FORM 10-Q
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X]QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For Quarterly period ended March 31, 1997
------------------------------------
OR
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For The transition period from to
-------------- --------------
Commission file number 1-7677
------------------------------------------
LSB INDUSTRIES, INC.
Exact name of Registrant as specified in its charter
DELAWARE 73-1015226
- ------------------------------ ---------------
State or other jurisdiction of I.R.S. Employer
incorporation or organization Identification No.
16 South Pennsylvania, Oklahoma City, Oklahoma 73107
-------------------------------------------------------
Address of principal executive offices (Zip Code)
(405) 235-4546
--------------------------------------------------
Registrant's telephone number, including area code
None
--------------------------------------------------
Former name, former address and former fiscal year, if
changed since last report.
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the Registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days.
YES x NO
------ ------
The number of shares outstanding of the Registrant's voting Common
Stock, as of May 1, 1997 was 12,882,656 shares excluding 2,031,820
shares held as treasury stock.
PART I
FINANCIAL INFORMATION
Company or group of companies for which report is filed: LSB
Industries, Inc. and all of its wholly-owned subsidiaries.
The accompanying condensed consolidated balance sheet of LSB
Industries, Inc. at March 31, 1997, the condensed consolidated
statements of operations and cash flows for the three month
periods ended March 31, 1997 and 1996 have been subjected to a
review, in accordance with standards established by the American
Institute of Certified Public Accountants, by Ernst & Young LLP,
independent auditors, whose report with respect thereto appears
elsewhere in this Form 10-Q. The financial statements mentioned
above are unaudited and reflect all adjustments, consisting
primarily of adjustments of a normal recurring nature, which are,
in the opinion of management, necessary for a fair presentation
of the interim periods. The results of operations for the three
months ended March 31, 1997 are not necessarily indicative of the
results to be expected for the full year. The condensed
consolidated balance sheet at December 31, 1996, was derived from
audited financial statements as of that date.
LSB INDUSTRIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Information at March 31, 1997 is unaudited)
(Dollars in thousands)
March 31, December 31,
ASSETS 1997 1996
_________________________________________ ___________ __________
Current assets:
Cash and cash equivalents $ 4,597 $ 1,620
Trade accounts receivable, net of allowance 55,819 50,791
Inventories:
Finished goods 39,402 36,304
Work in process 8,709 12,084
Raw materials 19,193 19,594
___________ __________
Total inventory 67,304 67,982
Supplies and prepaid items 8,007 7,217
___________ __________
Total current assets 135,727 127,610
Property, plant and equipment, net 118,983 103,143
Investments and other assets:
Loans receivable, secured by real estate 764 15,010
Other assets, net of allowance 15,511 15,521
___________ __________
$ 270,985 $ 261,284
=========== ==========
(Continued on following page)
LSB INDUSTRIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Continued)
(Information at March 31, 1997 is unaudited)
(Dollars in thousands)
March 31, December 31,
LIABILITIES AND STOCKHOLDERS' EQUITY 1997 1996
________________________________________ ___________ __________
Current liabilities:
Drafts payable $ 632 $ 536
Accounts payable 36,849 41,796
Accrued liabilities 12,947 12,780
Current portion of long-term debt 16,197 13,007
__________ __________
Total current liabilities 66,625 68,119
Long-term debt 136,959 119,277
Contingencies (Note 4)
Redeemable, noncumulative convertible
preferred stock, $100 par value; 1,539 shares
issued and outstanding (1,539 in 1996) 146 146
Stockholders' equity (Note 3):
Series B 12% cumulative, convertible
preferred stock, $100 par value;
20,000 shares issued and outstanding 2,000 2,000
Series 2 $3.25 convertible, exchangeable
Class C preferred stock, $50 stated
value; 920,000 shares issued 46,000 46,000
Common stock, $.10 par value; 75,000,000
shares authorized, 14,914,476 shares
issued (14,888,476 in 1996) 1,491 1,489
Capital in excess of par value 37,922 37,843
Accumulated deficit (8,947) (2,706)
__________ __________
78,466 84,626
Less treasury stock, at cost:
Series 2 Preferred, 5,000 shares 200 200
Common stock, 1,982,620 shares
(1,913,120 in 1996) 11,011 10,684
__________ __________
Total stockholders' equity 67,255 73,742
__________ __________
$ 270,985 $ 261,284
========== ==========
(See accompanying notes)
LSB INDUSTRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
Three Months Ended March 31, 1997 and 1996
(Dollars in thousands, except per share amounts)
1997 1996
__________ __________
Revenues:
Net sales $ 73,234 $ 69,495
Other income 1,630 1,411
__________ __________
74,864 70,906
Costs and expenses:
Cost of sales 62,312 54,688
Selling, general and administrative 14,872 13,718
Interest 3,056 2,969
__________ __________
80,240 71,375
__________ __________
Loss before provision for
income taxes (5,376) (469)
Provision for income taxes 62 62
---------- ----------
Net loss $ (5,438) $ (531)
========== ==========
Net loss applicable to
common stock (Note 2) $ (6,241) $ (1,350)
Average common shares outstanding (Note 2): ========== ==========
Primary 12,974,824 12,911,387
Fully diluted 12,974,824 12,911,387
Loss per common share (Note 2):
Primary $ (.48) $ (.10)
========== ==========
Fully diluted $ (.48) $ (.10)
========== ==========
(See accompanying notes)
LSB INDUSTRIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Three Months Ended March 31, 1997 and 1996
(Dollars in thousands)
1997 1996
___________ __________
Cash flows from operations:
Net loss $ (5,438) $ (531)
Adjustments to reconcile net loss
to cash flows used by operations:
Depreciation, depletion and amortization:
Property, plant and equipment 2,439 2,307
Other 283 307
Provision for possible losses
on receivables and other assets 152 539
Gain on sale of assets (65) (659)
Recapture of prior period provisions for
loss on loans receivable secured by real estate (1,383) -
Cash provided (used) by changes in assets
and liabilities:
Trade accounts receivable (4,841) (7,958)
Inventories 678 (616)
Supplies and prepaid items (791) (1,444)
Accounts payable (4,947) 5,625
Accrued liabilities 169 853
___________ __________
Net cash used by operations (13,744) (1,577)
Cash flows from investing activities:
Capital expenditures (2,819) (2,173)
Principal payments on notes receivable 183 44
Proceeds from sales of equipment and
real estate properties 160 15
Proceeds from sale of investment securities - 1,444
Increase in other assets (721) (96)
___________ __________
Net cash used in investing activities (3,197) (766)
Cash flows from financing activities:
Payments on long-term and other debt (21,172) (2,290)
Long-term and other borrowings 54,451 -
Net change in revolving debt (12,408) 4,787
Net change in drafts payable 96 (208)
Dividends paid on preferred stocks (Note 3) (803) (820)
Purchases of treasury stock (Note 3) (327) (7)
Net proceeds from issuance of common stock 81 -
___________ __________
Net cash provided by financing activities 19,918 1,462
___________ __________
Net increase (decrease) in cash 2,977 (881)
Cash and cash equivalents at beginning of period 1,620 1,420
----------- ----------
Cash and cash equivalents at end of period $ 4,597 $ 539
(See accompanying notes)
Note 1: At December 31, 1996, the Company had regular-tax net
operating loss ( NOL ) carryforwards for tax purposes of
approximately $45 million (approximately $10 million alternative
minimum tax NOLs). Such amounts of regular-tax NOL expire
beginning in 1999. The Company also has investment tax credit
carryforwards of approximately $356,000, which begin expiring in
1997.
The Company s provision for income taxes for the three months
ended March 31, 1997 of $62,000 is for current state income taxes
and federal alternative minimum tax.
Note 2: Primary earnings per common share are based upon the
weighted average number of common shares and dilutive common
equivalent shares outstanding during each period, after giving
appropriate effect to preferred stock dividends.
Fully diluted earnings per share are based on the weighted
average number of common shares and dilutive common equivalent
shares outstanding and the assumed conversion of dilutive
convertible securities outstanding, if any, after appropriate
adjustment for interest and related income tax effects on
convertible notes payable.
Net income applicable to common stock is computed by adjusting
net income by the amount of preferred stock dividends, including
past due undeclared or unpaid dividends, if cumulative.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, Earnings per Share, which is required to be
adopted on December 31, 1997. At that time, the Company will he
required to change the method currently used to compute earnings
per share and to restate all prior periods. Under the new
requirements for calculating primary earnings per share, the
dilutive effect of stock options will be excluded. Due to losses
incurred during the fiscal quarters ended March 31, 1997 and
March 31, 1996, the impact of Statement No. 128 on the
calculation of both primary and fully diluted earnings per share
for these quarters is not expected to be material.
Note 3: The table below provides detail of activity in the Stockholders'
equity accounts for the three months ended March 31, 1997:
<TABLE>
<CAPTION>
Retained
Common Stock Non- Capital Earnings Treasury
_______________ redeemable in excess (Accumu- Treasury Stock
Par Preferred of par lated Stock- Prefer-
Shares Value Stock Value deficit) Common red Total
______ ______ _________ ________ ______ _______ _______ ______
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 14,888 $ 1,489 $ 48,000 $ 37,843 $(2,706) $(10,684) $ (200) 73,742
Net loss (5,438) (5,438)
Exercise of stock options 26 2 79 81
Dividends declared:
Series B 12% preferred
stock ($3.00 per share) (60) (60)
Series 2 preferred
stock ($.81 per share) (743) (743)
Purchase of treasury stock (327) (327)
______ ______ ________ _______ _______ _______ ______ ______
(1)
Balance at March 31, 1997 14,914 $ 1,491 $ 48,000 $ 37,922 $(8,947) $(11,011) $ (200) $67,255
====== ====== ======== ======= ======= ======= ====== ======
</TABLE>
(1)
Includes 1,982,620 shares of the Company's Common Stock held in treasury.
Excluding the 1,982,620 shares held in treasury, the outstanding
shares of the Company's Common Stock at March 31, 1997 were 12,931,856.
Note 4: Following is a summary of certain legal actions
involving the Company:
A. In 1987, the U.S. Government notified one of the Company's
subsidiaries along with numerous other companies, of
potential responsibility for clean-up of a waste disposal
site in Oklahoma. No legal action has yet been filed. The
amount of the Company's cost associated with the clean-up of
the site is unknown due to continuing changes in (i) the
estimated total cost of clean-up of the site and (ii) the
percentage of the total waste which was alleged to have been
contributed to the site by the Company, accordingly, no
provision for any liability which may result has been made
in the accompanying financial statements. The subsidiary's
insurance carriers have been notified of this matter;
however, the amount of possible coverage, if any, is not yet
determinable.
B. The State of Arkansas performed a preliminary assessment of
the Chemical Business' primary manufacturing facility (the
"Site") and advised the Company that the Site has had
certain releases of contaminants. On July 18, 1994, the
Company received a report from the State of Arkansas which
contained findings of violations of certain environmental
laws and requested the Company to conduct further
investigations to better determine the compliance status of
the Company and releases of contaminants at the Site. On
May 2, 1995, the Company signed a Consent Administrative
Agreement ("Agreement") with the State of Arkansas. The
Agreement provides for the Company to remediate and close a
certain landfill, monitor groundwater for certain
contaminants and depending on the results of the monitoring
program to submit a remediaton plan, upgrade certain
equipment to reduce wastewater effluent, and pay a civil
penalty of $25,000.
Subsequent to the signing of the Agreement on May 2, 1995,
the Company completed its remediation and closure activities
and had the "Closure Certification Report" approved by the
State of Arkansas. The Company also submitted a
"Groundwater Monitoring Work Plan" to the State of Arkansas
which has been approved and the initial phase of field work
has been completed. A work plan for the second phase of the
monitoring has also been submitted and approved by the state
of Arkansas.
On February 12, 1996, the Company entered into another
Consent Administrative Agreement ("Additional Agreement")
with the state of Arkansas to resolve certain compliance
issues associated with nitric acid concentrations. The
Company has installed additional pollution control equipment
to reduce opacity and constituent emissions which impact
opacity. The Company was assessed $50,000 in civil
penalties associated with the Original Agreement. In the
summer of 1996 and then on January 28, 1997, the Company
executed amendments to the Additional Agreement ("Amended
Agreements"). The Amended Agreements acknowledged
compliance with the requirements of the prior Agreement and
imposed a $150,000 civil penalty. As of March 31, 1997, the
Company has paid $144,000 of the above penalties. The
Company is planning to undertake one or more supplemental
environmental projects in lieu of paying the remaining
penalty due. Based on information presently available, the
Company does not believe that compliance with these
agreements should have a material adverse effect on the
Company or the Company's financial condition or results of
operation.
C. In 1996, a lawsuit was filed against the Company's Chemical
Business by a group of residents of El Dorado, Arkansas,
asserting a citizens' suit against the Chemical Business as
a result of certain alleged violations of the Clean Air Act,
the Clean Water Act, the Chemical Business' air and water
permits and certain other environmental laws, rules and
regulations. The citizens' suit requests the court to order
the Chemical Business to cure such alleged violations, if
any, plus penalties as provided under the applicable
statutes. The Company's Chemical Business will assert all
defenses available to it and will vigorously defend itself.
In July 1996, several of the same individuals who are
plaintiffs in the citizens' suit referenced above filed a
toxic tort lawsuit against the Company's Chemical Business
alleging that they suffered certain injuries and damages as
a result of alleged releases of toxic substances from the
Chemical Business' El Dorado, Arkansas manufacturing
facility. In October 1996, another toxic tort lawsuit was
filed against the Company's Chemical Business. This
subsequent action asserts similar damage theories as the
previously discussed lawsuit, except this action attempts to
have a class certified to represent substantially all
allegedly affected persons. The plaintiffs are suing for an
unspecified amount of actual and punitive damages.
