sv3asr
As filed with the Securities and Exchange Commission on
December 1, 2005
Registration
No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TEMPLE-INLAND INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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75-1903917 |
(State or other jurisdiction of incorporation or
organization) |
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(I.R.S. employer identification no.) |
1300 MoPac Expressway South
Austin, Texas 78746
(512) 434-5800
(Address, including zip code, and telephone number, including
area code of
registrants principal executive offices)
J. Bradley Johnston, Esq.
Temple-Inland Inc.
1300 MoPac Expressway South
Austin, Texas 78746
(512) 434-5800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Stephen W. Hamilton, Esq.
J. Russell McGranahan, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005
(202) 371-7000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities pursuant to Rule 413(b)
under the Securities Act, check the following
box. o
CALCULATION OF REGISTRATION FEE
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Amount to be Registered/ |
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Proposed Maximum Offering Price per Unit/ |
Title of Each Class of |
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Proposed Maximum Aggregate Offering Price/ |
Securities to be Registered |
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Amount of Registration Fee |
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Debt Securities
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Common Stock, $1.00 par value per share(2)
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Preferred Stock, $1.00 par value per share
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(1) |
Depositary Shares(3)
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Warrants
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Stock Purchase Contracts
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Stock Purchase Units(4)
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(1) |
An indeterminate aggregate initial offering price or number of
the securities of each identified class is being registered as
may from time to time be offered at indeterminate prices.
Separate consideration may or may not be received for securities
that are issuable on exercise, conversion or exchange of other
securities or that are issued in units or represented by
depositary shares. In accordance with Rules 456(b) and
457(r), the Registrant is deferring payment of all of the
registration fee, except for $4,988.59 that may be offset
pursuant to Rule 457(p) for fees paid with respect to the
unsold portion of the $1,500,000,000 aggregate initial offering
price of securities that were previously registered pursuant to
Registration Statement No. 333-84120, initially filed on
March 11, 2002 and terminated on the date of filing of this
registration statement. |
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(2) |
Each share of common stock includes an associated right to
purchase preferred stock (right). Prior to the
occurrence of certain events, the rights will not be exercisable
or evidenced separately from the common stock. See
Description of Common Stock Stockholder Rights
Plan. |
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(3) |
Each depositary share will be issued under a deposit agreement,
will represent an interest in a fractional share or multiple
shares of preferred stock and will be evidenced by a depositary
receipt. |
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(4) |
Each unit will be issued under a unit agreement or indenture and
will represent an interest in two or more debt securities,
warrants or purchase contracts, which may or may not be
separable from one another. |
PROSPECTUS
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
Stock Purchase Contracts
Stock Purchase Units
This prospectus describes some of the general terms that may
apply to securities that we may issue and sell at various times.
Please note that:
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Prospectus supplements will be filed and other offering material
may be provided at later dates that will contain specific terms
of each issuance of securities. |
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You should read this prospectus and any prospectus supplements
or other offering material filed or provided by us carefully
before you decide to invest. |
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We may sell the securities to or through underwriters, and also
to other purchasers or through agents. The names of the
underwriters will be stated in the prospectus supplements and
other offering material. We may also sell securities directly to
investors. |
Our common stock is listed on the New York Stock Exchange and
the Pacific Exchange under the symbol TIN. Any
common stock that we may sell pursuant to this prospectus will
be listed on the New York Stock Exchange and Pacific
Exchange upon official notice of issuance.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of any of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is December 1, 2005.
You should rely only on the information contained or
incorporated by reference in this prospectus and the
accompanying prospectus supplement. We have not authorized
anyone to provide you with different information. We are not
making an offer of these securities in any state where the offer
is not permitted. You should not assume that the information
contained in this prospectus or the accompanying prospectus
supplement is accurate as of any date other than the date on the
front of those documents.
TABLE OF CONTENTS
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i
ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration
statement that we filed with the Securities and Exchange
Commission. By using a shelf registration statement, we may
sell, from time to time, in one or more offerings, any
combination of the securities described in this prospectus.
This prospectus and any accompanying prospectus supplement do
not contain all of the information included in the registration
statement as permitted by the rules and regulations of the SEC.
For further information, we refer you to the registration
statement on Form S-3, including its exhibits. We are
subject to the informational requirements of the Securities
Exchange Act of 1934 and, therefore, file reports and other
information with the Commission. Our file number with the
Commission is 001-08634. Statements contained in this prospectus
and any accompanying prospectus supplement or other offering
material about the provisions or contents of any agreement or
other document are only summaries. If SEC rules require that any
agreement or document be filed as an exhibit to the registration
statement, you should refer to that agreement or document for
its complete contents. You should not assume that the
information in this prospectus, any prospectus supplement or any
other offering material is accurate as of any date other than
the date on the front of each document.
WHERE YOU CAN FIND MORE INFORMATION
The registration statement and our other filings are available
over the Internet at the Commissions worldwide web site at
http://www.sec.gov. You may also read and copy any document that
we file, including the registration statement, at the SEC public
reference facilities at 100 F Street, N.E.,
Room 1580, Washington, D.C. 20549.
You may call the SEC at 1-800-SEC-0330 for further information
about the operation of the public reference room.
In addition, our common stock is listed on the New York Stock
Exchange and the Pacific Exchange, and reports and other
information concerning us may also be inspected at their offices
at 20 Broad Street, New York, New York 10005 and 301
Pine Street, San Francisco, California 94104, respectively.
Our common stocks ticker symbol is TIN.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SECs rules allow us to incorporate by reference
information into this prospectus. This means that we can
disclose important information to you by referring you to
another document. Any information referred to in this way is
considered part of this prospectus from the date we file that
document. Any reports filed by us with the SEC after the date of
this prospectus and before the date that the offering of the
securities by means of this prospectus is terminated will
automatically update and, where applicable, supersede any
information contained in this prospectus or incorporated by
reference in this prospectus.
Accordingly, we incorporate by reference into this prospectus
the following documents or information filed with the SEC (other
than, in each case, documents or information deemed furnished
and not filed in accordance with SEC rules, and no such
information shall be deemed specifically incorporated by
reference hereby):
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our annual report on Form 10-K for the fiscal year ended
January 1, 2005; |
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our definitive proxy statement dated March 25, 2005; |
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our quarterly reports on Form 10-Q for the quarterly
periods ended April 2, July 2 and October 1, 2005; |
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our current reports on Form 8-K filed with the SEC on
February 4, February 8, February 11,
February 18, March 24, May 10, May 17,
August 1, August 5 and November 7, 2005; and |
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all documents filed by us under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 on or after the
date of this prospectus and before the termination of this
offering. |
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We will provide without charge to each person to whom a copy of
this prospectus has been delivered, upon the written or oral
request of any such person, a copy of any or all of the
documents incorporated by reference herein, other than exhibits
to such documents, unless such exhibits are specifically
incorporated by reference into the information that this
prospectus incorporates. You should direct written or oral
requests for such copies to: Temple-Inland Inc., 1300 MoPac
Expressway South, Austin, Texas 78746, Attention: Corporate
Secretary, Telephone (512) 434-5800.
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements
within the meaning of the federal securities laws. These
forward-looking statements are identified by their use of terms
and phrases such as believe, anticipate,
could, estimate, intend,
may, plan, expect, and
similar expressions, including references to assumptions. These
statements reflect managements current views with respect
to future events and are subject to risks and uncertainties. We
note that a variety of factors and uncertainties could cause our
actual results to differ significantly from the results
discussed in the forward-looking statements. Factors and
uncertainties that might cause such differences include, but are
not limited to:
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general economic, market or business conditions; |
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the opportunities (or lack thereof) that may be presented to us
and that we may pursue; |
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the availability and price of raw materials we use; |
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fluctuations in the cost of purchased energy; |
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fluctuations in the costs we incur to transport the raw
materials we use and the products we manufacture; |
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assumptions related to pension and postretirement costs; |
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assumptions related to the accounting for impaired assets; |
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the collectibility of loans and accounts receivable and related
provision for losses; |
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competitive actions by other companies; |
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changes in laws or regulations and actions or restrictions of
regulatory agencies; |
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the accuracy of certain judgments and estimates concerning our
integration of acquired operations; |
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our ability to execute certain strategic and business
improvement initiatives; and |
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other factors, many of which are beyond our control. |
Our actual results, performance, or achievement probably will
differ from those expressed in, or implied by, these
forward-looking statements, and, accordingly, we can give no
assurances that any of the events anticipated by the
forward-looking statements will transpire or occur or, if any of
them do so, what impact they will have on our results of
operations or financial condition. In view of these
uncertainties, you are cautioned not to place undue reliance on
these forward-looking statements. We expressly disclaim any
obligation to publicly revise any forward-looking statements
contained in this prospectus to reflect the occurrence of events
after the date of this prospectus.
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ABOUT TEMPLE-INLAND INC.
We are a holding company that, through our subsidiaries,
operates three business segments:
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corrugated packaging, which is a vertically integrated
corrugated packaging operation consisting of: |
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five linerboard mills, |
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one corrugating medium mill, and |
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68 converting and other facilities; |
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forest products, which manages our forest resources of
approximately two million acres of timberland in Texas,
Louisiana, Georgia, and Alabama (including approximately
190,000 acres of high-value land located near Atlanta,
Georgia), and manufactures a wide range of building products,
including: |
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lumber, |
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particleboard, |
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medium density fiberboard, |
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gypsum wallboard, and |
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fiberboard; and |
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financial services, which provides financial services in the
areas of: |
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consumer and commercial banking, |
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real estate development, and |
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insurance. |
Beginning in first quarter 2006, we anticipate separating our
real estate development operations that are currently reported
within our forest products and financial services segments into
a fourth business segment.
For additional information regarding our business, we refer you
to our filings with the SEC incorporated in this prospectus by
reference. Please read Where You Can Find More
Information and Incorporation of Certain Documents
by Reference.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus
supplement or other offering material, we will use the net
proceeds from the sale of the securities for general corporate
purposes.
