectus supplement, we intend to use the net proceeds from the sale of theany offering of securities sold by us for general corporate purposes, unless otherwise indicatedwhich may include repayment of debt, capital expenditures, working capital, acquisitions and investments. Subject to compliance with our contractual obligations, we will have significant discretion in the applicable prospectus supplement. General corporate purposes may include theacquisition of companies or businesses, repayment and refinancing of debt, working capital and capital expenditures. We may temporarily invest theany net proceeds. The net proceeds may be invested temporarily in investment-grade,interest-bearing accounts and short-term 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 allocation of the net proceeds.
We, directly or through agents, dealers or underwriters designated from time to time, may offer, issue and sell, together or separately, up to $200,000,000 in aggregate offering price of:
· | shares of our common stock, par value $0.10 per share, in one or more classes; |
· | shares of our preferred stock, par value $100 per share, or Class C Preferred Stock, no par value per share, each in one or more classes or series; |
· | secured or unsecured debt securities, in one or more series, which may be either senior debt securities or subordinated debt securities; |
· | warrants to purchase our debt securities or common or preferred stock; or |
· | any combination of the foregoing, either individually or as units consisting of one or more of the foregoing, each on terms to be determined at the time of sale. |
We may issue the debt securities as exchangeable and/or convertible debt securities exchangeable for or convertible into shares of common stock or preferred stock. The preferred stock may also be exchangeable for and/or convertible into shares of common stock or another series of preferred stock. When a particular series of securities is offered, the prospectus supplement relating to that offering will set forth our intended use of the net proceeds received from the sale of those securities.
DIVIDEND POLICY
We do not currently intend to pay dividends on our common stock. Any future determination to declare cash dividends will be made at the discretion of our board of directors, subject to applicable laws, and will depend on a number of factors, including our financial condition, results of operations, capital requirements, contractual restrictions, general business conditions and other factors that our board of directors may deem relevant.
As disclosed in Note 1 in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2021 (“September 30, 2021 Form 10-Q”), in August 2021, our board of directors declared a common stock dividend (“Special Dividend”) contingent on the closing of the Exchange Transaction (as discussed in Note 2 in our September 30, 2021 Form 10-Q). As a result of the stockholders’ approval and the closing of the Exchange Transaction, such Special Dividend was effected in the form of a stock dividend of 0.3 shares of our common stock, for each outstanding share of common stock (exclusive of common stock held in the treasury and the common shares issued as part of the Exchange Transaction), but the Special Dividend was contingent upon the stockholders’ approval of the proposals. As the result of the stockholders’ approval, the Special Dividend was paid through the issuance of approximately 9.1 million shares of common stock on October 8, 2021 to holders of record of common stock, including certain stock-based awards, on September 24, 2021 (the “Record Date”).
For financial reporting purposes, the Special Dividend was accounted for as a stock split in the form of a stock dividend. As a result, the following per share information disclosed in Note 2 in our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021 and June 30, 2021 and Item 6 – Selected Financial Data in our Annual Report on Form 10-K for the year ended December 31, 2020 has been retroactively adjusted to reflect the Special Dividend.
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | Three Months Ended | | | Three Months Ended | | | Six Months Ended | |
| | | March 31, | | | June 30, | | | June 30, | |
| | | 2021 | | | 2020 | | | 2021 | | | 2020 | | | 2021 | | | 2020 | |
Income (loss) per common share attributable to common stockholders: | | | | | | | | | | | | | | | | | | | | | | | | |
Basic: Net income (loss) | | $ | (0.63 | ) | | $ | (0.77 | ) | | $ | 0.34 | | | $ | (0.26 | ) | | $ | (0.28 | ) | | $ | (1.04 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | |
Diluted: Net income (loss) | | $ | (0.63 | ) | | $ | (0.77 | ) | | $ | 0.32 | | | $ | (0.26 | ) | | $ | (0.28 | ) | | $ | (1.04 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | |
| | | Year ended December 31, | |
| | | 2020 | | | 2019 | | | 2018 | | | 2017 | | | 2016 | |
Income (loss) per common share attributable to common stockholders: | | | | | | | | | | | | | | | | | | | | |
Basic and diluted: | | | | | | | | | | | | | | | | | | | | |
Loss from continuing operations | | $ | (2.71 | ) | | $ | (2.65 | ) | | $ | (2.87 | ) | | $ | (1.71 | ) | | $ | (4.06 | ) |
Income from discontinued operations, net of taxes | | | — | | | | — | | | | — | | | | 0.03 | | | | 6.02 | |
| | | | | | | | | | | | | | | | | | | | |
Net income (loss) | | $ | (2.71 | ) | | $ | (2.65 | ) | | $ | (2.87 | ) | | $ | (1.68 | ) | | $ | 1.96 | |
| | | | | | | | | | | | | | | | | | | | |
PLAN OF DISTRIBUTION
Our Plan of Distribution
We may sell the securities, from time to time, to or through underwriters or dealers, through agents or remarketing firms, or directly to one or more purchasers pursuant to:
underwritten public offerings;
“at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, into an existing trading market, at prevailing market prices; or
through a combination of these methods.
We may sell the securities to or through one or more underwriters or dealers (acting as principal or agent), through agents, or directly to one or more purchasers.
We may distribute securities from time to time in one or more transactions:
at a fixed price or prices, which may be changed;
at market prices prevailing at the time of sale;
at prices related to such prevailing market prices; or
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities, including, to the extent applicable:
the name or names of the underwriters, dealers or agents, if any;
if the securities are to be offered through the selling efforts of brokers or dealers, the plan of distribution and the terms of any agreement, arrangement, or understanding entered into with broker(s) or dealer(s) prior to the effective date of the registration statement, and, if known, the identity of any broker(s) or dealer(s) who will participate in the offering and the amount to be offered through each;
the purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale;
if any of the securities being registered are to be offered otherwise than for cash, the general purposes of the distribution, the basis upon which the securities are to be offered, the amount of compensation and other expenses of distribution, and by whom they are to be borne;
any delayed delivery arrangements;
any over-allotment or other options under which underwriters may purchase additional securities from us;
any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
any public offering price;
any discounts, commissions or concessions allowed or reallowed or paid to dealers;
the identity and relationships of any finders, if applicable; and
any securities exchange or market on which the securities may be listed.
Only underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Unless otherwise indicated in the prospectus supplement, subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters, dealers or agents with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, dealer or agent, the nature of any such relationship.
We may use a remarketing firm to offer the securities in connection with a remarketing arrangement upon their purchase. Remarketing firms would act as principals for their own account or as agents for us. These remarketing firms would offer or sell the securities pursuant to the terms of the securities. A prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with us and would describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection the securities they remarket.
If we offer and sell securities through a dealer, we or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. The name of the dealer and the terms of the transaction would be set forth in the applicable prospectus supplement.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions payable to the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, the agent will act on a best-efforts basis for the period of its appointment.
Dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts. If such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act.
We may sell securities directly to one or more purchasers without using underwriters or agents. Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act, and any discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act.
We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
We may provide agents, underwriters and dealers with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents, underwriters or dealers may make with respect to these liabilities. Agents, underwriters and dealers, or their respective affiliates, may engage in transactions with, or perform services for, us in the ordinary course of business.
Any securities we offer may be new issues of securities and may have no established trading market. The securities may or may not be listed on a securities exchange. Underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We can make no assurance as to the liquidity of, or the existence of trading markets for, any of the securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
GENERAL DESCRIPTION OF SECURITIES
We may offer and sell, at any time and from time to time, subject to applicable law:
Debt securities, including convertible debt securities, consisting of debentures, notes or other evidences of indebtedness;
Warrants to purchase our shares of Common Stock, preferred shares or debt securities;
Units consisting of a combination of the foregoing securities; or
Any combination of these securities.
The terms of any securities we offer will be determined at the time of sale. We may issue debt securities that are exchangeable for or convertible into shares of Common Stock or any of the other securities that may be sold under this prospectus. When particular securities are offered, a supplement to this prospectus will be deliveredfiled with this prospectus,the Commission, which will set forthdescribe the terms of the offering and sale of the offered securities.
DESCRIPTION OF CAPITAL STOCK
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(ourBylaws, as amended (our “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.
While the terms we have summarized below will apply generally to any future common stock and preferred stock that we may offer, we will describe the particular terms of any series of these securities in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any security we offer under that prospectus supplement may differ from the terms we describe below.
Our authorized capital stock consists of
150,000,000 shares of common stock, $0.10 par value per share;
250,000 shares of preferred stock, $100 par value per share (“Preferred Stock”); and
· | 75,000,000 shares of common stock, $.10 par value per share; |
5,000,000 shares of Class C Preferred Stock, no par value (“Class C Preferred Stock”).
· | 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”). |
On November 10, 2009, 21,257,208October 27, 2021, 88,824,475 shares of our common stock were issued and outstanding, excluding 4,111,0621,017,823 shares held in treasury. All outstanding shares of our common stock will, when issued, beare duly authorized, fully paid and nonassessable.
Dividends.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.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.
Rights. For all matters submitted to a vote of stockholders, each holder of our common stock is entitled to one vote for each share registered in the holder’s name. Holders of our common stock vote together as a single class. There is no cumulative voting in the election of our directors, which means that, subject to any rights to elect directors that are granted to the holders of any class or series of preferred stock, a pluralitymajority of the votes cast at a meeting of stockholders at which a quorum is present is sufficient to elect a director.Other Rights and Restrictions.
Restrictions. Subject to the preferential rights of any other class or series of stock, all shares of our common stock have equal dividend, distribution, liquidation and other rights, and have no preference, appraisal or exchange rights, except for any appraisal rights provided by Delaware law. Furthermore, holders of our common stock have no conversion, sinking fund or redemption rights, or preemptive rights to subscribe for any of our securities. Our Certificate of Incorporation and Bylaws do not restrict the ability of a holder of our common stock to transfer the holder’s shares of our common stock.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.Listing. Our common stock is listed on the New York Stock Exchange under the symbol “LXU.”
Transfer Agent and Registrar.
Registrar. The transfer agent for our common stock is Computershare.Computershare Limited.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 November 10, 2009,October 27, 2021, 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;
· | 4,662 shares of our convertible, noncumulative preferred stock, $100 par value (“Noncumulative Preferred”), of which 510.5 shares are issued and outstanding; |
139,768 shares of our Series E-1 14% cumulative, redeemable Class C preferred stock, no par value (“Series E-1 Preferred”), of which no shares are issued and outstanding; and
1 share of our Series F-1 redeemable Class C preferred stock, no par value (“Series F-1 Preferred”), of which no shares are issued and outstanding.
· | 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; and |
· | 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. |
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 November 10, 2009,October 27, 2021, we had outstanding the following series of Preferred Stock and Class C Preferred Stock:
Noncumulative Preferred, par value $100. Each outstanding share of Noncumulative Preferred:
· | is entitled to receive noncumulative cash dividends, when and as declared by our board of directors, at the rate of 10% per year of the par value; |
· | is entitled to one vote for each outstanding share (or one-half of one vote for each fractional one-half share) on all matters submitted to a vote of the shareholders and votes together with the common stock and each series of voting preferred stock as a single class or as otherwise required by law; |
· | is convertible, at anytime and at the option of the holder, into 40 shares of our common stock (or each fractional one-half share is convertible into 20 shares of our common stock), subject to adjustment under certain conditions; |
· | is redeemable by us at par value (or each fractional one-half share at one-half of the par value) at the option of the holder to the extent we earn net income (as determined under generally accepted accounting principles) after all debt owed by us to our senior lenders (as defined) has been paid in full; |
· | is redeemable by us, in whole or in part, by paying the holders in cash the par value (one-half of par value for a fractional share); and |
· | in the event of our liquidation or dissolution, will be entitled to be paid the par value (for each fractional share, one-half of par value) to the extent funds are available before any payment is made to the holders of our common stock, but will not be entitled to participate any further in our assets. |
Series B Preferred, par value $100.
