<PAGE>
<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBERS 0-676 AND 0-16626
-----------------
THE SOUTHLAND CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS 75-1085131
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2711 NORTH HASKELL AVE., DALLAS, TEXAS 75204-2906
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code, 214/828-7011
--------------
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 X No
APPLICABLE ONLY TO CORPORATE ISSUERS:
409,922,935 shares of common stock, $.0001 par value (the issuer's
only class of common stock), were outstanding as of September 30, 1996.
<PAGE>
<PAGE>
THE SOUTHLAND CORPORATION
INDEX
PAGE
NO.
----
Part I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS:
Condensed Consolidated Balance Sheets -
September 30, 1996 and December 31,1995......................... 1
Condensed Consolidated Statements of Earnings -
Three Months and Nine Months Ended September 30, 1996 and 1995.. 2
Condensed Consolidated Statements of Cash Flows -
Nine Months Ended September 30, 1996 and 1995................... 3
Notes to Condensed Consolidated Financial Statements ............. 4
Report of Independent Accountants................................. 5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS .................................... 6
Part II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS ............................................ 12
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K ............................. 12
SIGNATURES ............................................................ 13
Exhibit (3) - Bylaws of The Southland Corporation
as Amended April 24, 1996 .......................Tab 1
Exhibit (11) - Statement re Computation of Per-Share Earnings ........Tab 2
Exhibit (15) - Letter re Unaudited Interim Financial Information .....Tab 3
Exhibit (27) - Financial Data
Schedule.............................................................. *
*Submitted in electronic format only
(i)
<PAGE>
<PAGE>
<TABLE>
THE SOUTHLAND CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER-SHARE DATA)
<CAPTION>
ASSETS
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- -------------
(UNAUDITED)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents . . . . . . . . . . $ 46,431 $ 43,047
Accounts and notes receivable . . . . . . . . . 95,837 107,224
Inventories . . . . . . . . . . . . . . . 101,419 102,020
Other current assets . . . . . . . . . . . . 107,936 103,816
------------- -------------
TOTAL CURRENT ASSETS. . . . . . . . . . . 351,623 356,107
PROPERTY AND EQUIPMENT . . . . . . . . . . . . 1,339,574 1,335,783
OTHER ASSETS. . . . . . . . . . . . . . . . 345,738 389,227
------------- -------------
$ 2,036,935 $ 2,081,117
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
CURRENT LIABILITIES:
Trade accounts payable . . . . . . . . . . . $ 193,460 $ 195,154
Accrued expenses and other liabilities . . . . . . 349,216 329,429
Commercial paper . . . . . . . . . . . . . 61,130 50,198
Long-term debt due within one year . . . . . . . 125,581 145,346
------------- -------------
TOTAL CURRENT LIABILITIES . . . . . . . . . 729,387 720,127
DEFERRED CREDITS AND OTHER LIABILITIES . . . . . . . 207,215 236,545
LONG-TERM DEBT . . . . . . . . . . . . . . . 1,605,070 1,705,237
CONVERTIBLE QUARTERLY INCOME DEBT SECURITIES . . . . . 300,000 300,000
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY (DEFICIT):
Common stock, $.0001 par value. . . . . . . . . 41 41
Additional capital. . . . . . . . . . . . . 625,574 625,574
Accumulated deficit . . . . . . . . . . . . (1,430,352) (1,506,407)
------------- -------------
TOTAL SHAREHOLDERS' EQUITY (DEFICIT ) . . . . . (804,737) (880,792)
------------- -------------
$ 2,036,935 $ 2,081,117
============= =============
See notes to condensed consolidated financial statements.
1
</TABLE>
<PAGE>
<PAGE>
<TABLE>
THE SOUTHLAND CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(DOLLARS IN THOUSANDS, EXCEPT PER-SHARE DATA)
<CAPTION>
(UNAUDITED)
THREE MONTHS NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
--------------------------- ---------------------------
1996 1995 1996 1995
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
REVENUES:
Net sales (Including $256,833, $255,799,
$736,027 and $743,617 in excise taxes). $ 1,839,870 $ 1,825,887 $ 5,194,220 $ 5,120,931
Other income. . . . . . . . . . . 20,178 18,250 57,684 52,903
------------ ------------ ------------ ------------
1,860,048 1,844,137 5,251,904 5,173,834
COSTS AND EXPENSES:
Cost of goods sold. . . . . . . . . 1,298,437 1,271,897 3,685,445 3,605,406
Operating, selling, general and
administrative expenses. . . . . . 476,671 490,322 1,375,530 1,396,388
Interest expense, net. . . . . . . . 22,130 20,624 68,326 63,871
------------ ------------ ------------ ------------
1,797,238 1,782,843 5,129,301 5,065,665
------------ ------------ ------------ ------------
EARNINGS BEFORE INCOME TAXES . . . . . . . 62,810 61,294 122,603 108,169
INCOME TAXES . . . . . . . . . . . . 25,124 11,647 49,041 22,726
------------ ------------ ------------ ------------
NET EARNINGS . . . . . . . . . . . . $ 37,686 $ 49,647 $ 73,562 $ 85,443
============ ============= ============= =============
NET EARNINGS PER COMMON SHARE
(Primary and Fully Diluted) . . . . . . $.08 $.12 $.17 $.21
===== ===== ===== =====
See notes to condensed consolidated financial statements.
2
</TABLE>
<PAGE>
<PAGE>
<TABLE>
THE SOUTHLAND CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<CAPTION>
NINE MONTHS
ENDED SEPTEMBER 30,
------------------------------
1996 1995
------------- -------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings. . . . . . . . . . . . . . . . . . $ 73,562 $ 85,443
Adjustments to reconcile net earnings to net cash provided
by operating activities:
Depreciation and amortization of property and equipment . . 122,870 107,974
Other amortization . . . . . . . . . . . . . . 14,270 14,270
Deferred income taxes . . . . . . . . . . . . . 19,748 272
Noncash interest expense . . . . . . . . . . . . 1,332 1,522
Other noncash expense (income) . . . . . . . . . . 144 (1,854)
Net loss (gain) on property and equipment. . . . . . . 54 (259)
Decrease in accounts and notes receivable. . . . . . . 18,263 13,216
Decrease (increase) in inventories . . . . . . . . . 601 (2,402)
Increase in other assets . . . . . . . . . . . . (3,166) (1,256)
Decrease in trade accounts payable and other liabilities. . (12,353) (19,421)
------------- -------------
NET CASH PROVIDED BY OPERATING ACTIVITIES . . . 235,325 197,505
------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Payments for purchase of property and equipment . . . . . . (137,371) (144,827)
Proceeds from sale of property and equipment . . . . . . . 12,214 11,800
Other . . . . . . . . . . . . . . . . . . . . 2,938 1,255
------------- -------------
NET CASH USED IN INVESTING ACTIVITIES. . . . . (122,219) (131,772)
------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from commercial paper and revolving credit facilities . 3,012,509 2,981,083
Payments under commercial paper and revolving credit facilities. (3,004,127) (3,039,459)
Principal payments under long-term debt agreements . . . . . (118,104) (45,679)
Other . . . . . . . . . . . . . . . . . . . . - (787)
------------- -------------
NET CASH USED IN FINANCING ACTIVITIES. . . . . (109,722) (104,842)
------------- -------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS. . . . . . 3,384 (39,109)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR. . . . . . . . 43,047 59,288
------------- -------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD . . . . . . . . . $ 46,431 $ 20,179
============= =============
RELATED DISCLOSURES FOR CASH FLOW REPORTING:
Interest paid, excluding SFAS No.15 Interest . . . . . . . $ (77,622) $ (72,689)
============= =============
Net income taxes paid. . . . . . . . . . . . . . . $ (15,485) $ (23,235)
============= =============
See notes to condensed consolidated financial statements.
3
</TABLE>
<PAGE>
<PAGE>
THE SOUTHLAND CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NINE MONTHS ENDED SEPTEMBER 30, 1996
(UNAUDITED)
1. BASIS OF PRESENTATION:
The condensed consolidated balance sheet as of September 30, 1996, and
the condensed consolidated statements of earnings for the three-month and
nine-month periods ended September 30, 1996 and 1995, and the condensed
consolidated statements of cash flows for the nine-month periods ended
September 30, 1996 and 1995, have been prepared by the Company without
audit. In the opinion of management, all adjustments (which included only
normal, recurring adjustments) necessary to present fairly the financial
position at September 30, 1996, and the results of operations and cash
flows for all periods presented have been made. The results of operations
for the interim periods are not necessarily indicative of the operating
results for the full year.
The condensed consolidated balance sheet as of December 31, 1995, is
derived from the audited financial statements but does not include all
disclosures required by generally accepted accounting principles. The notes
accompanying the consolidated financial statements in the Company's Annual
Report on Form 10-K for the year ended December 31, 1995, include
accounting policies and additional information pertinent to an
understanding of both the December 31, 1995, balance sheet and the interim
financial statements. The information has not changed except as a result
of normal transactions in the nine months ended September 30, 1996.