1
DESCRIPTION OF THE SECURITIES WE MAY OFFER
We may issue from time to time, in one or more offerings the
following securities:
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debt securities, which may be senior or subordinated; |
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shares of common stock; |
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shares of preferred stock; |
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depositary securities; |
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warrants exercisable for debt securities, common stock or
preferred stock; |
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stock purchase contracts; and |
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stock purchase units. |
This prospectus contains a summary of the material general terms
of the various securities that we may offer. The specific terms
of the securities will be described in a prospectus supplement
and other offering material, which may be in addition to or
different from the general terms summarized in this prospectus.
Where applicable, the prospectus supplement and other offering
material will also describe any material United States federal
income tax considerations relating to the securities offered and
indicate whether the securities offered are or will be listed on
any securities exchange. The summaries contained in this
prospectus and in any prospectus supplements or other offering
material may not contain all of the information that you would
find useful. Accordingly, you should read the actual documents
relating to any securities sold pursuant to this prospectus.
Please read Where You Can Find More Information and
Incorporation of Certain Documents by Reference to
find out how you can obtain a copy of those documents.
The terms of the offering, the initial offering price and the
net proceeds to us will be contained in the prospectus
supplement, and other offering material, relating to such
offering.
DESCRIPTION OF DEBT SECURITIES
We may offer debt securities that constitute either our senior
or subordinated debt. We will issue any senior debt securities
under the senior debt indenture between us and JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank and
Chemical Bank), as trustee, dated as of September 1, 1986,
as amended by the first supplemental indenture, dated as of
April 15, 1988, the second supplemental indenture, dated as
of December 27, 1990, and the third supplemental indenture,
dated as of May 9, 1991. We will issue any debt securities
that will be subordinated debt under a subordinated debt
indenture to be entered into between us and JPMorgan Chase Bank,
N.A., as trustee. This prospectus refers to each of the senior
debt indenture and the subordinated debt indenture individually
as the indenture and collectively as the
indentures. This prospectus refers to JPMorgan Chase
Bank, N.A. as the trustee. We have filed the
indentures as exhibits to the registration statement.
The following summaries of certain provisions of the
indentures and the debt securities are not complete and these
summaries are subject to the detailed provisions of the
applicable indenture. For a full description of these
provisions, including the definitions of certain terms used in
this prospectus, and for other information regarding the debt
securities, see the indentures. Wherever this prospectus
refers to particular sections or defined terms of the applicable
indenture, these sections or defined terms are incorporated by
reference in this prospectus as part of the statement made, and
the statement is qualified in its entirety by such reference.
The indentures are substantially identical, except for the
provisions relating to subordination and limitation on liens.
Please read Subordinated Debt and
Certain Covenants.
The specific terms of any series of debt securities that we may
offer will be described in a related prospectus supplement and
other offering material.
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General Terms of the Debt Securities
Neither of the indentures limits the amount of debt securities,
debentures, notes, or other evidences of indebtedness that we
may issue. The debt securities will be our unsecured senior or
subordinated obligations. We are a holding company that conducts
all of our operations through our subsidiaries. Therefore, our
rights and the rights of our creditors, including holders of the
debt securities, to participate in the assets of any subsidiary
upon the subsidiarys liquidation or recapitalization will
be subject to the prior claims of the subsidiarys
creditors, except to the extent that Temple-Inland may itself be
a creditor with recognized claims against the subsidiary. Our
ability to pay principal and interest on the debt securities is,
to a large extent, dependent upon dividends or other payments to
us from our subsidiaries. Almost all of the net assets invested
in financial services are subject to regulatory rules and
restrictions including restrictions on payment of dividends to
the parent company. As a result, all consolidated assets are not
available to satisfy all consolidated liabilities.
The indentures provide that we may issue debt securities from
time to time in one or more series and that we may denominate
the debt securities and make them payable in foreign currencies.
Special U.S. federal income tax considerations applicable
to any debt securities denominated and payable in a foreign
currency may be described in the relevant prospectus supplement
or other offering material.
Senior Debt
We will issue under the senior debt indenture the debt
securities that will constitute part of our senior debt. These
senior debt securities will rank equally and ratably with all of
our other unsecured and unsubordinated debt.
Subordinated Debt
We will issue under the subordinated debt indenture the debt
securities that will constitute part of our subordinated debt.
These subordinated debt securities will be subordinate and
junior in right of payment, to the extent and in the manner set
forth in the subordinated debt indenture, to all of our
senior indebtedness. The subordinated debt indenture
defines senior indebtedness as obligations (i.e.,
principal, interest and a premium, if any) of, or guaranteed or
assumed by, Temple-Inland for borrowed money or evidenced by
bonds, debentures, notes, or other similar instruments, and
amendments, renewals, extensions, modifications, and refunding
of any such indebtedness or obligations, whether outstanding on
the date of this prospectus or thereafter created, incurred,
assumed or guaranteed, unless expressly provided that such
indebtedness is not senior or prior in right of payment to
subordinated debt. Senior indebtedness does not
include nonrecourse obligations, the subordinated debt
securities, or any other obligations specifically designated as
being subordinate in right of payment to senior indebtedness.
In general, upon the occurrence of certain events, the holders
of all senior indebtedness are entitled to receive payment of
the full amount unpaid on senior indebtedness before the holders
of any of the subordinated debt securities are entitled to
receive a payment on account of the principal or interest on the
indebtedness evidenced by the subordinated debt securities.
These events include:
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any insolvency or bankruptcy proceedings, or any receivership,
assignment for the benefit of creditors, liquidation,
reorganization, or other similar proceedings, involving us or a
substantial part of our property; |
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a default having occurred for the payment of principal, premium,
if any, or interest on or other monetary amounts due and payable
on any senior indebtedness or any other default having occurred
concerning any senior indebtedness that permits the holder or
holders of any senior indebtedness to accelerate the maturity of
any senior indebtedness with notice or lapse of time, or both.
This type of an event of default must have continued beyond the
period of grace, if any, provided for this type of an event of
default under the senior indebtedness, and this type of an event
of default must not have been cured or waived or have ceased to
exist; or |
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the principal of, and accrued interest on, any series of the
subordinated debt securities having been declared due and
payable upon an event of default contained in the subordinated
debt indenture. This declaration must not have been rescinded
and annulled as provided in the subordinated debt indenture. |
Conversion or Exchange of Debt Securities
The applicable prospectus supplement and other offering material
will describe the terms, if any, on which a series of debt
securities may be converted or exchanged into our common stock
or preferred stock or depositary shares. These terms will
include whether the conversion or exchange is mandatory, is at
our option or is at the option of the holder. We will also
describe in the applicable prospectus supplement and other
offering material how we will calculate the number of securities
that holders of debt securities would receive if they were to
convert or exchange their debt securities, the conversion price,
any other terms related to conversion and any anti-dilution
protections.
Registered Global Securities
We may issue registered debt securities of a series in the form
of one or more fully registered global securities. We will
deposit the registered global security with a depositary or with
a nominee for a depositary identified in the prospectus
supplement or other offering material relating to such series.
We will then issue one or more registered global securities in a
denomination or aggregate denominations equal to the portion of
the aggregate principal amount of outstanding registered debt
securities of the series to be represented by the registered
global security or securities. Unless and until it is exchanged
in whole or in part for debt securities in definitive registered
form, a registered global security may not be transferred,
except as a whole in three cases:
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by the depositary for the registered global security to a
nominee of the depositary; |
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by a nominee of the depositary to the depositary or another
nominee of the depositary; or |
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by the depositary or any nominee to a successor of the
depositary or a nominee of the successor. |
The prospectus supplement and other offering material relating
to a series of debt securities will describe the specific terms
of the depositary arrangement concerning any portion of the debt
securities to be represented by a registered global security. We
anticipate that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a registered global security, the
depositary for the registered global security will credit, on
its book-entry registration and transfer system, the principal
amounts of the debt securities represented by the registered
global security to the accounts of persons that have accounts
with the depositary. These persons are referred to as
participants. Any underwriters or agents
participating in the distribution of debt securities represented
by the registered global security will designate the accounts to
be credited. Only participants or persons that hold interests
through participants will be able to own beneficial interests in
a registered global security. The depositary for a global
security will maintain records of beneficial ownership interests
in a registered global security for participants. Participants
or persons that hold interests through participants will
maintain records of beneficial ownership interests in a global
security for persons other than participants. These records will
be the only means to transfer beneficial ownership in a
registered global security.
So long as the depositary for a registered global security, or
its nominee, is the registered owner of a registered global
security, the depositary or its nominee will be considered the
sole owner or holder of the debt securities represented by the
registered global security for all purposes under the applicable
indenture. Except as set forth below, owners of beneficial
interests in a registered global security:
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may not have the debt securities represented by a registered
global security registered in their names; |
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will not receive or be entitled to receive physical delivery of
debt securities represented by a registered global security in
definitive form; and |
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will not be considered the owners or holders of debt securities
represented by a registered global security under the applicable
indenture. |
Payment of Principal and Interest on Registered Global
Securities
We will make principal, premium, if any, and interest payments
on debt securities represented by a registered global security
registered in the name of a depositary or its nominee to the
depositary or its nominee as the registered owner of the
registered global security. None of Temple-Inland, the trustee,
or any paying agent for debt securities represented by a
registered global security will have any responsibility or
liability for:
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any aspect of the records relating to, or payments made on
account of, beneficial ownership interests in such registered
global security; or |
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maintaining, supervising, or reviewing any records relating to
beneficial ownership interests. |
We expect that the depositary, upon receipt of any payment of
principal, premium or interest, will immediately credit
participants accounts with payments in amounts
proportionate to their beneficial interests in the principal
amount of a registered global security as shown on the
depositarys records. We also expect that payments by
participants to owners of beneficial interests in a registered
global security held through participants will be governed by
standing instructions and customary practices. This is currently
the case with the securities held for the accounts of customers
registered in street name. We also expect that this
payout will be the responsibility of participants.
