10-K/A
LSB INDUSTRIES, INC. (LXU)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Mark One)
| ☒ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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For the fiscal year ended December 31, 2021
Or
| ☐ | 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
Commission File Number: 1-7677
LSB INDUSTRIES, INC.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 73-1015226 |
|---|---|
| (State of or other Jurisdiction<br><br>Incorporation or Organization) | (I.R.S. Employer<br><br>Identification No.) |
| 3503 NW 63rd Street, Suite 500,<br><br>Oklahoma City, Oklahoma | 73116 |
| --- | --- |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (405) 235-4546
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common Stock, Par Value $.10 | LXU | New York Stock Exchange |
| Preferred Stock Purchase Rights | N/A | New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☐ Yes ☒ No
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ☐ Yes ☒ No
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 ☐ No
Indicate by check mark whether the Registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports submit such files). ☒ Yes ☐ No
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☒ |
|---|---|---|---|
| Non-accelerated<br> filer | ☐ | Smaller reporting company | ☒ |
| Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Act). ☐ Yes ☒ No
The aggregate market value of the Registrant’s voting common equity held by non-affiliates of the Registrant, computed by reference to the price at which the voting common stock was last sold as of June 30, 2021, was approximately $141 million. As a result, the Registrant is an accelerated filer as of December 31, 2021. For purposes of this computation, shares of the Registrant’s common stock beneficially owned by each executive officer and director of the Registrant and LSB Funding LLC were deemed to be owned by affiliates of the Registrant as of June 30, 2021. Such determination should not be deemed an admission that such executive officers, directors or entity of our common stock are, in fact, affiliates of the Registrant or affiliates as of the date of this Form 10-K/A.
As
of March 25, 2022, the Registrant had 89,564,162 shares of common stock outstanding.
| Auditor Firm Id: | 00042 | Auditor Name: | Ernst & Young LLP | Auditor Location: | Oklahoma City, OK, United States |
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EXPLANATORY NOTE
LSB Industries, Inc. (the “Company”) is filing this Amendment No. 1 (this “Amendment No. 1”) to its Annual Report on Form 10-K for the fiscal year ended December 31, 2021, which was originally filed with the Securities and Exchange Commission (“SEC”) on February 24, 2022 (the “Original Form 10-K”) as an exhibits-only filing that updates, amends and supplements Part IV, Item 15 of the Original Form 10-K for the purpose of filing certain exhibits that were inadvertently omitted from the Original Form 10-K and removing certain exhibits that are no longer required to be included therein that were inadvertently included in the Original Form 10-K.
In addition, as required by Rule 12b-15 under the Securities and Exchange Act of 1934, as amended, this Amendment No. 1 includes new Exhibits 31.1 and 31.2, certifications of our Principal Executive Officer and Principal Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, and new Exhibits 32.1 and 32.2, certifications of our Principal Executive Officer and Principal Financial Officer, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
This Amendment No.1 does not affect any other parts of, or exhibits to, the Original Form 10-K, and those unaffected parts or exhibits are not included in this Amendment No. 1. Except as expressly stated in this Amendment No. 1, the Original Form 10-K continues to speak as of the date of the original filing of the Original Form 10-K, and the Company has not updated the disclosure contained in this Amendment No. 1 to reflect events that have occurred since the filing of the Original Form 10-K. Accordingly, this Amendment No. 1 must be read in conjunction with the Company’s other filings made with the SEC subsequent to the filing of the Original Form 10-K, including amendments to those filings, if any.