2. IMPAIRMENT OF LONG-LIVED ASSETS:
As of January 1996, the Company adopted Statement of Financial
Accounting Standards ("SFAS") No. 121, "Accounting for the Impairment of
Long-Lived Assets." SFAS No. 121 establishes accounting standards for the
impairment of long-lived assets to be held and used and for long-lived
assets to be disposed of. The adoption of SFAS No. 121 did not have a
material effect on the Company's earnings.
4
<PAGE>
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of
The Southland Corporation
We have reviewed the accompanying condensed consolidated balance sheet of
The Southland Corporation and Subsidiaries as of September 30, 1996, the
related condensed consolidated statements of earnings for the three-month
and nine-month periods ended September 30, 1996 and 1995, and the condensed
consolidated statements of cash flows for the nine-month periods ended
September 30, 1996 and 1995. These financial statements are the
responsibility of the company's management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical
procedures to financial data and making inquiries of persons responsible
for financial and accounting matters. It is substantially less in scope
than an audit conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion regarding
the financial statements taken as a whole. Accordingly, we do not express
such an opinion.
Based on our review, we are not aware of any material modifications that
should be made to the accompanying financial statements of The Southland
Corporation and Subsidiaries for them to be in conformity with generally
accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet as of December 31, 1995, and the
related consolidated statements of earnings, shareholders' equity
(deficit), and cash flows for the year then ended (not presented herein);
and in our report dated February 14, 1996, which included an explanatory
paragraph describing the change in method of accounting for postemployment
benefits and for income taxes in 1993, we expressed an unqualified opinion
on those consolidated financial statements. In our opinion, the
information set forth in the accompanying condensed consolidated balance
sheet as of December 31, 1995, is fairly stated, in all material respects,
in relation to the consolidated balance sheet from which it has been
derived.
COOPERS & LYBRAND L.L.P.
Dallas, Texas
October 24, 1996
5
<PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS - NINE MONTHS ENDED SEPTEMBER 30, 1996
SUMMARY OF RESULTS OF OPERATIONS
The Company's net earnings for the third quarter and first nine months
of 1996 were $37.7 million ($.08 per share) and $73.6 million ($.17 per
share), respectively, compared to net earnings of $49.6 million ($.12 per
share) and $85.4 million ($.21 per share) for the same periods in 1995.
Pre-tax earnings of $62.8 million for the third quarter of 1996 were $1.5
million higher than the same period in 1995.
FINANCIAL STATEMENT CHANGES
Certain expense reclassifications were noted in the Company's December
31, 1995 annual report and 10-K filing, resulting in the restatement of
comparative results. Subsequent quarterly filings on Form 10-Q during 1996
have restated prior period results to maintain consistency. The most
significant change related to reclassifying buying and occupancy costs
(i.e., store rent, depreciation and other store-related occupancy expenses)
out of Cost of Goods Sold and into Operating, Selling, General &
Administrative expenses.
MANAGEMENT STRATEGIES
Since 1992, the Company has been committed to several key strategies
that it believes, over the long term, will provide further differentiation
and allow 7-Eleven to maintain its position as the premier convenience
retailer. These strategies include:
Continued upgrades to the Company's store base by remodeling
existing stores, closing underperforming stores and developing new
sites.
A customer-driven approach to merchandising which focuses on
providing the customer an expanded selection of quality products at
a good value.
Everyday-fair-pricing strategy which provides consistent,
reasonable prices on all items.
Daily delivery of fresh perishable items and high-quality,
ready-to-eat foods providing fresher products, improved in-stock
conditions and lower product costs.
Implementation of a retail information system which has initially
automated accounting and other store-level tasks. When fully
complete, the system will provide each store, as well as suppliers
and distributors, with on-line information to make improved
ordering decisions.
The Company made considerable progress toward implementation of these
strategies during the third quarter, accelerating the development of its
retail information system, making the transition to three new combined
6
<PAGE>
<PAGE>
distribution centers and two new commissaries, and locating new store
opportunities. The Company believes that these strategies have contributed
to its improved results over the past two years, although in the short term
they have resulted in additional costs, and that continuing to implement
these strategies will lead to sustainable, profitable growth over the long-
term.
(EXCEPT WHERE NOTED, ALL PER-STORE NUMBERS REFER TO AN AVERAGE OF ALL
STORES RATHER THAN ONLY STORES OPEN MORE THAN ONE YEAR.)
SALES
The Company recorded net sales of $1.84 billion for the third quarter
and $5.19 billion in the first nine months of 1996, compared to net sales
of $1.83 billion and $5.12 billion during the same periods last year.
Growth in total sales was achieved during the third quarter primarily as a
result of gasoline prices, which overcame the decline from store closings
(see Management Strategies) and the slight same-store merchandise sales
decrease. During the third quarter, the Company operated an average of 114
fewer stores than the same period in 1995.
The Company's ongoing challenge to balance short-term performance with
its long-term objectives, along with the unseasonably cool and wet weather
in some of its largest markets (primarily the East Coast), contributed to
the less than desired merchandise sales results during the third quarter.
Merchandise sales growth per store was as follows:
<TABLE>
<CAPTION>
PERIODS ENDING SEPTEMBER 30, 1996
---------------------------------
<S> <C> <C>
INCREASE(DECREASE) FROM PRIOR YEAR THREE MONTHS NINE MONTHS
- ---------------------------------- ------------ -----------
U.S. same-store sales (0.3)% 1.5%
U.S. same-store real growth; excluding inflation (2.8)% (0.7)%
7-Eleven inflation 2.5% 2.3%
</TABLE>
Gasoline sales dollars per store increased 7.9% for the third quarter
and 6.4% for the first nine months of 1996 in comparison to the same
periods in 1995, due to an average increase in sales price of 8.7 and 7.3
cents per gallon for the quarter and the nine months, respectively. Sales
in gallons per store increased 0.6% during the third quarter and 0.3% for
the first nine months.
GROSS PROFITS
<TABLE>
<CAPTION>
PERIODS ENDING SEPTEMBER 30, 1996
---------------------------------
THREE MONTHS NINE MONTHS
------------ -----------
MERCHANDISE GASOLINE MERCHANDISE GASOLINE
----------- -------- ----------- --------
<S> <C> <C> <C> <C>
Gross Profit - DOLLARS IN MILLIONS $488.0 $53.4 $1,361.9 $146.9
INCREASE/(DECREASE) FROM PRIOR YEAR
- -----------------------------------
Average per-store gross profit dollar change 0.0% (3.4)% 2.1% 0.8%
Margin point change (gasoline in cents per gallon) (.33) (.62) (.24) .06
Average per-store sales (gasoline in gallons) 1.0% 0.6% 2.8% 0.3%
</TABLE>
Merchandise gross profit decreased by $10.1 million in the third
quarter and $5.9 million for the nine months, when compared to the same
periods in 1995. These decreases are attributable to the Company operating
fewer stores and the decrease in merchandise margin.
7
<PAGE>
<PAGE>
The lower merchandise margin during the third quarter was the result
of several factors. Rising product costs and more aggressive retail pricing
continue to present a challenge in today's increasingly more competitive
environment. Initial costs associated with new, fresh-food products from
the further roll-out of the Company's fresh-food program have affected
margin as well. In addition, margin was impacted negatively from the cool
and wet weather experienced in some of its largest markets that suppressed
sales of higher-margin products such as non-alcoholic beverages and related
categories.
During the third quarter and first nine months of 1996, gasoline gross
profits decreased $2.5 million and $0.9 million, respectively, versus the
same periods in 1995. Margin in the third quarter also declined compared
to last year due to high wholesale costs.
<TABLE>
<CAPTION>
OPERATING, SELLING, GENERAL AND ADMINISTRATIVE EXPENSES ("OSG&A")
- -----------------------------------------------------------------
PERIODS ENDING SEPTEMBER 30, 1996
---------------------------------
THREE MONTHS NINE MONTHS
------------ -----------
1996 1995 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
Total OSG&A expenses $476.7 $490.3 $1,375.5 $1,396.4
Ratio of OSG&A to sales 25.9% 26.9% 26.5% 27.3%
</TABLE>
The Company will continue to eliminate unnecessary costs, while
devoting resources to the implementation of its retail information system
and other strategic initiatives (see Management Strategies). Despite the
incremental costs of these initiatives, which exceeded $5 million, OSG&A
expenses during the third quarter declined $13.7 million, compared to the
same period in 1995. The decrease in OSG&A expenses during the third
quarter was primarily due to fewer stores, higher store closing costs in
1995, and lower insurance costs from adjustment to the Company's self-
insurance reserves as a result of favorable claims experience. For the
nine-month comparison, OSG&A expenses declined $20.9 million due to
reductions in force, lower insurance and benefit costs, reduced advertising
and environmental remediation expenses, and the effect of having fewer
stores.
INTEREST EXPENSE, NET
In November 1995, the Company consummated a $216.7 million tender
offer to purchase a portion ($263.3 million face value) of its public debt
securities (see Liquidity and Capital Resources). The purchase was
financed by the issuance of $300 million 4.5% Convertible Quarterly Income
Debt Securities due 2010 ("Convertible Debt"). The annual interest expense
of $13.7 million from issuing the Convertible Debt has not been offset by a
corresponding reduction in interest expense for the retired debentures,
because the retired debentures were accounted for pursuant to Statement of
Financial Accounting Standards No. 15 ("SFAS No. 15"). SFAS No. 15
provides that future interest payments on the Company's currently
outstanding public debt securities be recorded as debt on the balance sheet
and charged against such balances when paid rather than being recorded as
interest expense in the income statement.