Exchange of Registered Global Securities
We will issue debt securities in definitive form in exchange for
the registered global security if:
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the depositary for any debt securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary; and |
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we do not appoint a successor depositary within 90 days. |
In addition, we may, at any time, determine not to have any of
the debt securities of a series represented by one or more
registered global securities. In this event, we will issue debt
securities of a series in definitive form in exchange for the
registered global security or securities representing these debt
securities.
Certain Covenants
The indentures contain certain covenants, including those
summarized below, that will be applicable (unless waived or
amended) so long as any of the debt securities are outstanding.
Definitions. Certain defined terms used in the indentures
are summarized as follows:
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Attributable Debt means, at the time of
determination, the present value (discounted at the interest
rate, compounded semi-annually, equal to the weighted average
Yield to Maturity (as defined in the applicable indenture) of
the debt securities then outstanding under the applicable
indenture, such average being weighted by the principal amount
of the debt securities of each series or, in the case of
Original Issue Discount Securities, such amount to be determined
as provided in the definition of Outstanding) of the
obligation of a lessee for net rental payments during the
remaining term of any lease (including any period for which such
lease has been extended) entered into in connection with a Sale
and Leaseback Transaction (as defined below). |
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Debt means indebtedness for money borrowed. |
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Financial Services Subsidiary means any
Subsidiary principally engaged in banking (including mortgage
banking), real estate development, insurance or a similar
financial services business, including, without limitation,
subsidiaries which conduct the activities engaged in at the date
of the indenture by Lumbermens Investment Corporation and
its subsidiaries and Temple-Inland Financial Services Inc. |
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Funded Debt means Debt that by its terms
matures at, or is extendible or renewable at the option of the
obligor to, a date more than 12 months after the date of
the creation of such Debt. |
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Mortgage means any mortgage, pledge, lien,
encumbrance, charge or security interest of any kind. |
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Principal Manufacturing Facility means any
linerboard, corrugating medium, paperboard, paper or pulp mill,
or any paper converting plant of Temple-Inland or any Subsidiary
that is located within the United States of America, other than
any such mill or plant or portion thereof (i) that is
financed by obligations issued by a State, a territory or a
possession of the United States of America, or any political
subdivisions of any of the foregoing, or the District of
Columbia, the interest on which is excludable from gross income
of the holders thereof pursuant to the provisions of
Section 103(a)(1) of the Internal Revenue Code (or any
successor to such provision) as in effect at the time of
issuance of such obligations or (ii) that, in the opinion
of the board of directors of Temple-Inland, is not of material
importance to the total business conducted by Temple-Inland and
its Subsidiaries as an entirety. |
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Subsidiary of Temple-Inland means any
corporation at least a majority of whose outstanding voting
stock shall at the time be owned, directly or indirectly, by
Temple-Inland or by one or more of its Subsidiaries, or both. |
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Timberlands means, at any time, property in
the United States of America that contains standing timber which
is, or upon completion of a growth cycle then in process is
expected to become, of a commercial quantity and of merchantable
quality. |
Limitations on Liens. We will not, nor will we permit any
of our Subsidiaries to, issue, assume, or guarantee any Debt
that is secured by a Mortgage upon any Timberlands or Principal
Manufacturing Facility, now owned or later acquired, without
providing that the debt securities (together with, at our
option, any of our other indebtedness ranking equally with the
debt securities) shall be secured equally and ratably with (or
prior to) such Debt. These restrictions shall not apply to:
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Mortgages on any property acquired, constructed, or improved by
us or any of our Subsidiaries that are created or assumed within
180 days after such acquisition (or, in the case of
property constructed or improved, after the completion and
commencement of commercial operation of the property, whichever
is later) to secure or provide for the payment of the purchase
price or cost of the construction or improvements, or existing
Mortgages on property acquired, provided that such Mortgages
shall not apply to any property previously owned by us or any of
our Subsidiaries other than unimproved real property; |
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Mortgages on any property acquired from a corporation that is
merged with or into us or one of our Subsidiaries or Mortgages
outstanding at the time any corporation becomes one of our
Subsidiaries; |
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Mortgages in favor of us or any of our Subsidiaries; |
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Mortgages granted or incurred by any Financial Services
Subsidiary; or |
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any extension, renewal or replacement, in whole or in part, of
any Mortgage referred to in the clauses above; provided that the
amount of Debt secured by the Mortgage is not increased. |
The following types of transactions, among others, shall not be
deemed to create Debt secured by a Mortgage:
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the Mortgage, sale, or other transfer of timber in connection
with an arrangement under which we or one of our Subsidiaries
are obligated to cut such timber in order to provide the
mortgagee or transferee with a specified amount of money,
however determined; and |
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Mortgages in favor of governmental bodies of the United States
or any state thereof to secure advance, progress, or other
payments pursuant to any contract or statute or to secure
indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to such Mortgages. |
We or any of our Subsidiaries may, however, without securing the
debt securities, issue, assume, or guarantee secured Debt (which
would otherwise be subject to the foregoing restrictions) in an
aggregate
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amount that, together with all other such Debt and the
Attributable Debt in respect of Sale and Leaseback Transactions
(as defined below) (other than Sale or Leaseback Transactions
the proceeds of which have been applied to the retirement of
debt securities or Funded Debt), does not at the time exceed 10%
of the net tangible assets of Temple-Inland and its consolidated
Subsidiaries as of the latest fiscal year.
Net tangible assets is defined as the
aggregate amount of assets (less applicable reserves and other
properly deductible items) after deducting (a) all current
liabilities and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense (to the extent
included in said aggregate amount of assets) and other like
intangibles, all as set forth on the most recent consolidated
balance sheet of Temple-Inland and its consolidated Subsidiaries
and computed in accordance with generally accepted accounting
principles.
Limitation on Sale and Leaseback Transactions. We will
not, nor will we permit any Subsidiary to, enter into any
arrangement with any person providing for the leasing to us or a
Subsidiary of any Timberlands or any Principal Manufacturing
Facility (except for temporary leases for a term of not more
than three years), which property has been owned and, in the
case of any such Principal Manufacturing Facility, has been
placed in commercial operation for more than 180 days by us
or such Subsidiary and has been or is to be sold or transferred
by us or such Subsidiary to such person (referred to as a
Sale and Leaseback Transaction), unless either:
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we or the Subsidiary would be entitled to incur Debt secured by
a Mortgage on the property to be leased in an amount equal to
the Attributable Debt with respect to such Sale and Leaseback
Transaction without equally and ratably securing the debt
securities; or |
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we will apply an amount equal to the fair value (as determined
by our board of directors) of the property so leased to the
retirement, within 180 days of the effective date of any
such Sale and Leaseback Transaction, of debt securities or
Funded Debt of ours that ranks on a parity with the debt
securities. |
Limitation on Debt of Subsidiaries. We will not permit
any Subsidiary to issue, assume, or guarantee any Debt except
for:
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Debt secured by a Mortgage permitted as described under
Limitations on Liens above; |
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Debt of a corporation existing at the time the corporation is
merged into or consolidated with, or disposes of all or
substantially all of its properties (or those of one of its
divisions) to, a Subsidiary; |
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Debt of a corporation existing at the time the corporation first
becomes a Subsidiary; |
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Debt to, or held by, us or one of our Subsidiaries; |
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Debt existing on the date of the indenture; |
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Debt created in connection with, or with a view to, compliance
by the Subsidiary with the requirements of any program adopted
by any federal, state, or local governmental authority and
applicable to the Subsidiary and providing financial or tax
benefits to the Subsidiary that are not available directly to us; |
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Debt incurred to pay all or any part of the purchase price or
cost of construction of property (or additions, substantial
repairs, alterations, or substantial improvements to the
property) or equipment; provided such Debt is incurred within
one year of the acquisition or completion of construction (or
addition, repair, alteration, or improvement) and full operation
of such property; provided, further, in respect of such
additions, substantial repairs, alterations, or substantial
improvements, that the amount of such Debt may not exceed the
expense incurred to construct such additions, repairs,
alterations, or improvements; |
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Debt to a public entity on which the interest payments are
exempt from federal income tax under Section 103 of the
Internal Revenue Code (or any successor to such provision); |
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Debt of a Financial Services Subsidiary; and |
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any extension, renewal, or replacement of any Debt referred to
above, provided that the amount of Debt issued is not increased. |
Notwithstanding these restrictions, any Subsidiary may issue,
assume, or guarantee Debt that would otherwise be subject to
these restrictions in an aggregate principal amount that,
together with all other Debt of our Subsidiaries that would
otherwise be subject to the foregoing restrictions, does not at
any one time exceed 10% of the net tangible assets of
Temple-Inland and its consolidated Subsidiaries as of the latest
fiscal year.
Limitation on Transfers of Timberlands or Principal
Manufacturing Facilities to Financial Services Subsidiaries.
We will not, nor will we permit any Subsidiary (other than a
Financial Services Subsidiary) to, sell, transfer, or otherwise
dispose of any Timberlands or any Principal Manufacturing
Facility to any Financial Services Subsidiary other than for
cash or other consideration that, in the opinion of our board of
directors, constitutes fair value for such Timberlands or such
Principal Manufacturing Facility.
Consolidation, Merger, Sale, or Conveyance
The indentures provide that we may not consolidate with or merge
into any other corporation or convey or transfer our properties
and assets substantially as an entirety to any person, unless:
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the successor corporation is a corporation organized and
existing under the laws of the United States or any state or the
District of Columbia, that expressly assumes by a supplemental
indenture the due and punctual payment of the principal of, and
any interest on, all the debt securities and the performance of
every covenant in the indentures to be performed or observed by
us; |
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immediately after giving effect to the transaction, no event of
default (as defined below), and no event that, after notice or
lapse of time or both, would become an event of default, shall
have occurred and be continuing; and |
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we shall have delivered to the trustee an officers
certificate and an opinion of counsel, each stating that the
consolidation, merger, conveyance, or transfer and the
supplemental indentures comply with these provisions. |
In case of any such consolidation, merger, conveyance, or
transfer, the successor corporation will succeed to, and be
substituted for, Temple-Inland under the indentures, with the
same effect as if it had been named in the indenture as
Temple-Inland.