All of the Series B Preferred shares are owned by the Golsen Group.$100. Each share of the Series B Preferred: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 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 convertible, at any time and at the option of the holder, into 43.3333 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.
· | 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
. All outstanding shares of Series D Preferred are owned by the Golsen Group. Each outstanding share of Series D Preferred: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;
· | has a liquidation preference of $1.00 per share; |
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 one share of Series D Preferred into 0.325 share of our common stock, subject to adjustment under certain conditions;
· | 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; |
Tablein the event of Contents
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; andthere shall be no mandatory or optional redemption of these shares.
· | 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. |
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 applicable prospectus supplement will describe the terms of any series of preferred stock being offered, including:
· | the number of shares and designation or title of the shares; |
· | any liquidation preference per share; |
· | any redemption, repayment or sinking fund provisions; |
· | any dividend rate or rates payable with respect to the shares; |
· | the terms and conditions upon which the preferred stock is convertible or exchangeable, if it is convertible or exchangeable; |
· | any conditions or restrictions on the creation of indebtedness by us or upon the issuance of any additional stock; and |
· | any additional preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications, or terms or conditions of redemption. |
All shares of preferred stock offered will, when issued against payment of the consideration payable therefor, be fully paid and non-assessable.
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 Restated Bylaws and debt agreements. The applicable prospectus supplement may also contain a summary of selected provisions of our preferred stock, common stock and debt agreements. To the extent that any particular provision described in a prospectus supplement differs from any of the provisions described in this prospectus, then the provisions described in this prospectus will be deemed to have been superseded by that prospectus supplement.
Preferred Share Rights Plan
On December 2, 2008, we entered intoAnti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Our Bylaws
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 Renewed Rights Agreementtender offer, a proxy contest or otherwise or removal of our incumbent officers and directors. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
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 to first negotiate with UMB Bank, n.a., as Rights Agent (“Renewed Rights Agreement”) providingus. We believe that the benefits of increased protection and our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
Delaware Law
Section 203 of the DGCL prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a new preferred share rights plan, which renewed and amended our then existing preferred share rights plan (the “Terminating Plan”),period of three years following the date that expired as of January 5, 2009. The Renewed Rights Agreementthe stockholder became effective on January 5, 2009, upon termination of an interested stockholder, unless:
the Terminating Plan. Pursuant totransaction is approved by the Renewed Rights Agreement, our board of directors declared a dividend distribution of one Right for each
outstanding share of our common stock to stockholders of record on January 5, 2009 (the “Record Date”). The Renewed Rights Agreement also contemplatesbefore the issuance of one Right for each share of common stock which is issued by us betweendate the Record Date and the Distribution Date (or earlier redemption or terminationinterested stockholder attained that status;
upon consummation of the Rights).
Each Right entitlestransaction that resulted in the registered holder to purchase from us one one-hundredth of a share of our Series A Preferred Stock,stockholder becoming an interested stockholder, the interested stockholder owned at an initial purchase price of $47.75 per one-one hundredth of a Preferred Share (the “Purchase Price”), subject to adjustment. The descriptionleast 85% of the Rightsvoting stock of the corporation outstanding at the time the transaction commenced; or
on or after such time the business combination is set forth inapproved by the Renewed Rights Agreement.
Untilboard of directors and authorized at a meeting of stockholders by at least two-thirds of the earlier of (i) 10 days following a public announcementoutstanding voting stock that is not owned by the interested stockholder.
An interested stockholder is defined as a person who, together with any affiliates or groupassociates of affiliatedsuch person, beneficially owns, directly or associated persons (an “Acquiring Person”) have acquired beneficial ownership ofindirectly, 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 interested stockholder’s proportionate share ownership in the corporation.
Our Certificate of Incorporation and Our Bylaws
Provisions of our outstandingCertificate of Incorporation and our Bylaws may delay or discourage transactions involving an actual or potential change in control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock.
Among other things, our Certificate of Incorporation and Bylaws:
provide for the division of the Board into three classes, each class consisting as nearly as possible of one-third of the whole. The term of office of one class of directors expires each year; with each class of directors elected for a term of three years and until the stockholders elect their qualified successors;
provide that all vacancies, including newly created directorships, may, except as otherwise required by law or, if applicable, the rights of holders of a series of preferred stock, (except pursuant tobe filled by a Permitted Offer, as defined below,majority of directors then in office, even if less than a quorum, or by Excluded Persons,the sole remaining director;
provide that our Certificate of Incorporation and Bylaws may be amended by the affirmative vote of the holders of at least two-thirds of our then outstanding voting stock;
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 than two-thirds of the outstanding voting stock of LSB voting as defined below)a single class shall be required for the approval or authorization of any (i) merger or consolidation of LSB with or into any other corporation, or (ii) 10 business days (or sale, lease or exchange of all or substantially all of the assets of LSB to or with any other corporation, person or entity; provided, however, that such later datetwo-thirds voting requirement shall not be applicable if (a) LSB is merged with a corporation in which at least two-thirds of the outstanding shares of each class of stock of such corporation is owned by LSB, or (b) if a transaction described in clauses (i) or (ii) above has been approved by a vote of at least a majority of the members of the board of directors of LSB. If such two-thirds voting requirement of the outstanding voting stock of LSB shall not be applicable under the provisions of clauses (a) or (b) above, then in such event transactions specified in (i) or (ii) above shall require only such affirmative vote as mayis required by law, regulation or any other provision of our Certificate of Incorporation; and
provide that our Bylaws can be determinedamended by action of our board of directors.
Limitations of Liability and Indemnification Matters
Our Certificate of Incorporation limits the liability of our directors for monetary damages for breach of their fiduciary duty as directors, except for liability that cannot be eliminated under the DGCL. Delaware law provides that directors of a company will not be personally liable for monetary damages for breach of their fiduciary duty as directors, except for liabilities:
for any breach of their duty of loyalty to us or our stockholders;
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
for unlawful payment of dividend or unlawful stock repurchase or redemption, as provided under Section 174 of the DGCL; or
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 timeamendment, repeal or modification.
Our Bylaws also provide that we will indemnify our directors and officers to the fullest extent permitted by Delaware law. If Delaware law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of our directors will be eliminated or limited to the fullest extent permitted by Delaware law, as so amended. Our Bylaws also permit us to purchase insurance on behalf of any person becomesofficer, director, employee or other agent for any liability arising out of that person’s actions as our officer, director, employee or agent, regardless of whether Delaware law would permit indemnification. We have entered into indemnification agreements with each of our directors and officers. These agreements require us to indemnify these individuals to the fullest extent permitted under Delaware law against liability that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We believe that the limitation of liability provision in Certificate of Incorporation and the indemnification agreements facilitates our ability to continue to attract and retain qualified individuals to serve as directors and officers.
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 Acquiring Person) followingaction, if successful, might benefit us and our stockholders. A stockholder’s investment may be harmed to the commencementextent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or announcementotherwise, we have been advised that, in the opinion of an intention (which intention remainsthe SEC, such indemnification is against public policy as expressed in effect for five business days after the announcement)Securities Act, and is, therefore, unenforceable. There is no pending litigation or proceeding naming any of our directors or officers as to make a tenderwhich indemnification is being sought, nor are we aware of any pending or exchange offer, the consummation of which wouldthreatened litigation that may result in claims for indemnification by any director or officer.
DESCRIPTION OF OUR DEPOSITARY SHARES
This section describes the general terms and provisions of any depositary shares we may issue. The applicable prospectus supplement will describe the specific terms of the depositary shares offered by that prospectus supplement and any general terms outlined in this section that will not apply to those depositary shares.
We may issue depositary receipts representing interests in a person or group becoming an Acquiring Personparticular series of 15% or morepreferred shares which are called depositary shares. The series of our common stock, except pursuant to a Permitted Offer or by an Excluded Person (the earlier of such dates being called the “Distribution Date”), the Rights are not exercisable and are not transferable apart from our common stock. Under the Renewed Rights Plan, a person is also deemed to beneficially ownpreferred shares of our common stock thatwhich are the subject of depositary shares will be deposited by us with a derivative transaction entered into,depositary to be named in the applicable prospectus supplement, which will hold the preferred shares for the benefit of the holders of the depositary shares in accordance with a deposit agreement between the depositary and us. The holders of depositary shares will be entitled to all the rights and preferences of the preferred shares to which the depositary shares relate, including dividend, voting, conversion, redemption and liquidation rights, to the extent of their interests in the preferred shares.
While the deposit agreement relating to a particular series of preferred shares may have provisions applicable solely to that series of preferred shares, all deposit agreements relating to preferred shares we issue will include the following provisions:
Dividends and Other Distributions
Each time we pay a cash dividend or make any other type of cash distribution with regard to preferred shares of a derivative security acquiredseries, the depositary will distribute to the holder of record of each depositary share relating to that series of preferred shares an amount equal to the dividend or other distribution per depositary share the depositary receives. If there is a distribution of property other than cash, the depositary either will distribute the property to the holders of depositary shares in proportion to the depositary shares held by such person,each of them, or the depositary will, if we approve, sell the property and distribute the net proceeds to the holders of the depositary shares in proportion to the depositary shares held by them.
Withdrawal of Preferred Shares
A holder of depositary shares will be entitled to receive, upon surrender of depositary receipts representing depositary shares, the number of whole or fractional shares of the applicable series of preferred shares, and any money or other property, to which gives such person the economic equivalentdepositary shares relate.
Redemption of ownership. As soon as practicable afterDepositary Shares
Whenever we redeem preferred shares held by a depositary, the Rights become exercisable, separate Rights certificates woulddepositary will be issued andrequired to redeem, on the Rights would become transferable apart from our common stock. The Rightssame redemption date, depositary shares constituting, in total, the number of preferred shares held by the persondepositary which we redeem, subject to the depositary’s receiving the redemption price of those preferred shares. If fewer than all the depositary shares relating to a series are to be redeemed, the depositary shares to be redeemed will be selected by lot or group who triggersby another method we determine to be equitable.
Voting
Any time we send a notice of meeting or other materials relating to a meeting to the Rights shallholders of a series of preferred shares to which depositary shares relate, we will provide the depositary with sufficient copies of those materials so they can be null and void and are not exercisable.
The Rights will not become exercisable or non-redeemable based on the common stock held or beneficially owned by anysent to all holders of record of the following persons or entities (“Excluded Persons”):
· | 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 (i) Jack E. Golsen, (ii) his wifeapplicable depositary shares, and children, (iii) the spouse and children of Jack E. Golsen’s children, (iv) the estate, executor administrator, guardian or custodian of person’s described in (i), (ii) and (iii) above, (v) 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 (i), (ii), (iii) and (iv) above, and (vi) certain other affiliates, or associates of the persons described in (i), (ii), (iii) and (iv) 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”)depositary will be mailedsend those materials to the holders of record of the common stock as of the close of businessdepositary shares on the Distribution Daterecord date for the meeting. The depositary will solicit voting instructions from holders of depositary shares and such separate Right Certificates alone will evidencevote or not vote the Rights.