Net interest expense increased $1.5 million and $4.5 million over
1995, during the third quarter and first nine months of 1996, respectively.
Several factors caused the change in net interest expense during the third
quarter including increases from the Convertible Debt interest (explained
8
<PAGE>
<PAGE>
in the paragraph above) and lower interest income, offset by declines from
lower principal balances and lower rates on floating rate debt. The lower
interest income was primarily the result of a new money order agreement.
The new agreement eliminates interest income from the funding arrangement;
however, it provides lower cost of goods and operating costs, which will
more than offset the impact of the lost interest. While the Company
expects interest expense to remain relatively flat for 1996, interest
income is expected to decline approximately $6 million.
Approximately 33% of the Company's debt contains floating rates, which
had a weighted average interest rate of 5.75% for the third quarter and
5.86% for the first nine months of 1996 versus 6.53% and 6.71% for the same
time periods in 1995. In early 1996, the Company reduced its exposure to
short-term fluctuations in rates on a substantial portion of its floating
rate bank debt by selecting six-month and one-year LIBOR maturities at
favorable rates rather than the shorter terms it has selected in the past.
LIQUIDITY AND CAPITAL RESOURCES
The majority of the Company's working capital is provided from three
sources: i) cash flows generated from its operating activities; ii) a $400
million commercial paper facility (guaranteed by Ito-Yokado Co., Ltd.); and
iii) short-term seasonal borrowings of up to $150 million under its
revolving credit facility. The Company believes that operating activities
coupled with available short-term working capital facilities will provide
sufficient liquidity to fund current operating and capital expenditure
programs, as well as to service debt requirements.
On November 22, 1995, the Company completed a tender offer for 40% of
the face value of both its 5% First Priority Senior Subordinated Debentures
due December 15, 2003 ($180.6 million) and 4 1/2% Second Priority Senior
Subordinated Debentures - Series A ($82.7 million) due June 15, 2004
(collectively, the "Debentures"). Under the terms of the offer, the final
clearing prices were $840 and $786 for the 5% and 4 1/2% Debentures,
respectively, per $1,000 face amount, resulting in a cash outlay by the
Company of $216.7 million.
To finance the purchase of the Debentures, the Company issued $300
million in Convertible Debt to Ito-Yokado Co., Ltd., and Seven-Eleven Japan
Co., Ltd., the joint owners of IYG Holding Company, which is the Company's
majority shareholder. The remaining proceeds of $83.3 million were made
available for general corporate purposes. The Convertible Debt is
subordinated to all existing debt, has a 15-year term with no amortization
and is convertible into the Company's common shares at $4.16 per share.
The Credit Agreement contains certain financial and operating
covenants requiring, among other things, the maintenance of certain
financial ratios, including interest coverage, fixed-charge coverage and
senior indebtedness to earnings before interest, taxes, depreciation and
amortization ("EBITDA"). The covenant levels established by the Credit
Agreement generally require continuing improvement in the Company's
financial condition.
For the period ended September 30, 1996, the Company was in compliance
with all of the covenants required under the Credit Agreement, including
compliance with the principal financial and operating covenants (calculated
over the latest 12-month period) as follows:
9
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
REQUIREMENTS:
----------------------------
COVENANTS ACTUALS MINIMUM MAXIMUM
- --------- ----------- ----------- -----------
<S> <C> <C> <C>
Interest coverage* 3.22 to 1.0 2.70 to 1.0
Fixed-charge coverage 1.11 to 1.0 1.00 to 1.0
Senior indebtedness to EBITDA 3.03 to 1.0 4.10 to 1.0
*INCLUDES EFFECTS OF THE SFAS NO. 15 INTEREST PAYMENTS.
</TABLE>
During the first nine months of 1996, the Company has repaid $118.1
million of debt, which included $75.0 million representing all of the
quarterly installments due in 1996 under the Credit Agreement, $20.6
million for principal payments on the Company's yen-denominated loan
(secured by the royalty income stream from its area licensee in Japan) and
$11.2 million for SFAS No. 15 interest. Outstanding balances at September
30, 1996, for the commercial paper, the Term Loan and the Revolver, were
$361.1 million, $225.0 million and zero, respectively. As of September 30,
1996, outstanding letters of credit issued pursuant to the Credit Agreement
totaled $79.4 million.
CASH FROM OPERATING ACTIVITIES
Net cash provided by operating activities was $83.9 million for the
third quarter and $235.3 million for the first nine months of 1996, a
decrease of $32.1 million and increase of $37.8 million over the same
periods, respectively, in 1995. The decreased operating cash flow for the
third quarter resulted primarily from the timing of payments of trade
payables and other liabilities. The year-to-date increase in operating
cash flow was mostly due to improved operating performance (previously
discussed in the Results of Operations section).
CAPITAL EXPENDITURES
In the first nine months, net cash used in investing activities
consisted primarily of payments of $137.4 million for property and
equipment, the majority of which was used for remodeling stores, upgrading
retail gasoline facilities, replacing equipment and complying with
environmental regulations.
The Company expects to spend approximately $195 million on capital
improvements in 1996, excluding lease commitments. The current capital
expenditure funding will depend upon the level of EBITDA generated relative
to fixed-charge coverage requirements. Capital expenditures are being used
to complete remodels started in 1995; to remodel about 1,050 additional
stores; to further implement a retail information system; for development
or acquisition of new stores; to replace equipment; to upgrade gasoline
facilities and to comply with environmental regulations. While the Company
will look at the economics of each new site, it anticipates that it will
finance new store construction primarily through leases containing initial
terms of 15-20 years with typical option renewal periods.
CAPITAL EXPENDITURES - GASOLINE EQUIPMENT
The Company incurs ongoing costs to comply with federal, state and
local environmental laws and regulations primarily relating to underground
storage tank ("UST") systems. The Company anticipates it will spend
approximately $11 million in 1996 on capital improvements required to
10
<PAGE>
<PAGE>
comply with environmental regulations relating to USTs, as well as above-
ground vapor recovery equipment at store locations, and approximately an
additional $28 million on such capital improvements from 1997 through 1999.
ENVIRONMENTAL COMPLIANCE - STORES
The Company accrues for the anticipated future costs of environmental
clean-up activities (consisting of environmental assessment and
remediation) relating to detected releases of regulated substances at its
existing and previously owned or operated sites at which gasoline has been
sold (including store sites and other facilities that have been sold by the
Company). At September 30, 1996, the Company has an accrued liability of
$54.0 million for such activities and anticipates that substantially all
such expenditures will be incurred within the next five years. This
estimate is based on the Company's prior experience with gasoline sites and
its consideration of such factors as the age of the tanks, location of tank
sites and experience with contractors who perform environmental assessment
and remedial work.
Under state reimbursement programs, the Company is eligible to receive
reimbursement for a portion of future costs, as well as a portion of costs
previously paid. At September 30, 1996, the Company has recorded a gross
receivable of $63.1 million (a net receivable of $51.3 million after an
allowance of $11.8 million) for the estimated probable state
reimbursements. There is no assurance of the timing of the receipt of
state reimbursement funds; however, based on its experience, the Company
expects to receive the majority of state reimbursement funds within one to
four years after payment of eligible assessment and remediation expenses,
assuming that the state administrative procedures for processing such
reimbursements have been fully developed.
The estimated future assessment and remediation expenditures and
related state reimbursement amounts could change in the future as
governmental requirements and state reimbursement programs continue to be
implemented or revised.
ENVIRONMENTAL COMPLIANCE - CHEMICAL PLANT
In December 1988, the Company closed its chemical manufacturing
facility in New Jersey. As a result, the Company is required to conduct
environmental remediation at the facility and has accrued a liability for
this purpose. As required, the Company has submitted a clean-up plan to
the New Jersey Department of Environmental Protection (the "State"), which
provides for remediation of the site for approximately a three- to five-
year period, as well as continued groundwater treatment for a projected 20-
year period. While the Company has received initial comments from the
State, the clean-up plan has not been finalized. The Company has recorded
liabilities representing its best estimates of the clean-up costs of $36.9
million at September 30, 1996. Of this amount, $30.1 million was included
in deferred credits and other liabilities and the remainder in accrued
expenses and other liabilities. In 1991, the Company entered into a
settlement agreement with a large chemical company that formerly owned the
facility. Under the settlement agreement, the former owner agreed to pay a
substantial portion of the clean-up costs described above. The Company has
recorded a receivable of $21.5 million at September 30, 1996, representing
the former owner's portion of the clean-up costs.
None of the amounts related to environmental liabilities have been
discounted.
11
<PAGE>
<PAGE>
PART II.
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
There are no reportable suits or proceedings pending or threatened
against the Company, other than as previously reported.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
1. Exhibit (3) -- Bylaws of The Southland Corporation as
Amended April 24, 1996.