Events of Default
Each indenture defines an event of default with
respect to the debt securities of any series to mean any of the
following:
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(1) failure to pay any interest on any of the debt
securities when due for a continuous period of 30 days; |
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(2) failure to pay the principal of, or any premium on, any
of the debt securities at maturity; |
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(3) acceleration of the maturity of, or failure to pay at
maturity, any Funded Debt of Temple-Inland in excess of
$10,000,000; |
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(4) failure to make payment under any sinking or purchase
fund or analogous obligation due under the terms of the debt
securities; |
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(5) failure to perform any of our covenants, or a breach of
any of our warranties, contained in the indenture for the
benefit of any of the debt securities, for a continuous period
of 90 days after written notice has been given as specified
in the indenture; |
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(6) certain events of bankruptcy, insolvency, or
reorganization affecting us; and |
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(7) any other event of default provided in any supplemental
indenture under which the debt securities are issued or in the
form of security for the debt securities. |
A default under other indebtedness of ours will not necessarily
be a default under either indenture, and a default under one
series of debt securities under the indenture will not
necessarily be a default under any other series of debt
securities.
The indentures provide that, if an event of default described in
clauses (1), (2), (4), (5), or (7) above shall have
occurred and be continuing with respect to any series of the
debt securities (and if the event of default relates to
clauses (5) or (7) and is with respect to less than
all of the series of debt securities outstanding under such
indenture), then either the trustee or the holders of not less
than 25% in aggregate principal amount of the outstanding debt
securities of that series may declare the principal amount of,
and any interest accrued on, all outstanding debt securities of
that series to be due and payable immediately. If an event of
default described in clauses (5) or (7) (and if the event
of default is with respect to all series of debt securities
issued under such indenture) or (3) or (6) above shall
have occurred and be continuing, either the trustee or the
holders of not less than 25% in aggregate principal amount of
all series of debt securities outstanding (treated as one class)
may declare the principal amount of, and any interest accrued
on, all series of the debt securities then outstanding to be due
and payable immediately. After any acceleration, but before a
judgment or decree based on that acceleration, the holders of a
majority in aggregate principal amount of the debt securities of
that series then outstanding may, under certain circumstances,
rescind and annul that acceleration if all events of default,
other than the non-payment of accelerated principal or interest
or other specified amount, have been cured or waived as provided
in the indenture.
The trustee must give to the holders of the debt securities of
any series notice of all uncured defaults known to it with
respect to the debt securities within 90 days after such a
default occurs. In the case of a default in the payment of
principal of, or any premium on, or any interest on, any of the
debt securities of that series, the trustee will be protected in
withholding this notice if it in good faith determines that the
withholding of this notice is in the interests of the holders of
the debt securities of the applicable series. Furthermore, for
an event of default described in clause (5) above, no
notice will be given to the holders of the debt securities of
that series until at least 90 days after the event.
No holder of a debt security of any series will have any right
to institute any proceeding with respect to the indenture, or
for the appointment of a receiver or a trustee, or for any other
remedy provided by the indenture, unless:
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the holder has previously given to the trustee written notice of
a continuing event of default with respect to the debt
securities of that series; |
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the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made written
request, and those holders have offered reasonable indemnity, to
the trustee to institute the proceeding in respect of the event
of default; and |
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the trustee has failed to institute the proceeding, and has not
received from the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series a
direction inconsistent with that request, within 60 days
after that notice. |
The holders of a majority in aggregate principal amount of the
debt securities then outstanding under the applicable indenture
will have the right, subject to certain limitations, to direct
the time, method, and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power
conferred on the trustee with respect to the debt securities. If
an event of default occurs and is continuing, the trustee, in
exercising its rights and powers, will be required to use the
degree of care of a prudent person in the conduct of such
persons own affairs. The trustee will not be required to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties under the
indenture unless it has reasonable grounds for believing that
repayment of those funds, or adequate indemnity against that
risk or liability, is reasonably assured to it.
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We must furnish to the trustee, within 120 days after the
end of each fiscal year, a brief certificate of our compliance
with all of the conditions and covenants under the applicable
indenture.
Modification of the Indentures
With some exceptions, the indentures or the rights of the
holders of the debt securities may be modified by us and the
applicable trustee with the consent of the holders of a majority
in aggregate principal amount of each series then outstanding
affected by the modification. We may not make any of the
following modifications without the unanimous consent of the
holders:
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change the maturity of principal of, or any installment of
interest on, any security, or reduce the principal amount of or
interest on any debt security, or change the method of computing
the amount of principal of or interest on the debt security on
any date or change any place of payment where, or the coin or
currency in which, any debt security or interest on the debt
security is payable, or impair the right to institute suit for
the enforcement of any payment on or after its maturity; |
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reduce the percentage in principal amount of the outstanding
debt securities of any series, the consent of whose holders is
required for any supplemental indenture, or the consent of whose
holders is required for any waiver of compliance with specific
provisions of the applicable indenture or specific defaults
under the applicable indenture and their consequences; or |
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modify any of the provisions of specific sections of the
applicable indenture, including the provisions summarized in
this paragraph, except to increase any relevant percentage of
holders or to provide that certain other provisions of the
applicable indenture cannot be modified or waived without the
consent of the holder of each outstanding debt security affected. |
Defeasance
We will be deemed to have paid and discharged the entire
indebtedness on all the outstanding debt securities by:
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depositing with the trustee: |
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an amount of funds sufficient to pay and discharge the entire
indebtedness on all debt securities for principal and
interest; or |
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such amount of direct obligations of, or obligations the
principal of and interest on which are fully guaranteed by, the
government of the United States as will, together with the
income to accrue on them without consideration of any
reinvestment, be sufficient to pay and discharge the entire
indebtedness on all debt securities for principal and
interest; and |
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satisfying certain other conditions precedent specified in the
indentures. |
In the event of any such defeasance, holders of debt securities
would be able to look only to that trust fund for payment of
principal of, and any interest on, their debt securities. To
exercise the defeasance option, we, in addition to satisfying
certain other conditions precedent specified in the indentures,
are required to deliver to the trustee an opinion of counsel to
the effect that the deposit of funds or obligations described
above and related defeasance would not cause the holders of debt
securities to recognize income, gain or loss for federal income
tax purposes. This opinion of counsel must be accompanied by a
ruling to that effect received from, or published by, the United
States Internal Revenue Service.
Governing Law
Each of the indentures provides that it and any debt securities
issued thereunder are governed by, and construed in accordance
with, the laws of the State of New York, except to the extent
that the Trust Indenture Act otherwise applies.
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Concerning the Trustee
We may maintain customary banking relationships with JPMorgan
Chase Bank, N.A., the trustee under the indentures, in the
ordinary course of business.
If an event of default, or an event that would be an event of
default if the requirements for giving us default notice or our
default having to exist for a specific period of time were
disregarded, occurs the trustee may be considered to have a
conflicting interest for purposes of the Trust Indenture Act
with respect to debt securities offered under the senior debt
indenture and any offered under the subordinated debt indenture.
In such case, the trustee may be required to resign as trustee
under either the senior debt indenture or the subordinated debt
indenture and we would be required to appoint a successor
trustee.
At any time, the trustee under either indenture may resign or be
removed by the holders of at least a majority in principal
amount of any series of the outstanding debt securities of that
indenture. If the trustee resigns, is removed or becomes
incapable of acting as trustee, or if a vacancy occurs in the
office of the trustee for any reason, a successor trustee will
be appointed in accordance with the provisions of the indenture.
DESCRIPTION OF COMMON STOCK
Our amended and restated certificate of incorporation provides
that we have authority to issue up to 200,000,000 shares of
common stock. The outstanding shares of our common stock are
fully paid and nonassessable. The holders of our common stock
are not entitled to preemptive or redemption rights, and shares
of our common stock are not convertible into shares of any other
class of capital stock. Computershare Shareholder Services, Inc.
is the transfer agent and registrar for our common stock.
Dividends
Except for any preferential rights of holders of any preferred
stock that may then be issued and outstanding and any other
class or series of stock having a preference over the common
stock, holders of our common stock are entitled to receive
dividends, when declared by our board of directors, from legally
available funds.
Voting Rights
Each holder of shares of our common stock is entitled to attend
all special and annual meetings of our stockholders. The holders
of our common stock have one vote for each share held on all
matters voted upon by our stockholders, including the election
of directors.
Rights Upon Liquidation
In the event of our voluntary or involuntary liquidation,
dissolution, or winding up, after the full preferential amounts
are paid or set apart for payment to the holders of the
preferred stock and any other class or series of stock having a
preference over the common stock, the holders of our common
stock will be entitled to receive all the remaining assets
available for distribution ratably in proportion to the number
of shares held by each.
Provisions with Possible Anti-Takeover Effects
Various provisions of the Delaware General Corporation Law and
our certificate of incorporation and by-laws, as well as the
stockholder rights plan adopted by us and described below, may
make more difficult the acquisition of control of Temple-Inland
by means of a tender offer, open market purchases, a proxy fight
or other means that are not approved by our board of directors.
