COMPOSITE

 

                         CERTIFICATE OF INCORPORATION

 

                                      OF

 

                            TEXAS INDUSTRIES, INC.

 

                    (AS AMENDED THROUGH NOVEMBER 21, 1995)

 

 

First.  The name of this corporation is TEXAS INDUSTRIES, INC.

 

Second. Its principal office in the State of Delaware is located at No. 100 West

Tenth Street, in the City of Wilmington, County of New Castle. The name and

address of its resident agent is The Corporation Trust Company, No. 100 West

Tenth Street, Wilmington 99, Delaware.

 

Third. The nature of the business of the corporation and the objects and

purposes to be transacted, promoted and carried on are as follows:

 

1.  To transact any manufacturing or mining business and to purchase and sell

goods, wares and merchandise used for such business; to engage in the business

of producing, mining, manufacturing, buying and selling of building materials of

all kinds; to establish and maintain an oil business with authority to contract

for the lease and purchase of the right to prospect for, develop and use coal

and other minerals, petroleum and gas; also the right to erect, build and own

all necessary oil tanks, cars and pipes necessary for the operation of the

business of the same; to establish and maintain a drilling business with

authority to own and operate drilling rigs, machinery, tools and apparatus

necessary in the boring or otherwise sinking of wells in the production of oil,

gas or water, or either, and the purchase and sale of such goods, wares and

merchandise used for such business; to engage in the business of storing,

transporting, buying and selling oil, gas, salt, brine and other mineral

solutions and liquefied minerals; also sand and clay for the manufacture and

sale of clay products; to purchase and sell goods, wares and merchandise and

agricultural and farm products; to contract for the erection, construction or

repair of any building, structure or improvement, public or private, and erect,

construct or repair same or any part thereof, and to acquire, own, prepare for

use, any materials for such purposes.

 

2.  To purchase or otherwise acquire and to hold, own, mortgage, or otherwise

lien, pledge, lease, sell, assign, exchange, transfer or in any manner dispose

of, and to invest, deal and trade in and with goods, wares, merchandise and

personal property of any and every class and description within or without the

State of Delaware.

 

3.  To purchase, take, own, hold, deal in, mortgage or otherwise lien, and to

lease, sell, exchange, convey, transfer, or in any manner whatever, dispose of

real property, within or without the State of Delaware.

 

4.  To acquire by purchase, subscription, or otherwise, and to own, hold for

investment, or otherwise, and to use, sell, assign, transfer, mortgage, pledge,

exchange, or otherwise dispose of stock, bonds, debentures, notes, script,

securities, evidences of indebtedness, contracts or obligations of any

corporations, associations or trust estates, domestic or foreign, or of any firm

or individual, or of the United States, or any state, territory, or dependency

of the United States, or any foreign country, or any municipality, or local

authority, within or without the United States, and also to issue in exchange

therefor, stocks, bonds or other securities or evidences of indebtedness of the

corporation, and while the owner or holder of any such property, to receive,

collect and dispose of the interest, dividends and income on or from such

property, and to possess and exercise in respect thereto, all of the rights,

powers and privileges of ownership, including all voting power thereon.

 

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5.  To aid in any manner, any corporation, association or trust estate, domestic

or foreign, or any firm or individual, any shares of stock in which, or any

bonds, debentures, notes, securities, evidences of indebtedness, contracts, or

obligations of which are held by or for it, directly or indirectly, or in which

or in the welfare of which it shall have any interest, and to do any acts

designed to protect, preserve, improve, or enhance the value of any property at

any time held or controlled by it, or in which it may be at any time interested,

directly or indirectly, or through other corporations, or otherwise; and to

organize or promote or facilitate the organization of subsidiary companies.

 

6.  To acquire the good will, rights and property, and to undertake the whole,

or any part of the assets and liabilities of any firm, person, association or

corporation; to pay for the same in cash, the stock of this company, bonds, or

otherwise, to hold or in any manner to dispose of the whole or any part of the

property so purchased; to conduct in any lawful manner the whole or any part of

any business so acquired, and to exercise all the powers necessary or convenient

in and about the conduct and management of such business.

 

7.  To borrow money for any of the purposes of the corporation, and to draw,

make, accept, endorse, discount, execute, issue, sell, pledge, or otherwise

dispose of promissory notes, drafts, bills of exchange, warrants, bonds,

debentures and other negotiable or non-negotiable, transferable or non-

transferable instruments and evidences of indebtedness, and to secure the

payment thereof and the interest thereon by mortgage or pledge, conveyance or

assignment, in trust of the whole or any part of the property of the corporation

at the time owned, or thereafter acquired.

 

8.  To guarantee the payment of dividends upon any capital stock, and to endorse

or otherwise guarantee the principal or interest or both of any bonds,

debentures, notes, script, or other obligations, or evidences of indebtedness,

or the performance of any contract or obligations of any other corporation,

trust estate or association, domestic or foreign, or of any firm or individual

in which it may have a lawful interest, and in so far and to the extent that

such guaranty may be permitted by law.