The Company's insurance carriers have been notified of these
matters. The Company and the Chemical Business maintain an
Environmental Impairment Insurance Policy ("EIL Insurance")
that provides coverage to the Company and the Chemical
Business for certain discharges, dispersals, releases, or
escapes of certain contaminants and pollutants into or upon
land, the atmosphere or any water course or body of water
from the Site, which has caused bodily injury, property
damage or contamination to others or to other property not
on the Site. The EIL Insurance provides limits of liability
for each loss up to $10.0 million and a similar $10.0
million limit for all losses due to bodily injury or
property damage, except $5.0 million for all remediation
expenses, with the maximum limit of liability for all claims
under the EIL Insurance not to exceed $10.0 million for each
loss or remediation expense and $10.0 million for all losses
and remediation expenses. The EIL Insurance also provides a
retention of the first $500,000 per loss or remediation
expense that is to be paid by the Company.
D. A civil cause of action has been filed against the Company's
Chemical Business and five (5) other unrelated commercial
explosives manufacturers alleging that the defendants
allegedly violated certain federal and state antitrust laws
in connection with alleged price fixing of certain explosive
products. The plaintiffs are suing for an unspecified
amount of damages, which, pursuant to statute, plaintiffs
are requesting be trebled, together with costs. Based on
the information presently available to the Company, the
Company does not believe that the Chemical Business
conspired with any party, including but not limited to, the
five (5) other defendants, to fix prices in connection with
the sale of commercial explosives. Discovery has only
recently commenced in this matter. The Chemical Business
intends to vigorously defend itself in this matter.
The Company's Chemical Business has been added as a
defendant in a separate lawsuit pending in Missouri. This
lawsuit alleges a national conspiracy, as well as a regional
conspiracy, directed against explosive customers in Missouri
and seeks unspecified damages. The Company's Chemical
Business has been included in this lawsuit because it sold
products to customers in Missouri during a time in which
other defendants have admitted to participating in an
antitrust conspiracy, and because it has been sued in the
preceding described lawsuit. Based on the information
presently available to the Company, the Company does not
believe that the Chemical Business conspired with any party,
to fix prices in connection with the sale of commercial
explosives. The Chemical Business intends to vigorously
defend itself in this matter.
For several years the explosive industry has been under an
investigation by the U.S. Department of Justice. Certain
explosive companies plead guilty to antitrust violations.
In connection with that investigation, the Chemical Business
received and has complied with certain document subpoenas,
and certain of the Chemical Business' employees have been
subpoenaed to testify in connection with such investigation.
As of the date of this report, the Chemical Business has not
been identified as a target of this investigation.
The Company including its subsidiaries, is a party to
various other claims, legal actions, and complaints arising
in the ordinary course of business. In the opinion of
management after consultation with counsel, all claims,
legal actions (including those described above) and
complaints are adequately covered by insurance, or if not so
covered, are without merit or are of such kind, or involve
such amounts that unfavorable disposition would not have a
material effect on the financial position of the Company,
but could have a material impact to the net income (loss) of
a particular quarter or year, if resolved unfavorably.
Debt Guarantee
The Company has guaranteed approximately $2.6 million of
indebtedness of a start-up aviation company, Kestrel Aircraft
Company, in exchange for a 25.6% ownership interest, to which no
value has been assigned as of March 31, 1997. The Company has
advanced the aviation company $241,000 as of March 31, 1997 and
is accruing losses of the aviation company based on its ownership
percentage. As a result, the Company has recorded losses of
$1,403,000 ($187,000 in the first quarter of 1997, and $626,000
and $590,000 in the years ended December 31, 1996 and 1995,
respectively) related to the debt guarantee. The debt guarantee
relates to a $2 million term note and up to $600,000 of a $2
million revolving credit facility. The $2 million term note
requires interest only payments through September 1998;
thereafter, it requires monthly principal payments of $11,111
plus interest beginning in October 1998 until it matures on
August 8, 1999, at which time all outstanding principal and
unpaid interest are due. In the event of default of this note,
the Company is required to assume payments on the note with the
term extended until August 2004. The $2 million revolving credit
facility, on which a subsidiary of the Company has guaranteed up
to $600,000 of indebtedness, had a balance of approximately
$400,000 as of March 31, 1997.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following Management's Discussion and Analysis of
Financial Condition and Results of Operations ("MD&A") should be
read in conjunction with a review of the Company's March 31, 1997
Condensed Consolidated Financial Statements.
OVERVIEW
The Company is pursuing a strategy of focusing on its more
profitable businesses and concentrating on businesses and product
lines in niche markets where the Company has established or can
establish a position as a market leader. In addition, the
Company is seeking to improve its liquidity and profits through
liquidation of selected assets that are on its balance sheet and
on which it is not realizing an acceptable return nor does it
have the potential to do so.
In this connection, the Company has been concentrating on
reshaping the Automotive Products Business by the liquidation of
certain of their assets that don't have the potential to earn an
acceptable return and focusing on product lines that management
believes have strategic advantages within select niche markets.
The Company has also recruited new key management people in the
Automotive Products Business including marketing, materials
control, manufacturing, and financial. The Company continues to
explore its alternatives to accomplish these goals.
In addition, the Company has been liquidating certain slow
moving inventory in the Industrial Products Business in the
ordinary course of business. It is the present intention of the
Company to limit this Business to lines of machine tools which
should result in an acceptable return on capital employed.
Certain statements contained in this Overview are forward-
looking statements, and the results thereof could differ
materially from such statements if the Company is unable to
liquidate such assets in a reasonable period or on reasonable
terms, and if able to liquidate such assets, it may not be able
to improve profits in the Automotive Products Business or have an
acceptable return on capital employed in these Businesses if
general economic conditions deteriorate drastically from the
environment these Businesses currently operate in or these
Businesses are unable to meet competitive pressures in the market
place which restrict these Businesses from manufacturing or
purchasing and selling their products at acceptable prices.
Information about the Company's continuing operations in
different industry segments for the three months ended March 31,
1997 and 1996 is detailed below.
Three Months Ended March 31,
1997 1996
___________ __________
(In thousands)
(Unaudited)
Sales:
Chemical $ 40,599 $ 36,520
Environmental Control 21,623 18,995
Automotive Products 7,992 10,956
Industrial Products 3,020 3,024
___________ __________
$ 73,234 $ 69,495
=========== ==========
Gross profit:
Chemical $ 3,384 $ 6,800
Environmental Control 6,008 4,699
Automotive Products 1,109 2,450
Industrial Products 421 858
___________ __________
$ 10,922 $ 14,807
=========== ==========
Operating profit (loss):
Chemical $ (645) $ 3,545
Environmental Control 1,551 721
Automotive Products (1,226) 139
Industrial Products (665) (497)
___________ __________
(985) 3,908
General corporate expenses (1,335) (1,408)
Interest expense (3,056) (2,969)
___________ __________
Loss before provision
for income taxes $ (5,376) $ (469)
=========== ==========
Gross profit by industry segment represents net sales less
cost of sales. Operating profit by industry segment represents
revenues less operating expenses before deducting general
corporate expenses, interest expense and income taxes. As
indicated in the above table, the operating profit (as defined)
declined from $3.9 million in the first quarter of 1996 to an
operating loss of $985,000 in the first quarter of 1997, while
sales increased approximately $3.7 million or 5.4% in the first
quarter of 1997 over the first quarter of 1996. The decline in
operating profit, coupled with an increase in interest expense,
resulted in a loss before provision for income taxes for 1997 of
$5.4 million.
Chemical Business
The operating profit in the Chemical Business is down from
$3.5 million profit in the first quarter of 1996 to an operating
loss of $.6 million in the first quarter of 1997. During the
first quarter of 1997, the Chemical Business continued to incur
significant amounts of downtime at its El Dorado, Arkansas Plant
site due to mechanical problems being incurred at the plant. The
downtime resulted in increases in manufacturing overhead and
lower absorption of such costs. The unabsorbed overhead combined
with the continued high cost of the primary raw material,
ammonia, led to higher cost of sales as a percent of sales and
lower gross profit margins.
The Chemical Business purchases approximately 250,000 tons
per year of anhydrous ammonia. The cost of ammonia consumed by
the Chemical Business in 1996 averaged $167 per ton, while in
November and December 1996, ammonia prices took an unexpected
increase to an average of approximately $200 per ton. During the
first quarter of 1997, ammonia prices continued to increase
through February (a high of $217 per ton) and then began to
decline during March so that the price for March, 1997
approximated the average price incurred during the months of
November and December 1996. The continued increase in ammonia
prices had a disruptive effect on the first quarter results of
the Chemical Business' operations. The decline in prices in
March, 1997 did not significantly reduce the Chemical Business'
cost of sales in the first quarter of 1997. The price of ammonia
averaged $45 more per ton in the first quarter of 1997 than in
the first quarter of 1996.
The Chemical Business has substantially finalized
negotiations with Bayer for the Chemical Business to build and
operate on a long-term basis a nitric acid plant located on
property owned by Bayer in Baytown, Texas. If the transaction is
completed, the Chemical Business would provide nitric acid from
such plant to Bayer's Baytown, Texas plant. Execution of the
agreement between the Chemical Business and Bayer is subject to
the Company finalizing the financing to construct the nitric acid
plant and the final terms upon which the Chemical Business would
lease such nitric acid plant. The Company has an agreement in
principle with a lender to provide financing. Such nitric acid
plant would be owned by a party that is not an affiliate of the
Company and would be leased to the Chemical Business for a period
expected to equal ten years under an operating lease. It is
expected that the cost to construct the nitric acid plant would
be approximately $60.0 million. Under the terms of the proposed
agreement, such nitric acid plant is to be constructed and become
operational within 18 months from execution of the definitive
agreement.
Environmental Control Business
As indicated in the above table, the Environmental Control
Business reported improved sales (an increase of 13.8%) and
improved operating profit for the first quarter of 1997, over
that of the first quarter of 1996, primarily as a result of
improved market conditions for the heat pump product lines.
Automotive and Industrial Products Businesses
As indicated in the above table, during the first quarter of
1997 these Businesses recorded combined sales of $11.0 million
and reported an operating loss (as defined above) of $1.9
million, as compared to combined sales of $14.0 million and an
operating loss of $.4 million for the first quarter of 1996, as a
result of lower sales and decreased absorption of manufacturing
costs due to lower production volume. The net investment in
assets of these Businesses decreased from $56.8 million at year
end 1996 to $56.3 million at March 31, 1997. As a result of the
stringent inventory reduction program put into place in 1995,
inventories of these Businesses decreased approximately $.9
million during the three months ended March 31, 1997.
RESULTS OF OPERATIONS
Three months ended March 31, 1997 vs. Three months ended March
31, 1996.
Revenues
Total revenues for the three months ended March 31, 1997 and
1996 were $74.9 million and $70.9 million, respectively (an
increase of $4.0 million). Sales increased $3.7 million. Other
income increased $.2 million.
Net Sales
Consolidated net sales included in total revenues for the
three months ended March 31, 1997 were $73.2 million, compared to
$69.5 million for the first three months of 1996, an increase of
$3.7 million. This increase in sales resulted principally from:
(i) increased sales in the Chemical Business of $4.1 million,
primarily due to higher sales in the U.S. of agricultural
products and increased business volume of the Company's
subsidiary located in Australia , Total Energy Systems ("TES"),
(ii) increased sales in the Environmental Control Business of
$2.6 million primarily due to firming of market conditions for
this Business' Heat Pump product lines,offset by (iii) decreased
sales in the Automotive Products Business of $3.0 due primarily
to a reduced customer base.
Gross Profit
Gross profit was 14.9% for the first three months of 1997,
compared to 21.3% for the first three months of 1996. The
decrease in the gross profit percentage was due primarily to (i)
decreased absorption of costs due to lower production volumes in
the Automotive Products Business, and (ii) higher production
costs in the Chemical Business due to the effect of higher prices
of ammonia and unabsorbed overhead costs caused by excessive
downtime related to modifications made to resolve problems
associated with mechanical failures at the Chemical Business'
primary manufacturing plant.
Selling, General and Administrative Expense
Selling, general and administrative ("SG&A") expenses as a
percent of net sales were 20.3% in the three month period ended
March 31, 1997 compared to 19.7% for the first three months of
1996. This increase is primarily the result of increased
professional fees related to environmental matters in the
Chemical Business and decreased sales volume in the Automotive
Products Business without a corresponding decrease in SG&A.
Interest Expense
Interest expense for the Company, excluding capitalized
interest, was $3.1 million during the first quarter of 1997,
compared to $3.0 million during the first quarter of 1996.
During the first quarter of 1997, $.7 million of interest expense
was capitalized in connection with construction of the DSN Plant.
The increase of $.8 million before the effect of capitalization
primarily resulted from increased borrowings and higher interest
rates.
Loss Before Taxes
The Company had a loss before income taxes of $5.4 million
in the first quarter of 1997 compared a loss before income taxes
of $.5 million in the three months ended March 31, 1996. The
decreased profitability of $4.9 million was primarily due to the
decline in gross profit and the increase in SG&A as previously
discussed.
Provision for Income Taxes
As a result of the Company's current operating loss and net
operating loss carryforward for income tax purposes as discussed
elsewhere herein and in Note 1 of Notes to Condensed Consolidated
Financial Statements, the Company's provisions for income taxes
for the three months ended March 31, 1997 and the three months
ended March 31, 1996 are for current state income taxes and
federal alternative minimum taxes.<PAGE>
Liquidity and Capital Resources
Cash Flow From Operations
Net cash used by operations for the quarter ended March 31,
1997 was $13.7 million, after adjustments for noncash
depreciation and amortization of $2.7 million and recapture of
previous years provisions for possible losses of $1.4 million.
This net cash usage includes the following changes in assets and
liabilities: (i) accounts receivable increases of $4.8 million,
(ii) inventory decreases of $0.7 million, (iii) increases in
supplies and prepaid items of $0.8 million, and (iv) decreases in
accounts payable and accrued liabilities of $4.8 million. The
increase in accounts receivable is due mainly to seasonal sales
increases in the Chemical Business. The decrease in inventories
is primarily due to the inventory reduction plan being executed
in the Automotive Products Business, partially offset by
increased inventories at the Chemical Business' Australian
subsidiary due to anticipated sales increases. The increase in
supplies and prepaid items is due primarily to increases in
prepaid insurance costs. The decrease in accounts payable and
accrued liabilities is due primarily to a decrease in capital
construction projects.