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Charter and By-law Provisions
We currently have the following provisions in our certificate of
incorporation or by-laws that could be considered to be
anti-takeover provisions:
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an article in our by-laws providing for a classified board of
directors divided into three classes, one of which is elected
for a three-year term at each annual meeting of stockholders; |
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an article in our certificate of incorporation providing that
directors cannot be removed except for cause and by the
affirmative vote of a majority of the then-outstanding shares of
all classes and series of stock entitled to vote in the election
of directors (as used herein, voting stock); |
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an article in our certificate of incorporation requiring the
affirmative vote of at least 80% of the then-outstanding shares
of voting stock for certain merger and asset sale transactions
with any holder of 20% or more of the voting power of
Temple-Inland (as used in this subsection, an interested
stockholder) or any affiliate or associate of any
interested stockholder; |
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an article in our certificate of incorporation requiring the
affirmative vote of at least 80% of the then-outstanding shares
of voting stock for the issuance to any interested stockholder
or any affiliate or associate of any interested stockholder any
securities (other than upon conversion) that have an aggregate
fair market value of $100,000,000 or more; |
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an article in our certificate of incorporation requiring the
affirmative vote of at least 80% of the then-outstanding shares
of voting stock for the adoption of any plan or proposal of
liquidation or dissolution by or on behalf of any interested
stockholder or any affiliate or associate of any interested
stockholder; |
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an article in our certificate of incorporation requiring the
affirmative vote of at least 80% of the then-outstanding shares
of voting stock for any act by Temple-Inland that has the effect
of increasing the proportionate share of the outstanding shares
of any class or series of stock that is owned by an interested
stockholder or any affiliate or associate of any interested
stockholder; and |
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a by-law requiring stockholders to provide prior notice of
nominations for election to the board of directors or for
proposing matters that can be acted upon at stockholders
meetings. |
Business Combinations under Delaware Law
We are a Delaware corporation and are subject to
Section 203 of the Delaware General Corporation Law. In
general, Section 203 prevents an interested stockholder
(defined generally as a person owning 15% or more of our
outstanding voting stock) from engaging in a business
combination with us for three years following the date that
person became an interested stockholder unless:
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before that person became an interested stockholder, our board
of directors approved the transaction in which the interested
stockholder became an interested stockholder or approved the
business combination; |
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upon completion of the transaction that resulted in the
interested stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of our outstanding
voting stock at the time the transaction commenced (excluding
stock held by persons who are both directors and officers or by
certain employee stock plans); or |
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on or following the date on which that person became an
interested stockholder, the business combination is approved by
our board of directors and authorized at a meeting of
stockholders by the affirmative vote of the holders of at least
662/3%
of our outstanding voting stock (excluding shares held by the
interested stockholder). |
A business combination includes mergers, asset sales and other
transactions resulting in a financial benefit to the interested
stockholder.
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Stockholder Rights Plan
On February 20, 1999, we entered into a rights agreement
with First Chicago Trust Company of New York, as rights
agent, which currently provides for a dividend distribution of
one-quarter of a right for each outstanding share of our common
stock. The rights trade automatically with shares of common
stock and become exchangeable only under the circumstances
described below. The rights are designed to protect the
interests of Temple-Inland and our stockholders against coercive
takeover tactics. The purpose of the rights is to encourage
potential acquirers to negotiate with our board of directors
prior to attempting a takeover and to provide the board with
leverage in negotiating on behalf of all stockholders the terms
of any proposed takeover. The rights may have anti-takeover
effects. The rights should not, however, interfere with any
merger or other business combination approved by our board of
directors.
Until a right is exercised, the right does not entitle the
holder to additional rights as a stockholder, including, without
limitation, the right to vote or to receive dividends. Upon
becoming exercisable, each right entitles its holders to
purchase one one-hundredth of a share of Series A Junior
Participating Preferred Stock at an exercise or purchase price
of $200 per right, subject to adjustment. Each one
one-hundredth of a share of Series A Junior Participating
Preferred Stock entitles the holder to receive quarterly
dividends payable in cash of an amount per share equal to the
greater of:
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$1.00, or 100 times the aggregate per share amount of all cash
dividends; plus |
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100 times the aggregate per share amount of all non-cash
dividends or other distribution, other than a dividend payable
in shares of common stock, declared on our common stock during
the period immediately preceding the quarterly dividend period. |
The dividends on the Junior Participating Preferred Stock are
cumulative. Holders of Junior Participating Preferred Stock have
voting rights entitling them to 100 votes per share on all
matters submitted to a vote of our stockholders.
In general, the rights will not be exercisable until the
distribution date, which is the earlier of
(i) 10 business days following a public announcement
that a person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial ownership
of 20% or more of our outstanding shares of common stock, or
(ii) 10 business days following the commencement of a
tender offer or exchange offer that would result in a person or
group beneficially owning 25% or more of our outstanding shares
of common stock. Below we refer to the person or group acquiring
at least 20% of our common stock as an acquiring person.
Upon the occurrence of certain events set forth in the rights
agreement, including: (i) that a person or group becomes
the beneficial owner of 25% or more of our outstanding common
stock, (ii) we become the surviving corporation in a merger
with an acquiring person and the common stock is not changed or
exchanged (iii) an acquiring person engages in one or more
self-dealing transactions as set forth in the rights agreement,
or (iv) during such time as there is an acquiring person,
an event occurs that results in the ownership interest of such
acquiring person being increased by more than 1%, then each
holder of a right will have the right to exercise and receive
common stock having a value equal to two times the exercise
price of the right. The exercise price is the purchase price
times the number of shares of common stock associated with each
right. Any rights that are at any time beneficially owned by an
acquiring person will be null and void and any holder of such
right will be unable to exercise or transfer the right.
In the event that someone becomes an acquiring person and either
(i) we are acquired in a merger or other business
combination transaction in which we are not the surviving
corporation or the common stock is changed or exchanged, or
(ii) more than 50% of our assets or earning power is sold
or transferred, each right becomes exercisable and each right
will entitle its holder to receive common stock of the acquiring
company having a value equal to two times the exercise price of
the right.
The rights will expire at the close of business on
February 20, 2009, unless redeemed before that time. At any
time after the date of the rights agreement until 10 days
following the stock acquisition date, as defined in the rights
agreement, we may redeem the rights in whole, but not in part,
at a price of $0.01 per right. Prior to
13
the distribution date, we may amend the rights agreement in any
respect without the approval of the rights holders. However,
after the distribution date, the provisions of the rights
agreement may not be amended in any way that would adversely
affect the holders of rights (other than any acquiring person or
group) or cause the rights to again become redeemable. The
Junior Participating Preferred Stock ranks junior to all other
series of our preferred stock as to the payment of dividends and
the distribution of assets unless the terms of any such other
series specify otherwise.
You should refer to the applicable provisions of the rights
agreement, which is incorporated by reference as
Exhibit 4.10 to Form 8-A filed on February 19,
1999. Please read Where You Can Find More
Information to find out how you can obtain a copy of the
rights agreement.
DESCRIPTION OF PREFERRED STOCK
The following description discusses the general terms of the
preferred stock that we may issue in the future to which any
prospectus supplement or other offering material may relate. The
prospectus supplement and other offering material relating to a
particular series of preferred stock will describe certain other
terms of such series of preferred stock. If so indicated in the
prospectus supplement or other offering material relating to a
particular series of preferred stock, the terms of any such
series of preferred stock may differ from the terms set forth
below. The description of preferred stock set forth below and
the description of the terms of a particular series of preferred
stock set forth in any related prospectus supplement or other
offering material will not be complete and are qualified in
their entirety by reference to the certificate of incorporation
and to the certificate of designation relating to that series of
preferred stock.
Authority of the Board to Issue Preferred Stock
Under our certificate of incorporation, as amended, we are
authorized to issue up to 25,000,000 shares of preferred
stock, par value $1.00 per share, in one or more series.
Our board of directors may authorize the issuance of preferred
stock in one or more series and may fix the relative rights and
preferences of the shares, including voting powers, dividend
rights, liquidation preferences, redemption rights and
conversion privileges. On the date of this prospectus, no shares
of preferred stock were outstanding, but 1,000,000 shares
of preferred stock, designated as Series A Junior
Participating Preferred Stock, were authorized and reserved for
issuance under the stockholder rights plan discussed above under
Description of Common Stock Stockholder Rights
Plan.
The preferred stock of each series will rank senior to the
common stock and the Series A Junior Participating
Preferred Stock in priority of payment of dividends and in the
distribution of assets in the event of any liquidation,
dissolution or winding up of Temple-Inland, to the extent of the
preferential amounts to which the preferred stock of the
respective series will be entitled.
Upon issuance, the shares of preferred stock will be fully paid
and nonassessable, which means that its holders will have paid
their purchase price in full and we may not require them to pay
additional funds. Holders of preferred stock will not have any
preemptive rights.
DESCRIPTION OF DEPOSITARY SHARES
We may elect to offer fractional interests in shares of
preferred stock, rather than offer whole shares of preferred
stock. If we choose to do this, we will provide for the issuance
by a depositary to the public of receipts for depositary shares.
Each depositary share will represent fractional interests of a
particular series of preferred stock.
The shares of any series of preferred stock underlying the
depositary shares will be deposited under a separate deposit
agreement between us and a bank or trust company, which we will
select. The bank or trust company must have its principal office
in the United States and a combined capital and surplus of at
least $500,000,000. The prospectus supplement and other offering
material relating to a series of depositary shares will state
the name and address of the depositary. Unless otherwise
provided by the deposit agreement, each
14
owner of depositary shares will be entitled, in proportion to
the applicable fractional interests in shares of preferred stock
underlying the depositary shares, to all the rights and
preferences of the preferred stock underlying the depositary
shares including dividend, voting, redemption, conversion and
liquidation rights.
The depositary shares will be evidenced by depositary receipts
issued under the deposit agreement. Depositary receipts will be
distributed to those persons purchasing the fractional interests
in shares of the related series of preferred stock in accordance
with the terms of the offering described in the related
prospectus supplement and other offering material.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received in respect of preferred stock to the
record holders of depositary shares relating to the preferred
stock in proportion to the numbers of the depositary shares
owned by the holders on the relevant record date. The depositary
will distribute only an amount, however, that can be distributed
without attributing to any holder of depositary shares a
fraction of one cent, and any balance not so distributed will be
added to and treated as part of the next sum received by the
depositary for distribution to record holders of depositary
shares.