 

9.  To own, purchase, lease, or otherwise acquire lands and/or coal, oil, gas,

mineral and timber rights in land, and to produce therefrom coal, oil, gas,

minerals and other substances, to develop such lands or rights in lands by

operating coal and other mines, and gas, oil and other wells thereon, and to

market and sell products therefrom.

 

10.  To purchase or otherwise acquire, apply for, register, hold, use, sell, or

in any manner dispose of and to grant licenses or other rights in and in any

manner deal with patents, inventions, improvements, processes, formulas, trade

marks, trade names, rights and licenses secured under letters, patents,

copyrights, or otherwise.

 

11.  To purchase or otherwise acquire shares of its own stock and options to

purchase shares of its own stock (so far as may be permitted by law), and its

bonds, debentures, notes, script, or other securities, or evidences of

indebtedness, and to cancel or to hold, transfer, or reissue the same to such

persons, firms, corporations, or associations, and upon such terms and

conditions as the Board of Directors may, in its discretion, determine, without

offering any thereof on the same terms, or on any terms, to the stockholders

then of record, or to any class of stockholders.

 

12.  To acquire, buy, hold, own, sell, lease, exchange, trade and otherwise deal

in any and all kinds of manufactured articles, raw materials, minerals, oils,

gases, liquids, animal and plant products, and any other goods, wares and

merchandise, articles, substances and things whatsoever, and generally to carry

on the business of storekeepers, merchants, factors, traders, importers and

exporters.

 

13.  To manufacture, improve, repair and work upon minerals, metals, wood, oils

and other liquids, gases, chemicals, animal and plant products, or any of the

products and by-products thereof, or any article or thing into the manufacture

of which any of the foregoing may enter.

 

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14.  To do any and all things necessary and proper for the accomplishment of the

objects herein enumerated or necessary or incidental to the protection and

benefit of the corporation, and in general to carry on any lawful business

necessary or incidental to the attainment of the purposes of the corporation,

whether such business is similar in nature to the objects and powers hereinabove

set forth or otherwise.

 

15.  To do any and all of the things herein set forth as principal agent,

contractor, trustee, or otherwise, alone or in company with others.

 

16.  To have one or more offices and to conduct any or all of its operations and

business and to promote its objects, within or without the State of Delaware,

without restriction as to place or amount.

 

The objects and purposes specified hereinabove shall be regarded as independent

objects and purposes, and except where otherwise expressed, shall be in no way

limited, nor restricted by reference to, or inference from the terms of any

other clause or paragraph of this Certificate of Incorporation.

 

The foregoing shall be construed both as objects and powers and the enumeration

thereof shall not be held to limit or restrict in any manner the general powers

conferred on this corporation by the laws of the State of Delaware.

 

Fourth.  The total number of shares of all classes of stock which this

Corporation is authorized to issue is Forty Million (40,000,000) shares of

Common Stock of the par value of One Dollar ($1.00) each and One Hundred

Thousand (100,000) shares of Cumulative Preferred Stock (hereinafter sometimes

referred to as the Preferred Stock) without par value. The designations and

powers, preferences and rights, and the qualifications, limitations or

restrictions of the shares of each class of stock are as follows:

 

                                PREFERRED STOCK

 

1.  The Preferred Stock may be issued from time to time in one or more series,

each of such series to have such voting powers, designations, preferences and

relative, participating, optional or other special rights and qualifications,

limitations or restrictions thereof, as are stated and expressed herein or in a

resolution or resolutions, providing for the issue of such series, adopted by

the Board of Directors as hereinafter provided.

 

2.  Authority is hereby expressly granted to the Board of Directors, subject to

the provisions hereof, to authorize one or more series of Preferred Stock and

with respect to each series (except the series hereinafter designated as $5

Cumulative Preferred Stock), to fix by resolution or resolutions providing for

the issue of such series:

 

(a)  The number of shares to constitute such series and the distinctive

designation thereof;

 

(b)  The dividend rate on the shares of such series, and the date or dates from

which dividends shall accumulate;

 

(c)  Whether or not the shares of such series shall be redeemable, and, if

redeemable, the price which the shares of such series shall be entitled to

receive upon the redemption thereof;

 

(d)  Whether or not the shares of such series shall be subject to the operation

of retirement or sinking funds to be applied to the purchase or redemption of

such shares for retirement and, if such retirement or sinking fund or funds be

established, the annual amount thereof and the terms and provisions relative to

the operation thereof;

 

(e)  Whether or not the shares of such series shall be convertible into, or

exchangeable for, shares of any other class or classes or of any other series of

the same or any other class or classes of stock of the corporation and the

conversion price or prices or the rate or rates at which such exchange may be

made, with such adjustments, if any, as shall be stated and expressed or

provided in such resolution or resolutions;

 

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(f) The amount which the shares of such series shall be entitled to receive

upon the voluntary or involuntary liquidation, dissolution or winding up of the

corporation;

 

(g) The voting power, if any, of the shares of such series; and

 

(h) Such other special rights and protective provisions as to the Board of

Directors may seem advisable.