Cash Flow From Investing And Financing Activities
Cash used by investing activities included $2.8 million in
capital expenditures (primarily in the Chemical Business) and
increased other assets of $0.7 million due primarily to advances
made to a potential acquisition candidate. Net cash provided by
financing activities included (i) term borrowings of $54.5
million, including proceeds from the new $50 million financing
discussed under "Sources of Funds", (ii) payments on term debt of
$21.2 million, including $19.1 million in unscheduled payoff of
debt with proceeds from the new $50 million financing, (iii)
decreases in revolving debt of $12.4 million, (iv) dividends of
$0.8 million, and (v) treasury stock purchases of $0.3 million.
During the first quarter of 1997, the Company paid the
following aggregate dividends: (1) $3.00 per share on each of the
outstanding shares of its Series B 12% Cumulative Convertible
Preferred Stock; (2) $.81 per share on each outstanding share of
its $3.25 Convertible Exchangeable Class C Preferred Stock,
Series 2; and (3) $.03 per share on each outstanding share of its
Common Stock. During the second quarter of 1997, the Company has
paid a dividend of $10.00 per share on each outstanding share of
its Redeemable Preferred Stock and has declared but not paid
dividends of $.81 per share on each outstanding share of its
$3.25 Convertible Exchangeable Class C Preferred Stock, Series 2,
$3.00 per share on each of the outstanding shares of its Series B
12% Cumulative Convertible Preferred Stock and $.03 per share on
each share of its outstanding Common Stock.
Source of Funds
The Company is a diversified holding Company and its
liquidity is dependent, in large part, on the operations of its
subsidiaries and credit agreements with lenders.
On February 13, 1997 the Company's wholly-owned
subsidiaries, El Dorado Chemical Company, Slurry Explosive
Corporation, and Northwest Financial Corporation. (collectively
"Borrowers") completed a $50.0 million long-term financing
agreement ("Financing") with an institutional lender.
Approximately $19.3 million in proceeds from the Financing were
used to repay other outstanding term debt and accrued interest,
and the remaining $30.7 million in proceeds were used to pay down
the Company's revolving credit facilities and thereby create
additional borrowing availability for future working capital and
other corporate needs. The Financing is secured by a first
mortgage lien on the Chemical Business' property, plant, and
equipment located in El Dorado, Arkansas and owned by the
Borrowers, except rolling stock and excluding the DSN Plant which
is security under a separate loan agreement. The $50.0 million
Financing consists of $25.0 million of fixed rate notes bearing
interest at 10.57% per annum and $25.0 million of floating rate
notes bearing interest at LIBOR plus 4.2% (initially 9.76%).
Repayment of the notes is due in quarterly installments of
$833,332 plus interest commencing on July 1,1997 through April
2004 at which time the balance is due. The Financing requires
the Borrowers to maintain certain financial ratios and contains
other financial covenants, including the ratio of funded debt to
total capitalization, current ratio, and fixed charge coverage
ratio, in addition to net worth and working capital requirements.
As of the date of this report, the Borrowers are in compliance
with all financial covenants required by the loan agreement
related to the financing. The Financing also contains certain
restrictions on transactions with affiliates. The Financing
limits the amount of dividends or distributions by the Borrowers
to an amount equal to payments for federal income taxes
determined as if the Borrowers filed returns on a separate
company basis and dividends up to 50% of the Borrowers' prior
year net income. The annual interest on the $50 million in
outstanding debt under the Financing at March 31, 1997, at the
rate then in effect, would approximate $5.1 million.
The Company and certain of its subsidiaries are parties to a
working capital line of credit evidenced by six separate loan
agreements ("Agreements") with an unrelated lender ("Lender")
collateralized by receivables, inventory, and proprietary rights
of the Company and the subsidiaries that are parties to the
Agreements and the stock of certain of the subsidiaries that are
borrowers under the Agreements. The Agreements, as amended,
provide for revolving credit facilities ("Revolver") for total
direct borrowings up to $63.0 million, including the issuance of
letters of credit. The Revolver provides for advances at varying
percentages of eligible inventory and trade receivables. The
Agreements, as amended, provide for interest at the reference
rate as defined (which approximates the national prime rate) plus
1.5%, or the Eurodollar rate plus 3.875%. At March 31, 1997 the
effective interest rate was 10%. The initial term of the
Agreements is through December 12, 1997, and is renewable
thereafter for successive thirteen month terms. The Lender has
agreed to amend the initial term maturity date to April 1, 1998.
At March 31, 1997, additional amounts that the Company could have
borrowed under the Agreements, based on eligible collateral, were
approximately $18.2 million. Borrowings under the Revolver
outstanding at March 31, 1997, were $43.9 million. The
Agreements, as amended, require the Company to maintain certain
financial ratios and contain other financial covenants, including
tangible net worth requirements and capital expenditure
limitations. As of the date of this report, the Company is in
compliance with all financial covenants, or if not in compliance,
has obtained appropriate waivers from the Lender. The annual
interest on the outstanding debt under the Revolver at March 31,
1997 at the rates then in effect would approximate $4.5 million.
In addition to the Agreements discussed above, the Company
had the following term loans in place as of March 31, 1997:
(1) The Company s wholly-owned subsidiary, DSN Corporation
("DSN"), is a party to several loan agreements with a
financing company (the Financing Company ) for three (3)
projects. These loan agreements are for a $16.5 million
term loan (the DSN Permanent Loan"), which was used to
construct, equip, re-erect, and refurbish the DSN Plant
being placed into service by the Chemical Business at its El
Dorado, Arkansas facility; a loan for approximately $1.2
million to purchase additional railcars to support the DSN
Plant (the Railcar Loan ); and a loan for approximately
$1.1 million to finance the construction of a mixed acid
plant (the Mixed Acid Plant ) in North Carolina (the Mixed
Acid Loan ). At March 31, 1997, DSN had outstanding
borrowings of $13.4 million under the DSN Permanent Loan,
$.9 million under the Mixed Acid Loan, and $1.0 million
under the Railcar Loan. The loans have repayment schedules
of eighty-four (84) consecutive monthly installments of
principle and interest. The interest rate on each of the
loans is fixed and range from 8.24% to 8.86%. Annual
interest, for the three notes as a whole, at March 31, 1997
at the agreed to interest rates would approximate $1.3
million. The loans are secured by the various DSN and Mixed
Acid Plants property and equipment, and all railcars
purchased under the Railcar Loan. The loan agreements
require the Company to maintain certain financial ratios,
including tangible net worth requirements. As of the date
of this report, the Company is in compliance with all
financial covenants or if not in compliance, has obtained
appropriate waivers from the Financing Company.
(2) As of March 31, 1997, a subsidiary of the Company ("Prime")
was a party to an agreement ("Agreement") with Boatmen's
Bank, N.A. ("Bank"). The Agreement, as modified, requires
interest per annum at a rate equal to three quarters of one
percent (.75%) above the prime rate in effect from day to
day as published in the Wall Street Journal. The
outstanding principal balance of the note is payable in
sixty (60) monthly payments of principal and interest
commencing on June 30, 1996. Payment of the note is secured
by a first and priority lien and security interest in and to
Prime's right, title, and interest in the loan receivable
relating to the real property and office building located
in Oklahoma City, Oklahoma (the "Tower"), the Management
Agreement relating to the Tower. In February 1997, the
Company exercised its option to purchase the Tower by
paying approximately $140,000 for the exercise price under
the purchase option and related costs.
Future cash requirements include working capital
requirements for anticipated sales increases in all Businesses,
and funding for future capital expenditures, primarily in the
Chemical Business and the Environmental Control Business.
Funding for the higher accounts receivable resulting from
anticipated sales increases will be provided by cash flow
generated by the Company and the revolving credit facilities
discussed elsewhere in this report. Inventory requirements for
the higher anticipated sales activity should be met by scheduled
reductions in the inventories of the Industrial Products Business
and in the inventories of the Automotive Products Business, which
increased its inventories in 1995 beyond required levels. In
1997, the Company has planned capital expenditures of
approximately $6.0 million, primarily in the Chemical and
Environmental Control Businesses.
Management believes that cash flows from operations, the
Company's revolving credit facilities, and other sources, will
be adequate to meet its presently anticipated capital
expenditure, working capital, debt service, and dividend
requirements. The above sentence and certain statements
contained in the preceding paragraph are forward-looking
statements that involve a number of risks and uncertainties that
could cause actual results to differ materially, such as, a
material reduction in revenues, continuing to incur losses,
inability to collect a material amount of receivables, required
capital expenditures in excess of those presently anticipated, or
other future events, not presently predictable, which
individually or in the aggregate could impair the Company's
ability to obtain funds to meet its requirements. The Company
currently has no material commitment for capital expenditures,
except as discussed under "Overview", "Chemical Business" of this
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" regarding the negotiations to build a new
nitric acid plant.
Foreign Subsidiary Financing
The Company has guaranteed a revolving credit working
capital facility (the "Facility") between TES and Bank of New
Zealand. The Facility allows for borrowings based on specific
percentages of qualified eligible assets. The Facility was
amended on December 19, 1996 to allow for borrowings up to an
aggregate of A$8.5 million Australian. This amendment also
required a reduction of A$.5 million to the amount of A$8.0
million on or before February 28, 1997, then a further reduction
of A$1.0 million to the amount of A$7.0 million (approximately US
$5.6 million) on or before March 31, 1997. Based on the
effective exchange rate at March 31, 1997,approximately US $4.6
million was borrowed at March 31, 1997. Such debt is secured by
substantially all the assets of TES, plus an unlimited guarantee
and indemnity from the Company. The interest rate on this debt
is the Bank of New Zealand Corporate Lending Rate plus 0.5%
(approximately 10.0% at March 31, 1997). The next annual review
is due on September 30, 1997. TES is in technical non-compliance
with a certain financial covenant contained in the loan agreement
involving the Facility. However, this covenant was not met at
the time of closing and the Bank of New Zealand agreed and
continues to agree as of the date of this report that the
covenant is something to work towards in the
future and has continued to allow TES to borrow under the
Facility. The outstanding borrowing under the facility at March
31, 1997 has been classified as due within one year in the
accompanying Consolidated Financial Statements.
Joint Ventures and Options to Purchase
Prior to 1997, the Company, through a subsidiary, loaned
$2.9 million to a French manufacturer of HVAC equipment whose
product line is compatible with that of the Company's
Environmental Control Business in the USA. Under the loan
agreement, the Company has the option to exchange its rights
under the loan for 100% of the borrower's outstanding common
stock. The Company obtained a security interest in the stock of
the French manufacturer to secure its loan. During the first
quarter of 1997 the Company advanced an additional $1 million to
the French manufacturer bringing the total of the loan at March
31, 1997 to $3.9 million. As of the date of this report, the
decision has not been made to exercise such option and the $3.9
million loan, net of a $1.5 million valuation reserve, is carried
on the books as a note receivable in other assets.
During 1995, the Company executed a stock option agreement
to acquire eighty percent (80%) of the stock of a specialty sales
organization ("Optioned Company") to enhance the marketing of the
Company's air conditioning products. The stock option has a four
(4) year term, and a total option granting price of $1.0 million
payable in installments including an option fee of $500,000 paid
upon signing of the option agreement and annual $100,000
payments for yearly extensions of the stock option thereafter for
up to three (3) years. Upon exercise of the stock option by the
Company, or upon the occurrence of certain performance criteria
which would give the grantors of the stock option the right to
accelerate the date on which the Company must elect whether to
exercise, the Company shall pay certain cash and issue promissory
notes for the balance of the exercise price of the subject
shares. The total exercise price of the subject shares is $4.0
million, less the amounts paid for the granting and any
extensions of the stock option.
In 1995, a subsidiary of the Company invested approximately
$2.8 million to purchase a fifty percent (50%) equity interest in
an energy conservation joint venture (the "Project"). The
Project had been awarded a contract to retrofit residential
housing units at a US Army base. The completed contract was for
installation of energy-efficient equipment (including air
conditioning and heating equipment), which would reduce utility
consumption. For the installation and management, the Project
will receive an average of seventy-seven percent (77%) of all
energy and maintenance savings during the twenty (20) year
contract term. The Project spent approximately $17.5 million to
retrofit the residential housing units at the US Army base. The
Project has received a loan from a lender to finance
approximately $14.0 million of the cost of the Project. The
Company is not guaranteeing any of the lending obligations of the
Project.
Debt Guarantee
As disclosed in Note 4 of the Notes to Condensed
Consolidated Financial Statements a subsidiary of the Company and
one of its subsidiaries have guaranteed approximately $2.6
million of indebtedness of a start up aviation company in
exchange for an ownership interest. The debt guarantee relates
to two note instruments. One note for which the subsidiary had
guaranteed up to $600,000 had a balance of approximately $400,000
as of March 31, 1997. The other note in the amount of $2.0
million requires monthly principal payments of $11,111 plus
interest beginning in October 1998 through August 8, 1999, at
which time all outstanding principal and accrued interest are
due. In the event of default of the $2.0 million note, the
Company is required to assume payments on the note with the term
extended until August 2004. Both notes are current as to
principal and interest.
In 1996, the aviation company received a cash infusion of
$4.0 million from an unrelated third party investor for a 41.6%
ownership interest in the aviation company. The investor also
retained an option to purchase additional stock of the aviation
company in exchange for $4.0 million.
Availability of Company's Loss Carryovers
The Company anticipates that its cash flow in future years
will benefit from its ability to use net operating loss ("NOL")
carryovers from prior periods to reduce the federal income tax
payments which it would otherwise be required to make with
respect to income generated in such future years; however, such
benefit will be limited by the Company's reduced NOL for
alternative minimum tax purposes which is approximately $10.0
million at December 31, 1996. As of December 31, 1996, the
Company had available NOL carryovers of approximately $45.0
million, based on its federal income tax returns as filed with
the Internal Revenue Service for taxable years through 1995, and
on the Company's estimates for 1996. These NOL carryovers will
expire beginning in the year 1999.
