LSB
Industries, Inc.
Form
10-Q/A (6-30-2010)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form 10-Q/A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form 10-Q/A
Amendment No.
1
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[X]
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QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For the quarterly period
ended June
30, 2010
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OR
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[
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the transition period from
_____________to______________
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Commission
file
number 1-7677
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LSB
Industries, Inc.
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Exact
name of Registrant as specified in its charter
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Delaware
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73-1015226
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State
or other jurisdiction of
incorporation
or organization
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I.R.S.
Employer Identification No.
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16 South Pennsylvania
Avenue, Oklahoma City, Oklahoma 73107
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Address of principal executive offices Zip
Code
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(405)
235-4546
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Registrant's
telephone number, including area code
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None
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Former
name, former address and former fiscal year, if changed since last
report.
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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. [X] Yes [ ] No
Indicate
by check mark whether the Registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding
12 months (or for such shorter period that the Registrant was required to submit
and post such files). [ ] Yes [ ]
No
1
(Facing
Sheet Continued)
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of “large accelerated filer”, “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer [ ] Accelerated filer [X]
Non-accelerated
filer [ ] Smaller reporting company [ ]
(Do not
check if a smaller reporting company)
Indicate
by check mark whether the Registrant is a shell company (as defined in Rule
12b-2 of the Act). [ ] Yes [X] No
The
number of shares outstanding of the Registrant's voting common stock, as of July
30, 2010 was 21,093,683 shares, excluding 4,320,462 shares held as treasury
stock.
2
Explanatory
Note
The
Quarterly Report on Form 10-Q for LSB Industries, Inc. for the quarterly period
ended June 30, 2010, as filed with the Securities and Exchange Commission
on August 6, 2010 ("Form 10-Q"), is being amended by this Amendment No. 1 solely
to reflect all the exhibits in this report.
In
connection with filing of this Amendment No. 1 and pursuant to
Rule 12b-15, certain certifications which we filed as exhibits 32.1 and
32.2 with the Form 10-Q were inadvertently not listed or described in the
exhibit list under Item 6. Thus, we are filing this Amendment No. 1 to the
Form 10-Q to adequately list and describe all exhibits, including exhibits 32.1
and 32.2 which are the certifications under Section 906 for our Principle
Executive Officer and Principle Financial Officer. The remainder of
the Form 10-Q is unchanged and is not reproduced in this Amendment
No. 1. Except for the foregoing amended information, the Form 10-Q
continues to describe conditions as of the date of the original filing of such
Form 10-Q, and we have not updated the disclosures contained therein to reflect
events that have occurred at a later date.
Item 6.
Exhibits
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(a)
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Exhibits The
Company has included the following exhibits in this
report:
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4.1a
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Amended
and Restated Loan and Security Agreement by and among LSB Industries,
Inc., ThermaClime, Inc. and each of its subsidiaries that are Signatories,
the lenders and Wells Fargo Foothill, Inc., which the Company hereby
incorporates by reference from Exhibit 4.2 to the Company’s Form 10-Q for
the fiscal quarter ended September 30, 2007.
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4.1b
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Exhibits
and Schedules to the Amended and Restated Loan and Security Agreement by
and among LSB Industries, Inc., ThermaClime, Inc. and each of its
subsidiaries that are Signatories, the lenders and Wells Fargo Foothill,
Inc.
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4.2a
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Term
Loan Agreement, dated as of November 2, 2007, among LSB Industries, Inc.,
ThermaClime, Inc. and certain subsidiaries of ThermaClime, Inc., Cherokee
Nitrogen Holdings, Inc., the Lenders, the Administrative and Collateral
Agent and the Payment Agent, which the Company hereby incorporates by
reference from Exhibit 4.1 to the Company’s Form 10-Q for the fiscal
quarter ended September 30, 2007.
