1700 One
Leadership Square
211 North
Robinson
Oklahoma
City, Oklahoma 73102
405.272.5711
Phone
405.232.2695
Fax
www.cwlaw.com
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Irwin
H. Steinhorn, Esq.
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Direct
Line: (405) 272-5750
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Attorney
at Law
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Direct
Fax: (405) 232-2695
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isteinhorn@cwlaw.com
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May 21,
2010
Securities
and Exchange Commission
Division
of Corporation Finance
100 F
Street, N.E.
Washington,
D.C. 20549-7010
Attention:
Pamela Long, Assistant Director
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Re:
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LSB Industries, Inc.; Form
10-K for the year ended December 31, 2009;
filed March 8, 2010; SEC File
No. 001-07677;
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Our File No. 07033-0001 |
Ladies
and Gentlemen:
On behalf
of LSB Industries, Inc. (the “Company”), the following are responses to the
comments of the Staff of the Securities and Exchange Commission (the “SEC”) with
respect to the Company’s Form 10-K for the year ended December 31, 2009, filed
March 8, 2010, SEC File No. 001-07677 (the “Form 10-K”). The SEC
comments were delivered to Tony M. Shelby, Executive Vice President of Finance
and Chief Financial Officer of the Company, by letter dated May 10, 2010 (the
“Comment Letter”).
The
Comment Letter requests that comment nos. 1, 3 and 5 be complied with in the
Company’s future filings beginning with Form 10-Q for the quarter ended March
31, 2010 (“First Quarter 10-Q”) as to comments 1 and 5. On May 13,
2010, we discussed the Comment Letter with Sherry Haywood, staff attorney at the
SEC. During our conversation with Ms. Haywood, we advised her that
the Company had previously filed with the SEC its First Quarter 10-Q on May 6,
2010 and its 2010 proxy statement in connection with its 2010 annual meeting on
May 10, 2010 (“2010 Proxy Statement”), both of which were filed prior to the
Company’s receipt of the Comment Letter. As a result, we discussed
with Ms. Haywood the possibility of the Company complying with comments 1 and 5
beginning with the Company’s Form 10-Q for quarter ended June 30, 2010, and
comment 3 in the Company’s 2010 Form 10-K and proxy statement for its 2011
annual meeting.
The SEC’s
comments and the Company’s responses thereto are set forth below, numbered as
such comments are numbered in the Comment Letter. Capitalized terms
used herein have the meanings assigned to them in the Form
10-K.
Securities and Exchange Commission
Division of Corporation Finance
May 21, 2010
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Item 9A. Controls
and Procedures, page 75
1. We
note in the disclosure in the first paragraph that you, with the participation
of your principal executive officer and principal financial officer, concluded
that your disclosure controls and procedures were effective. The
conclusion regarding the effectiveness of the disclosure controls and procedures
must be made by the principal executive officer and principal financial
officer. Refer to Item 307 of Regulation S-K. Please tell
us whether these officers concluded that your disclosure controls and procedures
were effective as of December 31, 2009 and comply with this comment in future
filings. Please also comply with this comment with respect to your
Form 10-Q for the quarter ended March 31, 2010.
Response:
The statements in the Form 10-K and the
First Quarter 10-Q that the Company concluded that its disclosure controls and
procedures were effective as of December 31, 2009 and March 31, 2010, were
correct, and such conclusions were made by the Company’s principal executive
officer and principal financial officer.
The Company will comply with comment
no. 1 in its future filings. Because the First Quarter 10-Q was filed
prior to the Company’s receipt of the Comment Letter, the Company respectfully
requests that the Staff consent to the Company’s agreement to comply with
comment no. 1 beginning with the Company’s Form 10-Q to be filed for the quarter
ending June 30, 2010.
Item
10. Directors, Executive Officers and Corporate Governance, page
81
2. We
note that you have not included any disclosure in response to Item 402(s) of
Regulation S-K. Please advise us of the basis for your conclusion
that disclosure is not necessary and describe the process you undertook to reach
that conclusion.
Response:
The basis
of the Company’s conclusion that no disclosure was necessary in the Company’s
2009 Form 10-K and in its 2010 Proxy Statement in response to Item 402(s) of
Regulation S-K and the process the Company undertook to reach that conclusion is
as follows.