The above paragraph contains certain forward-looking
statements. The amount of these carryovers has not been audited
or approved by the Internal Revenue Service and, accordingly, no
assurance can be given that such carryovers will not be reduced
as a result of audits in the future. In addition, the ability of
the Company to utilize these carryovers in the future will be
subject to a variety of limitations applicable to corporate
taxpayers generally under both the Internal Revenue Code of 1986,
as amended, and the Treasury Regulations. These include, in
particular, limitations imposed by Code Section 382 and the
consolidated return regulations.
Contingencies
As discussed in Note 4 of Notes to Condensed Consolidated
Financial Statements, the Company has several contingencies that
could impact its liquidity in the event that the Company is
unsuccessful in defending against the claimants. Although
management does not anticipate that these claims will result in
substantial adverse impacts on its liquidity, it is not possible
to determine the outcome. The preceding sentence is a forward
looking statement that involves a number of risks and
uncertainties that could cause actual results to differ
materially, such as, among other factors, the following: the EIL
Insurance does not provide coverage to the Company and the
Chemical Business for any material claims made by the claimants,
the claimants alleged damages are not covered by the EIL Policy
which a court may find the Company and/or the Chemical Business
liable for, such as punitive damages or penalties, a court finds
the Company and/or the Chemical Business liable for damages to
such claimants for a material amount in excess of the limits of
coverage of the EIL Insurance or a court finds the Chemical
Business liable for a material amount of damages in the antitrust
lawsuits pending against the Chemical Business in a manner not
presently anticipated by the Company.
Independent Accountants' Review Report
Board of Directors
LSB Industries, Inc.
We have reviewed the accompanying condensed consolidated balance
sheet of LSB Industries, Inc. and subsidiaries as of March 31,
1997, and the related condensed consolidated statements of
operations and cash flows for the three month periods ended March
31, 1997 and 1996. These financial statements are the
responsibility of the Company's management.
We conducted our reviews in accordance with standards established
by the American Institute of Certified Public Accountants. A
review of interim financial information consists principally of
applying analytical procedures to financial data, and making
inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing
standards, which will be performed for the full year with the
objective of expressing an opinion regarding the financial
statements taken as a whole. Accordingly, we do not express such
an opinion.
Based on our reviews, we are not aware of any material
modifications that should be made to the accompanying condensed
consolidated financial statements referred to above for them to
be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet of LSB
Industries, Inc. as of December 31, 1996, and the related
consolidated statements of operations, stockholders' equity and
cash flows for the year then ended (not presented herein); and in
our report dated March 7, 1997, we expressed an unqualified
opinion on those consolidated financial statements. In our
opinion, the information set forth in the accompanying condensed
consolidated balance sheet as of December 31, 1996, is fairly
stated, in all material respects, in relation to the consolidated
balance sheet from which it has been derived.
Oklahoma City, Oklahoma
May 20, 1997 ERNST & YOUNG LLP
PART II
OTHER INFORMATION
Item 1. Legal Proceedings
There are no additional material legal proceedings pending
against the Company and/or its subsidiaries not previously
reported by the Company in Item 3 of its Form 10-K for the fiscal
period ended December 31, 1996, which Item 3 is incorporated by
reference herein.
Item 2. Changes in Securities
Not applicable.
Item 3. Defaults upon Senior Securities
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable.
Item 5. Other Information
Not applicable.
Item 6. Exhibits and Reports on Form 8-K
(A) Exhibits. The Company has included the following
exhibits in this report:
3.0(ii) The Bylaws of the Company, as amended.
4.1 Seventh Amendment dated April 11, 1997 to the Loan
and Security Agreement dated December 12, 1994, between
the Company and BankAmerica Business Credit, Inc.
Substantially identical First Amendments dated April
11, 1997 to the Loan and Security Agreements dated
December 12, 1994, were entered into by each of L&S
Bearing, International Environmental Corporation,
Climate Master, Inc., Summit Machine Tool
Manufacturing, Corp., and El Dorado Chemical Company
and Slurry Explosive Corporation with BankAmerica
Business Credit, Inc. and are hereby omitted and such
will be provided upon the Commission's request.
10.1 Letter Amendment dated May 14, 1997 to Loan and
Security Agreement between DSN Corporation and The CIT
Group/Equipment Financing, Inc.
11.1 Statement Re: Computation of Per Share Earnings.
15.1 Letter Re: Unaudited Interim Financial
Information.
27.1 Financial Data Schedule
(B) Reports of Form 8-K. The Company did not file any
reports on Form 8-K during the quarter ended March 31,
1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the Company has caused the undersigned, duly-
authorized, to sign this report on its behalf on this 20th day of
May, 1997.
LSB INDUSTRIES, INC.
By: /s/ Tony M. Shelby
--------------------------------
Tony M. Shelby,
Senior Vice President of Finance
(Principal Financial Officer)
By: /s/ Jim D. Jones
----------------------------------
Jim D. Jones
Vice President, Controller and
Treasurer(Principal Accounting
Officer)
LSB INDUSTRIES, INC. Exhibit 3(ii)
BY-LAWS
ARTICLE I
Offices
Section 1. The principal office of the Corporation shall be in Oklahoma
City, County of Oklahoma, State of Oklahoma, and the Corporation may also have
offices at such other places as the Board of Directors may from time to time
appoint or at such other places as the business of the Corporation requires.
ARTICLE II
Seal
Section 1. The corporate seal shall be in such form as the Board of
Directors may from time to time prescribe. Said seal may be used by causing
it, or a facsimile thereof, to be impressed or affixed or reproduced or
otherwise.
ARTICLE III
Shareholders
Section 1. Place. All meetings of the shareholders shall be held in
Oklahoma City, Oklahoma, or at such other place as the directors may
designate.
Section 2. Annual Meeting. Annual meetings of shareholders to elect
directors and transact such other business as may properly be presented to the
meeting shall be held on the last Tuesday in April of each year if not a legal
holiday, and if a legal holiday, then on the next secular day following, at
10:00 a.m., or if the annual meeting is not held on the above designated date,
then the directors shall cause the annual meeting to be held as soon
thereafter as is convenient.
Section 3. Quorum. The holders of record of a majority of the stock
issued and outstanding, and entitled to vote thereat, present in person, or
represented by proxy, shall be requisite and shall constitute a quorum at all
meetings of the shareholders for the transaction of business, except as
otherwise provided by law, by the Certificate of Incorporation or by these
Bylaws, but in the absence of a quorum the holders of record, present in
person or represented by proxy at such meeting shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until the requisite amount of voting stock shall be present. At such
adjourned meeting at which the requisite amount of voting stock shall be
represented, any business may be transacted which might have been transacted
at the meeting as originally notified.
Section 4. Voting; Proxies. Except as otherwise provided by the laws
of the State of Delaware or the Certificate of Incorporation of the
Corporation or these Bylaws:
(a) At every meeting of the shareholders every shareholder
having the right to vote shall be entitled to one vote for each share of
capital stock having voting rights held by him.
(b) Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act
for him by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer
period.
(c) Each matter properly presented to any meeting shall be
decided by a majority of the votes cast on the matter.
(d) Election of directors and the vote on any other matter
presented to a meeting need not be by written ballots, but written
ballots may be used if ordered by the chairman of the meeting or if so
requested by any stockholder present or represented by proxy at the
meeting entitled to vote in such election or on such matter, as the case
may be.
Section 5. Notice of Meeting. For each meeting of stockholders written
notice shall be given stating the place, date and hour, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called and,
if the list of stockholders required by Section 6 is not to be at the place of
said meeting at least 10 days prior to the meeting, the place where said list
will be. Except as otherwise provided by Delaware law, the written notice of
any meeting shall be given not less than 10 nor more than 60 days before the
date of the meeting to each stockholder entitled to vote at such meeting. If
mailed, notice shall be deemed to be given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the Corporation.
Section 6. List of Stockholders Entitled to Vote. At least 10 days
before every meeting of stockholders a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the
name of each stockholder, shall be prepared and shall be open to the
examination of any stockholder for any purpose germane to the meeting, during
ordinary business hours, for a period of at least 10 days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. Such list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 7. Special Meetings. A special meeting of stockholders may be
called at any time by the Board of Directors, its Chairman, the Executive
Committee or the President and shall be called by any of them or by the
Secretary upon receipt of a written request to do so specifying the matter or
matters, appropriate for action at such a meeting, proposed to be presented at
the meeting and signed by holders of record of a majority of the shares of
stock that would be entitled to be voted on such matter or matters if the
meeting was held on the day such request is received and the record date for
such meeting was the close of business on the preceding day. Any such meeting
shall be held at such time and at such place, within or without the State of
Delaware, as shall be determined by the body or person calling such meeting
and as shall be stated in the notice of such meeting.
Section 8. Chairman and Secretary at Meeting. At each meeting of
stockholders, the Chairman of the Board of Directors or in his absence, the
President, or in his absence the person designated in writing by the
President, or if no person is so designated, then a person designated by the
Board of Directors shall preside as Chairman of the meeting; if no person is
so designated, then the meeting shall choose a Chairman by plurality vote.
The Secretary or in his absence a person designated by the Chairman of the
meeting shall act as Secretary of the meeting.
Section 9. Adjourned Meetings. A meeting of stockholders may be
adjourned to another time or place as provided in Sections 3 or 4(d) of this
Article III. Unless the Board of Directors fixes a new record date,
stockholders of record for an adjourned meeting shall be as originally
determined for the meeting from which the adjournment was taken. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote. At the
adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally called.
Section 10. Consent of Stockholders in Lieu of Meeting. Any action
that may be taken at any annual or special meeting of stockholders may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders
of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Notice of the taking
of such action shall be given promptly to each stockholder that would have
been entitled to vote thereon at a meeting of stockholders and that did not
consent thereto in writing.
Section 11. Fixing of Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than 60 nor less than
10 days before the date of such meeting, nor more than 60 days prior to any
other action. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which
notice is given or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held; the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed;
and the record date for determining shareholders for any other purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
ARTICLE IV
Directors
Section 1. Number, Term, Qualifications and Vacancies. The property,
business and affairs of the Corporation shall be managed by or under the
direction of its Board of Directors.
The number of directors that shall constitute the whole Board of
Directors may be fixed from time to time by resolution of the Board of
Directors and may consist of not less than three nor more than fifteen
members. The directors shall be divided into three (3) classes. Each class
shall consist, as nearly as possible, of one-third of the whole number of the
Board of Directors. The term of office of those directors of the first class
shall expire at the annual meeting of the shareholders of the Corporation next
ensuing; the term of office of the directors of the second class shall expire
one year thereafter; and the term of office of the directors of the third
class shall expire two years thereafter. At each annual election the
successors to the class of directors whose terms have expired in that year
shall be elected to hold office for a term of three (3) years. Each director
elected shall hold office until his successor is elected and qualified or
until his earlier resignation or removal. Directors and officers need not be
shareholders.
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors may be filled by a majority of the
directors then in office, although less than a quorum, or by the sole
remaining director. Each director chosen to fill a vacancy or newly created
directorship shall hold office until the next election of the class for which
such directors shall have been chosen and until his successor is duly elected
and qualified or until his earlier resignation or removal.
Section 2. Offices and Books. The directors may have one or more
offices, and keep the books of the Corporation at the offices of the
Corporation in Oklahoma City, Oklahoma, or at such other places as they may
from time to time determine.
Section 3. Resignation. Any director of the Corporation may resign at
any time by giving written notice of such resignation to the Board of
Directors, the Chairman of the Board of Directors, the President or the
Secretary of the Corporation. Any such resignation shall take effect at the
time specified therein or, if no time be specified, upon receipt thereof by
the Board of Directors or one of the above-named officers; and, unless
specified therein, the acceptance of such resignation shall not be necessary
to make it effective. When one or more directors shall resign from the Board
of Directors, such vacancy may be filled by a majority of the directors then
in office, although less than a quorum, or by the sole remaining director, and
each director so chosen shall hold office until the next election of the class
for which such director shall have been chosen and until his successor is duly
elected and qualified or until his earlier resignation or removal.
Section 4. Removal. Any one or more directors may be removed only for
cause by the vote or written consent of the holders of a majority of the
issued and outstanding shares of stock of the Corporation entitled to vote for
the election of directors.
Section 5. Regular and Annual Meetings; Notice. Regular meetings of
the Board of Directors shall be held at such time and at such place, within or
without the State of Delaware, as the Board of Directors may from time to time
prescribe. No notice need be given of any regular meeting and a notice, if
given, need not specify the purposes thereof. A meeting of the Board of
Directors may be held without notice immediately after an annual meeting of
stockholders at the same place as that at which such annual meeting of
shareholders was held.
Section 6. Special Meetings; Notice. A special meeting of the Board of
Directors may be called at any time by the Board of Directors, its Chairman,
the Executive Committee, the President or any person acting in the place of
the President and shall be called by any one of them or by the Secretary upon
receipt of a written request to do so specifying the matter or matters,
appropriate for action at such a meeting, proposed to be presented at the
meeting and signed by at least two directors of the Corporation. Any such
meeting shall be held at such time and at such place, within or without the
State of Delaware, as shall be determined by the body or person calling such
meeting. Notice of such meeting stating the time and place thereof shall be
given (a) by deposit of the notice in the United States mail, first class,
postage prepaid, at least three days before the day fixed for the meeting
addressed to each director at his address as it appears on the Corporation's
records or at such other address as the director may have furnished the
Corporation for that purpose, or (b) by delivery of the notice similarly
addressed for dispatch by telegraph, cable or radio or by delivery of the
notice by telephone or in person, in each case at least two days before the
time fixed for the meeting.
Section 5. Presiding Officer and Secretary at Meetings. Each meeting
of the Board of Directors shall be presided over by the Chairman of the Board
of Directors or in his absence by the President or if neither is present by
such member of the Board of Directors as shall be chosen by the meeting. The
Secretary, or in his absence an Assistant Secretary, shall act as secretary of
the meeting, or if no such officer is present, a secretary of the meeting
shall be designated by the person presiding over the meeting.