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4.2b
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Exhibits
and Schedules to the Term Loan Agreement, dated as of November 2, 2007,
among LSB Industries, Inc., ThermaClime, Inc. and certain subsidiaries of
ThermaClime, Inc., Cherokee Nitrogen Holdings, Inc., the Lenders, the
Administrative and Collateral Agent and the Payment
Agent.
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10.1a
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Asset
Purchase Agreement, dated as of December 6, 2002 by and among Energetic
Systems Inc. LLC, UTeC Corporation, LLC, SEC Investment Corp. LLC,
DetaCorp Inc. LLC, Energetic Properties, LLC, Slurry Explosive
Corporation, Universal Tech Corporation, El Dorado Chemical Company, LSB
Chemical Corp., LSB Industries, Inc. and Slurry Explosive Manufacturing
Corporation, LLC, which the Company hereby incorporates by reference from
Exhibit 2.1 to the Company's Form 8-K, dated December 12,
2002.
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3
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10.1b
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Exhibits
and Disclosure Letters to the Asset Purchase Agreement, dated as of
December 6, 2002 by and among Energetic Systems Inc. LLC, UTeC
Corporation, LLC, SEC Investment Corp. LLC, DetaCorp Inc. LLC, Energetic
Properties, LLC, Slurry Explosive Corporation, Universal Tech Corporation,
El Dorado Chemical Company, LSB Chemical Corp., LSB Industries, Inc. and
Slurry Explosive Manufacturing Corporation, LLC.
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10.2 *
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Second
Amendment to the Nitric Acid Supply, Operating and Maintenance Agreement,
dated June 16, 2010, between El Dorado Nitrogen, L.P., El Dorado Chemical
Company and Bayer MaterialScience, LLC. CERTAIN
INFORMATION WITHIN THIS EXHIBIT HAS BEEN OMITTED AS IT IS THE SUBJECT OF A
REQUEST FOR CONFIDENTIAL TREATMENT UNDER THE FREEDOM OF INFORMATION ACT
AND THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. THE OMITTED
INFORMATION HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES
AND EXCHANGE COMMISSION FOR THE PURPOSES OF THIS
REQUEST.
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10.3
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Consent,
Joinder and Second Amendment, dated as of April 1, 2010, by and among LSB
Industries, Inc., ThermaClime, Inc., each of the Subsidiaries of
ThermaClime identified on the signature pages thereof, the lenders
identified on the signature pages thereof, Wells Fargo Capital finance,
Inc., as the arranger and administrative agent, and Consolidated
Industries Corp., which the Company hereby incorporates by reference from
Exhibit 99.3 to the Company’s Form 8-K, filed April 7,
2010.
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10.4
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Amendment
and Waiver to the Term Loan, dated April 1, 2010, by and among
ThermaClime, Inc., Cherokee Nitrogen Holdings, Inc., Northwest Financial
Corporation, Chemex I Corp., Chemex II Corp., Cherokee Nitrogen
Company, ClimaCool Corp., ClimateCraft, Inc., Climate Master,
Inc., DSN Corporation, El Dorado Chemical Company, International
Environmental Corporation, Koax Corp., LSB Chemical Corp., The Climate
Control Group, Inc., Trison Construction, Inc., ThermaClime
Technologies, Inc., XpediAir, Inc., LSB Industries, Inc., each lender
party thereto, Banc of America Leasing & Capital, LLC, as
Administrative Agent and as Collateral Agent, Bank of Utah, as Payment
Agent, and Consolidated Industries Corp., which the Company hereby
incorporates by reference from Exhibit 99.4 to the Company’s Form 8-K,
filed April 7, 2010.
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21.1
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Subsidiaries
of the Company
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31.1
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Certification
of Jack E. Golsen, Principle Executive Officer, pursuant to
Sarbanes-Oxley Act of 2002, Section 302.
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31.2
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Certification
of Tony M. Shelby, Principle Financial Officer, pursuant to
Sarbanes-Oxley Act of 2002, Section 302.