The Rights are not exercisable untilpreferred shares to which the
Distribution Date. The Rights will expire on January 4, 2019 (the “Final Expiration Date”), unlessdepositary shares relate in accordance with those instructions.Liquidation Preference
Upon our liquidation, dissolution or winding up, 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 Board of Directors determines to be adequate and in the best interests of us, our stockholders and other relevant constituencies, other than the Acquiring Person, its affiliates and associates (a “Permitted Offer”)), each holder of a Right (except Rights whichdepositary share will be entitled to what the holder of the depositary share would have been voided as set forth herein) will thereafter havereceived if the Right (the “Flip-In Rights”) to receive upon exerciseholder had owned the number of preferred shares (or fraction of a share) which is represented by the depositary share.
Conversion
If a series of preferred shares are convertible into shares of common stockCommon Stock or of one-one hundredths of a share of Series A Preferred Stock (or, in certain circumstances, other securities of the Company) having a value (on the date such person became an Acquiring Person) equal to two times the Purchase Price of the Right.
If an acquiring company were to merge or otherwise combine with us, or we were to sell 50% or more of our assetssecurities or earning power, each Right then outstanding would “flip-over”property, holders of depositary shares relating to that series of preferred shares will, if they surrender depositary receipts representing depositary shares and thereby would become a rightappropriate instructions to buy that number ofconvert them, receive the 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, deem adequate and in our best interest and our stockholders best interest.
The Purchase Price payable, and the number of Series A PreferredCommon Stock
our common stock or other securities or property
issuable,into which the number of preferred shares (or fractions of shares) to which the depositary shares relate could at the time be converted.Amendment and Termination of a Deposit Agreement
We and the depositary may amend a deposit agreement, except that an amendment which materially and adversely affects the rights of holders of depositary shares, or would be materially and adversely inconsistent with the rights granted to the holders of the preferred shares to which they relate, must be approved by holders of at least two-thirds of the outstanding depositary shares. No amendment will impair the right of a holder of depositary shares to surrender the depositary receipts evidencing those depositary shares and receive the preferred shares to which they relate, except as required to comply with law. We may terminate a deposit agreement with the consent of holders of a majority of the depositary shares to which it relates. Upon termination of a deposit agreement, the depositary will make the whole or fractional shares of preferred shares to which the depositary shares issued under the deposit agreement relate available to the holders of those depositary shares. A deposit agreement will automatically terminate if: (i) all outstanding depositary shares to which it relates have been redeemed or converted; and/or (ii) the depositary has made a final distribution to the holders of the depositary shares issued under the deposit agreement upon our liquidation, dissolution or winding up.
Miscellaneous
There will be provisions: (i) requiring the depositary to forward to holders of record of depositary shares any reports or communications from us which the depositary receives with respect to the preferred shares to which the depositary shares relate; (ii) regarding compensation of the depositary; (iii) regarding resignation of the depositary; (iv) limiting our liability and the liability of the depositary under the deposit agreement (usually to failure to act in good faith, gross negligence or willful misconduct); and (v) indemnifying the depositary against certain possible liabilities.
DESCRIPTION OF OUR SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase shares of Common Stock, preferred shares, depositary shares, debt securities, warrants, purchase contracts or units or any combination thereof. These subscription rights may be issued independently or together with any other security offered by us, and they may or may not be transferable by the shareholder receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The applicable prospectus supplement will describe the specific terms of any offering of subscription rights for which this prospectus is being delivered, including the following:
the price, if any, for the subscription rights;
the exercise price payable for each share of Common Stock, preferred share, depositary share, debt security, warrant, purchase contract or unit upon the exercise of the Rights are subject to adjustment from time to time to prevent dilution:subscription right;
· | 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 subscribed 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 one one-hundredthssubscription rights issued to each shareholder;
the number and terms of a Preferred Share issuable uponeach share of Common Stock, preferred share, depositary share, debt security, warrant, purchase contract or unit that may be purchased per each subscription right;
the extent to which the subscription rights are transferable;
any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of each Right are also subject to adjustment in the event of a stock split of our common stock or a stock dividendsubscription rights;
the date 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 (i) any Acquiring Person (or any affiliate or associate of such Acquiring Person), (ii) a transferee of an Acquiring Person (or any affiliate or associate thereof) who becomes a transferee after the Acquiring Person becomes such, or (iii) under certain conditions, a transferee of any Acquiring Person (or any affiliate or associate thereof) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such, shall be null and void and no holder of such Rights shall thereafter have rights to exercise such Rights.
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 one-one hundredth of a Preferred Share (or of a share of a class or series of our preferred stock having equivalent Rights, preferences and privileges), per Right (subject to adjustment). Upon our board of directors ordering the exchange, the right to exercise the Rightsubscription rights shall terminatecommence, and the only right thereafterdate on which the subscription rights shall beexpire;
the extent to receivewhich the sharessubscription rights may include an over-subscription privilege with respect to unsubscribed securities; and
if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in accordanceconnection with the exchange.offering of subscription rights.
With certain exceptions, no adjustmentThe description in the Purchase Priceapplicable prospectus supplement of the material terms of any subscription rights we offer will be required until cumulative adjustments require an adjustmenta summary and will be qualified in its entirety by reference to the applicable subscription rights certificate, which will be filed with the SEC if we offer subscription rights. For more information on how you can obtain copies of at least 1%any subscription rights certificate if we offer subscription rights, see “Where You Can Find More Information.”
DESCRIPTION OF OUR DEBT SECURITIES
This section describes the general terms and provisions of the debt securities that we may offer under this prospectus, any of which may be issued as convertible or exchangeable debt securities. We will set forth the particular terms of the debt securities we offer in such Purchase Price. No fractional Series A Preferred Stocka prospectus supplement. The extent, if any, to which the following general provisions apply to particular debt securities will be described in the applicable prospectus supplement. The following description of general terms relating to the debt securities and the indenture under which the debt securities will be issued (other than fractions which are integral multiples of one one-hundredth of a Preferred Share, which may, at our election, be evidenced by depositary receipts)summaries only and in lieu thereof, an adjustment in cash will be made based ontherefore are not complete. You should read 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 terminateindenture and the
only rightprospectus supplement regarding any particular issuance of
the holder of Rightsdebt securities.We 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 cureissue 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 becomesdebt under 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.
Our debt securities, consisting of notes, debentures or other evidences of indebtedness, may be issued from time to time in one or more series pursuant to, in the case of senior debt securities, a senior indenture to be entered into between us and athe trustee to be named therein, andidentified in the case of subordinated debt securities, a subordinated indenture to be entered into between us and a trustee to be named therein.applicable prospectus supplement. The terms of ourthe debt securities will include those set forthstated in the indenturesindenture and those made a part of the indenturesindenture by reference to the Trust Indenture Act of 1939, as amended.the indenture. We
believe thathave filed or will file a copy of the
form of indenture as an exhibit to the registration statement in which this prospectus is included. The indenture will be subject to and governed by the terms of the Trust Indenture Act of 1939.We may offer under this prospectus up to an aggregate principal amount of $200,000,000 in debt securities, or if debt securities are issued at a discount, or in a foreign currency, foreign currency units or composite currency, the principal amount as may be sold for an aggregate initial public offering price of up to $200,000,000.
Unless otherwise specified in the applicable prospectus supplement, the debt securities will represent direct, unsecured obligations of the Company and will rank equally with all of our other unsecured indebtedness.
The following describesstatements relating to the materialdebt securities and the indenture are summaries, qualified in their entirety by reference to the detailed provisions of the indenturesindenture and the debt securities. In addition, the indentures andfinal form indenture as may be filed with a future prospectus supplement.
General
We may issue the debt securities sold pursuantin one or more series with the same or various maturities, at par, at a premium, or at a discount. The terms of our outstanding preferred units and existing indebtedness limit our ability to issue certain securities and incur new indebtedness. See “Risk Factors—Risks Related to Our Liquidity—Our substantial indebtedness level, including dividend requirements relating to our preferred stock, could limit our financial and operating activities, and adversely affect our ability to incur additional debt to fund future needs” in our 2020 Annual Report. We will describe the particular terms of each series of debt securities in a prospectus supplement relating to that series, which we will file with the Commission.
The prospectus supplement will set forth, to the extent required, the following terms of the debt securities in respect of which the prospectus supplement is delivered:
the aggregate principal amount;
the issue price or prices, expressed as a percentage of the aggregate principal amount of the debt securities;
any limit on the aggregate principal amount;
the date or dates on which principal is payable;
the interest rate or rates (which may be fixed or variable) or, if applicable, the method used to determine such rate or rates;
the date or dates from which interest, if any, will be payable and any regular record date for the interest payable;
the place or places where principal and, if applicable, premium and interest, is payable;
the terms and conditions upon which we may, or the holders may require us to, redeem or repurchase the debt securities;
the denominations in which such debt securities may be issuable, if other than denominations of $1,000 or any integral multiple of that number;
whether the debt securities are to be issuable in the form of certificated securities (as described below) or global securities (as described below);
the portion of principal amount that will be payable upon declaration of acceleration of the maturity date if other than the principal amount of the debt securities;
the currency of denomination;
the designation of the currency, currencies or currency units in which payment of principal and, if applicable, premium and interest, will be made;
if payments of principal and, if applicable, premium or interest, on the debt securities are to be made in one or more currencies or currency units other than the currency of denomination, the manner in which the exchange rate with respect to such payments will be determined;
if amounts of principal and, if applicable, premium and interest may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index, then the manner in which such amounts will be determined;
the provisions, if any, relating to any collateral provided for such debt securities;
any addition to or change in the covenants or the acceleration provisions described in this prospectus could be revisedor in the indenture;
any events of default, if not otherwise described below under “Events of Default”;
the terms and varied depending on negotiations with conditions, if any, for conversion into or exchange for our shares of Common Stock or preferred shares;
any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents; and
the purchasers of ourterms and conditions, if any, upon which the debt securities which revisions and changes willshall be described in a supplemental prospectus filed by us with SEC. We urge you to read the indentures.
General
The senior debt securities will constitute unsecured and unsubordinated obligations of ours and will rank pari passu with our other unsecured and unsubordinated obligations. The subordinated debt securities will constitute our unsecured and subordinated obligations and will be junior in right of payment to our Senior Indebtedness (including senior debt securities), as described under the heading “Certain Termsother indebtedness of the Subordinated Debt Securities—Subordination.”Company.
TheWe may issue discount debt securities willthat provide for an amount less than the stated principal amount to be our unsecured obligations. Any secured debt or other secured obligations will be effectively senior todue and payable upon acceleration of the maturity of such debt securities toin accordance with the extent of the value of the assets securing such debt or other obligations.