If there is a non-cash distribution, the depositary will
distribute property received by it to the record holders of
depositary shares entitled to it, unless the depositary
determines that it is not feasible to make the distribution. If
this happens, the depositary may, with our approval, sell the
property and distribute the net sale proceeds to the holders.
The deposit agreement will also contain provisions relating to
the manner in which any subscription or similar rights that we
offer to holders of the preferred stock will be made available
to the holders of depositary shares.
Redemption of Depositary Shares
If a series of the preferred stock underlying the depositary
shares is redeemed in whole or in part, the depositary shares
will be redeemed from the redemption proceeds received by the
depositary. The depositary will mail notice of redemption not
less than 30, and not more than 60, days before the date
fixed for redemption to the record holders of the depositary
shares to be redeemed at their addresses appearing in the
depositarys books. The redemption price for each
depositary share will be equal to the applicable fraction of the
redemption price for each share payable with respect to the
series of the preferred stock. Whenever we redeem shares of
preferred stock held by the depositary, the depositary will
redeem on the same redemption date the number of depositary
shares relating to the shares of preferred stock so redeemed. If
less than all of the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or
proportionally as may be determined by the depositary.
After the date fixed for redemption, the depositary shares
called for redemption will no longer be considered outstanding
and all rights of the holders of the depositary shares will
cease, except the right to receive the money, securities or
other property payable upon the redemption and any money,
securities or other property to which the holders of the
redeemed depositary shares were entitled upon surrender to the
depositary of the depositary receipts evidencing the depositary
shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of
the preferred stock are entitled to vote, the depositary will
mail the information contained in the notice of meeting to the
record holders of the depositary shares relating to the
preferred stock. Each record holder of depositary shares on the
record date, which will be the same date as the record date for
the preferred stock, will be entitled to instruct the depositary
how to exercise the voting rights pertaining to the number of
shares of preferred stock underlying the holders
depositary shares. The depositary will endeavor, to the extent
practicable, to vote the number of shares of preferred stock
underlying the depositary shares in accordance with these
instructions, and we will agree to take all action that the
depositary may consider necessary in order to enable the
depositary to vote the shares.
15
Amendment and Termination of Deposit Agreement
We may enter into an agreement with the depositary at any time
to amend the form of depositary receipt evidencing the
depositary shares and any provision of the deposit agreement.
However, the holders of a majority of the depositary shares must
approve any amendment that materially and adversely alters the
rights of the existing holders of depositary shares. We or the
depositary may terminate the deposit agreement only if
(a) all outstanding depositary shares issued under the
agreement have been redeemed or (b) a final distribution in
connection with any liquidation, dissolution or winding up has
been made to the holders of the depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the deposit
arrangements. We will also pay charges of the depositary in
connection with the initial deposit of the preferred stock and
any redemption of the preferred stock. Holders of depositary
shares will pay transfer and other taxes and governmental
charges and such other charges as are expressly provided in the
deposit agreement to be for their accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice
of its election to resign, and we may at any time remove the
depositary. Any resignation or removal will take effect when a
successor depositary has been appointed and has accepted the
appointment. Appointment must occur within 60 days after
delivery of the notice of resignation or removal. The successor
depositary must be a bank or trust company having its principal
office in the United States and having a combined capital and
surplus of at least $500,000,000.
Miscellaneous
The depositary will forward to the holders of depositary shares
all reports and communications that we deliver to the depositary
and that we are required to furnish to the holders of the
preferred stock. Neither the depositary nor Temple-Inland will
be liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations
under the deposit agreement. The obligations of Temple-Inland
and the depositary under the deposit agreement will be limited
to performance in good faith of their duties under the
agreement, and they will not be obligated to prosecute or defend
any legal proceeding in respect of any depositary shares or
preferred stock unless the holders provide them with
satisfactory indemnity. They may rely upon written advice of
counsel or accountants, upon information provided by persons
presenting preferred stock for deposit, holders of depositary
shares or other persons believed to be competent and upon
documents they believe to be genuine.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt or equity securities. We
may issue warrants independently or together with any offered
securities. The warrants may be attached to or separate from
those offered securities. We will issue any warrants under
warrant agreements to be entered into between us and a bank or
trust company, as warrant agent, all as described in the
applicable prospectus supplement and other offering material.
The warrant agent will act solely as our agent in connection
with the warrants and will not assume any obligation or
relationship of agency or trust for or with any holders or
beneficial owners of warrants.
Exercise of Warrants
Each warrant will entitle the holder of warrants to purchase for
cash the designated amount of debt or equity securities, at the
exercise price stated or determinable in the prospectus
supplement and other offering material for the warrants.
Warrants may be exercised at any time up to the close of
business on the expiration date shown in the prospectus
supplement and other offering material relating to the warrants,
unless otherwise specified in the applicable prospectus
supplement or other offering material. After the close of
business on the
16
expiration date, unexercised warrants will become void. Warrants
may be exercised as described in the prospectus supplement and
other offering material relating to the warrants. When the
warrant holder makes the payment and properly completes and
signs the warrant certificate at the corporate trust office of
the warrant agent or any other office indicated in the
prospectus supplement and other offering material, we will, as
soon as possible, forward the debt or equity securities that the
warrant holder has purchased. If the warrant holder exercises
the warrant for less than all of the warrants represented by the
warrant certificate, we will issue a new warrant certificate for
the remaining warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE
UNITS
We may issue stock purchase contracts, including contracts
obligating holders to purchase from us, and us to sell to the
holders, a specified number of shares of common stock at a
future date or dates. The price per share of common stock and
the number of shares of common stock may be fixed at the time
the stock purchase contracts are issued or may be determined by
reference to a specific formula stated in the stock purchase
contracts.
The stock purchase contracts may be issued separately or as part
of units that we call stock purchase units. Stock
purchase units consist of a stock purchase contract and either
our debt securities or debt obligations of third parties,
including U.S. treasury securities, securing the
holders obligations to purchase the common stock under the
stock purchase contracts.
The stock purchase contracts may require us to make periodic
payments to the holders of the stock purchase units or vice
versa, and these payments may be unsecured or refunded on some
basis. The stock purchase contracts may require holders to
secure their obligations in a specified manner.
The applicable prospectus supplement and other offering material
will describe the terms of the stock purchase contracts or stock
purchase units. The descriptions in the prospectus supplement or
other offering material will only be summaries, and you should
read the stock purchase contracts and, if applicable, the
collateral or depositary arrangements relating to the stock
purchase contracts or stock purchase units. Material
U.S. federal income tax considerations applicable to the
stock purchase units and the stock purchase contracts will also
be discussed in the applicable prospectus supplement and other
offering material.
LEGAL MATTERS
J. Bradley Johnston, our General Counsel, and/or Skadden,
Arps, Slate, Meagher & Flom LLP, Washington, D.C.,
will pass upon certain legal matters for us in connection with
the securities offered by this prospectus. As of
December 1, 2005, J. Bradley Johnston beneficially owned
approximately 61,742 shares of our common stock, including
options exercisable within 60 days to purchase 43,500
shares of common stock. Underwriters, dealers or agents, if any,
who we will identify in a prospectus supplement and other
offering material, may have their counsel pass upon certain
legal matters in connection with the securities offered by this
prospectus.
EXPERTS
Our consolidated financial statements included in our Annual
Report (Form 10-K) for the year ended January 1, 2005,
and managements assessment of the effectiveness of
internal control over financial reporting as of January 1,
2005 included therein, have been audited by Ernst & Young
LLP, an independent registered public accounting firm, as set
forth in their reports thereon, included therein, and
incorporated herein by reference. Such consolidated financial
statements and managements assessment are incorporated
herein by reference in reliance upon such reports given on the
authority of such firm as experts in accounting and auditing.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
|
ITEM 14. |
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
The following table sets forth the estimated expenses to be
incurred in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts
and commissions, to be paid by the Registrant.
|
|
|
|
|
|
SEC Registration fee
|
|
$ |
* |
|
Printing expenses
|
|
|
300,000 |
|
Accounting fees and expenses
|
|
|
150,000 |
|
Legal fees and expenses
|
|
|
250,000 |
|
Transfer Agent and Registrar, Trustee and Depositary fees
|
|
|
250,000 |
|
Miscellaneous expenses
|
|
|
25,000 |
|
|
|
|
|
|
Total
|
|
$ |
975,000 |
|
|
|
|
|
|
|
* |
To be deferred pursuant to Rule 456(b) and calculated in
connection with the offering of securities under this
registration statement pursuant to Rule 457(r). |
|
|
ITEM 15. |
INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
As permitted by Section 102(b)(7) of the General
Corporation Law of the State of Delaware (the DGCL),
Article Eleventh of Temple-Inlands Certificate of
Incorporation provides that no director of the corporation shall
be personally liable to the corporation or its stockholders for
monetary damages for any breach of fiduciary duty by such
director as a director, except, to the extent provided by
applicable law, for liability (i) for any breach of such
directors duty of loyalty to the corporation or its
stockholders, (ii) for any acts or omissions not in good
faith or that involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL
relating to certain unlawful dividends and stock repurchases, or
(iv) for any transaction from which such director derived
an improper personal benefit.
Subsection (a) of Section 145 of the DGCL
empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact
that the person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such
action, suit or proceeding if the person acted in good faith and
in a manner that the person reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe that the persons conduct was unlawful.
Subsection (b) of Section 145 of the DGCL
empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys fees)
actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
corporation and except that no indemnification may be made in
respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless,
and only to the extent that, the Court of Chancery or the court
in which such action was brought shall determine upon
application that, despite the adjudication of liability
II-1
but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem
proper.