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32.1
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Certification
of Jack E. Golsen, Principle Executive Officer, furnished pursuant to
Sarbanes-Oxley Act of 2002, Section 906.
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32.2
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Certification
of Tony M. Shelby, Principle Financial Officer, furnished pursuant to
Sarbanes-Oxley Act of 2002, Section 906.
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*
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Previously
filed with Form 10-Q
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4
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 6th day
of August 2010.
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LSB
INDUSTRIES, INC.
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By:
/s/ Tony M. Shelby
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Tony
M. Shelby
Executive
Vice President of Finance and Chief Financial Officer
(Principal
Financial Officer)
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By:
/s/ Harold L. Rieker, Jr.
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Harold
L. Rieker, Jr.
Vice
President and Principal Accounting
Officer
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5
Exhibit
31.1
CERTIFICATION
I, Jack
E. Golsen, certify that:
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1.
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I
have reviewed this quarterly report on Form 10-Q/A of LSB Industries, Inc.
(the "registrant");
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2.
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Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
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3.
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Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
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4.
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The
registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
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a) Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
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b) Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
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c) Evaluated
the effectiveness of the registrant's disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
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d) Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in this case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
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5.
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The
registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent
functions):
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a)
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All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information;
and
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b)
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Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
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Date:
August 6, 2010
/s/ Jack E. Golsen
Jack E.
Golsen
Chairman
of the Board and
Chief
Executive Officer
Exhibit
31.2
CERTIFICATION
I, Tony
M. Shelby, certify that:
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1.
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I
have reviewed this quarterly report on Form 10-Q/A of LSB Industries, Inc.
(the "registrant");
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2.
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Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
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3.
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Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
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4.
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The
registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
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a) Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
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b) Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
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c) Evaluated
the effectiveness of the registrant's disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
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d) Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in this case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
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5.
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The
registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent
functions):
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a)
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All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information;
and
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b)
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Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
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Date:
August 6, 2010
/s/ Tony M. Shelby
Tony M.
Shelby
Executive
Vice President of Finance
and Chief
Financial Officer
Exhibit
32.1
CERTIFICATION
PURSUANT TO
18 U.S.C.
SECTION 1350
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Quarterly Report of LSB Industries, Inc. (“LSB”) on Form 10
Q/A for the period ended June 30, 2010 as filed with the Securities and Exchange
Commission on the date hereof (the "Report"). I, Jack E. Golsen,
Chairman of the Board and Chief Executive Officer of LSB, certify pursuant to 18
U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002,
that:
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(1)
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the
Report fully complies with the requirements of section 13(a) or 15(d) of
the Securities Exchange Act of 1934;
and
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(2)
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the
information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of
LSB.
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/s/ Jack E. Golsen
Jack E.
Golsen
Chairman
of the Board and
Chief
Executive Officer
(Principal
Executive officer)
August 6,
2010
This
certification is furnished to the Securities and Exchange Commission solely for
purpose of 18 U.S.C. §1350 subject to the knowledge standard contained therein,
and not for any other purpose.
Exhibit
32.2
CERTIFICATION
PURSUANT TO
18 U.S.C.
SECTION 1350
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Quarterly Report of LSB Industries, Inc. (“LSB”) on Form 10
Q/A for the period ended June 30, 2010 as filed with the Securities and Exchange
Commission on the date hereof (the "Report"), I, Tony M. Shelby, Executive Vice
President of Finance and Chief Financial Officer of LSB, certify pursuant to 18
U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002,
that:
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(1)
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the
Report fully complies with the requirements of section 13 (a) or 15 (d) of
the Securities Exchange Act of 1934;
and
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(2)
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the
information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of
LSB.
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/s/ Tony M. Shelby
Tony M.
Shelby
Executive
Vice President of Finance and
Chief
Financial Officer
(Principal
Financial Officer)
August 6,
2010
This
certification is furnished to the Securities and Exchange Commission solely for
purpose of 18 U.S.C. §1350 subject to the knowledge standard contained therein
and not for any other purpose.