Item
1. Description of Registrant’s Securities to be
Registered.
LSB
Industries, Inc. (the “Company”) is filing this Form 8-A Registration Statement
in connection with the transfer of the listing of its common stock, par value
$0.10 per share (“Common Stock”), from the NYSE
Alternext US to the New York Stock Exchange, Inc., which is expected to
become effective on October 28, 2008.
Dividend
Rights
Holders
of Common Stock are entitled to receive dividends only when, as and if declared
by the Board of Directors. No dividends may be paid on Common Stock until all
required dividends are paid on the outstanding shares of the Company's Preferred
Stock, or declared and amounts set apart for their payment for the current
period, and if cumulative, prior periods.
Voting
and Other Rights
Each
outstanding share of Common Stock is entitled to one vote at meetings of the
stockholders of the Company. The Common Stock does not have cumulative voting
rights. The Common Stock does not have any preemptive, subscription or
conversion rights. Upon any dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, holders of the Common Stock are
entitled to share ratably in the assets available for distribution to such
stockholders after the payment of all prior claims, including liquidation rights
of holders of the Company's then outstanding Preferred Stock. The Company's
Certificate of Incorporation requires a vote of two-thirds of the outstanding
shares of voting stock of the Company to amend the Certificate of Incorporation
to eliminate the staggered Board of Directors or to approve a merger,
consolidation, or sale of all or substantially all of the assets of the Company,
dissolution, liquidation or similar transaction.
Preferred
Stock Purchase Rights
On
February 17, 1989, the Company's Board of Directors declared a dividend to its
Common Stockholders of record on February 27, 1989, of one preferred stock
purchase right on each of the Company's outstanding shares of Common Stock. The
original rights were renewed on January 5, 1999, prior to the February 27, 1999
expiration of the original rights, and the Company declared a dividend of one
new preferred stock purchase right (a "Right") for each outstanding share of
Common Stock as of February 27, 1999. The Rights will now expire on January 6,
2009.
The
purpose of the Company's issuance of the Rights, among other reasons, was to
assure that all of the Company's stockholders receive fair and equal treatment
in the event of any proposed takeover of the Company and to guard against
abusive partial tender tactics to gain control of the Company. The Rights will
become exercisable only if a person or group acquires beneficial ownership of
20% or more of the Company's Common Stock or announces a tender or exchange
offer the consummation of which would result in the ownership by a person or
group of 20% or more of the Common Stock (an "Acquiring Person"), except any
acquisition by Jack
E.
Golsen, Chairman of the Board and President of the Company, and certain other
related persons or entities.
Each
Right (other than the Rights owned by the Acquiring Person or members of a group
that causes the Rights to become exercisable, which become void) will entitle
the stockholder to buy one one-hundredth of a share of Series 3 Participating
Class C Preferred Stock, no par value (the "Preferred Shares") at an exercise
price of $20.00 per share, but the Rights are not exercisable until the
ownership thresholds described above are satisfied in accordance with the terms
of the Rights. Each one one-hundredth of a share of the Preferred Shares
purchasable upon the exercise of a Right has economic terms designed to
approximate the value of one share of the Company's Common Stock. If another
person or group acquires the Company in a merger or other business combination
transaction, each Right will entitle its holder (other than Rights owned by that
person or group, which become void) to purchase at the Rights' then current
exercise price, a number of the acquiring company's common shares, which at the
time of such transaction, would have a market value two times the exercise price
of the Right.
In
addition, if a person or group (with certain exceptions) acquires 20% or more of
the Company's outstanding Common Stock, each Right will entitle its holder
(other than the Rights owned by the Acquiring Person or members of the group
that results in the Rights becoming exercisable, which become void) to purchase
at the Right's then current exercise price a number of shares of the Company's
Common Stock having a market value of twice the Right's exercise price in lieu
of the Preferred Shares. Until the Rights become exercisable, the Rights will be
represented by and transferred with, and only with, the Company's Common Stock,
and new certificates issued for Common Stock after February 27, 1999, contain or
will contain a legend incorporating the Rights by reference. Until the Rights
become exercisable, the surrender or transfer of any Common Stock certificates
will also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate. Following the acquisition by a person, or group
of beneficial ownership, of 20% or more of the Company's outstanding Common
Stock (with certain exceptions) and prior to an acquisition of 50% or more of
the Company's Common Stock by the person or group, the Board of Directors may
exchange the Rights (other than the Rights owned by the Acquiring Person or
members of the group that results in the Rights becoming exercisable, which
become void), in whole or in part, for shares of the Company's Common Stock.
That exchange would occur at an exchange ratio of one share of Common Stock, or
one one-hundredth of a share of the Preferred Shares, per right.
Prior to
the acquisition by a person or group of beneficial ownership of 20% or more of
the Company's Common Stock (with certain exceptions) the Company may redeem the
Rights for one cent per Right at the option of the Company's Board of Directors.