Section 6. Quorum. A majority of the whole Board of Directors shall
constitute a quorum for the transaction of business, but in the absence of a
quorum, a majority of those present (or if only one be present, then that one)
may adjourn the meeting, without notice other than announcement at the
meeting, until such time as a quorum is present. Except as otherwise required
by the Certificate of Incorporation or these By-Laws, the vote of the majority
of the directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors.
Section 7. Meeting by Telephone. Members of the Board of Directors or
of any committee thereof may participate in meetings of the Board of Directors
or of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence
in person at such meeting.
Section 8. Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors or of such
committee, as the case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the Board of Directors
or of such committee.
Section 9. Executive and Other Committees. The Board of Directors may,
by resolution passed by a majority of the whole Board of Directors, designate
an Executive Committee and one or more other committees, each such committee
to consist of two or more directors as the Board of Directors may from time to
time determine. Any such committee, to the extent provided in such resolution
or resolutions, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, including the power to authorize the seal of the Corporation to
be affixed to all papers that may require it; but no such committee shall have
such power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease, or exchange of all or substantially all
of the Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
the By-Laws; and unless the resolution shall expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
Each such committee other than the Executive Committee shall have such name as
may be determined from time to time by the Board of Directors. Any committee
of directors may be discharged or discontinued at any time, with or without
cause, by a majority vote of the Board of Directors at any meeting at which
there is a quorum present, likewise, any member of any committee of directors
may be removed from committee membership, with or without cause, by a majority
vote of the Board of Directors at any meeting at which there is a quorum
present.
Section 10. Compensation. Each director shall be entitled to
reimbursement of his reasonable expenses incurred in attending meetings or
otherwise in connection with his attention to the affairs of the Corporation.
Each director who is not a salaried officer of the Corporation or of a
subsidiary of the Corporation shall, as such director and as a member of any
committee, be entitled to receive such amounts as may be fixed from time to
time by the Board of Directors, in the form either of fees for attendance at
meetings of the Board and of committees thereof, or of payment at the rate of
a fixed sum per month, or both.
Section 11. Additional Powers. In addition to the powers and
authorities by these By-Laws expressly conferred upon it, the Board of
Directors may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation, as from time to time amended, or by these By-Laws, as from time
to time amended, directed or required to be exercised or done by the
shareholders.
ARTICLE V
OFFICERS
Section 1. Designation. The Corporation shall have such officers with
such titles and duties as set forth in these By-Laws or in any one or more
resolutions of the Board of Directors adopted on or after the effective date
of these By-Laws which are not inconsistent with these By-Laws and as may be
necessary to enable the Corporation to sign instruments and stock certificates
as required by law.
Section 2. Election; Qualification. The officers of the Corporation
shall be a President, one or more Vice Presidents, a Secretary and a
Treasurer, each of whom shall be elected by the Board of Directors. The Board
of Directors may elect a Chairman of the Board of Directors, a Controller, one
or more Assistant Secretaries, one or more Assistant Treasurers, one or more
Assistant Controllers, and such other officers as it may from time to time
determine. The Chairman of the Board of Directors, if any, shall be elected
from among the directors. Two or more offices may be held by the same person.
Section 3. Term of Office. Each officer shall hold office from the
time of his election and qualification to the time at which his successor is
elected and qualified, unless sooner he shall die or resign or shall be
removed pursuant to Section 5.
Section 4. Resignation. Any officer of the Corporation may resign at
any time by giving written notice of such resignation to the Board of
Directors, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein or, if no time be
specified, upon receipt thereof by the Board of Directors or one of the
above-named officers; and, unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. Removal. Any officer may be removed at any time, with or
without cause, by the vote of a majority of the whole Board of Directors.
Section 6. Vacancies. Any vacancy however caused in any office of the
Corporation may be filled by the Board of Directors.
Section 7. Compensation. The compensation of each officer shall be
such as the Board of Directors may from time to time determine.
Section 8. Chairman of the Board of Directors. The Chairman of the
Board of Directors, if such office be occupied, shall advise and consult with
the President concerning the business and affairs of the Corporation and shall
have such powers and duties as the By-Laws or the Board of Directors may from
time to time prescribe.
Section 9. President. The President shall be the chief executive
officer of the Corporation and shall have general charge of the business and
affairs of the Corporation and shall perform all such other duties as are
incident to the chief executive officer, subject however to the right of the
Board of Directors to confer specified powers on officers of the Corporation.
The President shall be ex-officio a member of all committees of the Board of
Directors.
Section 10. Vice President. Each Vice President shall have such powers
and duties as generally pertain to the office of Vice President and as the
Board of Directors or the President may from time to time prescribe. During
the absence of the President or his inability to act, the Vice President, or
if there shall be more than one Vice President, then that one designated by
the Board of Directors, shall exercise the powers and shall perform the duties
of the President, subject to the direction of the Board of Directors.
Section 11. Secretary. The Secretary shall keep the minutes of all
meetings of stockholders and of the Board of Directors. He shall be custodian
of the corporate seal and shall affix it or cause it to be affixed to such
instruments as he deems necessary or appropriate and attest the same and shall
exercise the powers and shall perform the duties incident to the office of
Secretary, and those that may otherwise from time to time be assigned to him
subject to the direction of the Board of Directors.
Section 12. Treasurer. The Treasurer shall be the chief accounting
officer of the Corporation and shall have care of all funds and securities of
the Corporation and shall exercise the powers and shall perform the duties
incident to the office of Treasurer, subject to the direction of the Board of
Directors.
Section 13. Other Officers. Each other officer of the Corporation
shall exercise the powers and shall perform the duties incident to his office,
subject to the direction of the Board of Directors.
ARTICLE VI
CAPITAL STOCK
Section 1. Stock Certificates. The interest of each holder of stock of
the Corporation shall be evidenced by a certificate or certificates in such
form at the Board of Directors may from time to time prescribe. Each
certificate shall be signed by, or in the name of the Corporation by the
Chairman of the Board of Directors, or the President or a Vice President, and
by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation. If such certificate is countersigned (a) by a
transfer agent other than the Corporation or its employee, or (b) by a
registrar other than the Corporation or its employee, any other signature on
the certificate may be facsimile. If any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of
issue.
Section 2. Transfer of Stock. Shares of stock shall be transferable on
the books of the Corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe on or
after the effective date of these ByLaws.
Section 3. Holders of Record. Prior to due presentment for
registration of transfer, the Corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all the rights and powers
of a complete owner thereof, notwithstanding notice to the contrary.
Section 4. Lost, Stolen, Destroyed, or Mutilated Certificates. The
Corporation may issue a new certificate of stock to replace a certificate
alleged to have been lost, stolen, destroyed or mutilated upon such terms and
conditions as the Board of Directors may from time to time prescribe, and the
Board of Directors may, in its discretion, require the owner of the lost or
destroyed certificate or his legal representative, to give the Corporation a
bond, in such sum as it may direct, not exceeding double the value of the
stock, to indemnify the Corporation against any claim that may be made against
it on account of the alleged loss of any such certificate.
Section 5. Transfer Agent and Registrar. The Board of Directors may
appoint one or more Transfer Agents and Registrars for the Common Stock and
Preferred Stock of the Corporation. The Transfer Agent shall be in charge of
the issue, transfer, and cancellation of shares of stock and shall maintain
stock transfer books, which shall include a record of the shareholders, giving
the names and addresses of all shareholders, and the number and class of
shares held by each; prepare voting lists for meetings of shareholders;
produce and keep open these lists at the meetings; and perform such other
duties as may be delegated by the Board of Directors. Shareholders may give
notice of changes of their addresses to the Transfer Agent. The Registrar
shall be in charge of preventing the over-issue of shares, shall register all
stock certificates, and perform such other duties as may be delegated by the
Board of Directors.
ARTICLE VII
CHECKS
Section 1. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
ARTICLE VIII
FISCAL YEAR
Section 1. The fiscal year shall begin the first day of January in each
year.
ARTICLE IX
DIVIDENDS
Section 1. Declaration. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation,
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of
the capital stock of the Corporation.
Section 2. Reserve Fund. The Board of Directors may set aside out of
any funds of the Corporation available for dividends a reserve or reserves for
any proper purposes and in such sum or sums as the directors from time to
time, in their absolute discretion, believe to be proper, and the Board of
Directors may abolish any such reserve.
ARTICLE X
NOTICE
Section 6.1. Waiver of Notice. Whenever notice is required by the
Certificate of Incorporation, the By-Laws, or as otherwise provided by law, a
written waiver thereof, signed by the person entitled to notice, shall be
deemed equivalent to notice, whether before or after the time required for
such notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 2. Mailing of Notice. Whenever under the provisions of these
By-Laws notice is required to be given to any director, officer, or
shareholder and such notice is not waived as provided in Section 1 of this
Article X, it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail, by depositing the same in the post office or
letter box, in a postpaid sealed wrapper, addressed to such shareholder,
officer or director at such address as appears on the books of the
Corporation, or, in default of other address, to such director, officer or
shareholder at the General Post Office in Oklahoma City, Oklahoma, and such
notice shall be deemed to be given at the time when the same shall be thus
mailed.
ARTICLE XI
AMENDMENT OF BY-LAWS
Section 1. Amendment. These By-Laws may be made, altered, or repealed
at any meeting of stockholders or at any meeting of the Board of Directors by
a majority vote of the whole Board.
APPROVAL OF DIRECTORS
The foregoing By-Laws, after being read section by section, were adopted
by the Directors of this Corporation on ________________, 19___, at Oklahoma
City, Oklahoma.
_________________________ __________________________
Jack E. Golsen Donald C. Edelson
_________________________ __________________________
David R. Goss Irwin H. Steinhorn
_________________________ __________________________
Tony M. Shelby Al Braver
- ------------------------- --------------------------
Gerald G. Barton Robert C. Brown, M.D.
- ------------------------- ---------------------------
Bernard G. Ille Jerome D. Shaffer, M.D.
- -------------------------
C. L. Thurman
FIRST AMENDMENT TO
LSB INDUSTRIES, INC.'S
BY-LAWS
The following amendments to LSB Industries, Inc.'s ("LSB") By-Laws were
approved and adopted by the Board of Directors of LSB at their special meeting
held on October 6, 1986:
1. Section 7. Special Meeting. of Article III of the By-Laws of LSB is
hereby amended, in its entirety, to read as follows:
"Section 7. Special Meetings.
A special meeting of stockholders may be called at any time by the
Chairman or by a majority of the directors then in office, and shall be called
by the Chairman upon receipt of a written request to do so specifying the
matter or matters, appropriate for action at such meeting, proposed to be
presented at the meeting and signed by holders of record of two-thirds of the
shares of stock that would be entitled to be voted on such matter or matters
if the meeting was held on the day such request is received and the record
date for such meeting was the close of business on the preceding day. Any
such meeting shall be held at such time and at such place, within or without
the State of Delaware, as shall be determined by the body or person calling
such meeting and as shall be stated in the notice of such meeting."
2. Section 1. Number, Term, Qualifications and Vacancies. of Article IV
of the By-Laws of LSB is hereby amended, in its entirety, to read as follows:
"Section 1. Number, Term, Qualifications and Vacancies.
The property, business and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors.
The number of directors that shall constitute the whole Board of
Directors may be fixed from time to time by resolution of the Board of
Directors and may consist of not less than three nor more than fifteen
members. The directors shall be divided into three (3) classes. Each class
shall consist, as nearly as possible, of one-third of the whole number of the
Board of Directors. The term of office of those directors of the first class
shall expire at the annual meeting of the shareholders of the Corporation next
ensuing; the term of office of the directors of the second class shall expire
one year thereafter; and the term of office of the directors of the third
class shall expire two years thereafter. At each annual election the
successors to the class of directors whose terms have expired in that year
shall be elected to hold office for a term of three (3) years. Each director
elected shall hold office until his successor is elected and qualified or
until his earlier resignation or removal. Directors and officers need not be
shareholders.
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors shall be filled only by a majority of the
directors then in office, although less than a quorum, or by the sole
remaining director. Each director chosen to fill a vacancy or newly created
directorship shall hold office until the next election of the class for which
such directors shall have been chosen and until his successor is duly elected
and qualified or until his earlier resignation or removal."
3. Section 3. Resignations. of Article IV of the By-Laws of LSB is hereby
amended, in its entirety, to read as follows:
"Section 3. Resignation.
Any director of the Corporation may resign at any time by giving written
notice of such resignation to the Board of Directors, the Chairman of the
Board of Directors, the President or the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein or, if no
time be specified, upon receipt thereof by the Board of Directors, or one of
the above-named officers; and, unless specified therein, the acceptance of
such resignation shall not be necessary to make it effective. When one or
more directors shall resign from the Board of Directors, such vacancy shall be
filled only by a majority of the directors then in office, although less than
a quorum, or by the sole remaining director. Each director so chosen shall
hold office until the next election of the class for which such director shall
have been chosen and until his successor is duly elected and qualified or
until his earlier resignation or removal."
4. Section 4. Removal. of Article IV of the By-Laws of LSB is hereby
amended, in its entirety, to read as follows:
"Section 4. Removal.
Any one or more directors may be removed only for cause by the vote or
written consent of the holders of a majority of the issued and outstanding
shares of stock of the Corporation entitled to vote for the election of all
directors. For purposes of this Article IV, Section 4, cause for removal
shall be deemed to exist only if the Director whose removal is proposed has
been convicted of a felony by a court of competent jurisdiction or has been
adjudged by a court of competent jurisdiction to be liable for intentional
misconduct or knowing violation of law in the performance of such Director's
duty to the Corporation and, in each case, such adjudication is no longer
subject to direct appeal."
5. Section 6. Special Meetings; Notice. of Article IV of the By-Laws of
LSB is hereby amended, in its entirety, to read as follows:
"Section 6. Special Meetings; Notice.