2. Exhibit (11) -- Statement re Computation of Per-Share
Earnings.
3. Exhibit (15) -- Letter re Unaudited Interim Financial
Information.
Letter of Coopers & Lybrand L.L.P.,
Independent Accountants.
4. Exhibit (27) -- Financial Data Schedule.
Submitted in electronic format only.
(b) 8-K Reports:
During the third quarter of 1996, the Company filed no reports on Form 8-K.
12
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
THE SOUTHLAND CORPORATION
(Registrant)
Date: October 31, 1996 /s/ Clark J. Matthews, II
-----------------------------
(Officer)
Clark J. Matthews, II
President and Chief Executive Officer
Date: October 31, 1996 /s/ Don Thomas
-----------------------------
(Principal Accounting Officer)
Donald E. Thomas
Controller
13
==============================
BYLAWS
OF
THE SOUTHLAND CORPORATION
(Restated as amended through
April 24, 1996)
==============================
Tab 1
<PAGE>
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
OFFICES
1 Registered Office 1
2 Other Offices 1
ARTICLE II
MEETINGS OF SHAREHOLDERS
1 Annual Meetings 1
2 Special Meetings 1
3 Notice of Meetings 2
4 Waiver of Notice 2
5 Adjournments 2
6 Quorum 2
7 Voting 3
8 Voting in Person or by Proxy 3
9 Fixing Date for Determination of Shareholders of Record for 3
Matters Other Than Consents to Action
10 Fixing Date for Determination of Shareholders of Record for 4
Consents to Action
11 Voting List 4
12 Action by Means of Telephone or Similar Communications Equipment 5
ARTICLE III
BOARD OF DIRECTORS
1 General 5
2 Number and Term of Office 5
3 Officers of the Board 5
4 Chairman of the Board 6
5 Vice Chairman of the Board 6
6 Resignation 6
7 Removal 6
8 Vacancies 6
9 Meetings 6
10 Committees of the Board 8
11 Directors' Consent in Lieu of Meeting 9
12 Action by Means of Telephone or Similar Communications Equipment 9
13 Compensation 9
2
<PAGE>
<PAGE>
ARTICLE IV
OFFICERS
1 Officers of the Corporation 9
2 Authority and Duties; Compensation 10
3 Term of Office, Resignation and Removal 10
4 Vacancies 10
5 The Chief Executive Officer 10
6 The President 11
7 Vice Presidents 11
8 The Secretary 11
9 Assistant Secretaries 11
10 The Treasurer 11
11 Assistant Treasurers 12
12 The Controller 12
ARTICLE V
EXECUTION OF CHECKS, DRAFTS, NOTES, PROXIES
AND OTHER CONTRACTS AND INSTRUMENTS
1 Checks, Drafts and Notes 12
2 Execution of Proxies 12
3 Other Contracts and Instruments 12
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
1 Certificates Evidencing Shares 12
2 Share Transfer Records 13
3 Transfers of Shares 13
4 Addresses of Shareholders 13
5 Lost, Destroyed and Mutilated Certificates 14
6 Regulations 14
3
<PAGE>
<PAGE>
ARTICLE VII
SEAL; FISCAL YEAR
1 Seal 14
2 Fiscal Year 14
ARTICLE VIII
LOANS AND GUARANTEES
1 Loans and Guarantees 14
ARTICLE IX
INDEMNIFICATION AND INSURANCE
1 Right to Indemnification 15
2 Advance Payments 15
3 Indemnification of Employees and Agents 16
4 Appearance as a Witness 16
5 Nonexclusivity of Rights 16
6 Insurance 16
7 Shareholder Notification 16
8 Indemnification for Negligence 17
9 Savings Clause 17
ARTICLE X
AMENDMENTS; SEVERABILITY
1 Amendments 17
2 Severability 17
4
<PAGE>
<PAGE>
BYLAWS
OF
THE SOUTHLAND CORPORATION
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of The Southland
Corporation (the "Corporation") shall be located at the principal office of
the CT Corporation System in the City of Dallas, County of Dallas, State of
Texas, or at such other place as may be designated from time to time by
resolution of the Board of Directors of the Corporation (the "Board"), and
the registered agent in charge thereof shall be the CT Corporation System or
such other agent as may be designated from time to time by resolution of the
Board.
Section 2. OTHER OFFICES. The Corporation may also have an office or
offices at any other place or places within or without the State of Texas as
the Board may from time to time determine or the business of the Corporation
may from time to time require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. ANNUAL MEETINGS. The annual meeting of shareholders of the
Corporation for the election of directors of the Corporation ("Directors"),
and for the transaction of such other business as may properly come before
such meeting, shall be held at such place (within or without the State of
Texas), date and time as shall be fixed by the Board and designated in the
notice or waiver of notice of such annual meeting; provided, however, that
no annual meeting of shareholders need be held if all actions, including the
election of directors, required by the Texas Business Corporation Act (the
"Act") to be taken at such annual meeting are taken by written consent in
lieu of meeting.
Section 2. SPECIAL MEETINGS. A special meeting of the shareholders of
the Corporation for any purpose or purposes may only be called by the Board,
the Chairman of the Board (the "Chairman") or the President of the
Corporation (the "President") or by the holders of not less than fifty
percent of the shares of capital stock of the Corporation entitled to vote
at the proposed meeting ("Shares"). Such special meeting, if any, shall be
held at such place (within or without the State of Texas), date and time as
shall be designated in the notice or waiver of notice thereof. Only
business within the purpose or purposes described in the notice of special
meeting may be conducted at such special meeting.
1
<PAGE>
<PAGE>
Section 3. NOTICE OF MEETINGS.
(a) Except as otherwise provided by law, written or printed notice
of each annual or special meeting of shareholders stating the place, date
and hour of such meeting, such other information as is required by law and,
in the case of a special meeting, the purpose or purposes for which such
meeting is to be held, shall be given personally or by first-class mail
(airmail in the case of international communications) to each holder of
shares (a "Shareholder"), not less than ten nor more than sixty days before
the date of such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, postage prepaid, directed to
the shareholder at such shareholder's address as it appears on the share
transfer records of the Corporation.
(b) Notice of a special meeting of shareholders may be given by the
person or persons calling the meeting, or, upon the written request of such
person or persons, such notice shall be given by the Secretary on behalf of
such person or persons. If the person or persons calling a special meeting
of shareholders give notice thereof, such person or persons shall deliver a
copy of such notice to the Secretary. Each request to the Secretary for the
giving of notice of a special meeting of shareholders shall state the
purpose or purposes of such meeting.
Section 4. WAIVER OF NOTICE. Notice of any annual or special meeting
of shareholders need not be given to any shareholder who files a written
waiver of notice with the Secretary, signed by the person entitled to
notice, whether before or after such meeting. Neither the business to be
transacted at, nor the purpose of, any meeting of shareholders need be
specified in any written waiver of notice thereof. Attendance of a
shareholder at a meeting, in person or by proxy, shall constitute a waiver
of notice of such meeting, except when such shareholder attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to
the transaction of any business on the ground that the meeting is not
lawfully called or convened.
Section 5. ADJOURNMENTS. Whenever a meeting of shareholders, annual
or special, is adjourned to another date, time or place, notice need not be
given of the adjourned meeting if the date, time and place thereof are
announced at the meeting at which the adjournment is taken. 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 shareholder. At the
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 6. QUORUM. Except as otherwise provided by law or the
Articles of Incorporation of the Corporation (the "Articles of
Incorporation"), the holders of a majority of the shares, present in person
or represented by proxy, shall constitute a quorum for the transaction of
business at all meetings of shareholders, whether annual or special. If,
however, such quorum shall not be present in person or by proxy at any
meeting of shareholders, the shareholders present in person or represented
by proxy may adjourn the meeting from time to time, without notice other
than that provided for in Section 5 of this Article II, until a quorum shall
be present in person or by proxy.
2
<PAGE>
<PAGE>
Section 7. VOTING. Except as otherwise provided by law or the
Articles of Incorporation (including, without limitation, any resolutions
pursuant to which any shares of preferred stock are issued), each
shareholder shall be entitled to one vote for each share held of record by
such shareholder. Except as otherwise provided by law or the Articles of
Incorporation, the vote of holders of a majority of the shares entitled to
vote on any matter shall be the act of the shareholders. Except as
otherwise provided by law or the Articles of Incorporation (including,
without limitation, any resolutions pursuant to which any shares of
preferred stock are issued), at each election of directors, every
shareholder shall have the right to vote, in person or by proxy, the number
of shares owned by him for as many persons as there are directors to be
elected and for whose election he has a right to vote. Cumulative voting in
the election of directors shall be prohibited as provided in Article Six of
the Articles of Incorporation of the Corporation.
Section 8. VOTING IN PERSON OR BY PROXY. Any shareholder may vote or
act either in person or by proxy executed in writing by the shareholder and
authorizing another person or persons to vote or act for such shareholder.