The Company's Board of Directors also has the authority to reduce the 20%
thresholds to not less than the greater of (i) any percentage greater than the
largest percentage of the outstanding shares of the Company's common stock then
known to the Company to be beneficially owned by any person or group of
affiliated or associated persons (other than certain excluded persons); or (ii)
10%. If the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold,
proper provisions will be made so that each holder of a Right (other than Rights
beneficially owned by the Acquiring Person, which shall be void) will thereafter
have the Right to receive, upon the exercise thereof at the then current
exercise
price of the Right, that number of shares of common stock of the acquiring
company which at the time of such transaction will have a market value of two
times the exercise price of the Right.
If (a)
any person becomes an Acquiring Person or (b) during such time as there is an
Acquiring Person, there shall be any reclassification of securities or
recapitalization or reorganization of the Company or other transaction or series
of transactions which has the effect of increasing by more than 1% the
proportionate share of the outstanding shares of any class of equity securities
of the Company or any of its subsidiaries beneficially owned by the Acquiring
Person, proper provisions shall be made so that each holder of a Right (other
than Rights beneficially owned by the Acquiring Person, which are void) will
thereafter have the Right to receive upon exercise that number of shares of the
Company's Common Stock having a market value of two times the exercise price of
the Right. A merger or other combination would not trigger the foregoing Rights
if such transaction is consummated with a person or group who acquired shares of
the Company's Common Stock pursuant to a Permitted Offer (as defined below), the
price per share of the Company's Common Stock paid to all holders of the shares
of the Company's Common Stock is not less than the price per share of the
Company's Common Stock pursuant to the Permitted Offer, and the form of
consideration offered in such transaction is the same as the form of
consideration paid pursuant to the Permitted Offer.
A
"Permitted Offer" is a tender or exchange offer for all shares of the Company's
Common Stock at a price and on terms that a majority of the Board of Directors,
who are not officers of the Company and who are not Acquiring Persons or
affiliates, associates or representatives of an Acquiring Person, deem adequate
(taking into account all factors that the Board of Directors deem relevant) and
in the best interest of the Company and its stockholders (other than the person
or any affiliate or associate of such person on whose behalf if the offer is
made). The foregoing description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
an Exhibit to this Registration Statement and is incorporated in this summary
description by reference.
Other
Anti-Takeover Provisions
The
Company's Restated Certificate of Incorporation provides for three classes of
directors having staggered terms. The term of office of each class is for three
years. Under the Delaware General Corporation Law, if a board of directors is
classified, a director on such a board may be removed by shareholders only for
cause, unless the Certificate of Incorporation otherwise provides. The Company's
Certificate of Incorporation does not provide otherwise. In this regard, the
Company's Bylaws add a definition of "cause" for the purpose of removal of a
director. "Cause" is defined 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 Company and, in each case, only after such adjudication
is no longer subject to direct appeal.
In
addition, the Company's Bylaws provide a procedure for filling a vacancy on the
Company's Board of Directors resulting from a newly created directorship,
removal or
resignation
of a director. Pursuant to those procedures, such a vacancy shall be filled only
by the affirmative vote of a majority of the directors then in office.
Therefore, shareholders would not have the power to elect any director to fill
such vacancy. Further, the Company's Bylaws provide for certain procedures to be
followed in order to obtain consent of shareholders of the Company in lieu of a
meeting, the business that may be conducted at a meeting of shareholders of the
Company and who may be eligible for election as directors of the Company. The
Bylaws of the Company further provide that they may only be amended 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 Company entitled
to vote.
The
foregoing provisions of the Certificate of Incorporation and Bylaws could render
more difficult or discourage a tender offer or proxy contest for control of the
Company and could have the effect of making it more difficult to remove
incumbent management in such situations.
Item
2. Exhibits.
Exhibit Description
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3(i).1
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Restated
Certificate of Incorporation, as amended, which the Company hereby
incorporates by reference from Exhibit 3(i).1 to the Company’s Form S-1
Registration Statement, File No. 333-145721, effective November 11,
2007.
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3(ii).1
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Restated
Bylaws, dated December 19, 2007, which the Company hereby incorporates by
reference from Exhibit 3.2 to the Company’s current report on Form 8-K,
filed December 20, 2007.
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4.1
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Specimen
Certificate for the Company’s Common Stock, which the Company incorporates
by reference from Exhibit 4.4 to the Company’s Registration Statement,
File No. 33-61640, filed May 18,
1993.
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4.2
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Renewed
Rights Agreement, dated January 6, 1999 between the Company and Bank One,
N.A., which the Company hereby incorporates by reference from Exhibit 4.1
to the Company’s current report on Form 8-K, File No. 001-07677, filed
January 27, 1999.
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Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
Dated:
October 24, 2008
LSB INDUSTRIES,
INC.
By: /s/ Jack E. Golsen
Jack E.
Golsen,
Chairman of the
Board