The applicable prospectus supplement will include any additional or different terms of the indenture. We may also issue debt securities being offered, including the following terms:
· | the debt securities’ designation; |
· | the aggregate principal amount of the debt securities; |
· | the percentage of their principal amount (i.e., price) at which the debt securities will be issued; |
· | the datein bearer form, with or dates on which the debt securities will mature and the right, if any, to extend such date or dates; |
· | the rate or rates, if any, per year, at which the debt securities will bear interest, or the method of determining such rate or rates; |
· | the date or dates from which such interest will accrue, the interest payment dates on which such interest will be payable or the manner of determination of such interest payment dates and the record dates for the determination of holders to whom interest is payable on any interest payment date; |
· | the right, if any, to extend the interest payment periods and the duration of that extension; |
· | the manner of paying principal and interest and the place or places where principal and interest will be payable; |
· | provisions for a sinking fund purchase or other analogous fund, if any; |
· | the period or periods, if any, within which, the price or prices at which, and the terms and conditions upon which the debt securities may be redeemed, in whole or in part, at our option or at your option; |
· | the form of the debt securities; |
· | any provisions for payment of additional amounts for taxes and any provision for redemption, if we must pay such additional amounts in respect of any debt security; |
· | the terms and conditions, if any, upon which we may have to repay the debt securities early at your option; |
· | the currency, currencies or currency units for which you may purchase the debt securities and the currency, currencies or currency units in which principal and interest, if any, on the debt securities may be payable; |
· | the terms and conditions upon which conversion or exchange of the debt securities may be effected, if any, including the initial conversion or exchange price or rate and any adjustments thereto and the period or periods when a conversion or exchange may be effected; |
· | whether and upon what terms the debt securities may be defeased; |
· | any events of default or covenants in addition to or in lieu of those set forth in the indenture; |
· | provisions for electronic issuance of debt securities or for debt securities in uncertificated form; and |
· | any other terms of the debt securities, including any terms which may be required by or advisable under applicable laws or regulations or advisable in connection with the marketing of the debt securities. |
We may from time to time, without notice to or the consent of the holders of any series of debt securities, create andcoupons. If we issue further debt securities of any such series ranking equally with the debt securities of such series in all respects (or in all respects other than the payment of interest accruing prior to the issue date of such furtherdiscount debt securities or except for the first payment of interest following the issue date of such further debt securities). Such further debt securities may be consolidatedin bearer form, we will describe material U.S. federal income tax considerations and form a single series with theother material special considerations which apply to these debt securities of such series and havein the same terms as to status, redemption or otherwise as theapplicable prospectus supplement. We may issue debt securities of such series.
You may present debt securities for exchange and you may present debt securities for transferdenominated in
the manner, at the places and subject toor payable in a foreign currency or currencies or a foreign currency unit or units. If we do, we will describe the restrictions,
set forth inelections, and general tax considerations relating to the debt securities and the
foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Exchange and Conversion Rights
We may issue debt securities which can be exchanged for or converted into our shares of Common Stock or preferred shares, subject to applicable law. If we do, we will describe the terms of exchange or conversion in the prospectus supplement relating to these debt securities.
Transfer and Exchange
We may issue debt securities that will be represented by either:
“book-entry securities,” which means that there will be one or more global securities registered in the name of a depositary or a nominee of a depositary; or
“certificated securities,” which means that they will be represented by a certificate issued in definitive registered form.
We will providespecify in the prospectus supplement applicable to a particular offering whether the debt securities offered will be book-entry or certificated securities.
Certificated Debt Securities
If you those services without charge, althoughhold certificated debt securities issued under an indenture, you may havetransfer or exchange such debt securities in accordance with the terms of the indenture. You will not be charged a service charge for any transfer or exchange of certificated debt securities but may be required to pay an amount sufficient to cover any tax or other governmental charge payable in connection with any exchangesuch transfer or transfer, as set forthexchange.
Global Securities
The debt securities of a series may be issued in the indenture.
Debtform of one or more global securities that will be deposited with a depositary or its nominees identified in the prospectus supplement relating to the debt securities. In such a case, one or more global securities will
bearbe issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding debt securities of the series to be represented by such global security or securities.Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a global security may not be registered for transfer or exchange except as a whole by the depositary for such global security to a nominee of the depositary and except in the circumstances described in the prospectus supplement relating to the debt securities. The specific terms of the depositary arrangement with respect to a series of debt securities will be described in the prospectus supplement relating to such series.
Protection in the Event of Change of Control
Any provision in an indenture that governs our debt securities covered by this prospectus that includes any covenant or other provision providing for a put or increased interest ator otherwise that would afford holders of our debt securities additional protection in the event of a fixed raterecapitalization transaction, a change of control of the Company, or a floating rate. Debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate (original issue discount securities) may be sold at a discount below their stated principal amount. Special U.S. federal income tax considerations applicable to any such discounted debt securities or to certain debt securities issued at par which are treated as having been issued at a discount for U.S. federal income tax purposeshighly leveraged transaction will be described in the applicable prospectus supplement.
We may issueGuarantees
Our payment obligations under any series of the debt securities with the principal amount payable on any principal payment date, or the amount of interest payable on any interest payment date, tomay be determinedguaranteed by reference to one or more currency exchange rates,of our subsidiaries; however, we have not registered any such guarantees with the Commission and, in order to provide such guarantees, we would be required to file a separate registration statement or file an amendment to the registration statement of which this prospectus forms a part with respect to such guarantees. If a series of debt securities is so guaranteed by any of our subsidiaries, such subsidiaries will execute a supplemental indenture or basketsnotation of securities, commodity pricesguarantee as further evidence of their guarantee. The applicable prospectus supplement will describe the terms of any guarantee by our subsidiaries or indices. You may receive a payment of principal on any principal payment date,other persons.
Covenants
Unless otherwise indicated in this prospectus or a payment of interest on any interest payment date, that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending on the value on such dates of the applicable currency, securityprospectus supplement, our debt securities may not have the benefit of any covenant that limits or basketrestricts our business or operations, the pledging of securities, commodityour assets or index. Information as to the methods for determining the amountincurrence by us of principal or interest payable on any date, the currencies, securities or baskets of securities, commodities or indices to which the amount payable on such date is linked and certain additional tax considerationsindebtedness. We will be set forthdescribe in the applicable prospectus supplement.
Certain Termssupplement any material covenants in respect of the Senior Debt Securities
Covenants. Unless otherwise indicated in a prospectus supplement, the seniorseries of debt securities will not contain any financial or restrictive covenants, including covenants restricting either us or any of our subsidiaries from incurring, issuing, assuming or guarantying any indebtedness secured by a lien on any of our or our subsidiaries’ property or capital stock, or restricting either us or any of our subsidiaries from entering into sale and leaseback transactions.
securities.Consolidation, Merger and Sale of Assets.
UnlessAssetsWe may agree in any indenture that governs the debt securities of any series covered by this prospectus that we indicate otherwise in a prospectus supplement, we maywill not consolidate with or merge into any other person in a transaction in which we are not the surviving corporation, or convey, transfer, sell or lease our properties and assets substantially as an entirety to any person, unless:
· | the successor entity, if any, is a U.S. corporation, limited liability company, partnership or trust (subject to certain exceptions provided for in the senior indenture); |
· | the successor entity assumes our obligations on the senior debt securities and under the senior indenture; |
· | immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing; and |
· | certain other conditions are met. |
No Protectionunless such person and such proposed transaction meets various criteria, which we will describe in detail in the Eventapplicable prospectus supplement.
Defaults and Notice
The debt securities of a Changeany series will contain events of Control. Unless otherwise indicateddefault to be specified in athe applicable prospectus supplement, which may include, without limitation:
failure to pay the principal of, or premium or make-whole amount, if any, on any debt security of such series when due and payable (whether at maturity, by call for redemption, through any mandatory sinking fund, by redemption at the option of the holder, by declaration or acceleration or otherwise);
failure to make a payment of any interest on any debt security of such series when due;
our failure to perform or observe any other covenants or agreements in the indenture with respect to a particular series of seniorthe debt securities the senior debt securities will not contain any provisions which may afford holders of the senior debt securities protection in the event we have a change in controlsuch series;
certain events relating to our bankruptcy, insolvency or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control).reorganization; and
Events of Default. An event of default for any series of senior debt securities is defined under the senior indenturecertain cross defaults, if and as being:
applicable.· | our default in the payment of principal or premium on the senior debt securities of such series when due and payable whether at maturity, upon acceleration, redemption or otherwise, if that default continues for such period as may be specified for such series; |
· | our default in the payment of interest on any senior debt securities of such series when due and payable, if that default continues for a period of 60 days (or such other period as may be specified for such series); |
· | our default in the performance of or breach of any of our other covenants or agreements in the senior indenture applicable to senior debt securities of such series, other than a covenant breach which is specifically dealt with elsewhere in the senior indenture, and that default or breach continues for a period of 90 days after we receive written notice from the trustee or from the holders of 25% or more in aggregate principal amount of the senior debt securities of such series; |
· | there occurs any other event of default provided for in such series of senior debt securities; |
· | a court having jurisdiction enters a decree or order for (1) relief in respect of us in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; (2) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of us or for all or substantially all of our property and assets; or (3) the winding up or liquidation of our affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or |
· | we (1) commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law; (2) consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of ours for all or substantially all of our property and assets; or (3) effect any general assignment for the benefit of creditors. |
The default by us under any other debt, including any other series of debt securities, is not a default under the senior indenture.
If an event of default other than an event of default specified in the last two bullet points above occurs with respect to a series of senior debt securities of any series shall occur and isbe continuing, under the senior indenture, then, and in each and every such case, eitherwe may agree that the trustee or the holders of not less thanat least 25% in aggregate principal amount of the then outstanding debt securities of such series then outstanding undermay declare the senior indenture (eachprincipal amount (or, if the debt securities of such series votingare issued at an original issue discount, such portion of the principal amount as a separate class)may be specified in the terms of the debt securities of such series) of all debt securities of such series or such other amount or amounts as the debt securities or supplemental indenture with respect to such series may provide, to be due and payable immediately. Any provisions pertaining to events of default and any remedies associated therewith will be described in the applicable prospectus supplement.
Any indenture that governs our debt securities covered by written notice to us and tothis prospectus may require that the trustee under such indenture shall, within 90 days after the occurrence of a default, give to holders of debt securities of any series notice of all uncured defaults with respect to such series known to it. However, except in the case of a default that results from the failure to make any payment of the principal of, premium, if any, or interest on the debt securities of any series, or in the payment of any mandatory sinking fund installment with respect to debt securities of such series, if any, the trustee may withhold such notice if it in good faith determines that the withholding of such notice is given byin the interest of the holders may,of debt securities of such series. Any terms and provisions relating to the foregoing types of provisions will be described in further detail in the applicable prospectus supplement.
Any indenture that governs our debt securities covered by this prospectus will contain a provision entitling the trustee to be indemnified by holders of debt securities before proceeding to exercise any trust or power under the indenture at the request of such holders shall, declare the principal amount of and accrued interest, if any, onholders. Any such senior debt securities to be immediately due and payable.
If an event of default specified in the last two bullet points above occurs with respect to us and is continuing, the entire principal amount of, and accrued interest, if any, on each series of senior debt securities then outstanding shall become immediately due and payable.Upon a declaration of acceleration, the principal amount of and accrued interest, if any, on such senior debt securities shall be immediately due and payable. Unless otherwise specified in the prospectus supplement relating to a series of senior debt securities originally issued at a discount, the amount due upon acceleration shall include only the original issue price of the senior debt securities, the amount of original issue discount accrued to the date of acceleration and accrued interest, if any.