A telegram, telex, cablegram or similar transmission by the shareholder or a
photographic, photostatic, facsimile or similar reproduction of a writing
executed by the shareholder shall be treated as an execution for purposes of
this Section 8. Such proxy shall be filed with the Secretary at or before
such meeting of shareholders, or such action of shareholders without a
meeting, at such time as the Board may require. No proxy shall be valid
after eleven months from the date of its execution, unless otherwise
provided in the proxy. Each such proxy shall be revocable unless the proxy
form conspicuously states that the proxy is irrevocable and the proxy is
coupled with an interest or unless the proxy is otherwise made irrevocable
by law. For purposes of the foregoing, proxies coupled with an interest
include the appointment as proxy of:
(1) a pledgee;
(2) a person who purchased, or agreed to purchase, or owns or holds
an option to purchase, the shares;
(3) a creditor of the Corporation who extended it credit under
terms requiring the appointment;
(4) an employee of the Corporation whose employment contract
requires the appointment; or
(5) a party to a voting agreement created under Section B, Article
2.30, of the Act, as amended.
Section 9. FIXING DATE FOR DETERMINATION OF SHAREHOLDERS OF RECORD FOR
MATTERS OTHER THAN CONSENTS TO ACTION. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or entitled to receive a distribution by the
Corporation (other than a distribution involving a purchase or redemption by
the Corporation of any of its shares) or a share dividend, or in order to
make a determination of shareholders for any other proper purpose (other
than determining shareholders entitled to consent to action by shareholders
3
<page
proposed to be taken without a meeting of shareholders), the Board may
provide that the share transfer records shall be closed for a stated period
but not to exceed, in any case, sixty days. If the share transfer records
shall be closed for the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders, such records shall be
closed for at least ten days immediately preceding such meeting. In lieu of
closing the share transfer records, these Bylaws, or, in the absence of an
applicable Bylaw, the Board, may fix in advance a date as the record date
for any such determination of shareholders, such date in any case to be not
more than sixty days, and, in the case of a meeting of shareholders, not
less than ten days, prior to the date on which the particular action
requiring such determination of shareholders is to be taken. If the share
transfer records are not closed and no record date is fixed for
determination of shareholders entitled to notice of or to vote at a meeting
of shareholders, or shareholders entitled to receive a distribution (other
than a distribution involving a purchase or redemption by the Corporation of
any of its own shares) or a share dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board declaring
such distribution or share dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders. When a
determination of the shareholders entitled to vote at a meeting of
shareholders has been made as provided in this Section 9, such determination
shall apply to any adjournment thereof, except where the determination has
been made through the closing of the share transfer records and the stated
period of closing has expired.
Section 10. FIXING DATE FOR DETERMINATION OF SHAREHOLDERS OF RECORD
FOR CONSENTS TO ACTION. Unless a record date shall have previously been
fixed or determined pursuant to this Section 10, whenever action by
shareholders is proposed to be taken by consent in writing without a meeting
of shareholders, the Board may fix a record date for the purpose of
determining the shareholders entitled to consent to that action, which
record date shall not precede, and shall not be more than ten days after,
the date upon which the resolution fixing the record date is adopted by the
Board. If no record date previously has been fixed by the Board and the
prior action of the Board is not required by the Act, the record date for
determining shareholders entitled to consent to action in writing without a
meeting shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office, its principal place of
business, or an office or agent of the Corporation having custody of the
books in which proceedings of meetings of shareholders are recorded.
Delivery shall be by hand or by certified or registered mail, return receipt
requested. Delivery to the Corporation's principal place of business shall
be addressed to the Chief Executive Officer or President. If no record date
shall have been fixed by the Board and prior action of the Board is required
by the Act, the record date for determining shareholders entitled to consent
to action in writing without a meeting shall be at the close of business on
the date on which the Board adopts a resolution taking such prior action.
Section 11. VOTING LIST. The office or agent having charge of the
stock transfer book for shares shall make, at least ten days before each
meeting of shareholders, a complete list of the shareholders entitled to
vote at such meeting of any adjournment thereof, arranged in alphabetical
order, with the address of and the number of shares held by each, which
list, for a period of ten days prior to such meeting, shall be kept on file
at the registered office or principal place of business of the Corporation
4
<PAGE>
<PAGE>
and shall be subject to inspection by any shareholder at any time during
usual business hours. Such list shall also be produced and kept open at the
time and place of the meeting and shall be subject to inspection by any
shareholder during the whole time of the meeting. The original stock
transfer book shall be prima facie evidence as to the identity of the
shareholders entitled to examine such list or transfer books or to vote at
any meeting of shareholders.
Section 12. ACTION BY MEANS OF TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT. Any one or more shareholders may participate in and hold a
meeting of such shareholders by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means
shall constitute presence in person at such meeting, except where a
shareholder so participates in the meeting for the express purpose of
objecting to the transaction of any business on the grounds that the meeting
is not lawfully called or convened.
ARTICLE III
BOARD OF DIRECTORS
Section 1. GENERAL. The powers of the Corporation shall be exercised
by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, the Board, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law, the Articles of Incorporation or these Bylaws
directed or required to be exercised or done by shareholders. No director
need be a shareholder, a resident of the State of Texas or a citizen of the
United States.
Section 2. NUMBER AND TERM OF OFFICE. The number of directors shall
be fifteen or such other number, not less than one, as shall be fixed from
time to time by resolution of the Board; provided, however, that no decrease
in the number of directors shall have the effect of shortening the term of
any incumbent director. Directors shall be elected at the annual meeting of
shareholders or, if in accordance with Section 1 of Article II hereof, no
such annual meeting is held, by written consent in lieu of meeting, and each
director shall hold office until the next succeeding annual meeting (or
consent in lieu thereof) and until his successor has been elected and
qualified, or until his earlier death, resignation or removal in the manner
hereinafter provided.
Section 3. OFFICERS OF THE BOARD. The Board shall elect from among
its members a Chairman and may also elect one or more Vice Chairmen, none of
whom shall be required to be officers or employees of the Corporation. The
Chairman shall have the powers specified in Section 4 of this Article III,
and the Vice Chairman, if any, shall have the powers specified in Section 5
of this Article III. Neither the Chairman nor the Vice Chairman shall be an
administrative executive of the Corporation as a result of holding the
position of Chairman or Vice Chairman of the Board.
5
<PAGE>
<PAGE>
Section 4. CHAIRMAN OF THE BOARD. The Chairman shall serve as an
officer of the Board, with policy making authority, but shall not be an
administrative executive of the Corporation. The Chairman shall have the
power to call special meetings of shareholders, to call special meetings of
the Board and, if present, to preside at all meetings of shareholders and
all meetings of the Board. The Chairman shall perform all duties incident
to the office of Chairman of the Board and all such other duties as may from
time to time be assigned to him by the Board or these Bylaws. If there
shall be no Chief Executive Officer, or during his disability, the Chairman
shall perform his duties.
Section 5. VICE CHAIRMAN OF THE BOARD. The Vice Chairman (whether one
or more), shall serve as an officer of the Board, with policy making
authority, but shall not be an administrative executive of the Corporation.
The Vice Chairman shall have the power to preside over all meetings of
shareholders and all meetings of the Board if there shall be no Chairman, or
during the absence or disability of the Chairman. The Vice Chairman shall
perform all duties incident to the office of Vice Chairman and all such
other duties as may from time to time be assigned to him by the Board, the
Chairman or these Bylaws.
Section 6. RESIGNATION. Any director may resign at any time by giving
written notice to the Board, the Chairman or the Secretary. Such
resignation shall take effect at the time specified in such notice or, if
the time shall not be specified, when such notice is first received by the
Board, the Chairman or the Secretary. Unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it effective.
Section 7. REMOVAL. At any meeting of shareholders called expressly
for that purpose, any director or the entire Board may be removed, with or
without cause, by a vote of the holders of a majority of the shares or by
written consent of the holders of a majority of the shares.
Section 8. VACANCIES. Any vacancy occurring on the Board may be
filled by vote of the holders of a majority of the shares then entitled to
vote at an election of directors at any meeting of shareholders called
expressly for that purpose, or by written consent of such holders or by vote
of the Board or by written consent of the directors pursuant to Section 11
of this Article III; provided, however, that the Board may not fill more
than two directorships resulting from an increase in the number of directors
during the period between any two successive annual meetings of
shareholders.
Section 9. MEETINGS.
(a) ANNUAL MEETINGS. As soon as practicable after each annual
election of directors by the shareholders, the Board shall meet for the
purpose of organization and the transaction of other business, unless it
shall have transacted all such business by written consent pursuant to
Section 11 of this Article III, and, if a quorum is present, no notice of
such meeting to the newly elected directors shall be necessary in order
legally to constitute the meeting.
(b) REGULAR MEETINGS. Regular Meetings of the Board may be held,
with or without notice, at such time and place as shall from time to time be
determined by the Chairman.
6
<PAGE>
<PAGE>
(c) SPECIAL MEETINGS. Other meetings of the Board shall be held at
such times as the Chairman, the Vice Chairman of the Board, the Chief
Executive Officer, the President, the Secretary or a majority of the Board
shall from time to time determine.