The
Company determined that its compensation policies do not create risks that are
reasonably likely to have a material adverse effect on the
Company. This conclusion was based on the assessment performed by the
Company, with input from the Company’s executive management and its legal
department. The Company’s assessment included consideration of Item
402(s) as discussed between the Company’s management and the Company’s legal
department as to the requirements of Item 402(s) after the Company’s legal
department and this law firm had in-depth discussions of Item
402(s). In conducting the Company’s risk assessment, numerous factors
were considered, including:
Securities and Exchange Commission
Division of Corporation Finance
May 21, 2010
Page
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the
Company does not offer significant short-term incentives that would
reasonably be considered as motivating high-risk investments or other
conduct that is not consistent with the long term goals of the
Company;
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the
mix between short-term and long-term compensation, which is also discussed in
“Compensation Discussion and
Analysis;”
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the
type of equity awards granted to employees and level of equity and equity
award holdings; and
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the
historical emphasis at the Company on long term growth and profiability,
over short term gains.
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Although
the Company has determined that the Company’s compensation policies are not
reasonably likely to have a material adverse effect on the Company, the Form
10-K and the 2010 Proxy include the following risk factor
disclosure:
Our
Compensation Policies May Discourage Other Parties From Attempting to Acquire
Us
We have
entered into severance agreements with our executive officers and some of the
executive officers of our subsidiaries that provide, among other things, that
if, within a specified period of time after the occurrence of a change in
control of our Company, one of these officers are terminated, other than for
cause, or the officer terminates his employment for good reason, we must pay
such officer an amount equal to 2.9 times the officer’s average annual gross
salary for the last five years preceding the change in control. See “Severance
Agreements” and “Employment Agreement,” above. These agreements may discourage a
third party tender offer, proxy contest, or other attempts to acquire control of
us and could have the effect of making it more difficult to remove incumbent
management.
While
the Company believes that the foregoing risk factor is material to
investors, the Company does not believe that such risk rises to
the “reasonably likely to have a material adverse effect” standard of Item
402(s) of Regulation S-K.
Bonuses, page
90
3. We
note disclosure that bonus awards are made “based upon an assessment of an
individual’s overall contribution to the Company.” In future filings,
for each named executive officer, please describe the elements of individual
performance and or contribution that are taken into account. See Item
402(b)(2)(vii) of Regulation S-K. Show us what your disclosure would
look like.
Securities and Exchange Commission
Division of Corporation Finance
May 21, 2010
Page
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Response:
The Company will include in its future
filings a description of the elements of individual performance and or
contribution that are taken into account for purposes of determining bonus
awards as requested in comment no. 3. However, because the Company’s
2010 Proxy Statement was filed prior to the Company’s receipt of the Comment
Letter, the 2010 Proxy Statement does not include the requested
disclosure. Accordingly, the Company respectfully requests that the
Staff consent to the Company’s agreement to comply with comment no. 3 in the
Company’s 2010 Form 10-K and Proxy Statement for the Company’s 2011 annual
meeting.
You have requested the Company to show
you what the requested disclosure would look like. Below is a
description of the elements of individual performance and or contribution that
were taken into account for purposes of determining bonus awards with respect to
the Company’s fiscal year ended December 31, 2009. The Company
expects future disclosures of the elements of individual performance and or
contributions of each named executive officer to be substantially similar to the
form of the following disclosure:
Bonus
awards are based upon assessment of an individual’s overall contribution to the
Company. This assessment includes an analysis of the achievement of
an individual’s goals for their areas of responsibility, the individual’s
contribution to the achievement of the Company’s priorities and strategic plans,
and the individual’s material accomplishments achieved during the
year. In considering an individual’s overall contribution to the
Company, the Compensation Committee will account for the individual’s level of
experience relevant to the Company’s businesses, the individual’s tenure with
the Company, and the individuals level of responsibility.
The
assessment is a subjective evaluation of accomplishment and contribution to the
Company and is not based on the achievement of specific performance
metrics. Our CEO, Jack E. Golsen, provides the Compensation Committee
with his assessment of the contributions to the Company during the applicable
year by our named executive officers other than for himself and Barry H. Golsen,
our President, for purposes of determining bonus compensation for such
year. With respect to bonus awards for Jack E. Golsen and Barry H.
Golsen, the Compensation Committee assesses the overall contribution of each of
them based on the interaction with each of them, review of the matters that are
presented to the board of directors for consideration or discussion, and
interviews with other senior executive officers.
In
assessing the overall contribution of Jack E. Golsen to the Company for purposes
of bonus compensation, the Compensation Committee considered Mr. Golsen’s
management of the Company through challenging global economic conditions, the
profitability of the Company, the retention and development of the Company’s
executive team, his development of key business relationships for the Company,
and his efforts in developing strategies for the Company’s future
Securities and Exchange Commission
Division of Corporation Finance
May 21, 2010
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revenue
and market growth. Mr. Golsen’s level of responsibility and the
effectiveness of his leadership were also considered in the assessment of his
overall contribution to the Company during 2009. In addition, the
Compensation Committee considered Mr. Golsen’s Employment Agreement with the
Company.