Upon certain conditions, declarations of accelerationindenture may
be rescinded and annulled and past defaults may be waived by the holders of a majority in aggregate principal amount of all the senior debt securities of such series affected by the default, each series voting as a separate class (or, of all the senior debt securities, as the case may be, voting as a single class). Furthermore, subject to various provisions in the senior indenture,provide that the holders of at least a majority in aggregate principal amount of
a series of seniorthe then outstanding debt securities
by noticeof any series may direct the time, method and place of conducting any proceedings for any remedy available to the trustee,
or of exercising any trust or power conferred upon the trustee with respect to the debt securities of such series. However, the trustee under any such indenture may
waive an existing defaultdecline to follow any such direction if, among other reasons, the trustee determines in good faith that the actions or
eventproceedings as directed may not lawfully be taken, would involve the trustee in personal liability or would be unduly prejudicial to the holders of
defaultthe debt securities of such series not joining in such direction.Any indenture that governs our debt securities covered by this prospectus may endow the holders of such debt securities to institute a proceeding with respect to such senior debt securities and its consequences, except a defaultindenture, subject to certain conditions, which will be specified in the payment of principal of or interest on such senior debt securities or in respect of a covenant or provision ofapplicable prospectus supplement and which may include, that the senior indenture which cannot be modified or amended without the consent of the holders of each such senior debt security. Upon any such waiver, such default shall cease to exist, and any event of default with respect to such senior debt securities shall be deemed to have been cured, for every purpose of the senior indenture; but no such waiver shall extend to any subsequent or other default or event of default or impair any right consequent thereto. For information as to the waiver of defaults, see “—Modification and Waiver.”
The holders of at least a majority in aggregate principal amount of a series of seniorthe debt securities may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to such senior debt securities. However, the trustee may refuse to follow any direction that conflicts with law or the senior indenture, that may involve the trustee in personal liability, or that the trustee determines in good faith may be unduly prejudicial to the rights of holders of such series of senior debt securities not joining inthen outstanding make a written request upon the giving oftrustee to exercise its power under the indenture, indemnify the trustee and afford the trustee reasonable opportunity to act. Even so, such direction andholders may take any other action it deems proper that is not inconsistent with any such direction received from holders of such series of senior debt securities. A holder may not pursue any remedy with respecthave an absolute right to the senior indenture or any series of senior debt securities unless:
· | the holder gives the trustee written notice of a continuing event of default; |
· | the holders of at least 25% in aggregate principal amount of such series of senior debt securities make a written request to the trustee to pursue the remedy in respect of such event of default; |
· | the requesting holder or holders offer the trustee indemnity satisfactory to the trustee against any costs, liability or expense; |
· | the trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and |
· | during such 60-day period, the holders of a majority in aggregate principal amount of such series of senior debt securities do not give the trustee a direction that is inconsistent with the request. |
These limitations, however, do not apply to the right of any holder of a senior debt security to receive payment of the principal of, premium or interest,make-whole amount, if any, onand interest when due, to require conversion or exchange of debt securities if such senior debt security,indenture provides for convertibility or exchangeability at the option of the holder and to bringinstitute suit for the enforcement of such rights. Any terms and provisions relating to the foregoing types of provisions will be described in further detail in the applicable prospectus supplement.
Modification of the Indenture
We and the trustee may modify any such payment, on or after the due date for the seniorindenture that governs our debt securities which right shall not be impairedof any series covered by this prospectus with or affected without the consent of the holder.
holders of such debt securities, under certain circumstances to be described in a prospectus supplement.Defeasance; Satisfaction and Discharge
The senior indenture requiresprospectus supplement will outline the conditions under which we may elect to have certain of our officers to certify, on or before a fixed date in each year in which any senior debt security is outstanding, as to their knowledge of our compliance with all conditions and covenants under the senior indenture.
Discharge and Defeasance. The senior indenture provides that, unless the terms of any series of senior debt securities provides otherwise, we may discharge our obligations with respect to a series of senior debt securities and the senior indenture with respect to such series of senior debt securities if:
· | we pay or cause to be paid, as and when due and payable, the principal of and any interest on all senior debt securities of such series outstanding under the senior indenture; |
· | all senior debt securities of such series previously authenticated and delivered with certain exceptions, have been delivered to the trustee for cancellation and we have paid all sums payable by us under the senior indenture; or |
· | the senior debt securities of such series mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the trustee for giving the notice of redemption, and we irrevocably deposit in trust with the trustee, as trust funds solely for the benefit of the holders of the senior debt securities of such series, for that purpose, the entire amount in cash or, in the case of any series of senior debt securities payments on which may only be made in U.S. dollars, U.S. government obligations (maturing as to principal and interest in such amounts and at such times as will insure the availability of sufficient cash), after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the trustee, to pay principal of and interest on the senior debt securities of such series to maturity or redemption, as the case may be, and to pay all other sums payable by us under the senior indenture. |
With respect to the first and second bullet points, only our obligations to compensate and indemnify the trustee and our right to recover unclaimed money held by the trustee under the senior indenture shall survive. With respect to the third bullet point, certain rights and obligations under the senior indenture (such as our obligation to maintain an office or agency in respect of such senior debt securities, to have moneys held for payment in trust, to registerdischarged and under which the transfer or exchange of such senior debt securities, to deliver such senior debt securities for replacement or to be canceled, to compensate and indemnify the trustee and to appoint a successor trustee, and our right to recover unclaimed money held by the trustee) shall survive until such senior debt securities are no longer outstanding. Thereafter, only ourindenture obligations to compensate and indemnify the trustee and our right to recover unclaimed money held by the trustee shall survive.
Unless the terms of any series of senior debt securities provide otherwise, on the 121st day after the date of deposit of the trust funds with the trustee, we will be deemed to
have paid andbe satisfied.Regarding the Trustee
We will be discharged from any and all obligations in respect of the series of senior debt securities provided for in the funds, and the provisions of the senior indenture will no longer be in effect with respect to such senior debt securities (“legal defeasance”); provided that the following conditions shall have been satisfied:
· | we have irrevocably deposited in trust with the trustee as trust funds solely for the benefit of the holders of the senior debt securities of such series, for payment of the principal of and interest on the senior debt securities of such series, cash in an amount or, in the case of any series of senior debt securities payments on which can only be made in U.S. dollars, U.S. government obligations (maturing as to principal and interest at such times and in such amounts as will insure the availability of cash) or a combination thereof sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the trustee), after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the trustee, to pay and discharge the principal of and accrued interest on the senior debt securities of such series to maturity or earlier redemption, as the case may be, and any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the senior indenture and the senior debt securities of such series; |
· | such deposit will not result in a breach or violation of, or constitute a default under, the senior indenture or any other material agreement or instrument to which we are a party or by which we are bound; |
· | no default or event of default with respect to the senior debt securities of such series shall have occurred and be continuing on the date of such deposit; |
· | we shall have delivered to the trustee either an officer’s certificate and an opinion of counsel that the holders of the senior debt securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of our exercising our option under this provision of the senior indenture and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or a ruling by the Internal Revenue Service to the same effect; and |
· | we have delivered to the trustee an officer’s certificate and an opinion of counsel, in each case stating that all conditions precedent provided for in the senior indenture relating to the contemplated defeasance of the senior debt securities of such series have been complied with. |
Subsequent to the legal defeasance above, certain rights and obligations under the senior indenture (such as our obligation to maintain an office or agency in respect of such senior debt securities, to have moneys held for payment in trust, to register the exchange of such senior debt securities, to deliver such senior debt securities for replacement or to be canceled, to compensate and indemnifyidentify the trustee and to appoint a successorany relationship that we may have with such trustee, and our right to recover unclaimed money held by the trustee) shall survive until such senior debt securities are no longer outstanding. After such senior debt securities are no longer outstanding, only our obligations to compensate and indemnify the trustee and our right to recover unclaimed money held by the trustee shall survive.
Modification and Waiver. We and the trustee may amend or supplement the senior indenture or the senior debt securities without the consent of any holder:
· | to convey, mortgage or pledge any assets as security for the senior debt securities of one or more series; |
· | to evidence the succession of another corporation to us, and the assumption by such successor corporation of our covenants, agreements and obligations under the senior indenture; |
· | to cure any ambiguity, defect or inconsistency in the senior indenture or in any supplemental indenture or to conform the senior indenture or the senior debt securities to the description of senior debt securities of such series set forth in this prospectus or a prospectus supplement; |
· | to evidence and provide for the acceptance of appointment hereunder by a successor trustee, or to make such changes as shall be necessary to provide for or facilitate the administration of the trusts in the senior indenture by more than one trustee; |
· | to establish the form or forms or terms of the senior debt securities as permitted by the senior indenture; |
· | to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms, purposes of issue, authentication and delivery of any series of senior debt securities; |
· | to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default; |
· | to make any change to the senior debt securities of any series so long as no senior debt securities of such series are outstanding; or |
· | to make any change that does not adversely affect the rights of any holder in any material respect. |
Other amendments and modifications of the senior indenture or the senior debt securities issued may be made, and our compliance with any provision of the senior indenture with respect to any series of senior debt securities, may be waived, within the consentprospectus supplement relating to the applicable debt securities. You should note that if the trustee becomes a creditor of LSB, the holdersindenture and the Trust Indenture Act of not less than a majority of the aggregate principal amount of the outstanding senior debt securities of all series affected by the amendment or modification (voting as one class); provided, however, that each affected holder must consent to any modification, amendment or waiver that:
· | extends the stated maturity of the principal of, or any installment of interest on, any senior debt securities of such series; |
· | extends the stated maturity of the principal of, or any installment of interest on, any senior debt securities of such series; |
· | reduces the principal amount of, or premium, if any, or interest on, any senior debt securities of such series; |
· | changes the place or currency of payment of principal of, or premium, if any, or interest on, any senior debt securities of such series; |
· | changes the provisions for calculating the optional redemption price, including the definitions relating thereto; |
· | changes the provisions relating to the waiver of past defaults or changes or impairs the right of holders to receive payment or to institute suit for the enforcement of any payment of any senior debt securities of such series on or after the due date therefor; |
· | reduces the above-stated percentage of outstanding senior debt securities of such series the consent of whose holders is necessary to modify or amend or to waive certain provisions of or defaults under the senior indenture; |
· | waives a default in the payment of principal of or interest on the senior debt securities; |
· | adversely affects1939 limit the rights of such holder under any mandatory redemption or repurchase provision or any right of redemption or repurchase at the option of such holder; or |
· | modifies any of the provisions of this paragraph, except to increase any required percentage or to provide that certain other provisions cannot be modified or waived without the consent of the holder of each senior debt security of such series affected by the modification. |
It shall not be necessary for the consent of the holders under this section of the senior indenture to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. After an amendment, supplement or waiver under this section of the senior indenture becomes effective, the trustee must give to the holders affected thereby certain notice briefly describing the amendment, supplement or waiver. We will mail supplemental indentures to holders upon request. Any failure by the trustee to give such notice,obtain payment of claims in certain cases, or any defect therein, shall not, however,to realize on certain property received in any way impair or affect the validityrespect of any such supplemental indentureclaim, as security or waiver.
No Personal Liability of Incorporators, Stockholders, Officers, Directors.otherwise. The senior indenture provides that no recourse shalltrustee and its affiliates may engage in, and will be had under or uponpermitted to continue to engage in, other transactions with us and our affiliates. If, however, the trustee acquires any obligation, covenant or agreement of ours in“conflicting interest” within the senior indenture or any supplemental indenture, or in anymeaning of the senior debt securitiesTrust Indenture Act of 1939, it must eliminate such conflict or because ofresign.Governing Law
The law governing the creation of any indebtedness represented thereby, against any incorporator, stockholder, officer or director, past, present or future, of ours or of any predecessor or successor corporation thereof under any law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise. Each holder, by accepting the senior debt securities, waives and releases all such liability.