(d) NOTICE OF MEETINGS. The Chairman, President or Secretary shall
give notice to each director of each special meeting of the Board, which
notice shall state the place, date and time of such meeting. Notice of each
special meeting shall be given to each director at least forty-eight hours
before the time at which such meeting is to be held by telecopy, telegraph,
cable or other form of recorded communication, or delivered personally or by
telephone. A written waiver of notice, signed by the director entitled to
notice, whether before or after the time of the meeting referred to in such
waiver, shall be deemed equivalent to notice. Attendance of a director at
any meeting of the Board shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that 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
Board need be specified in the notice or waiver of such meeting.
(e) PLACE OF MEETINGS. The Board may hold its meetings at such
place or places within or without the State of Texas as the Board or the
Chairman may from time to time determine, or as shall be designated in the
respective notices or waivers of notice at such meetings.
(f) QUORUM AND MANNER OF ACTING. A majority of the number of
directors fixed by, or in the manner provided in, the Articles of
Incorporation or these Bylaws shall constitute a quorum for the transaction
of business. The act of a majority of those directors present at any such
meeting at which a quorum is present shall constitute the act of the Board,
except as otherwise expressly required by law, the Articles of Incorporation
or these Bylaws. In the absence of a quorum for any such meeting, a
majority of the directors present thereat may adjourn such meeting from time
to time, without notice other than announcement at the meeting, until a
quorum shall be present.
(g) ORGANIZATION. At each meeting of the Board, one of the
following shall act as chairman of the meeting and preside, in the following
order of precedence:
(i) the Chairman;
(ii) the Vice Chairman;
(iii) the Chief Executive Officer;
(iv) the President; or
(v) any director chosen by a majority of the directors
present.
7
<PAGE>
<PAGE>
The Secretary or, in the case of his absence, any person (who shall be an
Assistant Secretary, if an Assistant Secretary is present) whom the chairman
of the meeting shall appoint shall act as Secretary of such meeting and keep
the minutes thereof.
Section 10. COMMITTEES OF THE BOARD.
(a) GENERAL. The Board may, by resolution adopted by a majority of
the full Board, designate from among its members one or more committees,
each of which shall be comprised of one or more directors. The number of
committee members on any such committee may be increased or decreased from
time to time by resolution adopted by a majority of the full Board. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
of such committee. The designation of such committees and the delegation
thereto of authority shall not operate to relieve the Board, or any
director, of any responsibility imposed by laws. Any audit committee
created by the Board shall be comprised of a majority of independent
directors; provided, however, if the number of directors who are independent
directors constitutes less than a majority of such committee, this provision
shall be suspended until such time as the number of directors who are
independent directors would again constitute a majority of such committee.
For purposes of this Section 10(a), independent directors shall mean any
directors who are not officers or directors of a shareholder owning directly
or indirectly a majority of the shares of common stock or an affiliate of
such shareholder (other than the Corporation) and who are not officers of
the Corporation.
(b) TERM; REMOVAL; VACANCIES. Each Committee member shall serve as
such until the earliest of: (i) the expiration of his term as director,
(ii) his resignation as a committee member or as a director, or (iii) his
removal as a committee member or as a director. Any member of any committee
of the Board elected or appointed by the Board shall hold such office at the
pleasure of the Board and may be removed by the Board at any time whenever,
in the Board's judgment, the best interests of the Corporation will be
served thereby. Vacancies in the membership of any committee of the Board
may be filled by the Board at any annual, regular or special meeting of the
Board or by written consent without meeting pursuant to Section 11 of this
Article III.
(c) POWERS AND AUTHORITY. Any committee of the Board, to the
extent provided in the resolution of the Board designating such committee,
shall have and may exercise all the powers and authority of the Board, and
may authorize the seal of the Corporation to be affixed to any papers which
may require it; provided, however, that no such committee shall have such
power or authority with respect to: (i) amending the Articles of
Incorporation (except that such a committee may, to the extent authorized in
the resolution or resolutions designating that committee or in the Articles
of Incorporation, and permitted under applicable law, exercise the authority
of the Board vested in it in accordance with Article 2.13 of the Act,
relating to the establishment of a series of unissued shares of a class of
stock), (ii) proposing a reduction of the stated capital of the Corporation
in the manner permitted by Article 4.12 of the Act, (iii) approving a plan
of merger or share exchange of the Corporation, (iv) recommending to the
shareholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets other than in the usual and regular course
of business, (v) recommending to the shareholders a voluntary dissolution of
8
<PAGE>
<PAGE>
the Corporation or a revocation thereof, (vi) amending, altering or
repealing these Bylaws or adopting new Bylaws of the Corporation, (vii)
filling vacancies in the Board, (viii) filling vacancies in or designating
alternate members of any such committee, (ix) filling any directorship to be
filled by reason of an increase in the number of directors, (x) electing or
removing officers of the Corporation or members or alternate members of any
such committee, (xi) fixing the compensation of any member or alternate
members of such committee, or (xii) altering or repealing any resolution of
the Board that by its terms provides that it shall not be so amendable or
repealable; provided, further, that, unless expressly so provided in the
resolution of the Board designating such committee or in the Articles of
Incorporation, no such committee shall have the power or authority to
declare or authorize a dividend or other distribution or to authorize the
issuance of shares of the Corporation.
(d) MINUTES. Each committee of the Board shall keep regular
minutes of its proceedings and report the same to the Board when so
requested by the Board.
Section 11. DIRECTORS' CONSENT IN LIEU OF MEETING. Any action
required or permitted to be taken at a meeting of the Board or of any
committee thereof may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
is signed by all the members of the Board or such committee, as the case may
be, and such consent is filed with the minutes of the proceedings of the
Board or such committee.
Section 12. ACTION BY MEANS OF TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT. Any one or more members of the Board, or members of any
committee designated by the Board, may participate in and hold a meeting of
the Board or 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 participation in a meeting by such means
shall constitute presence in person at such meeting, except where a person
so participates in the meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened.
Section 13. COMPENSATION. The Board may determine the compensation of
directors, including, without limitation, compensation for service on any
committee. In addition, as determined by the Board, directors may be
reimbursed by the Corporation for their expenses, if any, in the performance
of their duties as directors. No such compensation or reimbursement shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
OFFICERS OF THE CORPORATION
Section 1. OFFICERS OF THE CORPORATION. The Board shall elect, or
appoint, from among the employees of the Corporation, certain persons who
shall serve as officers of the Corporation. The officers of the Corporation
shall be the Chief Executive Officer, the President, the Secretary, the
9
<PAGE>
<PAGE>
Treasurer and the Controller. One or more Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers and such other
officers as may be deemed necessary by the Board may be appointed as
officers of the Corporation from time to time. Any two or more offices may
be held by the same person.
Section 2. AUTHORITY AND DUTIES; COMPENSATION. All officers shall
have such authority and perform such duties in the management of the
Corporation as may be provided in these Bylaws or, to the extent not so
provided, by resolution of the Board not inconsistent with these Bylaws.
The compensation of the Chief Executive Officer and the President shall be
fixed by the Board. The compensation of all other officers and assistant
officers of the Corporation shall be fixed by the Chief Executive Officer or
the President, in each case with the approval of the compensation committee
of the Board or, if there is no compensation committee of the Board, with
the approval of the Board.
Section 3. TERM OF OFFICE, RESIGNATION AND REMOVAL.
(a) The President and the Secretary shall be elected by the Board.
All other officers shall be elected or appointed by the Board. Each officer
shall hold office at the pleasure of the Board. Each officer shall hold
office until his successor has been appointed and qualified or his earlier
death, resignation or removal in the manner hereinafter provided.
(b) Any officer may resign at any time by giving written notice to
the Board, the Chairman, the President or the Secretary. Such resignation
shall take effect at the time specified in such notice or, if the time shall
not be specified, when such notice is first received by the Board, the
Chairman, the President or the Secretary. Unless otherwise specified
therein, acceptance of such resignation shall not be necessary to make it
effective.
(c) Any officer or agent elected or appointed by the Board may be
removed, with or without cause, at any time by the Board whenever, in the
Board's judgment, the best interests of the Corporation will be served
thereby. Such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
Section 4. VACANCIES. Any vacancy occurring in any office of the
Corporation elected by the Board may be filled only by the Board at any
regular or special meeting. Any vacancy occurring in any office of the
Corporation appointed by the Board may be filled by the Board or by any
officer entitled by these Bylaws or authorized by the Board to appoint such
officers.
Section 5. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall have such powers and duties as may be delegated by the Board and shall
have general and active management and control of the business and affairs
and property of the Corporation, subject to the control and direction of the
Board and any committees thereof, and shall see that all orders and
resolutions of the Board and any committees thereof are carried into effect.
The Chief Executive Officer shall perform all duties incident to the office
of Chief Executive Officer and all such other duties as may from time to
time be assigned to him by the Board or these Bylaws. If there shall be no
Chairman and Vice Chairman of the Board, or during their disability, or the
disability of the President, the Chief Executive Officer shall perform their
duties.
10
<PAGE>
<PAGE>
Section 6. THE PRESIDENT. The President shall have such powers and
duties as may be delegated by the Board or the Chief Executive Officer. If
there shall be no Chief Executive Officer, or during the disability of the
Chief Executive Officer, the President shall perform the duties and exercise
the powers of the Chief Executive Officer.
Section 7. VICE PRESIDENTS. Vice Presidents, if any, shall generally
assist the President and shall perform such other duties as the Board or the
President shall prescribe. If there shall be no President, or during the
disability of the President, the Vice Presidents, in order of their
seniority of office or in any other order determined by the Board or the
Chief Executive Officer, shall perform the duties and exercise the powers of
the President. The Board may designate one or more Vice Presidents as
Executive Vice Presidents, Senior Vice Presidents, Assistant Vice
Presidents, Regional Vice Presidents or any other designation deemed
appropriate by the Board.
Section 8. THE SECRETARY. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of
shareholders and shall record all votes and the minutes of all proceedings
in a book to be kept for that purpose, and shall perform the same duties for
any committee of the Board when so requested by such committee. He shall
give or cause to be given notice of all meetings of shareholders and of the
Board, shall perform such other duties as may be prescribed by the Board or
the President. He shall keep in safe custody the seal of the Corporation
and affix the same to any instrument that requires that the seal be affixed
to it and which shall have been duly authorized for signature in the name of
the Corporation and, when so affixed, the seal shall be attested by his
signature or by the signature of the Treasurer of the Corporation or an
Assistant Secretary or Assistant Treasurer of the Corporation. He shall
keep in safe custody the certificate books and shareholder records and such
other books and records of the Corporation as the Board or the President may
direct and shall perform all duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the Board,
the Chief Executive Officer or the President.
Section 9. ASSISTANT SECRETARIES. Assistant Secretaries, if any,
shall generally assist the Secretary and perform such other duties as the
Board or the Secretary shall prescribe. If there shall be no Secretary, or
during the disability of the Secretary, the Assistant Secretaries shall
perform the duties and exercise the powers of the Secretary.
Section 10. THE TREASURER. The Treasurer shall have the care and
custody of all funds and securities of the Corporation and shall deposit
such funds or securities in such banks or other depositories as the Board,
or any officer or officers duly authorized by the Board, shall from time to
time direct or approve. He shall disburse the funds of the Corporation
under the direction of the Board, the Chief Executive Officer or the
President. He shall keep a full and accurate account of all moneys received
and paid on account of the Corporation and shall render a statement of such
accounts whenever the Board, the Chief Executive Officer or the President
shall so request. He shall perform all other necessary actions and duties
in connection with the administration of the financial affairs of the
Corporation and shall generally perform all the duties usually appertaining
to the office of treasurer of a corporation.
11
<PAGE>
<PAGE>
Section 11. ASSISTANT TREASURERS. Assistant Treasurers, if any, shall
generally assist the Treasurer and perform such other duties as the Board or
the Treasurer shall prescribe, or, during the disability of the Treasurer,
the Assistant Treasurers shall perform the duties and exercise the powers of
the Treasurer.
Section 12. THE CONTROLLER. The Controller shall be the principal
accounting officer of the Corporation and shall have charge of the accounts
of the Corporation and shall perform such other duties and have such other
powers as may be prescribed by the Board, the Chief Executive Officer, or
the President, under whose supervision and direction he shall be. He shall
submit such reports, records and other information as may be required or
requested by any director or other officer.
ARTICLE V
EXECUTION OF CHECKS, DRAFTS, NOTES,
PROXIES AND OTHER CONTRACTS AND INSTRUMENTS
Section 1. CHECKS, DRAFTS AND NOTES. All checks, drafts and other
orders for the payment of money, notes and other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as shall be
determined, from time to time, by resolution of the Board.
Section 2. EXECUTION OF PROXIES. The Chief Executive Officer, the
President or any Vice President may authorize, from time to time, the
execution and issuance of proxies to vote shares of stock or other
securities of other corporations held of record by the Corporation and the
execution of consents to action taken or to be taken by any such
corporation. All such proxies and consents, unless otherwise authorized by
the Board, shall be signed in the name of the Corporation by the Chief
Executive Officer, the President or any Vice President.
Section 3. OTHER CONTRACTS AND INSTRUMENTS. The Chief Executive
Officer, the President or any Vice President shall execute any bonds,
mortgages, contracts or other documents in the name of the Corporation,
except where required or permitted by law to be otherwise signed or
executed, and except where the signing and execution thereof shall be
authorized, directed or delegated by the Board or by the Chief Executive
Officer or the President to some other officer, assistant officer or agent
of the Corporation.
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
Section 1. CERTIFICATES EVIDENCING SHARES. Shares shall be represented by
certificates in such form or forms as shall be approved by the Board.
Certificates shall be issued in consecutive order and shall be numbered in
the order of their issue, and shall be signed by the Chief Executive
12
<PAGE>
<PAGE>
Officer, the President or any Vice President and by the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer. Any such
signature on the certificate may be a facsimile. In the event any such
officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to hold such office or to be employed by the
Corporation before such certificate is issued, such certificate may be
issued by the Corporation with the same effect as if such officer had held
such office on the date of issue. No certificate shall be issued for any
share of capital stock of the Corporation until the consideration therefor,
fixed as provided by law, has been fully paid. Every certificate
representing shares of capital stock of the Corporation shall set forth
thereon the information required by law.
Section 2. SHARE TRANSFER RECORDS. A stock ledger in one or more
counterparts shall be kept by the Secretary, in which shall be recorded the
name and address of each person, firm or corporation owning the shares of
capital stock of the Corporation evidenced by each certificate evidencing
shares of capital stock of the Corporation issued by the Corporation, the
number of shares of capital stock of the Corporation evidenced by each such
certificate, the date of issuance thereof and, in the case of cancellation,
the date of cancellation. Except as otherwise expressly required by law,
the person in whose name shares of capital stock of the Corporation stand on
the stock ledger of the Corporation shall be deemed the owner and holder
thereof for all purposes, and the Corporation shall be entitled to recognize
the exclusive right of such person as the owner of such shares of capital
stock of the Corporation to receive dividends payable in respect of such
shares of capital stock of the Corporation, to vote such shares of capital
stock of the Corporation, to exercise rights of dissent with respect to such
shares of capital stock and for all other purposes. Except as otherwise
required by law, the Corporation shall not be bound to recognize any
equitable or other claim to or interest in any such shares of capital stock
of the Corporation on the part of any person other than the person in whose
name shares of capital stock of the Corporation stand on the stock ledger of
the Corporation, whether or not the Corporation shall have express or other
notice thereof.
Section 3. TRANSFERS OF SHARES. Registration of transfers of shares
of capital stock of the Corporation shall be made only in the stock ledger
of the Corporation upon request of the registered holder of such shares, or
of his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary, and upon the surrender of the certificate or
certificates evidencing such shares properly endorsed or accompanied by a
stock power duly executed, together with such proof of the authenticity of
signatures as the Corporation may reasonably require.
Section 4. ADDRESSES OF SHAREHOLDERS. Each shareholder shall
designate to the Secretary an address at which notices of meetings and all
other corporate notices may be served or mailed to such shareholder, and, if
any shareholder shall fail to so designate such an address, corporate
notices may be served upon such shareholder by mail directed to the mailing
address, if any, as the same appears in the stock ledger of the Corporation
or at the last known mailing address of such shareholder.
13
<PAGE>
<PAGE>
Section 5. LOST, DESTROYED AND MUTILATED CERTIFICATES. Each holder of
shares of capital stock of the Corporation shall promptly notify the
Corporation of any loss, destruction or mutilation of any certificate or
certificates evidencing any share or shares of capital stock of the
Corporation of which he is the holder. The Board may, in its discretion,
cause the Corporation to issue a new certificate in place of any certificate
theretofore issued by it and alleged to have been mutilated, lost, stolen or
destroyed, upon the surrender of the mutilated certificate, or, in the case
of loss, theft or destruction of the certificate, upon satisfactory proof of
such loss, theft or destruction, and the Board may, in its discretion,
require the holder of the shares of capital stock of the Corporation
evidenced by the lost, stolen or destroyed certificate or his legal
representative to give the Corporation a bond sufficient to indemnify the
Corporation against any claim made against it on account of the alleged
loss, theft or destruction of any such certificate or the issuance of such
new certificate.
Section 6. REGULATIONS. The Board may make such other rules and
regulations as it may deem expedient, not inconsistent with these Bylaws or
applicable law, concerning the issue, transfer and registration of
certificates evidencing shares of capital stock of the Corporation.
ARTICLE VII
SEAL; FISCAL YEAR
Section 1. SEAL. The Board may approve and adopt a corporate seal,
which shall bear the full name of the Corporation and such other information
as is required by law.
Section 2. FISCAL YEAR. The fiscal year of the Corporation shall end
on the thirty-first day of December of each year unless otherwise fixed by
resolution of the Board.
ARTICLE VIII
LOANS AND GUARANTEES
Section 1. LOANS AND GUARANTEES. The Corporation may lend money to,
guarantee obligations of, and otherwise assist its directors, officers and
employees if the Board determines that such loans, guarantees or assistance
reasonably may be expected to benefit, directly or indirectly, the
Corporation.