A special meeting of the Board of Directors may be called at any time by
the Chairman or a majority of the directors then in office. Any such meeting
shall be held at such time and at such place, within or without the State of
Delaware, as shall be determined by the body or person calling such meeting.
Notice of such meeting stating the time and place thereof shall be given
(a) by deposit of the notice in the United States mail, first class, postage
prepaid, at least three days before the day fixed for the meeting addressed to
each director at his address as it appears on the Corporation's records or at
such other address as the director may have furnished the Corporation for that
purpose, or (b) by delivery of the notice similarly addressed for dispatch by
telegraph, cable or radio or by delivery of the notice by telephone or in
person, in each case at least two days before the time fixed for the meeting."
6. Section 1. Amendment. of Article XI of the By-Laws of LSB is hereby
amended, in its entirety, to read as follows:
"Section 1. Amendment.
These By-laws may be made, amended, altered, added to, revised or
repealed only by a vote of a majority of the directors then in office or by a
vote of the holders of two-thirds of the issued and outstanding shares of
stock of the Corporation entitled to vote for the election of all directors."
The By-Laws of LSB Industries, Inc., as amended and modified by this
First Amendment to LSB Industries, Inc.'s By-Laws, sets forth the entire
By-Laws of LSB. The amendments to LSB's By-Laws as combined in this First
Amendment to LSB Industries, Inc.'s By-Laws are effective as of the 6th day of
October, 1986, the date that such amendments were approved by the Board of
Directors of LSB.
Dated: October 6, 1986
LSB INDUSTRIES, INC.
Jack E. Golsen
Chairman of the Board
and President
(Seal)
Irwin H. Steinhorn
Secretary
SECOND AMENDMENT
TO THE BY-LAWS
OF
LSB INDUSTRIES, INC.
Section 9. Executive and Other Committees. of ARTICLE IV of LSB
Industries, Inc.'s (the "Company") By-Laws has been duly and validly amended
by the Board of Directors of the Company, by a written memorandum of action,
dated November 7, 1986, executed by all members of the Board of Directors
pursuant to Section 141(f) of the Delaware General Corporation Law, to read as
follows:
"Section 9. Executive and Other Committees. The Board of
Directors may, by resolution passed by a majority of the whole Board of
Directors, designate an Executive Committee and one or more other
committees, each such committee to consist of two or more directors as
the Board of Directors may from time to time determine. Any such
committee, to the extent provided in such resolution or resolutions,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed
to all papers that may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of
Incorporation (except that a committee may, to the extent authorized in
the resolution or resolutions providing for the issuance of shares of
stock adopted by the Board of Directors, fix the assignations and any of
the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the Corporation
or the conversion into, or the exchange of such shares for, shares of
any other class or classes or any other series of the same or any other
class or classes of stock of the Corporation or fix the number of shares
of any series of stock or authorize the increase or decrease of the
shares of any series), adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, or exchange of all or
substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of
a dissolution, or amending the By-Laws; and unless the resolution shall
expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
Each such committee other than the Executive Committee shall have such
name as may be determined from time to time by the Board of Directors.
Any committee of directors may be discharged or discontinued at any
time, with or without cause, by a majority vote of the Board of
Directors at any meeting at which there is a quorum present, likewise,
any member of any committee of directors may be removed from committee
membership, with or without cause, by a majority vote of the Board of
Directors at any meeting at which there is a quorum present."
The By-Laws of LSB Industries, Inc., as amended and modified by the
First Amendment to LSB Industries, Inc.'s By-Laws, dated October 6, 1986, and
by this Second Amendment to the By-Laws of LSB Industries, Inc., sets forth
the entire By-Laws of LSB. The amendment to the Company's By-Laws as set
forth in this Second Amendment to the LSB Industries, Inc's By-Laws is
effective as of the 7th day of November, 1986, the date of the Memorandum of
Action in which the members of the Board of Directors adopted and approved
such amendment.
Dated: November 7, 1986
LSB INDUSTRIES, INC.
Jack E. Golsen, Chairman of the
Board and President
Irwin H. Steinhorn, Secretary
(SEAL)
THIRD AMENDMENT
TO THE BY-LAWS
OF
LSB INDUSTRIES, INC.
Section 1. Number, Term Qualification and Vacancies of ARTICLE IV and
Section 1. Amendment of ARTICLE IX of LSB Industries, Inc.'s (the "Company")
By-Laws have been duly and validly amended by the Board of Directors of the
Company, by a written memorandum of action, dated June 1, 1989, executed by
all members of the Board of Directors pursuant to Section 141(f) of the
Delaware General Corporation Law, to read as follows:
ARTICLE IV, Section 1. Number, Term, Qualification and Vacancies.
The property, business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors.
The number of directors that shall constitute the whole Board of
Directors may be fixed from time to time pursuant to a resolution
adopted by a vote of two-thirds of the entire Board of Directors and may
consist of no fewer than three nor more than eight members. The
directors shall be divided into three classes. Each class shall
consist, as nearly as possible, of one-third of the whole number of the
Board of Directors. At each annual election of the successors to the
class of directors whose terms have expired in that year shall be
elected to hold office for a term of three years. Each director elected
shall hold office until his successor is elected and qualified or until
his earlier resignation or removal. Directors and officers need not be
shareholders.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled only by a
majority of the directors then in office, although less than a quorum,
or by the sole remaining director. Each director chosen to fill a
vacancy or newly created directorship shall hold office until the next
election of the class for which such directors shall have been chosen
and until his successor is duly elected and qualified or until his
earlier resignation or removal.
ARTICLE IX, Section 1. Amendment. These By-Laws may be made,
amended, altered, added to, revised or repealed only by a vote of a
majority of the directors then in office or by a vote of the holders of
two-thirds of the issued and outstanding shares of stock of the
Corporation entitled to vote for the election of directors; provided,
however, that Article IV, Section 1 of these By-Laws and this
Article IX, Section 1, may be amended, altered, added to, revised or
repealed only by a vote of two-thirds of the entire Board of Directors
or by a vote of two-thirds of the issued and outstanding shares of stock
of the Corporation entitled to vote for the election of directors.
The By-Laws of LSB Industries, Inc., as amended and modified by
the First Amendment to LSB Industries, Inc.'s By-Laws, dated October 6,
1986, by the Second Amendment to the By-Laws dated June 1, 1989, and by
this Third Amendment to the By-Laws of LSB Industries, Inc., sets forth
the entire By-Laws of LSB. The amendment to the Company's By-Laws as
set forth in this Third Amendment to the LSB Industries, Inc.'s By-Laws
is effective as of the 1st day of June, 1989, the date of the Memorandum
of Action in which the members of the Board of Directors adopted and
approved such amendment.
Dated: June 1, 1989
LSB INDUSTRIES, INC.
Jack E. Golsen, Chairman of
the Board and President
AMENDMENT TO THE BY-LAWS
OF
LSB INDUSTRIES, INC.
The following Amendments to the By-laws of LSB Industries, Inc. ("LSB"),
were approved and adopted by the Board of Directors of LSB at their meeting
held on April 26, 1990:
1. Section 10, Consent to Stockholders in Lieu of Meeting, of ARTICLE III
of the By-laws is hereby deleted in its entirety and in lieu thereof a new
Section 10 is substituted in place thereof, which reads as follows:
Section 10. Consent of Stockholders in Lieu of Meeting.
10.1 Action by Written Consent. Any action which is required to be or may be
taken at any annual or special meeting of stockholders of the corporation may
be taken without a meeting, without prior notice and without a vote, if
consents in writing, setting forth the action so taken, shall have been signed
by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or to take such action at a meeting
at which all shares entitled to vote thereon were present and voted; provided
however, that prompt notice of the taking of the corporate action without a
meeting and by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
10.2 Determination of Record Date of Action by Written Consent. In order to
inform the corporation's stockholders and the investing public in advance that
a record date for action by consent will occur and to comply with the
procedures contained in the American Stock Exchange (or such other exchange on
which the corporation's securities are listed for trading) policies and rules,
the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting is fixed by the Board of
Directors of the corporation pursuant to Section 213(a) of the Delaware
General Corporation Law as follows: The Board of Directors shall set as the
record date the 10th day after (i) any stockholder of record seeking to have
the stockholders authorize or take corporate action by written consent without
a meeting shall, by written notice to the Secretary which may be given by
telex or telecopy, advise the corporation of the corporate action proposed for
which consents will be sought and request from the Board of Directors a record
date unless a later date is specified by such stockholder, or (ii) the Board
of Directors determines that the corporation should seek corporate action by
written consent, unless a later record date is specified in the resolution of
the Board of Directors containing such determination. In the event that the
record date set as provided falls on a Saturday, Sunday or legal holiday, the
record date shall be the first day next following such date that is not a
Saturday, Sunday or legal holiday. Any record date determined pursuant to
this Subsection 10.2 shall be announced by a pres release prior to the opening
of trading on the American Stock Exchange (or such other exchange on which the
corporation's securities are listed for trading) on the next trading day after
a request for a record date pursuant to clause (i) above is received by the
Secretary or a Board of Directors' determination pursuant to clause
(ii) above.
10.3 Duration and Revocation of Consents. In order that the corporation's
stockholders shall have an opportunity to receive and consider the information
germane to an informed judgment as to whether to give a written consent and in
accordance with the procedures contained in the American Stock Exchange (or
such other exchange on which the corporation's securities are listed for
trading) policies and rules, the stockholders of the corporation shall be
given at least twenty (20) days from the record date to give or revoke written
consents. Consents to corporate action shall be valid for a maximum of sixty
(60) days after the record date. Consents may be revoked by written notice
(i) to the corporation, (ii) to the stockholder or stockholders soliciting
consents or soliciting revocations in opposition to action by consent proposed
by the corporation (the "Soliciting Stockholders"), or (iii) to a proxy
solicitor or other agent designated by the corporation of the Soliciting
Stockholder(s).
10.4 Retention and Duties of Inspectors of Election. Within two (2) business
days after receipt of a request by a stockholder for the setting of a record
date or a determination by the Board of Directors that the corporation should
seek corporate action by written consent, as the case may be, the Secretary of
the corporation shall engage nationally recognized independent inspectors of
elections for the purpose of performing a ministerial review of the validity
of the consents and revocations. The inspectors shall review all consents and
revocations, determine whether the requisite number of valid and unrevoked
consents has been obtained to authorize or take the action specified in the
consents, and forthwith certify such determination for entry in the records of
the corporation kept for the purpose of recording the proceedings of meetings
of stockholders. The cost of retaining inspectors of elections shall be borne
by the party proposing the action by consent.
10.5 Procedures for Counting and Challenging Consents. Consents and
revocations shall be delivered to the inspectors upon receipt by the
corporation, the Soliciting Stockholders or their proxy solicitors or other
designated agents. As soon as consents and revocations are received, the
inspectors shall review the consents and revocations and shall maintain a
count of the number of valid and unrevoked consents. The inspectors shall
keep such count confidential and shall not reveal the count to the
corporation, the Soliciting Stockholders or their representatives. As soon as
practicable after the earlier of (i) sixty (60) days after the record date for
the consents or (ii) a request therefore by the corporation or the Soliciting
Stockholders (whichever is soliciting consents) made after expiration of the
period for giving or revoking consents under Subsection 10.3 above, notice of
which request shall be given to the party opposing the solicitation of
consents, which request shall state that the corporation or Soliciting
Stockholder(s) (as the case may be) in good faith believe that it or they have
received the requisite number of valid and unrevoked consents to authorize or
take the action specified in the consents, the inspectors shall issue a
preliminary report to the corporation and the Soliciting Stockholders stating:
(i) The number of valid consents;
(ii) The number of valid revocations;
(iii) The number of valid and unrevoked consents;
(iv) The number of invalid consents;
(v) The number of invalid revocations;
(vi) Whether, based on their preliminary count, the requisite number of
valid and unrevoked consents has been obtained to authorize or
take the action specified in the consents.
Unless the corporation and the Soliciting Stockholder(s) shall agree to a
shorter or longer period, the corporation and the Soliciting Stockholder(s)
shall have forty-eight (48) hours to review the consents and revocations and
to advise the inspectors and the opposing party in writing as to whether they
intend to challenge the preliminary report of the inspectors. If no written
notice of an intention to challenge the preliminary report is received within
forty-eight (48) hours after the inspector's issuance of the preliminary
report, the inspectors shall issue to the corporation and the Soliciting
Stockholder(s) their final report containing the information from the
inspectors' determination with respect to whether the requisite number of
valid and unrevoked consents was obtained to authorize and take the action
specified in the consents. If the corporation or the Soliciting
Stockholder(s) issue written notice of an intention to challenge the
inspectors' preliminary report within forty-eight (48) hours after the
issuance of that report, a challenge session shall be scheduled by the
inspectors as promptly as practicable. A transcript of the challenge session
shall be recorded by a certified court reporter. Following completion of the
challenge session, the inspectors shall as promptly as practicable issue their
final report to the corporation and the Soliciting Stockholder(s) containing
the information included in the preliminary report, plus all changes in the
vote totals as a result of the challenges and a certification of whether the
requisite number of valid and unrevoked consents was obtained to authorize or
take the action specified in the consents.
10.6 Notice of Results. The corporation shall give prompt notice to the
stockholders of the results of any consent solicitation or the taking of the
corporate action without a meeting and by less than unanimous written consent.
2. Article III of the By-laws is hereby amended by adding at the end
thereof new Sections 12 and 13, which shall read as follows:
Section 12. Business to be Conducted at the Annual or Special Meeting
of the Stockholders. At any annual meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting
(i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the corporation who is entitled to vote with respect thereto
and who complies with the notice procedures set forth in this Section 12.