Concerning the Trustee. The senior indenture provides that, except during the continuance of a default, the trustee will not be liable, except for the performance of such duties as are specifically set forth in the senior indenture. If an event of default has occurred and is continuing, the trustee will exercise such rights and powers vested in it under the senior indenture and will use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.
We may have normal banking relationships with the trustee under the senior indenture in the ordinary course of business.
Unclaimed Funds. All funds deposited with the trustee or any paying agent for the payment of principal, interest, premium or additional amounts in respect of the senior debt securities that remain unclaimed for two years after the maturity date of such senior debt securities will be repaid to us. Thereafter, any right of any holder to such funds shall be enforceable only against us, and the trustee and paying agents will have no liability therefor.
Governing Law. The senior indenture and the debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
Certain Terms of the Subordinated Debt Securities
Other than the terms of the subordinated indenture and subordinated debt securities relating to subordination, or otherwise as describedidentified in the prospectus supplement relating to a particular series of subordinated debt securities, the terms of the subordinatedapplicable indenture and subordinated debt securities are identical in all material respects to the termsof the senior indenture and senior debt securities. Additional or different subordination terms may be specified in the prospectus supplement applicable to a particular series.
Subordination. The indebtedness evidenced by the subordinated debt securities is subordinate to the prior payment in full of all our Senior Indebtedness, as defined in the subordinated indenture. During the continuance beyond any applicable grace period of any default in the payment of principal, premium, interest or any other payment due on any of our Senior Indebtedness, we may not make any payment of principal of, or premium, if any, or interest on the subordinated debt securities. In addition, upon any payment or distribution of our assets upon any dissolution, winding up, liquidation or reorganization, the payment of the principal of, or premium, if any, and interest on the subordinated debt securities will be subordinated to the extent provided in the subordinated indenture in right of payment to the prior payment in full of all our Senior Indebtedness. Because of this subordination, if we dissolve or otherwise liquidate, holders of our subordinated debt securities may receive less, ratably, than holders of our Senior Indebtedness. The subordination provisions do not prevent the occurrence of an event of default under the subordinated indenture.
The term “Senior Indebtedness” of a person means with respect to such person the principal of, premium, if any, interest on, and any other payment due pursuant to any of the following, whether outstanding on the date of the subordinated indenture or incurred by that person in the future:
· | all of the indebtedness of that person for money borrowed; |
· | all of the indebtedness of that person evidenced by notes, debentures, bonds or other securities sold by that person for money; |
· | all of the lease obligations which are capitalized on the books of that person in accordance with generally accepted accounting principles; |
· | all indebtedness of others of the kinds described in the first two bullet points above and all lease obligations of others of the kind described in the third bullet point above that the person, in any manner, assumes or guarantees or that the person in effect guarantees through an agreement to purchase, whether that agreement is contingent or otherwise; and |
· | all renewals, extensions or refundings of indebtedness of the kinds described in the first, second or fourth bullet point above and all renewals or extensions of leases of the kinds described in the third or fourth bullet point above; |
unless, in the case of any particular indebtedness, lease, renewal, extension or refunding, the instrument or lease creating or evidencing it or the assumption or guarantee relating to it expressly provides that such indebtedness, lease, renewal, extension or refunding is not superior in right of payment to the subordinated debt securities. Our senior debt securities constitute Senior Indebtedness for purposes of the subordinated debt indenture.
DESCRIPTION OF OUR WARRANTS
We may issue warrants to purchase our shares of Common Stock, preferred shares or debt securities preferred stock or common stock. We may offer warrants separately or together within one or more additional warrants, debtseries together with other securities preferred stock or common stock, or any combination of those securities in the form of units,separately, as described in theeach applicable prospectus supplement. If we issue warrants as part of a unit, the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit priorand subject to the warrants’ expiration date.applicable law. Below is a description of certain general terms and provisions of the warrants that we may offer. FurtherParticular terms of the warrants will be described in the applicable warrant agreements and the applicable prospectus supplement for the warrants.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
the specific designation and aggregate number of, and the price at which we will issue, the warrants;
the currency or currency units in which the offering price, if any, and the exercise price are payable;
the designation, amount and terms of the securities purchasable upon exercise of the warrants;
if applicable, the exercise price for our shares of Common Stock and the number of shares of Common Stock to be received upon exercise of the warrants;
if applicable, the exercise price for our preferred shares, the number of preferred shares to be received upon exercise of the warrants, and a description of that series of our preferred shares;
if applicable, the exercise price for our debt securities, the amount of our debt securities to be received upon exercise of the warrants, and a description of that series of debt securities;
the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if the warrants may not be continuously exercised throughout that period, the specific date or dates on which the warrants may be exercised;
whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit;
any applicable material U.S. federal income tax consequences;
the identity of the warrant agent for the warrants, if any, and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;
the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange or market;
if applicable, the date from and after which the warrants and the shares of Common Stock, preferred shares or debt securities will be separately transferable;
if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
information with respect to book-entry procedures, if any;
the anti-dilution provisions of the warrants, if any;
any redemption or call provisions;
whether the warrants are to be sold separately or with other securities as parts of units; and
any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
Transfer Agent and Registrar
The transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION OF OUR PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating holders to purchase from or sell to us, and obligating us to sell to or purchase from the holders, a specified number of equity securities issued by us or debt or equity securities issued by third parties as specified in the applicable prospectus supplement. The price per security and the number of securities may be fixed at the time the purchase contracts are entered into or may be determined by reference to a specific formula set forth in the applicable purchase contracts, and may be subject to adjustment under anti-dilution formulas. The purchase contracts may require holders to secure their obligations under the purchase contracts in a specified manner. The purchase contracts also may require us to make periodic payments to the holders of the purchase contracts, or vice versa, and those payments may be unsecured or pre-funded on some basis.
The applicable prospectus supplement will describe the material terms of the purchase contracts. This description herein and in the prospectus supplement will be a summary, and reference is made to the purchase contracts, and, if applicable, collateral or depositary arrangements relating to the purchase contracts, which will be filed with the SEC each time we issue purchase contracts. If any particular terms of the purchase contracts described in the prospectus supplement differ from any of the terms described herein, then the terms described herein will be deemed superseded by that prospectus supplement. Material United States federal income tax considerations applicable to the purchase contracts also will be discussed in the applicable prospectus supplement.
DESCRIPTION OF OUR UNITS
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the units that we may offer under this prospectus. Units may be offered independently or together with shares of Common Stock, preferred shares, depositary shares, subscription rights, debt securities, warrants or purchase contracts offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will generally apply to any future units that we may offer under this prospectus, we will describe the particular terms of any series of units that we may offer in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference into the registration statement of which this prospectus forms a part the form of unit agreement, including a form of unit certificate, if any, that describes the terms of the series of units we are offering before the issuance of the related series of units. The following summaries of material provisions of the units, and the unit agreements, are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the units that we sell under this prospectus, as well as the complete unit agreements that contain the terms of the units.
General
We may issue units comprised of one or more shares of Common Stock, preferred shares, depositary shares, subscription rights, debt securities, warrants and purchase contracts in respectany combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including:
the designation and terms of the units and of the securities comprising the units, including whether, and under what circumstances, those securities may be held or transferred separately;
the rights and obligations of the unit agent, if any;
any provisions of the governing unit agreement that differ from those described below; and
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
The provisions described in this section, as well as those described under “Description of Capital Stock”, “Description of Our Depositary Shares”, “Description of Our Subscription Rights”, “Description of Our Debt Securities”, “Description of Our Warrants,” and “Description of Our Purchase Contracts” will apply to each unit and to any shares of Common Stock, preferred shares, debt securities or warrants included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in numerous distinct series as we determine.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the Commission. The Commission maintains an Internet site at http://www.sec.gov that contains the reports, statements and other information about issuers, such as us, who file electronically with the Commission. We also maintain a website at www.lsbindustries.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the Commission. Information contained on or accessible through our website is not a part of this prospectus or any prospectus supplement, and the inclusion of our website address in this prospectus is an inactive textual reference only.
The Commission allows us to “incorporate by reference” into this prospectus the information in other documents that we file with it. This means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information in documents that we file later with the Commission will automatically update and supersede information contained in documents filed earlier with the Commission or contained in this prospectus. We incorporate by reference in this prospectus (i) the documents listed below, (ii) all documents that we file with the Commission under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of the registration statement of which this prospectus is being delivered:
included and prior to the effectiveness of such registration statement, and (iii) and any future filings that we may make with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the termination of the offering under this prospectus; provided, however, that we are not incorporating, in each case, any documents or information deemed to have been furnished and not filed, including any information that we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K, in accordance with Commission rules:· | the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
· • | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
· | the dateour Annual Report on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
· | whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms; |
· | any applicable material U.S. federal income tax consequences; |
· | the identity of the warrant agentForm 10-K for the warrantsyear ended December 31, 2020, filed on February 25, 2021 (the “2020 Annual Report”); |
| • | | our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2021, filed on April 29, 2021; |
| • | | our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021, filed on July 29, 2021; |
| • | | our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2021, filed on November 2, 2021; |
| • | | the information in our proxy statement filed on April 19, 2021, to the extent incorporated by reference in our Annual Report on Form 10-K for the year ended December 31, 2020; |
| • | | our Current Reports on Form 8-K filed with the Commission on May 18, 2021, July 20, 2021, September 22, 2021, September 27, 2021 and September 29, 2021 (other than portions of any executionthose documents furnished or paying agents, transfer agents, registrars or other agents;not otherwise deemed to be filed); and |
· | the proposed listing, if any,• | | The description of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
· | the designation and terms of the equity securities purchasable upon exercise of the warrants; |
· | the designation, aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the warrants; |
· | if applicable, the designation and terms of the debt securities, preferred stock orour common stock contained in our registration statement on Form 8-A (File No. 001-07677) filed with which the warrants are issued and,Commission on October 24, 2008, including any amendment or report filed for the numberpurpose of warrants issued with each security; |
· | if applicable,updating such description, as supplemented by the date from and after which the warrants and the related debt securities, preferred stock ordescription of our common stock will be separately transferable;contained in Exhibit 4.15(a) to our Annual Report on Form 10-K for the year ended December 31, 2020. |
· | the number of shares of preferred stock or common stock purchasable upon exercise of a warrant and the price at which those shares may be purchased; |
· | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
· | information with respect to book-entry procedures, if any; |
· | the antidilution provisions of the warrants, if any; |
· | any redemption or call provisions; |
· | a description of any warrant agreement governing the warrants; and |
· | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Units
As specified in the applicable prospectus supplement, units will be comprisedYou may obtain a copy of twoany or moreall of the following securities in any combination: debt securities, preferred stock, common stock and warrants. You should referdocuments referred to the applicable prospectus supplement for:
· | all terms of the units and of the debt securities, preferred stock, common stock and warrants comprising the units, including whether and under what circumstances the securities comprising the unitsabove which may have been or may not be traded separately; |
· | a description of the terms of any unit agreement governing the units; and |
· | a description of the provisions for the payment, settlement, transfer or exchange of the units.
