UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of
report (Date of earliest event reported) November 15,
2007
LSB
INDUSTRIES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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1-7677
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73-1015226
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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16
South Pennsylvania, Oklahoma City, Oklahoma
(Address of principal executive offices) |
73107
(Zip
Code) |
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Registrant's
telephone number, including area code
(405) 235-4546
Not
applicable
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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|
o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Section
5 – Corporate Governance and Management
Item
5.03 – Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
On
November 15, 2007, the Board of Directors adopted amendments to certain
provisions of Article VI of the Company’s Bylaws (the “Bylaw
Amendments”). The purpose of the Bylaw Amendments was to make the
Company’s common stock eligible for participation in a Direct Registration
System (“DRS”) operated by a clearing agency (such as the one offered by the
Depository Trust Company). The DRS allows investors to have
securities registered in their names without the issuance of physical
certificates and allows investors to electronically transfer securities
to
broker-dealers in order to effect transactions without the risks and delays
associated with transferring physical certificates. The full text of
the Bylaw Amendments, which were effective November 15, 2007, is attached
hereto
as Exhibit 3.1 and is incorporated herein by reference. The Company’s
Bylaws are restated as of December 19, 2007, to conform all prior amendments,
and are attached hereto as Exhibit 3.2 and incorporated herein by
reference.
Section
9 – Financial Statements and Exhibits
Item
9.01 – Financial Statements and Exhibits
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(d)
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Exhibits
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3.1
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Twelfth
Amendment to Bylaws, adopted November 15,
2007
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3.2
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Restated
Bylaws, as of December 19, 2007
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Company
has duly
caused this report to be signed on its behalf by the undersigned hereunto
duly
authorized.
Dated: December
20, 2007
LSB
INDUSTRIES, INC.
By: /s/
Tony M. Shelby
Tony
M.
Shelby
Executive
Vice President,
Chief
Financial Officer
TWELFTH
AMENDMENT
TO
THE BY-LAWS
OF
LSB
INDUSTRIES, INC.
________________________________________
The
following amendments to the By-Laws of LSB Industries, Inc. (the “Corporation”)
were approved and adopted by the Board of Directors of the Corporation by
a
unanimous written consent, dated November 15, 2007, executed by all of the
members of the Board of Directors of the Corporation:
1. Section
1
of ARTICLE VI of the By-Laws of the Corporation is hereby amended in its
entirety and in lieu thereof a new Section 1 is substituted in place thereof,
which reads as follows:
Section
1. Stock Certificates. The interest of each holder
of stock of the Corporation shall be (a) evidenced by a certificate or
certificates in such form as the Board of Directors may from time to time
prescribe or (b) represented by uncertificated shares as issued by the
Corporation. The issuance of shares in uncertificated form shall not
affect shares already represented by a certificate until the certificate
is
surrendered to the Corporation. In the case of certificated shares,
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.
2. Section
3
of ARTICLE VI of the By-Laws of the Corporation is hereby amended in its
entirety and in lieu therefore a new Section 3 is substituted in place thereof,
which reads as follows:
Section
3. Holders of Record. Prior to due presentment for
registration or transfer or receipt of proper transfer instructions, 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.
3. Section
4
of ARTICLE VI of the By-Laws of the Corporation is hereby amended in its
entirety and in lieu therefore a new Section 4 is substituted in place thereof,
which reads as follows:
Section
4. Lost, Stolen, Destroyed, or Mutilated
Certificates. The Corporation may issue a new certificate of
stock or uncertificated shares to replace a certificate alleged to have been
lost, stolen, destroyed or mutilated upon 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.
4. Section
5
of ARTICLE VI of the By-Laws of the Corporation is hereby amended in its
entirety and in lieu therefore a new Section 5 is substituted in place thereof,
which reads as follows:
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 certificated or uncertificated
shares of stock, and perform such other duties as may be delegated by the
Board
of Directors.
The
By-Laws of LSB Industries, Inc., dated January 28, 1977, 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, by the Sixth Amendment to the By-Laws, dated May 8, 1997,
by
the Seventh Amendment to the By-Laws, dated August 13, 1998, by the Eighth
Amendment to the By-Laws, dated May 13, 1999, by the Ninth Amendment to the
By-Laws, dated May 12, 2005, by the Tenth Amendment to the By-Laws, dated
August
16, 2007, by the Eleventh Amendment to the By-Laws, dated September 10, 2007,
and by this Twelfth Amendment to the By-Laws, dated November 15, 2007 set
forth
the entire By-Laws of LSB Industries, Inc. The amendment to the
Corporation's By-Laws as set forth in this Twelfth Amendment to the By-Laws
of
LSB Industries, Inc. is effective as of the 15th day of November, 2007, the
date
the Board of Directors of the Corporation adopted and approved such
amendment.
Dated: November
15, 2007
LSB
INDUSTRIES, INC.
/s/
Jack E. Golsen
Jack
E.
Golsen
Chairman
of the Board
[S
E A
L] /s/
David M. Shear
David
M.
Shear, Secretary
LSB
INDUSTRIES, INC.
(a
Delaware Corporation)
RESTATED
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 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."
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.
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 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 press 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;
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(vi)
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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.
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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.
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 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.
Section
12. Business to be Conducted at the Annual or Special Meeting of
the Stockholders; Notice of Proposals. 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 the annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation. A stockholder's
notice will be timely if delivered or mailed to and received at the principal
executive offices at the Corporation not less than 50 days before the date
on
which the Corporation first mailed its proxy materials for the prior year's
annual meeting of stockholders. The 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 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 and such business.
Notwithstanding
anything in these Bylaws to the contrary, no business shall be brought before
or
conducted at the 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:
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(i)
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By
or at the direction of the Board of Directors;
or
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(ii)
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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.
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13.2 Nominations
of 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:
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(i)
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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
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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
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(ii)
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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.
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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.
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 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 thirteen 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.
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 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.
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.
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 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.
Section
7. 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
8. 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
9. 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
10. 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
11. 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 designations 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.
Section
12. 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
13. 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 (a) evidenced by a certificate or certificates in such
form
as the Board of Directors may from time to time prescribe or (b) represented
by
uncertificated shares as issued by the Corporation. The issuance of
shares in uncertificated form shall not affect shares already represented
by a
certificate until the certificate is surrendered to the
Corporation. In the case of certificated shares, 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 By-Laws.
Section
3. Holders of
Record. Prior to due presentment for registration or transfer or
receipt of proper transfer instructions, 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 or uncertificated shares to replace a certificate alleged to have been
lost, stolen, destroyed or mutilated upon 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 certificated or
uncertificated shares of stock, 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
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 post- paid 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, 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 XI, 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.
These
Restated ByLaws of LSB
Industries, Inc. restate and set forth the entire ByLaws of the Corporation
as
of the 19th day
of December, 2007.
LSB
INDUSTRIES, INC.
/s/
Jack E. Golsen____________________
Jack
E.
Golsen
Chairman
of the Board
/s/
David M. Shear
David
M.
Shear, Secretary