Section 145 of the DGCL further provides that, to the
extent a director or officer of a corporation has been
successful in the defense of any action, suit or proceeding
referred to in subsections (a) or (b) or in the
defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys fees)
actually and reasonably incurred by him in connection therewith.
Article VI of Temple-Inlands By-laws generally
provides that, subject to certain limitations, each person who
was or is 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, or
investigative (other than an action by or in the right of
Temple-Inland) by reason of the fact that such person is or was
a director, officer, or employee of Temple-Inland, or is or was
a director, officer, or employee of Temple-Inland or any direct
or indirect wholly-owned subsidiary of Temple-Inland (except
Guaranty Bank, or its subsidiaries) serving at the request of
the corporation as a director, officer, employee, or agent of
any such subsidiary or another corporation, savings and loan
association, partnership, joint venture, trust, employee benefit
plan or other enterprise, shall be indemnified and held harmless
by the corporation, to the full extent authorized by the DGCL,
against expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or
proceeding, provided that such person acted in good faith and in
a manner such person reasonably believed to be in, or not
opposed to, the best interests of Temple-Inland (and, with
respect to a criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful) except that, with
respect to actions brought by or in the right of Temple-Inland,
no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be
liable to Temple-Inland, unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine, upon application, that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper. Such indemnification shall
continue as to a person who has ceased to be director, officer,
employee, or agent and shall inure to the benefit of such
persons heirs, executors, and administrators.
Article VI provides that Temple-Inland may pay the expenses
incurred in defending any such proceeding in advance of its
final disposition upon delivery to Temple-Inland of an
undertaking, by or on behalf of such director, officer,
employee, or agent, to repay such amounts so advanced if it
shall ultimately be determined that such person is not entitled
to be indemnified under Article VI.
Both the DGCL and Article VI of Temple-Inlands
By-laws specifically state that their indemnification provisions
shall not be deemed exclusive of any other indemnity rights a
director may have. Temple-Inland has entered into
Indemnification Agreements with each of its directors that are
intended to assure the directors that they will be indemnified
to the fullest extent permitted by Delaware law.
Section 145 of the DGCL permits a corporation to purchase
and maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the corporation against
any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such. Under an
insurance policy maintained by Temple-Inland, Temple-Inland is
insured for certain amounts that it may be obligated to pay
directors and officers by way of indemnity, and each such
director and officer is insured against certain losses that he
may incur by reason of his being a director or officer and for
which he is not indemnified by Temple-Inland.
Pursuant to the terms of the underwriting agreements filed as
exhibits to this registration statement, the underwriters will
agree to indemnify the directors and officers of Temple-Inland,
against certain liabilities that might arise out of or are based
upon certain information furnished to Temple-Inland by any such
underwriter.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the Securities
Act), may be permitted to directors, officers, or persons
controlling Temple-Inland pursuant to the foregoing provisions,
Temple-Inland has been informed that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
II-2
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ITEM 16. |
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. |
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1 |
.1 |
|
Form of Underwriting Agreement with respect to the Debt
Securities.** |
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|
1 |
.2 |
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Form of Underwriting Agreement with respect to Common Stock.** |
|
|
1 |
.3 |
|
Form of Underwriting Agreement with respect to Preferred Stock.** |
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1 |
.4 |
|
Form of Underwriting Agreement with respect to Depositary
Shares.** |
|
|
1 |
.5 |
|
Form of Underwriting Agreement with respect to Stock Purchase
Contracts.** |
|
|
1 |
.6 |
|
Form of Underwriting Agreement with respect to Stock Purchase
Units.** |
|
|
1 |
.7 |
|
Form of Underwriting Agreement with respect to Warrants.** |
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3 |
.1 |
|
Certificate of Incorporation of Temple-Inland, as effective
August 29, 1983 (incorporated by reference to
Exhibit 3.01 to registration statement on Form S-1,
Registration No. 2-87570, filed with the Commission on
November 2, 1983). |
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3 |
.2 |
|
Certificate of Amendment to the Certificate of Incorporation of
Temple-Inland, as effective May 4, 1987 (incorporated by
reference to Exhibit 4.01 to Post-Effective Amendment
No. 2 to registration statement on Form S-8,
Registration No. 2-88202, filed with the Commission on
November 16, 1987). |
|
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3 |
.3 |
|
Certificate of Amendment to the Certificate of Incorporation of
Temple-Inland, as effective May 5, 1990 (incorporated by
reference to Exhibit 4.01 to Post-Effective Amendment
No. 2 to registration statement on Form S-8,
Registration No. 33-25650, filed with the Commission on
June 14, 1990). |
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3 |
.4 |
|
Amended and Restated By-laws of Temple-Inland, as effective
May 2, 2003 (incorporated by reference to Exhibit 3.1
to Form 10-Q, File No. 1-8634, filed with the
Commission on November 12, 2002). |
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4 |
.1 |
|
Indenture (including Form of Senior Debt Security), dated as of
September 1, 1986, between Temple-Inland and JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank and
Chemical Bank), as Trustee (the Senior
Notes Indenture) (incorporated by reference to
Exhibit 4.01 to registration statement on Form S-1,
Registration No. 33-8362, filed with the Commission on
August 29, 1986). |
|
|
4 |
.2 |
|
First Supplemental Indenture to the Senior Notes Indenture,
dated as of April 15, 1988, between the Temple-Inland and
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank and Chemical Bank), as Trustee (incorporated by reference
to Exhibit 4.02 to registration statement on Form S-3,
Registration No. 33-20431, filed with the Commission on
March 2, 1988). |
|
|
4 |
.3 |
|
Second Supplemental Indenture to the Senior
Notes Indenture, dated as of December 27, 1990,
between Temple-Inland and JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank and Chemical Bank), as Trustee
(incorporated by reference to Exhibit 4.03 to
Form 8-K, File No. 1-8634, filed with the Commission
on December 27, 1990). |
|
|
4 |
.4 |
|
Third Supplemental Indenture to the Senior Notes Indenture,
dated as of May 9, 1991, between Temple-Inland and JPMorgan
Chase Bank, N.A. (formerly known as The Chase Manhattan Bank and
Chemical Bank), as Trustee (incorporated by reference to
Exhibit 4 to Form 10-Q, File No. 1-8634, filed
with the Commission on August 7, 1991). |
|
|
4 |
.5 |
|
Form of Indenture (including Form of Subordinated Debt Security)
to be entered into between Temple-Inland and JPMorgan Chase
Bank, N.A., as Trustee, with respect to Subordinated Debt
Securities (incorporated by reference to Exhibit 4.5 to
registration statement on Form S-3, Registration
No. 333-84120, filed with the Commission on March 25,
2002). |
|
|
4 |
.6 |
|
Form of Specimen Common Stock Certificate of Temple-Inland
(incorporated by reference to Exhibit 4.03 to registration
statement on Form S-8, Registration No. 33-27286,
filed with the Commission on March 2, 1989). |
|
|
4 |
.7 |
|
Form of Specimen Preferred Stock Certificate of Temple-Inland.** |
|
|
4 |
.8 |
|
Form of Certificate of Designation, Preferences and Rights of
Preferred Stock of Temple-Inland.** |
|
|
4 |
.9 |
|
Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock of
Temple-Inland, dated February 16, 1989 (incorporated by
reference to Exhibit 4.04 to Form 10-K, File
No. 1-8634, filed with the Commission on March 21,
1989). |
II-3
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4 |
.10 |
|
Rights Agreement, dated as of February 20, 1999, between
Temple-Inland and First Chicago Trust Company of New York, as
Rights Agent (incorporated by reference to Exhibit 1 to
registration statement on Form 8A, File No. 1-8634, filed
with the Commission on February 19, 1999). |
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4 |
.11 |
|
Form of Stock Purchase Contract.** |
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|
4 |
.12 |
|
Form of Stock Purchase Unit.** |
|
|
4 |
.13 |
|
Form of Deposit Agreement (including Form of Depositary Share
Certificate) with respect to Depositary Shares.** |
|
|
4 |
.14 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Debt
Securities.** |
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4 |
.15 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Common Stock.** |
|
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4 |
.16 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Preferred
Stock.** |
|
|
4 |
.17 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Depositary
Shares.** |
|
|
4 |
.18 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Stock Purchase
Contracts.** |
|
|
4 |
.19 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Stock Purchase
Units.** |
|
|
5 |
|
|
Opinion of counsel with respect to the legality of the
securities being registered.* |
|
|
12 |
|
|
Computation of Ratio of Earnings to Fixed Charges.* |
|
|
23 |
.1 |
|
Consent of Ernst & Young LLP.* |
|
|
23 |
.3 |
|
Consent of counsel (included in Exhibit 5).* |
|
|
24 |
|
|
Powers of Attorney (included in Signature Pages). |
|
|
25 |
.1 |
|
Form T-1 Statement of Eligibility of JPMorgan Chase Bank,
N.A. as Trustee under the Senior Notes Indenture.* |
|
|
25 |
.2 |
|
Form T-1 Statement of Eligibility of JPMorgan Chase Bank,
N.A. as Trustee under the Subordinated Notes Indenture.* |
|
|
** |
To be filed by an amendment or as an exhibit to a document filed
under the Securities Exchange Act of 1934 and incorporated by
reference herein. |
The undersigned Registrant hereby undertakes:
|
|
|
(a) 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 of 1933; |
|
|
(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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and |
II-4
|
|
|
(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 (i),
(ii) and (iii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement. |
|
|
|
(b) That, for the purpose of determining any liability
under the Securities Act of 1933, 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. |
|
|
(c) 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. |
|
|
(d) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser: |
|
|
|
(i) Each prospectus filed by a Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and |
|
|
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which the prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date. |
|
|
|
(e) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the Registrant
undertakes that in a primary offering of securities of the
Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
Registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser: |
|
|
|
(i) Any preliminary prospectus or prospectus of the
Registrant relating to the offering required to be filed
pursuant to Rule 424; |
|
|
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the Registrant or used or referred
to by the Registrant; |
|
|
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
an undersigned Registrant or its securities provided by or on
behalf of an undersigned Registrant; and |
II-5
|
|
|
(iv) Any other communication that is an offer in the
offering made by an undersigned Registrant to the purchaser. |
|
|
|
(f) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrants
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934)
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. |
|
|
(g) To file an application for the purpose of determining
the eligibility of the trustee to act under
subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act. |
|
|
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, office or controlling person in connection with the
securities being registered, that the Registrant 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 of 1933
and will be governed by the final adjudication of such issue. |
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Austin, State of Texas, on
December 1, 2005.