| ITEM 15. | EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES |
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A. The following documents are filed as part of this Report:
| 1. | Financial Statements. The consolidated financial statements, notes thereto and independent auditors’ report thereon, filed as part hereof, were filed as Part II, Item 8 of the Original Form <br>10-K. | |
|---|---|---|
| 2. | Financial Schedules. Schedules have been omitted because the information required to be set forth therein is not applicable or is included in the Consolidated Financial Statements or notes thereto. | |
| --- | --- | |
| 3. | Exhibits. The following exhibits are filed with, or incorporated by reference into this Report: | |
| --- | --- | |
| Exhibit<br>Number | Exhibit Title | Incorporated by Reference to the Following |
| --- | --- | --- |
| 3(i).1 | Restated Certificate of Incorporation of LSB Industries, Inc., dated January 21, 1977, as amended August 27, 1987 | Exhibit 3(i).1 to the Company’s Form <br>10-K<br> filed on February 28, 2013 |
| 3(i).2 | Certificate of Amendment to the Restated Certificate of Incorporation of LSB Industries, dated September 23, 2021 | Exhibit 3(i).2 to the Company’s Registration Statement on From <br>S-3<br> filed on November 16, 2021 |
| 3(ii).1 | Second Amended and Restated Bylaws of LSB Industries, Inc., dated July 19, 2021 | Exhibit 3.1 to the Company’s Form <br>8-K<br> filed July 19, 2021 |
| 4.1 | Specimen Certificate for the Company’s Common Stock | Exhibit 4.3 to the Company’s Registration Statement on Form <br>S-3<br> ASR filed November 16, 2012 |
| 4.2 | Section 382 Rights Agreement, dated as of July 6, 2020, between LSB Industries, Inc. and Computershare Trust Company, N.A., as rights agent | Exhibit 4.1 to the Company’s Form <br>8-K<br> filed July 6, 2020 |
| 4.3 | Intercreditor Agreement, dated August 7, 2013, by and among Wells Fargo Capital Finance, Inc., as agent and UMB Bank, n.a., as collateral agent, and acknowledged and agreed to by LSB Industries, Inc. and the other grantors named therein | Exhibit 99.1 to the Company’s Form <br>8-K<br> filed August 14, 2013 |
| 4.4 | Description of Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 | Exhibit 4.17(a) to the Company’s Form <br>10-K<br> filed February 24, 2022 |
| 10.1* | LSB Industries, Inc. 2016 Long Term Incentive Plan | Exhibit 4.8 to the Company’s Form <br>S-8<br> filed June 28, 2016 |
| 10.2* | Form of LSB Industries, Inc. 2016 Long Term Incentive Plan Stock Option Agreement | Exhibit 4.9 to the Company’s Form <br>S-8<br> filed June 28, 2016 |
| 10.3* | Form of LSB Industries, Inc. 2016 Long Term Incentive Plan Restricted Stock Unit Agreement (Director Award) | Exhibit 4.10 to the Company’s Form <br>S-8<br> filed June 28, 2016 |
| 10.4* | Form of LSB Industries, Inc. 2016 Long Term Incentive Plan Restricted Stock Agreement | Exhibit 4.11 to the Company’s Form <br>S-8<br> filed June 28, 2016 |
| 10.5* | Form of Time-Based Restricted Stock Agreement of LSB Industries, Inc. | Exhibit 10.4 to the Company’s Form <br>8-K<br> filed January 3, 2019 |
| 10.6* | Form of Performance-Based Restricted Stock Agreement of LSB Industries, Inc. | Exhibit 10.5 to the Company’s Form <br>8-K<br> filed January 3, 2019 |
| 10.7* | Employment Agreement, dated December 30, 2018, between LSB Industries, Inc. and Mark T. Behrman | Exhibit 10.1 to the Company’s Form <br>8-K<br> filed January 3, 2019 |
| Exhibit<br>Number | Exhibit Title | Incorporated by Reference to the Following |
|---|---|---|
| 10.44 | Securities Exchange Agreement, dated July 19, 2021, by and between LSB Industries, Inc. and LSB Funding LLC | Exhibit 10.1 to the Company’s Form <br>8-K<br> filed July 19, 2021 |
| 10.45 | Written Consent of LSB Funding, LLC approving of the incurrence of indebtedness by LSB Industries, Inc., dated September 22, 2021, provided pursuant to the Securities Exchange Agreement, dated as of July 19, 2021, between LSB Industries, Inc. and LSB Funding, LLC | Exhibit 10.3(a) to the Company’s Form <br>10-Q<br> filed on November 2, 2021 |
| 21.1 | Subsidiaries of the Company | Exhibit 21.1(a) to the Company’s Form <br>10-K<br> filed February 24, 2022 |
| 23.1 | Consent of Independent Registered Public Accounting Firm | Exhibit 23.1(a) to the Company’s Form <br>10-K<br> filed February 24, 2022 |
| 31.1(a) | Certification of Mark T. Behrman, Chief Executive Officer, pursuant to Sarbanes-Oxley Act of 2002, Section 302 | |
| 31.2(a) | Certification of Cheryl A. Maguire, Chief Financial Officer, pursuant to Sarbanes-Oxley Act of 2002, Section 302 | |
| 32.1(b) | Certification of Mark T. Behrman, Chief Executive Officer, furnished pursuant to Sarbanes-Oxley Act of 2002, Section 906 | |
| 32.2(b) | Certification of Cheryl A. Maguire, Chief Financial Officer, furnished pursuant to Sarbanes-Oxley Act of 2002, Section 906 | |