|
We may sell securities:
· | directly to purchasers; or |
· | through a combination of any of these methods of sale. |
We may directly solicit offers to purchase securities, or agents may be
designatedincorporated by reference into this prospectus, except for exhibits to
solicit such offers. We will, inthose documents (unless the
prospectus supplement relatingexhibits are specifically incorporated by reference into those documents), at no cost to
such offering, name any agent that could be viewed as an underwriter under the Securities Act of 1933, as amended, or the Securities Act, and describe any commissions that we must pay.you. Any such
agent willrequest should be
acting on a best efforts basis fordirected to: LSB Industries, Inc., 3503 NW 63rd Street, Suite 500, Oklahoma City, Oklahoma, Attention: Office of the
period of its appointment or, ifSecretary.LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, on a firm commitment basis. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
The distribution of the securities may be effected from time to time in one or more transactions:
· | at a fixed price, or prices, which may be changed from time to time; |
· | at market prices prevailing at the time of sale; |
· | at prices related to such prevailing market prices; or |
Each prospectus supplement will describe the method of distribution of the securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular series will describe the terms of the offering of the securities, including the following:
· | the name of the agent or any underwriters; |
· | the public offering or purchase price; |
· | any discounts and commissions to be allowed or paid to the agent or underwriters; |
· | any discounts and commissions to be allowed or paid to dealers; and |
· | any exchanges on which the securities will be listed. |
If any underwriters or agents are utilized in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
If a dealer is utilized in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
Remarketing firms, agents, underwriters and dealers may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
· | the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and |
· | if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts. |
Certain of the underwriters and their associates and affiliates may be customers of, have borrowing relationships with, engage in other transactions with, and/or perform services, including investment banking services, for, us or one or more of our respective affiliates in the ordinary course of business.
In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may over-allotlegal matters in connection with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.
The securities may be new issues of securities and may have no established trading market. The securities may or may not be listed on a national securities exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
Unless the applicable prospectus supplement indicates otherwise, the validity of the securities offered herebyby this prospectus will be passed upon for us by ConnerRopes & Winters,Gray LLP, 1700 One Leadership Square, 211 North Robinson Avenue, Oklahoma City, Oklahoma 73102-7101.Boston, Massachusetts. Additional legal matters may be passed upon for any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
The consolidated financial statements of LSB Industries, Inc. appearing in LSB Industries, Inc.’s Annual Report on Form 10-K as of December 31, 2008 and(Form 10-K) for each of the three fiscal years in the periodyear ended December 31, 2008 (including schedules appearing therein), and the effectiveness of LSB Industries, Inc.’s internal control over financial reporting as of December 31, 2008,2020, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reportsreport thereon included therein, and incorporated herein by reference. Such consolidated financial statements are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein by reference in reliance upon the reports of Ernst & Young LLP pertaining to such reportsfinancial statements and the effectiveness of our internal control over financial reporting as of the respective dates (to the extent covered by consents filed with the Securities and Exchange Commission) given on the authority of such firm as experts in accounting and auditing.
Industries, Inc.$200,000,000
Common Stock
(and thePreferred Shares
Depositary Shares
Subscription Rights attached to the Common Stock)
Debt Securities
Warrants
Purchase Contracts
Units
PROSPECTUS
, 2021
Preferred Stock
Warrants
Units
_________________
PROSPECTUS
________________, 2009
IIINFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC registration fee | $$ | 11,160 | |
Printing and engraving | $$ | 5,000 | * |
Accounting services | $$ | 27,000 | * |
Legal feesSet forth below is an estimate (except in the case of registrant’s counsel | $$ | 75,000 | * |
Miscellaneous | $$ | 10,000 | * |
Total
| $$ | 128,160 | * |
* All amounts except the registration fee are estimates.
fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution of the offered securities registered hereby, other than underwriting discounts and commission, if any, incurred in connection with the sale of the offered securities. The expenses relating to the registration of the securities will be borne by the registrant. | | | | |
SEC Registration fee | | $ | 18,540 | |
Legal fees and expenses | | | (1 | ) |
Accounting fees and expenses | | | (1 | ) |
Blue sky fees and expenses | | | (1 | ) |
Printing expenses | | | (1 | ) |
Miscellaneous fees and expenses | | | (1 | ) |
| | | | |
Total | | $ | (1 | ) |
| | | | |
| (1) | These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
The RegistrantCompany is incorporated under the laws of the State of Delaware. Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties 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 such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request of such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred. The Registrant’s certificate of incorporation and bylaws provide for the indemnification of directors and officers of the Registrant to the fullest extent permitted by the DGCL.
.Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability (i) for any transaction from which the director derives an improper personal benefit, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) for improper payment of dividends or redemptions of shares, or (iv) for any breach of a director’s duty of loyalty to the company or its stockholders. The Registrant’s certificate of incorporation includes such a provision. Reasonable expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its final disposition shall be paid by the Registrant upon delivery to the Registrant of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Registrant.
The indemnification discussed herein is not exclusive of any other rights the party seeking indemnification may possess. The Company carries officer and director liability insurance with respect to certain matters, including matters arising under the Securities Act of 1933, as amended (the “Securities Act”).
Section 145145(a) 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 hethe 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 person’s conduct was unlawful.
Section 145 further145(b) of the DGCL provides that a corporation may also indemnify any person 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 the court in which such action or suit was brought determinesshall determine upon application that, despite anthe adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
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
145(g)145 of the
Delaware General Corporation Law providesDGCL, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.II-1
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.
Section 145 of the DGCL also empowers a corporation shall have the power to purchase and maintain insurance on behalf of its officers, directors, employees and agents,any person who 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 any liability asserted against such person and incurred by such personsperson in any such capacity. Wecapacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145.
The Certificate of Incorporation also contains indemnification rights for the directors and officers liability insuranceofficers. Specifically, the Certificate of Incorporation provides for the benefitindemnity of our directors and officers.
In the
underwriting agreements the underwriters will agree to indemnify, under certain conditions, our company, our directors, certain of our officers and
personsdirectors to the fullest extent authorized by the DGCL.In addition, the DGCL permits the Company and its subsidiaries to purchase and maintain insurance on behalf of any person who control us within the meaningis a director or officer for acts committed in their capacities as such directors or officers. The Company currently maintains such liability insurance.
The general effect of the Securities Actforegoing is to provide indemnification to officers and directors for liabilities that may arise by reason of 1933, against certain liabilities.
their status as officers or directors, other than liabilities arising from willful or intentional misconduct, acts or omissions not in good faith, unlawful distributions of corporate assets or transactions from which the officer or director derived an improper personal benefit.Item 16. Exhibits.
Exhibits and Financial Statement Schedules(a) Exhibits
| | |
| Exhibit No. | | Description |
| | |
1*1.1* | | Form of Underwriting Agreement |
| |
| 3(i).1 | | Restated Certificate of Incorporation of LSB Industries, Inc., dated January 21, 1977, as amended which the Company hereby incorporatesAugust 27, 1987, incorporated herein by reference fromto Exhibit 3.13(i).1 to the Company’s Annual Report on Form 10-K forfiled on February 28, 2013. |
| |
| 3(i).2 | | Certificate of Amendment to the fiscal year ended December 31, 2008.Restated Certificate of Incorporation of LSB Industries, dated September 23, 2021 |
| |
| 3(ii).1 | | Amended and Restated Bylaws of LSB Industries, Inc. dated August 20, 2009, which the Company hereby incorporatesas amended February 18, 2010, January 17, 2014, February 4, 2014 and August 21, 2014, incorporated herein by reference fromto Exhibit 3(ii).1 to the Company’s Form 8-K filed on August 27, 2014. |
| |
| 3(ii).2 | | Fifth Amendment to the Amended and Restated Bylaws of LSB Industries, Inc., dated as of April 26, 2015, incorporated herein by reference to Exhibit 3(ii) to the Company’s Form 8-K filed August 26, 2009.on April 30, 2015. |
4.1
| |
| 3(ii).3 | | Specimen Certificate for the Company's Noncumulative Preferred Stock, having a par value of $100 per share, which the Company incorporates by reference from Exhibit 4.1Sixth Amendment to the Company’s Form 10-K for the fiscal year ended December 31, 2005. |
4.2
| | Specimen Certificate for the Company's Series B Preferred Stock, having a par valueAmended and Restated Bylaws of $100 per share, which the Company hereby incorporates by reference from Exhibit 4.27 to the Company's Registration Statement No. 33-9848. |
4.3
| | Specimen of Certificate of Series D 6% Cumulative, Convertible Class C Preferred Stock, which the Company hereby incorporates by reference from Exhibit 4.1 to the Company's Form 10-Q for the fiscal quarter ended September 30, 2001. |
4.4
| | Specimen Certificate for the Company's Common Stock, which the Company incorporates by reference from Exhibit 4.4 to the Company's Registration Statement No. 33-61640. |
4.5
| | Renewed Rights Agreement,LSB Industries, Inc., dated as of December 2, 2008, between the Company and UMB Bank, n.a., which the Company hereby incorporates2015, incorporated herein by reference fromto Exhibit 4.13(ii) to the Company’s Form 8-K datedfiled on December 5, 2008.8, 2015. |
II-2
| | |
4.6
3(ii).4 | | FirstSeventh Amendment to Renewed Rights Agreement, dated December 3, 2008, betweenthe Amended and Restated Bylaws of LSB Industries, Inc. and UMB Bank, n.a., which the Company hereby incorporatesdated as of December 22, 2015, incorporated herein by reference fromto Exhibit 3(ii) to the Company’s Form 8-K filed on December 29, 2015. |
| |
| 3.1 | | Certificate of Designations of Series G Class C Preferred Stock of LSB Industries, Inc., as filed with the Secretary of State of the State of Delaware on July 6, 2020, incorporated herein by reference to Exhibit 3(ii) to the Company’s Form 8-K filed on July 6, 2020. |
| |
| 4.2 | | Specimen Certificate for the Company’s Common Stock, incorporated herein by reference to Exhibit 4.3 to the Company’s Registration Statement on Form 8-K, dated December 5, 2008.S-3 ASR filed November 16, 2012. |
4.7
| | Amended and Restated Loan and Security Agreement by and among LSB Industries, Inc., ThermaClime, Inc. and each of its subsidiaries that are Signatories, the lenders and Wells Fargo Foothill, Inc., which the Company hereby incorporates by reference from Exhibit 4.2 to the Company’s Form 10-Q for the fiscal quarter ended September 30, 2007. |
4.8
| | Term Loan Agreement, dated as of November 2, 2007, among LSB Industries, Inc., ThermaClime, Inc. and certain subsidiaries of ThermaClime, Inc., Cherokee Nitrogen Holdings, Inc., the Lenders, the Administrative and Collateral Agent and the Payment Agent, which the Company hereby incorporates by reference from Exhibit 4.1 to the Company’s Form 10-Q for the fiscal quarter ended September 30, 2007. |
4.9
| | Certificate of 5.5% Senior Subordinated Convertible Debentures due 2012, which the Company hereby incorporates by reference from Exhibit 4.1 to the Company’s Form 8-K, dated June 28, 2007. |
4.10
| | Indenture, dated June 28, 2007, by and among the Company and UMB Bank, n.a., which the Company hereby incorporates by reference from Exhibit 4.2 to the Company’s Form 8-K, dated June 28, 2007. |
4.11
| | Business Loan Agreement, dated effective June 30, 2009, between Prime Financial Corporation and INTRUST Bank, N.A., which the Company hereby incorporates by reference from Exhibit 10.1 to the Company’s Form 10-Q for the fiscal quarter ended June 30, 2009. |
4.12
| | Promissory Note, dated July 6, 2009, between Prime Financial Corporation and INTRUST Bank, N.A., which the Company hereby incorporates by reference from Exhibit 10.2 to the Company’s Form 10-Q for the fiscal quarter ended June 30, 2009. |
4.13
4.3* | | Form of Senior IndenturePreferred Share Certificate |
4.14***
| |
| 4.4* | | Form of Senior NoteDeposit Agreement |
4.15
| |
| 4.5* | | Form of Subordinated IndentureDepositary Receipt |
4.16***
| |
| 4.6* | | Form of Subordinated NoteSubscription Rights Agreement (including form of subscription rights certificate) |
4.17*
| | Certificate of Designation of Preferred Stock |
4.18*
4.7* | | Form of Warrant AgreementIndenture |
4.19*
| |
| 4.8* | | Form of Common Stock Warrant Agreement and Warrant Certificate |
| |
| 4.9* | | Form of Preferred Shares Warrant Agreement and Warrant Certificate |
| |
| 4.10* | | Form of Debt Securities Warrant Agreement and Warrant Certificate |
| |
| 4.11* | | Form of Stock Purchase Contract (including form of stock purchase contract certificate) |
| |
| 4.12* | | Form of Unit Agreement (including form of unit certificate) |
5 | |
| 5.1 | | Opinion of ConnerRopes & Winters,Gray LLP |
12 | | Calculation of Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends |
| 23.1 | | Consent of Ernst & Young, LLP Independent Registered Public Accounting Firm |
| * | To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K prior to the issuance in connection with an offering of the applicable security.securities. |
| ** | To be incorporated by reference to a subsequent filingfiled in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 as amended.and Rule 5b-3 thereunder. |
(a) The undersigned registrantRegistrant hereby undertakes:
(1) Toto file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) toTo include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act of 1933”);Act;
II-3
(ii) toTo reflect in the prospectus any facts or events arising after the effective date of thisthe 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 thisthe 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percenta 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and(iii) toTo include any material information with respect to the plan of distribution not previously disclosed in thisthe registration statement or any material change to such information in thisthe registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrantRegistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in thisthe registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of thisthe registration statement.