For business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation. To be timely, a stockholder's notice must be
delivered or mailed to and received at the principal executive offices of the
corporation not less than fifty (50) days prior to the date of the annual
meeting; provided, however, that in the event that less than sixty (60) days'
notice or prior public disclosure of the date of the meeting is given or made
to stockholders, notice by the stockholder to be timely must be received not
later than the close of business on the tenth (lOth) day following the day on
which such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice to the Secretary shall set forth
as to each matter such stockholder proposes to bring before the annual
meeting, the following:
(i) A brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at
the annual meeting;
(ii) The name and address, as they appear on the corporation's books,
of the stockholder proposing such business;
(iii) The class and number of shares of the corporation's voting stock
that are beneficially owned by such stockholder; and
(iv) Any material interest of such stockholder in such business.
Notwithstanding anything in these By-laws to the contrary, no business
shall be brought before or conducted at an annual meeting except in accordance
with the provisions of this Section 12. The Officer of the corporation or
other person presiding over the annual meeting shall, if the facts so warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 12 and,
if he should so determine, he shall so declare to the meeting and any such
business so determined to be not properly brought before the meeting shall not
be transacted.
At any special meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting by or at the direction
of the Board of Directors.
Section 13. Election to the Board of Directors.
13.1 Only persons who are nominated in accordance with the procedures set
forth in these By-laws shall be eligible for election as Directors of the
corporation. Nominations of persons for election to the Board of Directors of
the corporation may be made at a meeting of stockholders at which Directors
are to be elected only:
(i) By or at the direction of the Board of Directors; or
(ii) By any stockholder of the corporation entitled to vote for the
election of Directors at the meeting who complies with the notice
procedures set forth in this Subsection 13.2 below.
13.2 Nominations for election as a Director of the corporation, other than
those made by or at the direction of the Board of Directors, shall be made by
timely notice in writing to the Secretary of the corporation. To be timely, a
stockholder's notice shall be delivered or mailed to and received at the
principal executive offices of the corporation not less than fifty (50) days
prior to the date of the meeting; provided, however, that in the event that
less than sixty (60) days' notice or prior disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
meeting was mailed or such public disclosure was made. Such stockholder's
notice shall set forth:
(i) As to each person whom such stockholder proposes to nominate for
election or reelection as a Director, all information relating to
such person that is required to be disclosed in solicitations of
proxies for election of Directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent
to being named in the proxy statement as a nominee and to serving
as a Director if elected); and
(ii) As to the stockholder giving the notice (x) the name and address,
as they appear on the corporation's books, of such stockholder,
and (y) the class and number of shares of the corporation's voting
capital stock that are beneficially owned by such stockholder.
At the request of the Board of Directors any person nominated by the
Board of Directors for election as a Director shall furnish to the Secretary
of the corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a Director of the corporation unless
nominated in accordance with the provisions of this Section 13. The Officer
of the corporation or other person presiding at the meeting shall, if the
facts so warrant, determine that a nomination was not made in accordance with
such provisions and, if he or she should so determine, he or she shall so
declare to the meeting and the defective nomination shall be disregarded.
The By-laws of LSB Industries, Inc., as previously amended, and further
amended and modified by this Amendment to the Bylaws of LSB Industries, Inc.'s
By-laws, sets forth the entire By-laws of LSB. The amendments to LSB's
By-laws as contained in this Fourth Amendment to LSB Industries, Inc.'s
By-laws are effective as of the 26th day of April, 1990, the date that such
amendments were approved by the Board of Directors of LSB.
Dated: , 1997 LSB INDUSTRIES, INC.
--------------------------------------
Jack E. Golsen
Chairman of the Board and President
(SEAL) -------------------------------------
David M. Shear,
Secretary
FIFTH AMENDMENT
TO THE BY-LAWS
OF
LSB INDUSTRIES, INC.
Section 1. Number, Term, Qualification and Vacancies of ARTICLE IV and
Section 1. Amendment of ARTICLE IV of LSB Industries, Inc.'s (the "Company")
By-Laws have been duly and validly amended by the Board of Directors of the
Company, by action taken on November 11, 1993, by a majority of members of the
Board of Directors pursuant the Delaware General Corporation Law, to read as
follows:
ARTICLE IV, Section 1. Number, Term, Qualification and Vacancies.
The property, business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors.
The number of directors that shall constitute the whole Board of
Directors may be fixed from time to time pursuant to a resolution
adopted by a vote of two-thirds of the entire Board of Directors and may
consist of no fewer than three no more than nine members. The directors
shall be divided into three classes. Each class shall consist, as
nearly as possible, of one-third of the whole number of the Board of
Directors. At each annual election of the successors that year shall be
elected to hold office for a term of three years. Each director elected
shall hold office until his successor is elected and qualified or until
his earlier resignation or removal. Directors and officers need not be
shareholders.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled only by a
majority of the directors then in office, although less than a quorum,
or by the sole remaining director. Each director chosen to fill a
vacancy or newly created directorship shall hold office until the next
election of the class for which such directors shall have been chosen
and until his successor is duly elected and qualified or until his
earlier resignation or removal.
The By-Laws of LSB Industries, Inc., as amended and modified by
the First Amendment to LSB Industries, Inc.'s By-Laws, dated October 6,
1986, by the Second Amendment to the By-Laws dated November 2, 1986, by
the Third Amendment to the By-Laws dated June 1, 1989, by the Fourth
Amendment to the By-Laws dated June 15, 1990 and this Fifth Amendment to
the By-Laws of LSB Industries, Inc. dated November 11, 1993, sets forth
the entire By-Laws of LSB. The amendment to the Company's By-Laws as
set forth in this Fifth Amendment to the LSB Industries, Inc.'s By-Laws
is effective as of the 11th day of November, 1993, the date of the
meeting at which the members of the Board of Directors adopted and
approved such amendment.
Dated: November 11, 1993.
LSB INDUSTRIES, INC.
-------------------------------------
Jack E. Golsen, Chairman of
Board and President
SIXTH AMENDMENT
TO THE BY-LAWS
OF
LSB INDUSTRIES, INC.
Section 1. Number, Term, Qualification and Vacancies of ARTICLE IV and
Section 1. Amendment of ARTICLE IV of LSB Industries, Inc.'s (the "Company")
By-Laws have been duly and validly amended by the Board of Directors of the
Company, by action taken on May 8, 1997, by a majority of members of the Board
of Directors pursuant the Delaware General Corporation Law, to read as
follows:
ARTICLE IV, Section 1. Number, Term, Qualification and Vacancies.
The property, business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors.
The number of directors that shall constitute the whole Board of
Directors may be fixed from time to time pursuant to a resolution
adopted by a vote of two-thirds of the entire Board of Directors and may
consist of no fewer than three no more than eleven members. The
directors shall be divided into three classes. Each class shall
consist, as nearly as possible, of one-third of the whole number of the
Board of Directors. At each annual election of the successors that year
shall be elected to hold office for a term of three years. Each
director elected shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. Directors and
officers need not be shareholders.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled only by a
majority of the directors then in office, although less than a quorum,
or by the sole remaining director. Each director chosen to fill a
vacancy or newly created directorship shall hold office until the next
election of the class for which such directors shall have been chosen
and until his successor is duly elected and qualified or until his
earlier resignation or removal.
The By-Laws of LSB Industries, Inc., dated January 28, 1997, as
amended and modified by the First Amendment to LSB Industries, Inc.'s
By-Laws, dated October 6, 1986, by the Second Amendment to the By-Laws,
dated November 7, 1986, by the Third Amendment to the By-Laws, dated
June 1, 1989, by the Fourth Amendment to the By-Laws, dated June 15,
1990, by the Fifth Amendment to the By-Laws, dated November 11, 1993 and
this Sixth Amendment to the By-Laws of LSB Industries, Inc., dated May
8, 1997, set forth the entire By-Laws of LSB Industries, Inc. The
amendment to the Company's By-Laws as set forth in this Sixth Amendment
to the By-Laws of LSB Industries, Inc. is effective as of the 8th day of
May, 1997, the date of the meeting at which the members of the Board of
Directors adopted and approved such amendment.
Dated: May 8, 1997.
LSB INDUSTRIES, INC.
----------------------------------------
Jack E. Golsen
Chairman of the Board and President
[S E A L] ----------------------------------------
David M. Shear,
Secretary
Exhibit 4.1
SEVENTH AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Amendment")
is dated as of April 11, 1997, and entered into by and between BANKAMERICA
BUSINESS CREDIT, INC. ( Lender ) and LSB INDUSTRIES, INC. ("Borrower").
WHEREAS, Lender and Borrower have entered into that certain Loan and
Security Agreement dated December 12, 1994, as amended by (i) that certain
First Amendment to Loan and Security Agreement dated as of August 17, 1995,
(ii) that certain Second Amendment to Loan and Security Agreement dated as of
December 1, 1995, (iii) that certain Third Amendment to Loan and Security
Agreement dated as of April 1, 1996, (iv) that certain Fourth Amendment to
Loan and Security Agreement dated as of July 1, 1996, (v) that certain Fifth
Amendment to Loan and Security Agreement dated as of November 18, 1996, and
(vi) that certain Sixth Amendment to Loan and Security Agreement dated as of
February 13, 1997 (as so amended, the "Agreement");
WHEREAS, Lender and Borrower desire to amend the Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth in the Agreement and this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. Capitalized terms used in this Amendment,
to the extent not otherwise defined herein, shall have the same meanings as in
the Agreement, as amended hereby.
Section 1.02. Amendment to Definition of Availability Reductions. The
definition of "Availability Reductions" is hereby amended by adding a new
subsection (vi) which reads as follows:
"(vi) reserves in Lender s sole discretion with respect to Swap
Transactions, with the amount thereof to be at all times based on a weekly
mark-to-market calculation given to Lender by Bank s Capital Markets Credit
Group."
All other subsections of the definition remain unchanged.
Section 1.03 Amendment to Definition of Obligations. The second
sentence of the definition of "Obligations" beginning in its original version
as ""Obligations" includes" and ending "Letter of Credit Agreement." is
amended in its entirety to read as follows:
""Obligations" includes, without limitation, (a) all debts, liabilities,
and obligations now or hereafter owing from Borrower to Lender under or in
connection with the Letters of Credit and (b) all debts, liabilities and
obligations now or hereafter owing from the Borrower to the Lender arising
from or related to Swap Transactions."
There is no change in the first sentence of the definition of "Obligations".
Section 1.04 New Definition. The following new definition is
hereby added to the Agreement:
"Swap Transactions" means interest rate swaps entered into by the Bank s
Capital Markets Credit Group for the account of or otherwise for the benefit
of the Borrower.
ARTICLE II
Amendments
Section 2.01. Amendment to Article 2. Article 2 of the Agreement is
hereby amended by adding a new Section 2.5 which reads as follows:
"2.5. Swap Transactions. The Borrower may request and the Lender may,
in its sole and absolute discretion, arrange for the Borrower to obtain Swap
Transactions from the Bank s Capital Markets Credit Group, provided, however,
that Lender's exposure to the LSB Borrowing Group may in no event exceed a
maximum amount of $1,850,000. The Borrower agrees to indemnify and hold the
Lender harmless from all losses, liabilities, costs, expenses and claims
incurred by the Lender arising from or related to such Swap Transactions. The
Borrower acknowledges and agrees that the obtaining of Swap Transactions from
the Bank s Capital Markets Credit Group (a) is in the sole and absolute
discretion of the Bank s Capital Markets Credit Group, (b) is subject to all
rules and regulations of the Bank s Capital Markets Credit Group, and (c) is
due to the Bank s Capital Markets Credit Group relying on the indemnity of the
Lender to the Bank s Capital Markets Credit Group with respect to all risks of
loss associated with the Swap Transactions."
Section 2.02. Amendment to Section 12. The first sentence of Section
12 which in its original version reads in its entirety as follows "The initial
term of this Agreement shall be three (3) years from the Closing Date (the
"Termination Date")" is hereby amended to read in its entirety as follows:
"The initial term of this Agreement shall be from the Closing Date until
April 1, 1998 (the "Termination Date")."
All other provisions of Section 12 remain unchanged.
ARTICLE III
Ratifications, Representations and Warranties
Section 3.01. Ratifications. The terms and provisions set forth in
this Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Agreement and, except as expressly modified and
superseded by this Amendment, the terms and provisions of the Agreement,
including, without limitation, all financial covenants contained therein, are
ratified and confirmed and shall continue in full force and effect. Lender
and Borrower agree that the Agreement as amended hereby shall continue to be
legal, valid, binding and enforceable in accordance with its terms.
Section 3.02. Representations and Warranties. Borrower hereby
represents and warrants to Lender that the execution, delivery and performance
of this Amendment and all other loan, amendment or security documents to which
Borrower is or is to be a party hereunder (hereinafter referred to
collectively as the "Loan Documents") executed and/or delivered in connection
herewith, have been authorized by all requisite corporate action on the part
of Borrower and will not violate the Articles of Incorporation or Bylaws of
Borrower.
ARTICLE IV
Conditions Precedent
Section 4.01. Conditions. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent (unless
specifically waived in writing by the Lender):
(a) Lender shall have received all of the following, each dated
(unless otherwise indicated) as of the date of this Amendment, in form
and substance satisfactory to Lender in its sole discretion:
(i) Company Certificate. A certificate executed by the
Secretary or Assistant Secretary of Borrower certifying (A) that
Borrower's Board of Directors has met and adopted, approved,
consented to and ratified the resolutions attached thereto which
authorize the execution, delivery and performance by Borrower of
the Amendment and the Loan Documents, (B) the names of the
officers of Borrower authorized to sign this Amendment and each of
the Loan Documents to which Borrower is to be a party hereunder,
(C) the specimen signatures of such officers, and (D) that neither
the Articles of Incorporation nor Bylaws of Borrower have been
amended since the date of the Agreement;
(ii) No Material Adverse Change. There shall have occurred
no material adverse change in the business, operations, financial
condition, profits or prospects of Borrower, or in the Collateral,
and the Lender shall have received a certificate of Borrower's
chief executive officer to such effect;
(iii) Other Documents. Borrower shall have executed and
delivered such other documents and instruments as well as required
record searches as Lender may require.
(b) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to Lender and its legal counsel, Jenkens & Gilchrist, a
Professional Corporation.