| 101.INS(a) | Inline XBRL Instance Document | |
| 101.SCH(a) | Inline XBRL Taxonomy Extension Schema Document | |
| 101.CAL(a) | Inline XBRL Taxonomy Extension Calculation Linkbase Document | |
| 101.DEF(a) | Inline XBRL Taxonomy Extension Definition Linkbase Document | |
| 101.LAB(a) | Inline XBRL Taxonomy Extension Labels Linkbase Document | |
| 101.PRE(a) | Inline XBRL Taxonomy Extension Presentation Linkbase Document | |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) | |
| * | Executive Compensation Plan or Arrangement | |
| --- | --- | |
| (a) | Filed herewith | |
| --- | --- | |
| (b) | Furnished herewith | |
| --- | --- |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Dated: | By: | /s/ Mark T. Behrman |
|---|---|---|
| M<br>arch 25, 202<br>2 | Mark T. Behrman, President, Chief Executive Officer and Director |
EX-31.1
Exhibit 31.1
CERTIFICATION
I, Mark T. Behrman, certify that:
I have reviewed this annual report on Form 10-K/A of LSB Industries, Inc. (the “registrant”);
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;
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;
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:
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be<br>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<br>being prepared; |
|---|---|
| b) | Designed such internal control over financial reporting, or caused such internal control over financial<br>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<br>principles; |
| --- | --- |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this<br>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 |
| --- | --- |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that<br>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<br>internal control over financial reporting; and |
| --- | --- |
- 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):
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over<br>financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
|---|---|
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in<br>the registrant’s internal control over financial reporting. |
| --- | --- |
Date: March 25, 2022
| /s/ Mark T. Behrman |
|---|
| Mark T. Behrman |
| President, Chief Executive Officer and Director |
EX-31.2
Exhibit 31.2
CERTIFICATION
I, Cheryl A. Maguire, certify that:
I have reviewed this annual report on Form 10-K/A of LSB Industries, Inc. (the “registrant”);
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;
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;
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:
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be<br>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<br>being prepared; |
|---|---|
| b) | Designed such internal control over financial reporting, or caused such internal control over financial<br>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<br>principles; |
| --- | --- |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this<br>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 |
| --- | --- |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that<br>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<br>internal control over financial reporting; and |
| --- | --- |
- 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):
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over<br>financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
|---|---|
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in<br>the registrant’s internal control over financial reporting. |
| --- | --- |
Date: March 25, 2022
| /s/ Cheryl A. Maguire |
|---|
| Cheryl A. Maguire |
| Executive Vice President and Chief Financial Officer |
EX-32.1
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 annual report of LSB Industries, Inc. (“LSB”) on Form 10-K for the year ended December 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”). I, Mark T. Behrman, President 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:
(1) the Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of LSB.
| /s/ Mark T. Behrman |
|---|
| Mark T. Behrman |
| President, Chief Executive Officer |
| (Principal Executive Officer) and Director |
Date: March 25, 2022
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.
EX-32.2
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 annual report of LSB Industries, Inc. (“LSB”) on Form 10-K /A for the year ended December 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Cheryl A. Maguire, Senior Vice President 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:
(1) the Report fully complies with the requirements of section 13 (a) or 15 (d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of LSB.
| /s/ Cheryl A. Maguire |
|---|
| Cheryl A. Magruire |
| Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
Date: March 25, 2022
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.