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 thethat time shall be deemed to be the initial bona fide offering thereof.
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.
offering;(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) eachEach prospectus filed by the registrantRegistrant 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
(ii) eachEach 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 thatthe 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.
date; and(5) That, for the purpose of determining liability of the registrantRegistrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
Thesecurities, the undersigned
registrantRegistrant undertakes that in a primary offering of securities of the undersigned
registrantRegistrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned
registrantRegistrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
II-4
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act; Any preliminary prospectus or prospectus of the undersigned registrantRegistrant relating to the offering required to be filed pursuant to Rule 424;
(ii) anyAny free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrantRegistrant or used or referred to by the undersigned registrant;
Registrant;(iii) theThe portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrantRegistrant or its securities provided by or on behalf of thean undersigned registrant;Registrant; and
(iv) anyAny other communication that is an offer in the offering made by the undersigned registrantRegistrant to the purchaser.
(6) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
(b) The undersigned registrantRegistrant hereby undertakes that, for purposes of determining any liability under the Securities Act, of 1933, each filing of the registrant’sRegistrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act)Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the indemnificationforegoing provisions, described herein, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
(d) If and when applicable, the undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Act.
II-5
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant, LSB Industries, 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 Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oklahoma City, State of Oklahoma, on the 16th day of November, 13, 2009.2021.
| | | | |
| LSB INDUSTRIES, INC. |
| |
| By: | | /s/ Mark T. Behrman |
| | Name: | | Mark T. Behrman |
| | Title: | | President and Chief Executive Officer |
Dated: November 13, 2009 POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each officer and director of LSB INDUSTRIES, INC.
Jack E. Golsen
ChairmanIndustries, Inc. whose signature appears below constitutes and appoints Mark T. Behrman and Michael Foster, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this Registration Statement, and any additional Registration Statement filed pursuant to Rule 462(b), and to file the Boardsame, with all exhibits thereto, and
Chief Executive Officer
other documents in connection therewith, with the Securities and Exchange Commission, granting unto said 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his 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, as amended, this reportregistration statement has been signed below by the following persons in the capacities and on the dates indicated.
Dated: November 13, 2009 | | | | |
| Signature | | /s/ Jack E. Golsen |
| Title | | Jack E. Golsen
Date |
| | |
/s/ Mark T. Behrman Mark T. Behrman | | President and Chief Executive Officer (Principal Executive Officer) and Director | | November 16, 2021 |
| | |
/s/ Cheryl A. Maguire Cheryl A. Maguire | | Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | | November 16, 2021 |
| | |
/s/ Richard W. Roedel Richard W. Roedel | | Chairman of the Board andChief Executive Officer
(Principal Executive Officer)
|
Dated: November 13, 2009of Directors | | /s/ Tony M. ShelbyNovember 16, 2021 |
| | |
/s/ Jonathan S. Bobb Jonathan S. Bobb | | Tony M. Shelby
Executive Vice President of Finance
and Chief Financial Officer
(Principal Financial Officer)
|
Dated: November 13, 2009Director | | /s/ Harold L. Rieker Jr.November 16, 2021 |
| | Harold L. Rieker Jr.
Vice President and Principal Accounting Officer
|
Dated: November 13, 2009 | | /s/ Barry H. Golsen |
Barry H. Golsen | | Barry H. Golsen, Director
|
Dated: November 13, 2009 | | /s/ David R. GossNovember 16, 2021 |
| | |
/s/ Kanna Kitamura Kanna Kitamura | | David R. Goss, Director
|
Dated: November 13, 2009 | | *November 16, 2021 |
| | | | |
/s/ Steven L. Packebush Steven L. Packebush | | Raymond B. Ackerman, Director |
Dated: November 13, 2009 | | *November 16, 2021 |
| | |
/s/ Diana M. Peninger Diana M. Peninger | | Robert C. Brown MD, Director |
Dated: November 13, 2009 | | *November 16, 2021 |
| | |
/s/ Richard S. Sanders Jr. Richard S. Sanders Jr. | | Charles A. Burtch, Director |
Dated: November 13, 2009 | | *November 16, 2021 |
| | |
/s/ Lynn F. White Lynn F. White | | Robert A. Butkin, Director |
Dated: November 13, 2009 | | * |
| | Bernard G. Ille, Director
|
Dated: November 13, 2009 | | * |
| | Donald W. Munson, Director
|
Dated: November 13, 2009 | | * |
| | Ronald V. Perry, Director
|
Dated: November 13, 2009 | | * |
| | Horace G. Rhodes, Director
|
Dated: November 13, 2009 | | * |
| | John A. Shelley, Director
|
*By: /s/ Jack E. Golsen
Jack E. Golsen, as attorney-in-fact
| | 16, 2021 |
EXHIBIT INDEX
Exhibit No. | | Description |
| | |
1* | | Form of Underwriting Agreement |
3(i) | | Restated Certificate of Incorporation, as amended, which the Company hereby incorporates by reference from Exhibit 3.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008. |
3(ii) | | Amended and Restated Bylaws, dated August 20, 2009, which the Company hereby incorporates by reference from Exhibit 3(ii) to the Company’s Form 8-K, filed August 26, 2009. |
4.1
| | Specimen Certificate for the Company's Noncumulative Preferred Stock, having a par value of $100 per share, which the Company incorporates by reference from Exhibit 4.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2005. |
4.2
| | Specimen Certificate for the Company's Series B Preferred Stock, having a par value of $100 per share, which the Company hereby incorporates by reference from Exhibit 4.27 to the Company's Registration Statement No. 33-9848. |
4.3
| | Specimen of Certificate of Series D 6% Cumulative, Convertible Class C Preferred Stock, which the Company hereby incorporates by reference from Exhibit 4.1 to the Company's Form 10-Q for the fiscal quarter ended September 30, 2001. |
4.4
| | Specimen Certificate for the Company's Common Stock, which the Company incorporates by reference from Exhibit 4.4 to the Company's Registration Statement No. 33-61640. |
4.5
| | Renewed Rights Agreement, dated as of December 2, 2008, between the Company and UMB Bank, n.a., which the Company hereby incorporates by reference from Exhibit 4.1 to the Company’s Form 8-K, dated December 5, 2008. |
4.6
| | First Amendment to Renewed Rights Agreement, dated December 3, 2008, between LSB Industries, Inc. and UMB Bank, n.a., which the Company hereby incorporates by reference from Exhibit 4.3 to the Company’s Form 8-K, dated December 5, 2008. |
4.7
| | Amended and Restated Loan and Security Agreement by and among LSB Industries, Inc., ThermaClime, Inc. and each of its subsidiaries that are Signatories, the lenders and Wells Fargo Foothill, Inc., which the Company hereby incorporates by reference from Exhibit 4.2 to the Company’s Form 10-Q for the fiscal quarter ended September 30, 2007. |
4.8
| | Term Loan Agreement, dated as of November 2, 2007, among LSB Industries, Inc., ThermaClime, Inc. and certain subsidiaries of ThermaClime, Inc., Cherokee Nitrogen Holdings, Inc., the Lenders, the Administrative and Collateral Agent and the Payment Agent, which the Company hereby incorporates by reference from Exhibit 4.1 to the Company’s Form 10-Q for the fiscal quarter ended September 30, 2007. |
4.9
| | Certificate of 5.5% Senior Subordinated Convertible Debentures due 2012, which the Company hereby incorporates by reference from Exhibit 4.1 to the Company’s Form 8-K, dated June 28, 2007. |
4.10
| | Indenture, dated June 28, 2007, by and among the Company and UMB Bank, n.a., which the Company hereby incorporates by reference from Exhibit 4.2 to the Company’s Form 8-K, dated June 28, 2007. |
4.11
| | Business Loan Agreement, dated effective June 30, 2009, between Prime Financial Corporation and INTRUST Bank, N.A., which the Company hereby incorporates by reference from Exhibit 10.1 to the Company’s Form 10-Q for the fiscal quarter ended June 30, 2009. |
4.12
| | Promissory Note, dated July 6, 2009, between Prime Financial Corporation and INTRUST Bank, N.A., which the Company hereby incorporates by reference from Exhibit 10.2 to the Company’s Form 10-Q for the fiscal quarter ended June 30, 2009. |
4.13
| | Form of Senior Indenture |
4.14***
| | Form of Senior Note |
4.15
| | Form of Subordinated Indenture |
4.16***
| | Form of Subordinated Note |
4.17*
| | Certificate of Designation of Preferred Stock |
4.18*
| | Form of Warrant Agreement |
4.19*
| | Form of Unit Agreement |
5 | | Opinion of Conner & Winters, LLP |
12 | | Calculation of Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends |
23.1 | | Consent of Independent Registered Public Accounting Firm |
23.2 | | Consent of Conner & Winters, LLP (included in Exhibit 5) |
24*** | | Powers of Attorney (included in the signature pages to the Registration Statement) |
25** | | Statement of Eligibility of Trustee on Form T-1 |
* | To be filed by amendment or by a Current Report on Form 8-K prior to the issuance of the applicable security. |
** | To be incorporated by reference to a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |