<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
THE SOUTHLAND CORPORATION
(Exact name of registrant as specified in its charter)
Texas
(State or other jurisdiction of 75-1085131
incorporation or organization) (I.R.S. Employer
Identification No.)
2711 North Haskell Avenue
Dallas, Texas 75204-2906
(Address of principal executive offices, including zip code)
------------------------
THE SOUTHLAND CORPORATION SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN FOR ELIGIBLE EMPLOYEES
(Full title of the plan)
Carol S. Hilburn
Associate General Counsel
The Southland Corporation
2711 North Haskell Avenue
Dallas, Texas 75204-2906
(214) 828-7011
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
<C>
Title of Proposed
securities to be Amount to be maximum Proposed maximum
registered registered (2) offering price aggregate offering Amount of
per share1 price1 registration fee
- ----------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
Deferred
Compensation $3,000,000 100% $3,000,000 $885.00
Obligations(1)
- ----------------------------------------------------------------------------------------------------
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of
The Southland Corporation to pay deferred compensation in the
future in accordance with the terms of The Southland Corporation
Supplemental Executive Retirement Plan for Eligible Employees.
(2) The maximum aggregate offering price is based upon an estimate,
solely for the purposes of calculating the registration fee.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule
428(b)(1) promulgated under the Securities Act of 1933, as amended. Such
document(s) and the documents incorporated by reference herein pursuant to
Item 3 of Part II hereof, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Securities and Exchange
Commission (the "Commission") by The Southland Corporation (File Nos. 0-676
and 0-16626), a Texas corporation (the "Company"), and are incorporated
herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1997, June 30, 1997 and September 30, 1997; and
(c) The description of the Company's Common Stock, $.0001 par value per
share, contained in Item 1 of the Company's Registration Statement on Form
8-A filed with the Commission on December 12, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the effective date hereof and prior to the
filing of a post-effective amendment hereto that indicates that all
securities offered hereby have been sold or that deregisters all such
securities then remaining unsold, shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
The Southland Corporation Supplemental Executive Retirement Plan for
Eligible Employees (the "SERP") is a nonqualified deferred compensation
plan for eligible employees of The Southland Corporation and its
subsidiaries (the "Company"). Participation in the SERP is voluntary. All
Highly Compensated Employees of the Company are eligible to participate in
the SERP for any year beginning on or after the date 12 months after the
Highly Compensated Employee was first employed by the Company. For
purposes of the SERP, a "Highly Compensated Employee" means an employee of the
Company who, during the preceding calendar year, received W-2 compensation
in excess of $80,000, as adjusted under Code section 414(q)(1).
Under the terms of the SERP, a participant may defer up to 12% of the
participant's Eligible Compensation. For purposes of the SERP, "Eligible
Compensation" means the sum of (a) W-2 compensation paid while the employee is
eligible to make Deferrals into this plan, (b) any deferrals made to The
Southland Corporation Employees' Savings and Profit Sharing Plan (the "Profit
Sharing Plan") and (c) any salary reduction amounts from the employee taken on
a pre-tax basis. Eligible Compensation in a calendar year in excess of
$160,000 (for 1998), as adjusted under Code section 401(a)(17), will not be
taken into account in determining Eligible Compensation.
<PAGE>
Amounts deferred pursuant to the SERP will be credited by book entry to
the participant's Account, which shall be held by the Company for the
participant's benefit. For purposes of the SERP, the "Account" shall
consist of Deferrals, Matching Contributions and Interest that are held for
the credit of a participant. All such amounts shall be held in the general
funds of the Company and each participant will have the status of a general
unsecured creditor of the Company with respect to his or her Account. On
the last day of each Plan Year each Participant's Account will be credited
with Interest on the average balance in his or her Account (excluding
current Plan Year Company Matching Contribution) at the end of each of the
12 preceding calendar months. The Interest rate will be equal to 120% of
the applicable federal long-term rate, for compounding annually, as
published by the Internal Revenue Service. This annual rate will be reset
for all Account balances each January 1 based upon the applicable federal
long-term rate as of December 1 of the preceding year.
The obligations of the Company under the SERP (the "Obligations") will be
unsecured general obligations, of the Company, to pay in the future the value
of the Account including the Deferrals, Matching Contributions (if any), and
all accrued Interest. The Obligations will rank equally with the other
unsecured and unsubordinated indebtedness of the Company from time to time
outstanding. Benefits due shall be distributed at the time or times selected
by the Participant at the time the Participant selects, in writing, on an
"Enrollment Form" which must be completed prior to the start of any year during
which the Participant elects to make Deferrals.
In addition to a Participant's Deferrals each Plan Year, a
Participant's Account may be credited with a Matching Contribution, if
authorized by Southland for that Plan Year. If so authorized, the Matching
Contribution will be made by Southland with respect to a Participant's
Deferrals for the Plan Year on up to a maximum of 6% of the Participant's
Eligible Compensation (up to $160,000, as adjusted under Code Section
401(a)(17)) minus the amount of the Participant's deferral to the Profit
Sharing Plan. Matching Contributions will be credited to Participant
Accounts at the same rate that Southland matches under the Profit Sharing
Plan, but using years of service with the Company, minus one, rather than
years of participation in the Profit Sharing Plan, to determine a
Participant's Group.
The Company Matching Contribution, regardless of when made, will be
credited as of December 31st of that Plan Year, but will accrue Interest only
after the deposit is made into the Participants' Accounts by book-entry or
otherwise.
The balance credited to a Participant's Account (or sub-account, as the
case may be, if different payment dates are selected for different Deferrals)
shall be payable at the earliest of the following events, each of which, if
selected as a payment date, shall be deemed the "Triggering Event": (a)
Separation from employment with the Company; (b) Retirement, Disability or
Death, (c) on a fixed date designated by the Participant at the time of
Deferral (must be at least three years after the date the Deferral election is
made), or (d) upon a Change in Control of Southland.
Payments, if under (a) or (b) above, shall be made in either a lump sum or
in annual installments, as designated by the Participant at the time of the
Deferral. The timing of the lump sum payment or the first installment payment
will be at the option of the Participant, as designated by the Participant at
the time of Deferral. Options are as follows: (a) Payable the month following
a Triggering Event, or (b) Payable in January of the year following a
Triggering Event.
If annual installment payments are elected, the installment period will be
limited to a maximum of ten (10) annual installments. The first payment will
be made as directed by the Participant on the Deferral form and the remaining
payments will be paid annually on or about January 15th of each following year
(one-tenth of the remaining balance in the first year, one-ninth of the
remaining balance in the second year, one-eighth of the remaining balance in
the third year, etc.). Account balances will continue to be credited with
Interest until paid. A Participant may accelerate or delay the timing of
<PAGE>
payment elected only if the new election is made at least three years before
the payment will then be scheduled to occur. In addition, upon request by the
Participant or the Participant's Beneficiary, withdrawal may be made solely at
the Administrator's discretion, to assist the Participant or Participant's
Beneficiary in the case of Disability or similar hardships, which qualify as an
unforeseeable emergency, as determined by the Administrator in his complete
discretion. The amount withdrawn may not exceed the amount needed to meet the
unforeseeable emergency. In the event that the Participant is granted a
payment for an unforeseeable emergency, no Deferrals or Company Matching
Contributions shall be made to this Plan or any other similar plan on behalf of
the Participant for 12 months following the receipt of the withdrawal by the
Participant or the Participant's Beneficiary.
In the event of a Change in Control of Southland, payments of the Account
balance will be paid to Participants within 10 days following the Change in
Control in a lump sum including Interest to the date of payment. If the SERP
is terminated, the Account balances will be paid in a lump sum no later than
January 15th following the termination date.
A Participant's interest in his or her SERP Account generally cannot be
assigned, transferred, garnished, pledged or encumbered. Although the
Participant is always 100% vested in his or her Account, the Account cannot be
redeemed, in whole or in part, prior to the individual payment dates specified
by each Participant at the time of the Deferral.
The Company reserves the right to amend, modify or terminate the SERP, or
suspend any of its provisions, at any time and from time to time, except that
no such amendment, modification or termination shall adversely affect the right
of any participant to the amounts credited to or accrued in his or her Account
at the time of such amendment, modification or termination.
The Obligations are not convertible into securities of the Company. The
Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. No trustee has
been appointed having the authority to take action with respect to the
Obligations and each participant will be responsible for acting independently
with respect to, among other things, the giving of notices, responding to any
requests for consents, waivers, or amendments pertaining to the Obligations,
enforcing covenants and taking action upon a default.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Obligations offered hereby will be passed upon by
Bryan F. Smith, Jr., Senior Vice President and General Counsel of the
Company. Mr. Smith owns 251 shares of common stock of the Company and
holds options to acquire an additional 425,600 shares of common stock,
97,080 of which are currently exercisable at prices ranging from $3.00
to $7.50 per share. In addition, Mr. Smith is a participant in the
Profit Sharing Plan and is eligible to participate in the SERP.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Company's Articles of Incorporation and Bylaws and the
Texas Business Corporation Act, the Company has agreed to indemnify certain
current and former officers and directors in connection with pending
litigation as well as with other actions they may have taken while serving
as directors or officers of the Company. Pursuant to Article 2.02-1 of the
Texas Business Corporation Act, the Company generally has the power to
indemnify its present and former directors and officers against expenses
and liabilities incurred by them in connection with any suit to which they
are, or are threatened to be made, a party by reason of their serving in
those positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal action, so long as they had no
reasonable cause to believe their conduct was unlawful. With respect to
suits by or in the right of the Company, however, indemnification is
generally limited to attorneys' fees and other expenses and is not
available if the person is adjudged to be liable to the Company, unless the
court determines that indemnification is appropriate. The statute
expressly provides that the power to indemnify authorized thereby is not
exclusive of any rights granted under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. The Company also
has the power to purchase and maintain insurance for its directors and
officers.
The preceding discussion is not intended to be exhaustive and is
qualified in its entirety by the Articles of Incorporation, Bylaws and
Article 2.02-1 of the Texas Business Corporation Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
EXHIBIT NO. PAGE
4. INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS,
INCLUDING INDENTURES
4.(i)(1) Second Restated Articles of Incorporation of The Southland
Corporation, as amended through March 5, 1991, incorporated
by reference to The Southland Corporation's Annual Report on
Form 10-K for the year ended December 31, 1990, Exhibit 3.(1).
4.(i)(2) Bylaws of The Southland Corporation, restated as amended
through April 24, 1996, incorporated by reference to The
Southland Corporation's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1996, Exhibit 3.
4.(i)(3) Form of The Southland Corporation Supplemental Executive
Retirement Plan for Eligible Employees, effective
January 1, 1998. * Tab 1
4.(ii)(1) Indenture, including Debenture, with Ameritrust Company
National Association, as trustee, providing for 5% First
Priority Senior Subordinated Debentures due December 15,
2003, incorporated by reference to The Southland
Corporation's Annual Report on Form 10-K for the year
ended December 31, 1990, Exhibit 4.(ii)(2).
<PAGE>
4.(ii)(2) Indenture, including Debentures, with The Riggs National
Bank of Washington, D.C., as trustee providing for 4 1/2%
Second Priority Senior Subordinated Debentures (Series A)
due June 15, 2004, 4% Second Priority Senior Subordinated
Debentures (Series B) due June 15, 2004, and 12% Second
Priority Senior Subordinated Debentures (Series C) due
June 15, 2009, incorporated by reference to The Southland
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1990, Exhibit 4.(ii)(3).
4.(ii)(3) Indenture among Cityplace Center East Corporation, Security
Pacific National Bank, as trustee, and The Sanwa Bank Limited,
Dallas Agency, dated as of February 15, 1987, providing for
7 7/8% Notes due February 15, 1995, incorporated by reference
to File No. 0-676, Annual Report on Form 10-K for the year
ended December 31, 1986, Exhibit 4(ii)(8).
4.(ii)(4) Specimen 7 7/8% Note due February 15, 1995, issued by Cityplace
Center East Corporation, incorporated by reference to File No.
0-676, Annual Report on Form 10-K for the year ended
December 31, 1986, Exhibit 4(ii)(9).
4.(ii)(5) Form of 4 1/2% Convertible Quarterly Income Debt Securities due
2010, incorporated by reference to File Nos. 0-676 and 0-16626,
Form 8-K, dated November 21, 1995, Exhibit 4(v)1.
5. OPINION RE LEGALITY AND APPLICABILITY OF ERISA
Opinion of Bryan F. Smith, Jr., as to the legality of the
securities being registered and as to compliance with the
provisions of the Employee Retirement Income Security Act
of 1974.* Tab 2
15. LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION. Tab 3
Letter of Coopers & Lybrand L.L.P., Independent Auditors.
23. CONSENTS OF EXPERTS AND COUNSEL.
23.(1) Consent of Bryan F. Smith, Jr., is contained in his opinion
attached as Exhibit 5.
23.(2) Consent of Coopers & Lybrand L.L.P.,
Independent Auditors.* Tab 4
24. POWER OF ATTORNEY
Incorporated by Reference from the Signature Page of
this Form S-8.
- ----------------------------
*Filed or furnished herewith
<PAGE>
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed
in the Registration Statement or any material
change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to section 13 or section
15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purposes of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report
pursuant to section 13(a) or section 15(d) of the Exchange Act
that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of
Texas, on the 16th day of December, 1997.
THE SOUTHLAND CORPORATION
By: /s/ Clark J. Matthews, II
--------------------------
Clark J. Matthews, II
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated. Each person whose
signature appears below authorizes Bryan F. Smith, Jr., Ezra Shashoua and
Carol S. Hilburn, and each of them, each of whom may act without joinder of
the other, to execute in the name of each such person who is then an
officer or director of the Company and to file any amendments to this
Registration Statement necessary or advisable to enable the Company to
comply with the Securities Act of 1933, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities
which are the subject of this Registration Statement, which amendments may
make such changes in the Registration Statement as such attorney may deem
appropriate.
SIGNATURE CAPACITY DATE
- --------- --------- -----
/s/ Masatoshi Ito
- ------------------ Chairman of the Board December 16, 1997
Masatoshi Ito and Director
/s/ Toshifumi Suzuki
- ------------------- Vice Chairman of the Board December 16, 1997
Toshifumi Suzuki and Director
/s/ Clark J. Matthews, II
- --------------------- President and Chief December 16, 1997
Clark J. Matthews, II Executive Officer and
Director (Principal
Executive Officer)
/s/ Donald E. Thomas
- ------------------- Vice President and December 16, 1997
Donald E. Thomas Controller(Principal
Accounting Officer)
/s/ Yoshitami Arai
- ------------------ Director December 16, 1997
Yoshitami Arai
/s/ Masaaki Asakura
- ------------------ Vice President December 16, 1997
Masaaki Asakura and Director
<PAGE>
/s/ Timothy N. Ashida
- ------------------ Director December 16, 1997
Timothy N. Ashida
/s/ Jay W. Chai
- ----------------- Director December 16, 1997
Jay W. Chai
/s/ Gary J. Fernandes
- ---------------- Director December 16, 1997
Gary J. Fernandes
/s/ Masaaki Kamata
- ----------------- Director December 16, 1997
Masaaki Kamata
/s/ James W. Keyes
- ---------------- Executive Vice President December 16, 1997
James W. Keyes and Chief Financial
Officer and Director
/s/ Stephen B. Krumholz
- ------------------- Executive Vice President December 16, 1997
Stephen B. Krumholz and Chief Operating
Officer and Director
/s/ Kazuo Otsuka
- ------------------- Director December 16, 1997
Kazuo Otsuka
/s/ Asher O. Pacholder
- ------------------ Director December 16, 1997
Asher O. Pacholder
/s/ Nobutake Sato
- ------------------ Director December 16, 1997
Nobutake Sato
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
4. INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS,
INCLUDING INDENTURES
4.(i)(1) Second Restated Articles of Incorporation of The
Southland Corporation, as amended through March 5, 1991,
incorporated by reference to The Southland Corporation's
Annual Report on Form 10-K for the year ended
December 31, 1990, Exhibit 3.(1).
4.(i)(2) Bylaws of The Southland Corporation, restated as
amended through April 24, 1996, incorporated by
reference to The Southland Corporation's Quarterly
Report on Form 10-Q for the quarter ended
September 30, 1996, Exhibit 3.
4.(i)(3) Form of The Southland Corporation Supplemental Tab 1
Executive Retirement Plan for Eligible Employees.*
4.(ii)(1) Indenture, including Debenture, with Ameritrust
Company National Association, as trustee, providing
for 5% First Priority Senior Subordinated Debentures
due December 15, 2003, incorporated by reference to The
Southland Corporation's Annual Report on Form 10-K for
the year ended December 31, 1990, Exhibit 4.(ii)(2).
4.(ii)(2) Indenture, including Debentures, with The Riggs National
Bank of Washington, D.C., as trustee providing for 4 1/2%
Second Priority Senior Subordinated Debentures (Series A)
due June 15, 2004, 4% Second Priority Senior Subordinated
Debentures (Series B) due June 15, 2004, and 12% Second
Priority Senior Subordinated Debentures (Series C) due
June 15, 2009, incorporated by reference to The Southland
Corporation's Annual Report on Form 10-K for the year
ended December 31, 1990, Exhibit 4.(ii)(3).
4.(ii)(3) Indenture among Cityplace Center East Corporation,
Security Pacific National Bank, as trustee, and The
Sanwa Bank Limited, Dallas Agency, dated as of
February 15, 1987, providing for 7 7/8% Notes due
February 15, 1995, incorporated by reference to
File No. 0-676, Annual Report on Form 10-K for the
year ended December 31, 1986, Exhibit 4(ii)(8).
4.(ii)(4) Specimen 7 7/8% Note due February 15, 1995, issued
by Cityplace Center East Corporation, incorporated
by reference to File No. 0-676, Annual Report on
Form 10-K for the year ended December 31, 1986,
Exhibit 4(ii)(9).
4.(ii)(5) Form of 4 1/2% Convertible Quarterly Income Debt
Securities due 2010, incorporated by reference to
File Nos. 0-676 and 0-16626, Form 8-K, dated
November 21, 1995, Exhibit 4(v)1.
5. OPINION RE LEGALITY AND APPLICABILITY OF ERISA
Opinion of Bryan F. Smith, Jr., as to the legality Tab 2
of the securities being registered and as to
compliance with the provisions of the Employee
Retirement Income Security Act of 1974.*
15. LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION. Tab 3
Letter of Coopers & Lybrand L.L.P., Independent Auditors*
1
<PAGE>
23. CONSENTS OF EXPERTS AND COUNSEL.
23.(1) Consent of Bryan F. Smith, Jr., is contained in his opinion
attached as Exhibit 5.
23.(2) Consent of Coopers & Lybrand L.L.P.,
Independent Auditors.* Tab 4
24. Power of Attorney
Incorporated by Reference from the Signature Page of
this Form S-8.
- ----------------------------
*Filed or furnished herewith
1
THE SOUTHLAND CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
FOR ELIGIBLE EMPLOYEES
EFFECTIVE JANUARY 1, 1998
I. PURPOSE
This deferred compensation plan is an unfunded employee
pension benefit plan that is maintained primarily for the
purpose of providing deferred compensation for a select group
of management or highly compensated employees.
II. DEFINITIONS
The following terms are capitalized throughout the text
of this Plan when they are intended to have the meaning shown
below:
A. "ACCOUNT" means the amount of Deferrals, Matching
Contributions and Interest to the credit of a Participant.
B. "ADMINISTRATOR" means The Southland Corporation and
any person to whom the Administrator delegates authority by
means of a letter addressed to the delegatee. The
Administrator may revoke any delegation of authority by means
of a letter to the delegatee. The Administrator shall have
full power to construe and interpret the Plan and make all
decisions regarding eligibility, benefits, Accounts, Interest
and all other matters under the Plan.
C. "BENEFICIARY" means the individual or other legal
entity designated by the Participant in the last Beneficiary
designation filed with the Administrator by the Participant
under this Plan, or if such designated individual or other
legal entity does not survive the Participant, or no
Beneficiary designation is filed, the Participant's estate.
D. "CHANGE IN CONTROL" means (a) the direct or
indirect acquisition by any Person (an "Acquiring Person")
other than the Company, any subsidiary of the Company, any
employee benefit plan of the Company or a subsidiary of the
Company, of securities of the Company representing 50% or
more of the combined voting power of the Company, such that
such Person becomes a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of the Company; or (b) a public
announcement of a tender offer or exchange offer by
Tab
<PAGE>
any Acquiring Person for securities representing 50% or more
of the combined voting power of the Company, which offer is
not opposed by the Company's Board of Directors; (c) the
approval by the shareholders of the Company of a merger or a
consolidation of the Company with any other Person (or, if no
such approval is required, the consummation of such a merger
or consolidation of the Company), other than a merger or
consolidation that would result in the stock of the Company
outstanding immediately before the consummation thereof
continuing to represent a majority of the combined voting
power of the surviving entity outstanding immediately after
such merger or consolidation; or (d) the approval by the
shareholders of the Company of a plan of complete liquidation
of the Company or an agreement for the sale or distribution
by the Company of all or substantially all of the Company's
assets (or, if no such approval is required, the consummation
of such a liquidation, sale or disposition in one transaction
or a series of related transactions), other than a
liquidation, sale or disposition of all or substantially all
of the Company's assets in one transaction or a series of
related transactions to a corporation owned directly or
indirectly by the shareholders of the Company in
substantially the same proportions as their ownership of the
stock of the Company.
E. "CODE" means the Internal Revenue Code of 1986, as
amended.
F. "COMPANY" means Southland, all corporations which
are members of a controlled group of corporations (within the
meaning of section 414(b) of the Internal Revenue Code of
1986 ("Code") that includes Southland and all trades or
businesses (whether or not incorporated) which are under
common control (within the meaning of section 414(c)) with
Southland.
G. "DEFERRAL" means the actual amount of Eligible
Compensation deferred per the Participant's instructions.
H. "ELIGIBLE COMPENSATION" means the sum of (a) W-2
compensation paid while the employee is eligible to make
Deferrals into this plan, (b) any deferrals made to Profit
Sharing and (c) salary reduction amounts from the employee
taken on a pre-tax basis. Eligible Compensation in a
calendar year in excess of $160,000 (for 1998), as adjusted
under Code section 401(a)(17), will not be taken into
account.
I. "HIGHLY COMPENSATED EMPLOYEE" means an employee of
the Company who, during the preceding calendar year, received
W-2 compensation in excess of $80,000, as adjusted under Code
section 414(q)(1). Any Participant in this Plan who ceases
to be considered a Highly Compensated Employee will not be
eligible to participate in this Plan and no further Deferrals
or Matching Contributions will be credited to his/her
Account, however, Interest will continue to be credited to
such Account.
<PAGE>
J. "INTEREST" means the amount of money credited to a
Participant's Account under Section IV. C. of this Plan.
K. "MATCHING CONTRIBUTION" means the amount of money
credited to a Participant's Account under Section IV. B. of
this Plan.
L. "PARTICIPANT" means a Highly Compensated Employee
who meets the eligibility requirements of Section III of this
Plan and who has elected to defer compensation under this
Plan.
M. "PLAN" means the Plan embodied herein as it may be
amended from time to time. It shall be known as The
Southland Corporation Supplemental Executive Retirement Plan
for Eligible Employees.
N. "PLAN YEAR" means the period January 1st through
December 31st, except in the first year of the Plan. In the
first year, the Plan Year will begin on the date determined
by the Administrator to be the effective date of the Plan and
ending on December 31st of that year.
O. "PROFIT SHARING PLAN" means The Southland
Corporation Employees' Savings and Profit Sharing Plan.
P. "RETIREMENT" means a Participant's or former
Participant's separation from employment with the Company on
or after (a) attaining age 60 or (b) when his or her age plus
years of employment is greater than or equal to 70.
Q. "SOUTHLAND" means The Southland Corporation.
R. "TRIGGERING EVENT" means retirement, death or
disability or separation from employment with the Company.
III. ELIGIBILITY
A. Participation is voluntary. All Highly Compensated
Employees of the Company will be eligible to participate in
any pay period ending on or after the date 12 months after
the Highly Compensated Employee was first employed by the
Company.
IV. CONTRIBUTIONS
A. TIME AND METHOD OF ELECTING PRE-TAX DEFERRAL
1. In order to participate in the Plan with pre-
tax Deferrals, a Highly Compensated Employee must, after
having received a written explanation of the terms of, and
the benefits provided under, the Plan, elect to participate
in the Plan by executing such form or forms as are provided
by
<PAGE>
the Administrator. Such election to participate and
execution of a deferral election agreement shall be effective
on any date prior to the rendition of services for which
salary subject to the deferral election agreement would
otherwise have been paid to such Highly Compensated Employee.
2. Before the first day of any Plan Year a Participant may
elect, in writing, to defer a percentage of Eligible
Compensation for that Plan Year. This Deferral cannot exceed
twelve (12) percent of Eligible Compensation. The amount of
each Participant's Deferrals will be credited to the
Participant's Account as of the month they are withheld from
the Participant's Eligible Compensation.
B. COMPANY MATCHING CONTRIBUTIONS
1. In addition to a Participant's Deferrals under Section
IV. A. each Plan Year, a Participant's Account may be
credited with a Matching Contribution, if authorized by
Southland for the Plan Year. If so authorized, a Matching
Contribution will be made by Southland with respect to a
Participant's Deferrals for the Plan Year on up to a maximum
of 6% of the Participant's Eligible Compensation (up to
$160,000, as adjusted under Code Section 401(a)(17)) minus
the amount of the Participant's deferral to the Profit
Sharing Plan. Matching Contributions will be credited to
Participant Accounts at the same rate that Southland matches
under the Profit Sharing Plan, but using years of service
with the Company, minus one, rather than years of
participation in the Profit Sharing Plan, to determine a
Participant's Group, according to the following table.
GROUP YEARS OF WEIGHTING
PARTICIPATION
- -------------------------------------------------
A 1-3 1
B 4-7 2
C 8 or more 4
- -------------------------------------------------
2. The Company Matching Contribution, regardless of when
made, will be credited as of December 31st each Plan Year,
but will accrue Interest only after the deposit is made into
the Participant's Accounts by book-entry or otherwise.
C. INTEREST
On the last day of each Plan Year each Participant's
Account will be credited with Interest on the average balance
in their Account (excluding current Plan Year Company
Matching Contribution) at the end of each of the 12 preceding
calendar months. The Interest rate will be equal to 120% of
the applicable federal long-term rate, for compounding
annually, as published by the Internal Revenue Service. This
rate will be reset for all Account balances each January 1
based upon the applicable federal long-term rate as of
December 1 of the preceding year.
<PAGE>
D. ACCOUNTS
The Company shall maintain an Account for each
Participant, consisting of the Participant's Deferrals, the
Matching Contribution, if any, allocated to the Account on
the basis of the Participant's Deferrals, as provided in
Section IV.B., above, plus any Interest that is credited to
the Account, as provided under Section IV.C., above. The
Account may be maintained by book entry.
V. PAYMENT OF BENEFITS
A. METHODS OF PAYMENT
1. Timing of Payment(s): The balance credited to
a Participant's Account (or sub-account, as the case may be,
if different payment dates are selected for different
Deferrals) shall be payable at the earliest of the following
events:
(a) Separation from employment with the
Company,
(b) Retirement, Disability or Death,
(c) On a fixed date designated by the
Participant at the time of Deferral (must be at least three
years after the date the Deferral election is made), or
(d) Upon a Change in Control of Southland.
2. Form of Benefit: Payments, if under V. A.1(a)
or (b) above, shall be made in either a lump sum or in annual
installments, as designated by the Participant at the time of
the Deferral. The timing of the lump sum payment or the
first installment payment will be at the option of the
Participant, as designated by the Participant at the time of
Deferral. Options are as follows:
(a) Payable the 15th of the month following a
Triggering Event, or
(b) Payable January 15th of the year following
a Triggering Event.
If annual installment payments are elected, the
installment period will be limited to a maximum of ten (10)
annual installments. The first payment will be made as
directed by the Participant on the Deferral form and the
remaining payments will be paid annually on or about January
15th of each following year (one-tenth of the remaining
balance in the first year, one-ninth of the remaining balance
in the second year, one-eighth of the remaining balance in
the third year, etc.). Account balances will continue to be
credited with Interest until paid.
3. A Participant may accelerate or delay the
timing of payment elected under Section V.A.1.(c) above,
provided that the new election is made at least three years
before the payment would otherwise occur.
<PAGE>
B. Payments for Unforeseeable Emergency. Upon request
by the Participant or the Participant's Beneficiary,
withdrawal may be made solely at the Administrator's
discretion, to assist the Participant or Participant's
Beneficiary in the case of disability or similar hardships as
determined by the Administrator in its complete discretion.
The amount withdrawn may not exceed the amount needed to meet
the unforeseeable emergency. In the event that the
Participant is granted a payment for an unforeseeable
emergency, no Deferrals or Company Matching Contributions
shall be made to this Plan or any other similar plan on
behalf of the Participant for 12 months following receipt of
the payment.
C. In the event of a Change in Control of Southland,
payments of the Account balance will be paid to Participants
within 10 days following the Change in Control in a lump sum
including Interest to the date of payment.
D. Any payment due to Participants under this Plan
will be payable from the general assets of the Company, or if
established by the Company, a trust.
E. If this Plan is terminated, the Account balances
under the Plan will be paid in a lump sum no later than the
January 15th following the termination date.
VI. NATURE OF THE PLAN; FUNDING
A. NO TRUST REQUIRED
Benefits under the Plan shall constitute general
obligations of the employer under the terms of the Plan, and
the adoption of this Plan shall not require the creation of a
trust or the setting aside of amounts by the Company with
which to discharge its obligations hereunder. Any recipient
of benefits hereunder shall have no security or other
interest in such funds. Any and all funds so set aside shall
remain subject to the claims of general creditors of the
Company. This provision shall not require the Company to set
aside any funds, but the Company may set aside such funds if
it chooses to do so.
B. FUNDING OF OBLIGATION
The Company may elect to establish a grantor
("rabbi") trust and to transfer assets to the trust, the
provisions of which shall require the use of the Trust's
assets to satisfy claims of a Company's general unsecured
creditors in the event of such Company's insolvency and
direct that no Participant shall at any time have a prior
claim to such assets of this Plan. It is the intention of
the Company that the Plan and trust (if any) shall be
unfunded for tax and Title I of ERISA purposes.
<PAGE>
VII. MISCELLANEOUS PROVISIONS AND DEFINITIONS
A. ALIENATION OF BENEFITS
A Participant or Beneficiary's right to benefit
payments under the Plan are not subject in any manner to
anticipation, alienation, sale, transfer, assignment (either
at law or in equity), pledge, encumbrance, attachment, levy,
execution, or garnishment by the creditors of the Participant
or Beneficiary or to any other legal, equitable, bankruptcy,
or other process, and security interests may not be created
therein.
VIII. AMENDMENT OR TERMINATION OF PLAN
A. Although Southland has established this Plan with
the intention of maintaining it for an indefinite period of
time, Southland reserves the right from time to time to
reduce or modify the benefits provided by the Plan or to
terminate the Plan.