The
assessment of Barry H. Golsen’s overall contribution to the Company for purposes
of determining his bonus compensation included his leadership of the Company and
the Company’s climate control and chemical businesses through challenging global
economic conditions, profitability of the Company for 2009, his retention and
development of the Company’s management, his accomplishments in developing
improved investor and shareholder communication, and his efforts in developing
the Company’s future market growth.
The
assessment of Tony M. Shelby’s overall contribution to the Company for purposes
of bonus compensation included an evaluation of the complexity of Mr. Shelby’s
responsibilities as our chief financial officer, his leadership in the
management of the Company’s financial resources, his efforts in developing
strategies for the Company’s future revenue growth, his accomplishments in
negotiating important commercial contracts, his development of key business
relationships for the Company, and his continued commitment to enhancing the
Company’s internal audit function and improving its finance
processes.
The
assessment of David R. Goss’ overall contribution to the Company for purposes of
bonus compensation included an evaluation of the complexity of Mr. Goss’
responsibilities as our executive vice president of operations, especially
during challenging global economic conditions, his management and development of
our newly restarted chemical facility located in Pryor, Oklahoma, and his
management of Company’s resources with a view to their most productive and
efficient uses.
The
assessment of David M. Shear’s overall contribution to the Company for purposes
of bonus compensation included an evaluation of the complexity of Mr. Shear’s
responsibilities as our general counsel, the effectiveness of his oversight of
our legal department, his management of the Company’s litigation and corporate
matters, his accomplishments in negotiating important commercial contracts, the
utility of his communications with our board of directors and executive
officers, his contributions to the oversight of the Company’s corporate
governance and compliance functions, and his leadership in the design and
implementation of the Company’s recent subsidiary realignment.
Item 15. Exhibits
and Financial Statement Schedules, page 112
4. We
note that have not filed on EDGAR all of the schedules and exhibits to the
documents filed as exhibits 4.8, 4.10, 4.14, and 10.32 to the Form
10-K Please file complete copies of each
Securities and Exchange Commission
Division of Corporation Finance
May 21, 2010
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of
these documents, including all schedules and exhibits, with your next periodic
report or with a current report on Form 8-K Refer to Item 601(b)(10)
of Regulation S-K.
Response:
As previously discussed, the Company’s
First Quarter 10-Q was filed before the date of the Comment
Letter. As a result, the Company respectfully requests that the Staff
consent to the Company including in its Form 10-Q for quarter ending June 30,
2010, the schedules and exhibits to the referenced exhibits 4.8, 4.14 and 10.32
filed as exhibits to the Form 10-K. Please be advised that exhibit
4.10 to the 2009 Form 10-K should have been eliminated from the exhibit list as
the obligations under exhibit 4.10 were paid in full prior to the end of 2009,
and that neither the Company nor any of its subsidiaries have any material
obligations continuing under exhibit 4.10. As a result, exhibit 4.10
will be excluded from the exhibit list in any future filings. Thus,
the Company should not be required to file schedules and exhibits relating to
the referenced exhibit 4.10.
Certifications, Exhibits
31.1 and 31.2
5. In
future filings, please file the certifications exactly as set forth in Item
601(b)(31)(i) of Regulation S-K. We note that the identification of
the certifying individual at the beginning of the certification also includes
the title of the certifying individual. The identification of the
certifying individual at the beginning of the certification should be revised so
as not to include the individual’s title. Please also do not replace
the word “report” with “annual report” in section 4(a), “functions” with
“function” in section 5 and “control” with “controls” in section
5(b). Please also comply with this comment with respect to your Form
10-Q for the quarter ended March 31, 2010.
Response:
The
Company will comply with comment no. 5 in its future
filings. However, because the Company’s First Quarter 10-Q was filed
prior to the issuance of the Comment Letter, the Company respectfully requests
that the Staff consent to the Company’s agreement to comply with comment no. 5
beginning with the Company’s Form 10-Q for the quarter ended June 30,
2010.
In
connection with responding to the staff’s comments, the Company acknowledges
that:
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The
Company is responsible for the adequacy and accuracy of the disclosure in
the filing;
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Staff
comments or changes to disclosure in response to staff comments do not
foreclose the Commission from taking any action with respect to the
filing; and
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The
Company may not assert staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities
laws of the United States.
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Securities and Exchange Commission
Division of Corporation Finance
May 21, 2010
Page
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We
appreciate your attention to this matter. If you have any questions
or comments, please do not hesitate to contact the undersigned or Mark H.
Bennett of this office at (405) 272-5711.
Sincerely,
/s/ Irwin H.
Steinhorn
Irwin H.
Steinhorn
For the
Firm
IHS:dr
Enclosures
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cc:
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Pamela
A. Long (SEC)
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Sherry
Haywood (SEC)
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Tony
M. Shelby
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