14
<PAGE>
<PAGE>
ARTICLE IX
INDEMNIFICATION AND INSURANCE
Section 1. RIGHT TO INDEMNIFICATION. Subject to the limitations and
conditions as provided in this Article IX, each person who was or is made a
party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative (hereinafter a
"Proceeding"), or any appeal in such a Proceeding or any inquiry or
investigation that could lead to such a Proceeding, by reason of the fact
that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the Corporation, or while a director or
officer of the Corporation is or was serving at the request of the
Corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust,
employee benefits plan or other enterprise shall be indemnified by the
Corporation to the fullest extent authorized by the Act, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment), against judgments, penalties (including excise and
similar taxes), fines, settlements, reasonable expenses (including, without
limitation, attorneys' fees) actually incurred by such person in connection
with such Proceeding, and indemnification under this Article IX shall
continue as to a person who has ceased to serve in the capacity which
initially entitled such person to indemnity hereunder.
A person may be indemnified pursuant to this Article IX only to the
extent it is determined in accordance with Article 202-1 of the Act that the
person (1) conducted himself in good faith, (2) reasonably believed (a) in
the case of conduct in his official capacity as a director of the
Corporation, that his conduct was in the Corporation's best interest, (b) in
all other cases, that his conduct was at least not opposed to the
Corporation's best interests, and (3) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided, however, that if the person is found liable to the Corporation or
is found liable on the basis that personal benefit was improperly received
by the person, the indemnification (i) shall be limited to reasonable
expenses actually incurred by the person in connection with the Proceeding
and (ii) shall not be made in respect of any Proceeding in which the person
shall have been found liable for willful or intentional misconduct in the
performance of his duty to the Corporation.
Section 2. ADVANCE PAYMENTS. The right to indemnification conferred
in this Article IX shall include the right to be paid or reimbursed by the
Corporation the reasonable expenses incurred by a director or an officer who
was, is or is threatened to be made a named defendant or respondent in a
Proceeding in advance of the final disposition of a Proceeding; provided,
however, that the payment of such expenses incurred by a current or former
director or officer in advance of the final disposition of a Proceeding
shall be made only upon delivery to the Corporation of a written affirmation
by such director or officer of his or her good faith belief that he or she
has met the standard of conduct necessary for indemnification under this
Article IX and a written undertaking, by or on behalf of such director or
15
<PAGE>
<PAGE>
officer, to repay all amounts so advanced if it shall ultimately be
determined that such indemnified person is not entitled to be indemnified
under this Article or otherwise. In addition, if required under then
applicable law, no advancement shall be made prior to a determination, based
on the facts then known to those making the determination as to entitlement
to indemnification, that indemnification under this Article IX would not be
precluded.
Section 3. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation
may indemnify and advance expenses to an employee or agent of the
Corporation to the same extent and subject to the same conditions under
which it may indemnify and advance expenses to directors and officers under
this Article IX, and the Corporation may indemnify and advance expenses to
persons who are not or were not directors, officers, employees or agents of
the Corporation but who are or were serving at the request of the
Corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust,
employee benefits plan or other enterprise against any liability asserted
against him and incurred by him in such a capacity or arising out of his
status as such a person to the same extent that it may indemnify and advance
expenses to directors under this Article IX.
Section 4. APPEARANCE AS A WITNESS. Notwithstanding any other
provision of this Article IX, the Corporation may pay or reimburse expenses
incurred by a director or officer in connection with his or her appearance
as a witness or other participation in a Proceeding at a time when he or she
is not a named defendant or respondent in the Proceeding.
Section 5. NONEXCLUSIVITY OF RIGHTS. The right to indemnification and
the advancement and payment of expenses conferred in this Article IX shall
not be exclusive of any other right which a director or officer or other
person indemnified pursuant to Section 3 of this Article IX may have or
hereafter acquire under any law (common or statutory), provision of the
Articles of Incorporation of the Corporation or the Bylaws of the
Corporation, agreement, vote of shareholders or disinterested directors, or
otherwise.
Section 6. INSURANCE. The Corporation may purchase and maintain
insurance, at its expense, or, to the extent permitted by law, other
arrangements, to protect itself and any person who is or was serving as a
director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, proprietorship,
employee benefits plan, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under this
Article IX.
Section 7. SHAREHOLDER NOTIFICATION. Any indemnification of or
advance of expenses to a director or officer in accordance with this Article
IX shall be reported in writing to the shareholders with or before the
notice or waiver of notice of the next shareholders' meeting or with or
before the next submission to shareholders of a consent to action without a
meeting and, in any case, within the 12-month period immediately following
the date of the indemnification or advance.
16
<PAGE>
<PAGE>
Section 8. INDEMNIFICATION FOR NEGLIGENCE. To the extent permitted by
applicable law and subject to the remaining provisions of this Article IX,
persons may be indemnified in accordance with the provisions of this Article
IX in Proceedings involving the negligence of such persons.
Section 9. SAVINGS CLAUSE. If this Article IX or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify and hold harmless each
director, officer or any other person indemnified pursuant to Section 3 of
this Article IX as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, to the full extent permitted by any applicable portion of
this Article IX that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE X
AMENDMENTS; SEVERABILITY
Section 1. AMENDMENTS. Any Bylaw (including these Bylaws) may be
adopted, altered, amended or repealed by the vote of the holders of a
majority of the shares then entitled to vote at an election of directors or
by written consent of shareholders or by vote of the Board or by a written
consent of directors.
Section 2. SEVERABILITY. If any part of these Bylaws is held invalid
or inoperative for any reason, the remaining parts, so far as is possible
and reasonable, shall remain valid and operative.
17
<TABLE>
EXHIBIT 11
THE SOUTHLAND CORPORATION AND SUBSIDIARIES
STATEMENT RE COMPUTATION OF PER-SHARE EARNINGS
(IN THOUSANDS, EXCEPT PER-SHARE DATA)
<CAPTION>
CALCULATION OF EARNINGS PER COMMON SHARE
THREE MONTHS NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
------------------------ ------------------------
1996 1995 1996 1995
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Net earnings . . . . . . . . . . . . . . $ 37,686 $ 49,647 $ 73,562 $ 85,443
Add interest on Convertible Debt, net of tax . . . 2,105 - 6,270 -
----------- ----------- ----------- -----------
Net earnings applicable to common
stock and equivalents outstanding. . . . . . $ 39,791 $ 49,647 $ 79,832 $ 85,443
=========== =========== =========== ===========
Weighted average number of common shares
outstanding . . . . . . . . . . . . . 409,923 409,923 409,923 409,923
Weighted average number of common shares
issuable upon conversion of Convertible Debt . . 72,112 - 72,112 -
Dilutive effect of stock options after application
of treasury stock method. . . . . . . . . - - 99 -
----------- ----------- ----------- -----------
Weighted average number of common shares
and equivalents outstanding . . . . . . . . 482,035 409,923 482,134 409,923
=========== =========== =========== ===========
Net earnings per common share and equivalents
(Primary and Fully Diluted). . . . . . . . $.08 $.12 $.17 $.21
==== ==== ==== ====
Tab 2
</TABLE>
Exhibit 15
Securities and Exchange Commission
450 Fifth Street, Northwest
Washington, D.C. 20549
Attention: Document Control
Re: The Southland Corporation Form 10-Q
We are aware that our report dated October 24, 1996 on our review of the
condensed consolidated balance sheet of The Southland Corporation and
Subsidiaries as of September 30, 1996, the related condensed consolidated
statements of earnings for the three-month and nine-month periods ended
September 30, 1996 and 1995, and the condensed consolidated statements of
cash flows for the nine-month periods ended September 30, 1996 and 1995,
included in this Form 10-Q, is incorporated by reference in the following
registration statements.
REGISTRATION NO.
On Form S-8 for:
Post-Effective Amendment No. 3 to The Southland
Corporation Equity Participation Plan 33-23312
Post-Effective Amendment No. 1 to The Southland
Corporation Grant Stock Plan 33-25327
The Southland Corporation 1995 Stock Incentive
Plan 33-63617
Pursuant to Rule 436(c) under the Securities Act of 1933, this report
should not be considered a part of the registration statement prepared or
certified by us within the meaning of Sections 7 and 11 of that Act.
COOPERS & LYBRAND L.L.P.
Dallas, Texas
November 4, 1996
TAB 3
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 46,431
<SECURITIES> 0
<RECEIVABLES> 100,442
<ALLOWANCES> 4,605
<INVENTORY> 101,419
<CURRENT-ASSETS> 351,623
<PP&E> 2,553,822
<DEPRECIATION> 1,214,248
<TOTAL-ASSETS> 2,036,935
<CURRENT-LIABILITIES> 729,387
<BONDS> 1,905,070
<COMMON> 41
0
0
<OTHER-SE> (804,778)
<TOTAL-LIABILITY-AND-EQUITY> 2,036,935
<SALES> 5,194,220
<TOTAL-REVENUES> 5,251,904
<CGS> 3,685,445
<TOTAL-COSTS> 3,685,445
<OTHER-EXPENSES> 1,375,530
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 68,326
<INCOME-PRETAX> 122,603
<INCOME-TAX> 49,041
<INCOME-CONTINUING> 73,562
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 73,562
<EPS-PRIMARY> 0.17
<EPS-DILUTED> 0.17
</TABLE>