|
|
|
|
|
|
TEMPLE-INLAND INC.
|
|
|
By: |
/s/ Kenneth M. Jastrow, II
|
|
|
|
Name: |
Kenneth M. Jastrow, II |
|
|
|
Title: |
Chairman of the Board and
Chief Executive Officer |
|
|
POWERS OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS that the individuals whose
signatures appear below constitute and appoint J. Bradley
Johnston and Leslie K. ONeal, and each of them, his or her
true and lawful attorney-in-fact and agents with full and
several power of substitution, for him or her and his or her
name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
registration statement, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said
attorney-in-fact and agents or any of them, or their
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by
the following persons in the capacities and on the dates
indicated.
|
|
|
|
|
|
|
Signature |
|
Capacity |
|
Date |
|
|
|
|
|
|
/s/ Kenneth M. Jastrow, II
Kenneth
M. Jastrow, II |
|
Director, Chairman of the Board, and Chief Executive Officer |
|
December 1, 2005 |
|
/s/ Randall D. Levy
Randall
D. Levy |
|
Chief Financial Officer |
|
December 1, 2005 |
|
/s/ Louis R. Brill
Louis
R. Brill |
|
Vice President and Chief Accounting Officer |
|
December 1, 2005 |
|
/s/ Afsaneh Mashayekhi Beschloss
Afsaneh
Mashayekhi Beschloss |
|
Director |
|
December 1, 2005 |
|
/s/ Donald M. Carlton
Donald
M. Carlton |
|
Director |
|
December 1, 2005 |
|
/s/ Cassandra C. Carr
Cassandra
C. Carr |
|
Director |
|
December 1, 2005 |
II-7
|
|
|
|
|
|
|
Signature |
|
Capacity |
|
Date |
|
|
|
|
|
|
/s/ E. Linn Draper, Jr.
E.
Linn Draper, Jr. |
|
Director |
|
December 1, 2005 |
|
/s/ Larry R. Faulkner
Larry
R. Faulkner |
|
Director |
|
December 1, 2005 |
|
/s/ James T. Hackett
James
T. Hackett |
|
Director |
|
December 1, 2005 |
|
/s/ Jeffrey M. Heller
Jeffrey
M. Heller |
|
Director |
|
December 1, 2005 |
|
/s/ James A. Johnson
James
A. Johnson |
|
Director |
|
December 1, 2005 |
|
/s/ W. Allen Reed
W.
Allen Reed |
|
Director |
|
December 1, 2005 |
|
/s/ Arthur Temple III
Arthur
Temple III |
|
Director |
|
December 1, 2005 |
|
/s/ Larry E. Temple
Larry
E. Temple |
|
Director |
|
December 1, 2005 |
II-8
EXHIBIT INDEX
|
|
|
|
|
|
1 |
.1 |
|
Form of Underwriting Agreement with respect to the Debt
Securities.** |
|
|
1 |
.2 |
|
Form of Underwriting Agreement with respect to Common Stock.** |
|
|
1 |
.3 |
|
Form of Underwriting Agreement with respect to Preferred Stock.** |
|
|
1 |
.4 |
|
Form of Underwriting Agreement with respect to Depositary
Shares.** |
|
|
1 |
.5 |
|
Form of Underwriting Agreement with respect to Stock Purchase
Contracts.** |
|
|
1 |
.6 |
|
Form of Underwriting Agreement with respect to Stock Purchase
Units.** |
|
|
1 |
.7 |
|
Form of Underwriting Agreement with respect to Warrants.** |
|
|
3 |
.1 |
|
Certificate of Incorporation of Temple-Inland, as effective
August 29, 1983 (incorporated by reference to
Exhibit 3.01 to registration statement on Form S-1,
Registration No. 2-87570, filed with the Commission on
November 2, 1983). |
|
|
3 |
.2 |
|
Certificate of Amendment to the Certificate of Incorporation of
Temple-Inland, as effective May 4, 1987 (incorporated by
reference to Exhibit 4.01 to Post-Effective Amendment
No. 2 to registration statement on Form S-8,
Registration No. 2-88202, filed with the Commission on
November 16, 1987). |
|
|
3 |
.3 |
|
Certificate of Amendment to the Certificate of Incorporation of
Temple-Inland, as effective May 5, 1990 (incorporated by
reference to Exhibit 4.01 to Post-Effective Amendment
No. 2 to registration statement on Form S-8,
Registration No. 33-25650, filed with the Commission on
June 14, 1990). |
|
|
3 |
.4 |
|
Amended and Restated By-laws of Temple-Inland, as effective
May 2, 2003 (incorporated by reference to Exhibit 3.1
to Form 10-Q, File No. 1-8634, filed with the
Commission on November 12, 2002). |
|
|
4 |
.1 |
|
Indenture (including Form of Senior Debt Security), dated as of
September 1, 1986, between Temple-Inland and JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank and
Chemical Bank), as Trustee (the Senior
Notes Indenture) (incorporated by reference to
Exhibit 4.01 to registration statement on Form S-1,
Registration No. 33-8362, filed with the Commission on
August 29, 1986). |
|
|
4 |
.2 |
|
First Supplemental Indenture to the Senior Notes Indenture,
dated as of April 15, 1988, between the Temple-Inland and
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank and Chemical Bank), as Trustee (incorporated by reference
to Exhibit 4.02 to registration statement on Form S-3,
Registration No. 33-20431, filed with the Commission on
March 2, 1988). |
|
|
4 |
.3 |
|
Second Supplemental Indenture to the Senior
Notes Indenture, dated as of December 27, 1990,
between Temple-Inland and JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank and Chemical Bank), as Trustee
(incorporated by reference to Exhibit 4.03 to
Form 8-K, File No. 1-8634, filed with the
Commission on December 27, 1990). |
|
|
4 |
.4 |
|
Third Supplemental Indenture to the Senior Notes Indenture,
dated as of May 9, 1991, between Temple-Inland and JPMorgan
Chase Bank, N.A. (formerly known as The Chase Manhattan Bank and
Chemical Bank), as Trustee (incorporated by reference to
Exhibit 4 to Form 10-Q, File No. 1-8634, filed
with the Commission on August 7, 1991). |
|
|
4 |
.5 |
|
Form of Indenture (including Form of Subordinated Debt Security)
to be entered into between Temple-Inland and JPMorgan Chase
Bank, N.A., as Trustee, with respect to Subordinated Debt
Securities (incorporated by reference to Exhibit 4.5 to
registration statement on Form S-3, Registration
No. 333-84120, filed with the Commission on March 25,
2002). |
|
|
4 |
.6 |
|
Form of Specimen Common Stock Certificate of Temple-Inland
(incorporated by reference to Exhibit 4.03 to registration
statement on Form S-8, Registration No. 33-27286,
filed with the Commission on March 2, 1989). |
|
|
4 |
.7 |
|
Form of Specimen Preferred Stock Certificate of Temple-Inland.** |
|
|
4 |
.8 |
|
Form of Certificate of Designation, Preferences and Rights of
Preferred Stock of Temple-Inland.** |
|
|
4 |
.9 |
|
Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock of
Temple-Inland, dated February 16, 1989 (incorporated by
reference to Exhibit 4.04 to Form 10-K, File
No. 1-8634, filed with the Commission on March 21,
1989). |
|
|
4 |
.10 |
|
Rights Agreement, dated as of February 20, 1999, between
Temple-Inland and First Chicago Trust Company of New York, as
Rights Agent (incorporated by reference to Exhibit 1 to
registration statement on Form 8A, File No. 1-8634, filed
with the Commission on February 19, 1999). |
|
|
|
|
|
|
4 |
.11 |
|
Form of Stock Purchase Contract.** |
|
|
4 |
.12 |
|
Form of Stock Purchase Unit.** |
|
|
4 |
.13 |
|
Form of Deposit Agreement (including Form of Depositary Share
Certificate) with respect to Depositary Shares.** |
|
|
4 |
.14 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Debt
Securities.** |
|
|
4 |
.15 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Common Stock.** |
|
|
4 |
.16 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Preferred
Stock.** |
|
|
4 |
.17 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Depositary
Shares.** |
|
|
4 |
.18 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Stock Purchase
Contracts.** |
|
|
4 |
.19 |
|
Form of Warrant Agreement (including Form of Warrant
Certificate) with respect to Warrants to Purchase Stock Purchase
Units.** |
|
|
5 |
|
|
Opinion of counsel with respect to the legality of the
securities being registered.* |
|
|
12 |
|
|
Computation of Ratio of Earnings to Fixed Charges.* |
|
|
23 |
.1 |
|
Consent of Ernst & Young LLP.* |
|
|
23 |
.3 |
|
Consent of counsel (included in Exhibit 5).* |
|
|
24 |
|
|
Powers of Attorney (included in Signature Pages). |
|
|
25 |
.1 |
|
Form T-1 Statement of Eligibility of JPMorgan Chase Bank,
N.A., as Trustee under the Senior Notes Indenture.* |
|
|
25 |
.2 |
|
Form T-1 Statement of Eligibility of JPMorgan Chase Bank,
N.A., as Trustee under the Subordinated Notes Indenture.* |
|
|
** |
To be filed by an amendment or as an exhibit to a document filed
under the Securities Exchange Act of 1934 and incorporated by
reference herein. |