B. Southland may amend or terminate this Plan by:
1. A resolution of the Board of Directors, or
2. An instrument signed by the President and Chief
Executive Officer.
IX. NONGUARANTEE OF EMPLOYMENT
Nothing in this Plan shall be construed as a contract of
employment between the Company and any Participant, as a
right of any Participant to be continued in the employment of
the Company, or as a limitation of the right of the Company
to discharge a Participant with or without cause.
X. PLAN INFORMATION
A. The name of the Plan is The Southland Corporation
Supplemental Executive Retirement Plan for Eligible
Employees.
B. The Employer Identification Number (EIN) assigned
to The Southland Corporation, the sponsor of the Plan, is 75-
1085131. The number assigned to the Plan by the Plan
Administrator is Plan 106. The address of the Plan sponsor
is as follows:
The Southland Corporation
2711 N. Haskell Ave.
PO Box 711
Dallas, TX 75221-0711
<PAGE>
C. All expenses of the Plan including, but not limited
to, the benefits and the cost of its administration and
operation shall be paid by Southland.
XI. SITUS
The situs of the Plan is Dallas, Dallas County, Texas.
All of the Administrator's actions will occur and all of its
decisions will be made at its office in Dallas, Dallas
County, Texas. All claims for benefits will be made when
received by the Administrator at its office in Dallas, Dallas
County, Texas either by delivery in person or by depositing
in the mail. All benefits will be paid by Southland in
Dallas, Dallas County, Texas.
XII. CONSTRUCTION
A. All questions concerning the validity,
construction, interpretation, and administration of the Plan
will be determined under the laws (other than those relating
to conflicts of law) of the State of Texas, as amended from
time to time, to the extent that such laws are not superseded
by ERISA.
B. Words used herein in any gender shall include the
other two genders, where appropriate.
C. Words used herein in the singular shall include the
plural, and vice versa where appropriate.
D. If any provision is determined to be void by any
court of competent jurisdiction, the Plan will continue to
operate and, for the purpose of the jurisdiction of that
court only, shall be deemed not to include the provision
determined to be void.
EXHIBIT 5
Bryan F. ("Buck") Smith, Jr.
Senior Vice President and General Counsel
Direct Dial Number (214)828-7991
Facsimile Number (214)841-6574
December 17, 1997
The Southland Corporation
2711 North Haskell Avenue
Dallas, Texas 75204-2906
This opinion of counsel is given in connection with a Registration
Statement on Form S-8 filed by The Southland Corporation (the "Company")
with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended, relating to the registration of obligations of
the Company (the "Obligations") under The Southland Corporation Supplemental
Executive Retirement Plan for Eligible Employees (the "SERP") to pay in the
future the value of the deferred compensation Accounts, as defined in the SERP,
as increased by interest which will be paid by the Company, as provided in
the SERP.
As Senior Vice President and General Counsel of the Company, I am familiar
with the affairs of the Company, including the action taken by the Company in
connection with the SERP and the Obligations expected to be incurred thereunder.
Based upon the foregoing, it is my opinion that the Obligations to be paid
in accordance with the terms of the SERP have been duly authorized, and will be
the valid and binding Obligations of the Company.
In addition, I have caused to be examined the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") as appropriate
in connection with this opinion.
In reliance on such examination, it is my opinion that, in general, the
SERP is exempt from the requirements of ERISA except, to the extent that a
limited statement to the United States Department of Labor (the "DOL") may be
required to meet the reporting and disclosure requirements under ERISA
regulations. If such a statement is required, it will be filed with the DOL.
I hereby consent to the use of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
Bryan F. Smith, Jr.
Senior Vice President and
General Counsel
Tab
Exhibit 15
Securities and Exchange Commission
450 Fifth Street, Northwest
Washington, D.C. 20549
Attention: Document Control
Re: The Southland Corporation Form S-8
We are aware that our reports dated April 21, 1997, August 4, 1997, and
October 24, 1997 on our reviews of the interim financial information of The
Southland Corporation and Subsidiaries for the periods ended March 31,
1997, June 30, 1997, and September 30, 1997, respectively, and included in
the Company's quarterly reports on Form 10-Q for the quarters then ended is
incorporated by reference in this registration statement. 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
December 17, 1997
Tab
EXHIBIT 23 (2)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement
of our report dated February 18, 1997, on our audits of the consolidated
financial statements and financial statement schedule of The Southland
Corporation and Subsidiaries as of December 31, 1996 and 1995, and for each
of the three years in the period ended December 31, 1996, which report is
included in the Company's Annual Report on Form 10-K.
Coopers & Lybrand L.L.P.
Dallas, Texas
December 17, 1997