ARTICLE V
Miscellaneous
Section 5.01. Survival of Representations and Warranties. All
representations and warranties made in the Agreement or any other document or
documents relating thereto, including, without limitation, any Loan Document
furnished in connection with this Amendment, shall survive the execution and
delivery of this Amendment and the other Loan Documents, and no investigation
by Lender or any closing shall affect the representations and warranties or
the right of Lender to rely thereon.
Section 5.02. Reference to Agreement. The Agreement, each of the
Loan Documents, and any and all other agreements, documents or instruments now
or hereafter executed and delivered pursuant to the terms hereof or pursuant
to the terms of the Agreement as amended hereby, are hereby amended so that
any reference therein to the Agreement shall mean a reference to the Agreement
as amended hereby.
Section 5.03. Severability. Any provision of this Amendment held by
a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
Section 5.04. APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN THE STATE OF OKLAHOMA AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA.
Section 5.05. Successors and Assigns. This Amendment is binding
upon and shall inure to the benefit of Lender and Borrower and their
respective successors and assigns; provided, however, that Borrower may not
assign or transfer any of its rights or obligations hereunder without the
prior written consent of Lender. Lender may assign any or all of its rights
or obligations hereunder without the prior consent of Borrower.
Section 5.06. Counterparts. This Amendment may be executed in one
or more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
Section 5.07. Effect of Waiver. No consent or waiver, express or
implied, by Lender to or of any breach of or deviation from any covenant or
condition of the Agreement or duty shall be deemed a consent or waiver to or
of any other breach of or deviation from the same or any other covenant,
condition or duty. No failure on the part of Lender to exercise and no delay
in exercising, and no course of dealing with respect to, any right, power, or
privilege under this Amendment, the Agreement or any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power, or privilege under this Amendment, the Agreement or any other
Loan Document preclude any other or further exercise thereof or the exercise
of any other right, power, or privilege. The rights and remedies provided for
in the Agreement and the other Loan Documents are cumulative and not exclusive
of any rights and remedies provided by law.
Section 5.08. Headings. The headings, captions and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 5.09. Releases. As a material inducement to Lender to enter
into this Amendment, Borrower hereby represents and warrants that there are no
claims or offsets against, or defenses or counterclaims to, the terms and
provisions of and the other obligations created or evidenced by the Agreement
or the other Loan Documents. Borrower hereby releases, acquits, and forever
discharges Lender, and its successors, assigns, and predecessors in interest,
their parents, subsidiaries and affiliated organizations, and the officers,
employees, attorneys, and agents of each of the foregoing (all of whom are
herein jointly and severally referred to as the "Released Parties") from any
and all liability, damages, losses, obligations, costs, expenses, suits,
claims, demands, causes of action for damages or any other relief, whether or
not now known or suspected, of any kind, nature, or character, at law or in
equity, which Borrower now has or may have ever had against any of the
Released Parties, including, but not limited to, those relating to (a) usury
or penalties or damages therefor, (b) allegations that a partnership existed
between Borrower and the Released Parties, (c) allegations of unconscionable
acts, deceptive trade practices, lack of good faith or fair dealing, lack of
commercial reasonableness or special relationships, such as fiduciary, trust
or confidential relationships, (d) allegations of dominion, control, alter
ego, instrumentality, fraud, misrepresentation, duress, coercion, undue
influence, interference or negligence, (e) allegations of tortious
interference with present or prospective business relationships or of
antitrust, or (f) slander, libel or damage to reputation, (hereinafter being
collectively referred to as the "Claims"), all of which Claims are hereby
waived.
Section 5.10. Expenses of Lender. Borrower agrees to pay on demand
(i) all costs and expenses reasonably incurred by Lender in connection with
the preparation, negotiation and execution of this Amendment and the other
Loan Documents executed pursuant hereto and any and all subsequent amendments,
modifications, and supplements hereto or thereto, including, without
limitation, the costs and fees of Lender's legal counsel and the allocated
cost of staff counsel and (ii) all costs and expenses reasonably incurred by
Lender in connection with the enforcement or preservation of any rights under
the Agreement, this Amendment and/or other Loan Documents, including, without
limitation, the costs and fees of Lender's legal counsel and the allocated
cost of staff counsel.
Section 5.11. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE
OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENT THE FINAL AGREEMENTS BETWEEN LENDER
AND BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN LENDER AND BORROWER.
IN WITNESS WHEREOF, the parties have executed this Amendment on the date
first above written.
"BORROWER"
LSB INDUSTRIES, INC.
By: _______________________
Name: Tony M. Shelby
Title: Vice President
"LENDER"
BANKAMERICA BUSINESS CREDIT, INC.
By: ________________________
Name: Michael J. Jasaitis
Title: Vice President
CONSENTS AND REAFFIRMATIONS
Each of the undersigned hereby acknowledges the execution of, and
consents to, the terms and conditions of that certain Seventh Amendment to
Loan and Security Agreement dated as of April 11, 1997, between LSB
Industries, Inc., and BankAmerica Business Credit, Inc. ("Creditor") and
reaffirms its obligations under that certain Cross-Collateralization and
Cross-Guaranty Agreement (the Cross-Collateralization Agreement ) dated as of
December 12, 1994, made by the undersigned in favor of the Creditor, and
acknowledges and agrees that the Cross-Collateralization Agreement remains in
full force and effect and the Cross-Collateralization Agreement is hereby
ratified and confirmed.
Dated as of April 11, 1997.
CLIMATE MASTER, INC.
L&S BEARING CO.
SUMMIT MACHINE TOOL
MANUFACTURING CORP.
INTERNATIONAL ENVIRONMENTAL
CORPORATION
By: --------------------------------------
Tony M. Shelby, Vice President acting
on behalf of each of the above
CONSENTS AND REAFFIRMATIONS
Each of the undersigned hereby acknowledges the execution of, and
consents to, the terms and conditions of that certain Seventh Amendment to
Loan and Security Agreement dated as of April 11, 1997, between LSB
Industries, Inc., and BankAmerica Business Credit, Inc. ("Creditor") and
reaffirms its obligations under (i) that certain Continuing Guaranty with
Security Agreement (the "Guaranty") dated as of December 12, 1994, and (ii)
that certain Cross-Collateralization and Cross-Guaranty Agreement (the Cross-
Collateralization Agreement ) dated as of December 12, 1994, each made by the
undersigned in favor of the Creditor, and acknowledges and agrees that the
Guaranty and the Cross-Collateralization Agreement remain in full force and
effect and the Guaranty and the Cross-Collateralization Agreement are hereby
ratified and confirmed.
Dated as of April 11, 1997.
UNIVERSAL TECH CORPORATION
LSB CHEMICAL CORP.
L&S AUTOMOTIVE PRODUCTS CO.
(f/k/a LSB Bearing Corp.)
INTERNATIONAL BEARINGS, INC.
LSB EXTRUSION CO.
ROTEX CORPORATION
TRIBONETICS CORPORATION
SUMMIT MACHINE TOOL SYSTEMS, INC.
HERCULES ENERGY MFG. CORPORATION
MOREY MACHINERY MANUFACTURING
CORPORATION
CHP CORPORATION
KOAX CORP.
APR CORPORATION
By: --------------------------------------
Tony M. Shelby, Vice President
acting on behalf of each of the
above
Exhibit 10.1
The CIT Group/
Equipment Financing
P.O. Box 490
650 CIT Drive
Livingston, NJ 07039-0490
May 14, 1997
Via Fax and Mail
Mr. Jim Jones V.P. and Treasurer
LSB Industries
16 South Pennsylvania Ave.
Oklahoma City, OK 73107
Dear Mr. Jones:
Reference is made to (a) that certain Loan and Security Agreement, dated
October 31, 1994 (as Amended, the "Agreement") , between DSN Corporation, an
Oklahoma corporation ("Debtor") and The CIT Group/Equipment Financing, Inc., a
New York corporation ("CIT") and (b) the defined terms within. Debtor has
advised CIT that LSB Industries, Inc. (LSB), a guarantor of Debtor's
obligation to CIT, was not in compliance with:
Section 6.10 of the Agreement, in that, as of March 31,
1997, LSB did not maintain a tangible net worth of
$67,000,000.00 and $78,000,000.00 after adding treasury
stock. Further, LSB did not maintain a Leverage requirement
of 3.00x (actual as of March 31, 1997 was 3.37x)
Debtor has requested, that not withstanding anything to the contrary in the
Agreement, the CIT waive the above instances of non-compliance and agree to
reset LSB's covenant level requirements for the remainder of 1997.
The new Covenants are as follows:
Minimum Tangible Net Worth (after subtracting Treasury Stock)
(000's omitted)
June, 1997 $61,750
September, 1997 62,522
December, 1997 60,647
Minimum Tangible Net Worth (before subtracting Treasrury Stock)
June 1997 $72,000
September, 1997 75,000
December, 1997 76,000
Maximum Leverage Allowed
June, 1997 3.11x
September, 1997 2.96x
December, 1997 3.02x
CIT hereby waives, as of this date, the above instances of non-compliance,
provided that such waiver is subject to the following conditions:
(1) that this waiver is stricly limited to the specific covenants
under section 6.10 of the Agreement, as amended, set forth above
and is strictly limited only to such instances of non-compliance
through and including March 31, 1997.
(2) that Debtor pay a fee in the amount of $10,000.00 within 5
business days of the above date to cover waiver and amendment.
The amended covenants shall remain in place throughout 1997, after which they
shall revert to the original levels as set forth in the Agreement.
Sincerely,
The CIT Group/Equipment Financing, Inc.
By /s/ Anthony G. Joseph
Anthony G. Joseph
Vice President
Acknowledged and Agreed:
DSN Corporation
By:______________________
Title____________________
LSB Industries
By:______________________
Title:___________________
LSB INDUSTRIES, INC. Exhibit 11.1
Page 1 of 2
PRIMARY EARNINGS PER SHARE COMPUTATION
Quarter ended March 31,
1997 1996
Shares for primary earnings per share:
Weighted average shares:
Common shares outstanding from beginning
of period 12,975,356 12,911,447
Common shares issued on conversion
of redeemable preferred stock;
calculated on weighted average
basis - 270
Common shares issued upon exercise
of employee or director stock
options; calculated on weighted
average basis 13,440 -
Purchases of treasury stock;
calculated on weighted average
basis (13,972) (330)
___________ __________
12,974,824 12,911,387
Common Stock equivalents:
Shares issuable upon exercise of
options and warrants (including
the weighted average for shares
subject to options and warrants
granted during the period) - -
Assumed repurchase of outstanding
shares up to the 20% limitation
(based on average market price for
the period) - -
Common shares issuable on conversion
of redeemable preferred stock,
excluding shares included above
on actual conversion - -
___________ __________
- -
___________ __________
12,974,824 12,911,387
=========== ==========
Earnings for primary earnings per share:
Net earnings (loss) $(5,437,954) $ (531,218)
Dividends on cumulative preferred stocks (60,000) (75,520)
Dividends on convertible, exchangeable
Class C preferred stock (6.5% annually) (743,438) (743,438)
___________ __________
Earnings (loss) applicable to common stock $(6,241,392) (1,350,176)
=========== ==========
Earnings (loss) per share $(.48) $(.10)
LSB INDUSTRIES, INC. Exhibit 11.1
Page 2 of 2
FULLY DILUTED EARNINGS PER SHARE COMPUTATION
Quarter ended March 31,
1997 1996
---------- -----------
Shares for fully diluted earnings per
share:
Weighted average shares outstanding
for primary earnings per share 12,974,824 12,911,387
Shares issuable upon exercise of
options and warrants - -
Assumed repurchase of outstanding
shares up to the 20% limitation
(based on ending market price
for the quarter if greater than
the average) - -
Common shares issuable on conversion
of redeemable preferred stock,
excluding shares included above on
actual conversion - -
Common shares issuable upon conversion
of convertible note payable - -
Common shares issuable upon conversion
of convertible preferred stock, if
dilutive, from date of issue:
Series B - -
___________ __________
12,974,824 12,911,387
Earnings for fully diluted earnings =========== ==========
per share:
Net earnings (loss) $(5,437,954) $ (531,218)
Dividends on cumulative convertible preferred
stocks:
Series B (60,000) (75,520)
Series 2 Class C (743,438) (743,438)
___________ __________
Earnings (loss) applicable to common stock $(6,241,392 $(1,350,176)
=========== ===========
Earnings (loss) per share $(.48) $(.10)
===== =====
Exhibit 15.1
LETTER OF ACKNOWLEDGEMENT
RE: UNAUDITED FINANCIAL INFORMATION
The Board of Directors
LSB Industries, Inc.
We are aware of the incorporation by reference in the Registration Statement
(Form S-8 No. 33-8302) and the Registration Statement (Form S-3 No. 33-69800)
of LSB Industries, Inc. and in the related Prospectus of our report dated May
20, 1997 relating to the unaudited condensed consolidated interim financial
statements of LSB Industries, Inc. which are included in its Form 10-Q for the
quarter ended March 31, 1997.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report is not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
Oklahoma City, Oklahoma Very truly yours,
May 20, 1997 Ernst & Young LLP
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000060714
<NAME> LSB INDUSTRIES, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 4,597
<SECURITIES> 0
<RECEIVABLES> 55,819
<ALLOWANCES> 3,091
<INVENTORY> 67,304
<CURRENT-ASSETS> 135,727
<PP&E> 198,257
<DEPRECIATION> 79,274
<TOTAL-ASSETS> 270,985
<CURRENT-LIABILITIES> 66,625
<BONDS> 136,959
146
48,000
<COMMON> 1,491
<OTHER-SE> 17,764
<TOTAL-LIABILITY-AND-EQUITY> 270,985
<SALES> 73,234
<TOTAL-REVENUES> 74,864
<CGS> 62,312
<TOTAL-COSTS> 62,312
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,056
<INCOME-PRETAX> (5,376)
<INCOME-TAX> 62
<INCOME-CONTINUING> (5,438)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5,438)
<EPS-PRIMARY> (.48)
<EPS-DILUTED> (.48)
</TABLE>