 

3.  Holders of Preferred Stock shall be entitled to receive, when and as

declared by the Board of Directors, out of funds legally available for the

payment of dividends, cumulative dividends at the annual rates fixed therefor as

herein provided, and no more, payable quarterly on January 31, April 30, July 31

and October 31 in each year, in preference to dividends on any other class of

stock of the corporation. No dividend shall be declared and set apart for

payment on any series of Preferred Stock in respect of any quarterly dividend

period unless there shall likewise be or have been declared and set apart for

payment on all shares of Preferred Stock of each other series at the time

outstanding dividends ratably in accordance with the sums which would be payable

on the said shares if all dividends were declared and paid in full.

 

So long as any Preferred Stock shall remain outstanding, unless dividends on all

outstanding shares of the Preferred Stock, at the annual rate and from the dates

fixed for the accumulation thereof, shall have been paid, or declared and set

apart for payment, no dividends (other than dividends payable in Common Stock)

shall be paid upon, nor shall any distribution be made on the Common Stock, and

no Common Stock shall be purchased or otherwise acquired for value by the

corporation.

 

4. The corporation, by action of its Board of Directors, may redeem the whole

or any part of any series of the Preferred Stock, at any time or from time to

time, by paying in cash the redemption price of shares of the particular series,

fixed therefor as herein provided, together with a sum in the case of each share

of each series so to be redeemed, computed at the annual dividend rate for the

series of which the particular share is a part, from the date from which

dividends on such share became cumulative to the date fixed for such redemption,

less the aggregate of the dividends theretofore or on such redemption date paid

thereon. At least thirty (30) days and not more than sixty (60) days previous

notice of every such redemption shall be given by publication or by mailing, as

determined by the Board of Directors, to the holders of record of the shares of

the Preferred Stock so to be redeemed, at their respective addresses as the same

shall appear on the books of the corporation. In case of the redemption of a

part only of any series of the Preferred Stock at the time outstanding, the

corporation shall select by lot the shares so to be redeemed. The Board of

Directors shall have full power and authority, subject to the limitations and

provisions herein contained, to prescribe the manner in which, and the terms and

conditions upon which, the shares of the Preferred Stock shall be redeemed from

time to time. At any time after notice of redemption shall have been published

or mailed as above provided to the holders of shares of the Preferred Stock so

to be redeemed, the corporation may deposit all funds necessary for such

redemption, in trust, with a bank or trust company having capital, surplus and

undivided profits of at least $2,000,000 named in such notice, for payment, on

or before the date fixed for redemption, to the holders of shares called for

redemption. Upon the making of such deposit, or if no such deposit is made then

upon such redemption date (unless the corporation shall default in making

payment of the amount payable upon redemption), holders of the shares of

Preferred Stock called for redemption shall cease to be stockholders with

respect to such shares notwithstanding that any certificate for such shares

shall not have been surrendered, and thereafter such shares shall no longer be

transferable on the books of the corporation and such holders shall have no

interest in or claim against the corporation with respect to said shares, except

the right (a) to receive payment of the amount payable upon redemption and no

more upon surrender of their certificates, or (b) to exercise on or before the

date fixed for redemption the rights, if any, not theretofore expiring, which

the holder shall have to convert the shares so called for redemption into, or to

exchange such shares for, shares of stock of any other class or classes or of

any other series of the same class or any other class or classes of stock of the

corporation. Any funds deposited in trust as aforesaid which shall not be

required for such redemption, because of the exercise of any right of conversion

or otherwise, subsequent to the date of such deposit, shall be returned to the

corporation forthwith. Any interest accrued on any funds so deposited shall

belong to the corporation and be paid to it from time to time. Any funds so

deposited by the corporation and unclaimed at the end of five years from the

date fixed for such redemption shall be repaid to the

 

                                     -34-

<PAGE>

 

corporation upon its request, after which repayment the holders of such shares

so called for redemption shall look only to the corporation for payment of the

redemption price. Nothing herein contained shall limit any right of the

corporation to purchase or otherwise acquire any shares of the Preferred Stock.

 

5.  Before any amount shall be paid to, or any assets distributed among, the

holders of the Common Stock upon any liquidation, dissolution or winding up of

the corporation, and after paying or providing for the payment of all creditors

of the corporation, the holders of each series of the Preferred Stock at the

time outstanding shall be entitled to be paid in cash the amount for the

particular series fixed therefor as herein provided, together with a sum in the

case of each share of each series, computed at the annual dividend rate for the

series of which the particular share is a part, from the date from which

dividends on such share became cumulative to the date fixed for the payment of

such distributive amount, less the aggregate of the dividends theretofore or on

such date paid thereon; but no payments on account of such distributive amounts

shall be made to the holders of any series of the Preferred Stock unless there

shall likewise be paid at the same time to the holders of each other series of

the Preferred Stock at the time outstanding like proportionate distributive

amounts, ratably, in proportion to the full distributive amounts to which they

are respectively entitled as herein provided. The holders of the Preferred Stock

of any series shall not be entitled to receive any amounts with respect thereto

upon any liquidation, dissolution or winding up of the corporation other than

the amounts referred to in this paragraph. Neither the consolidation or merger

of the corporation with any other corporation or corporations, nor the sale or

transfer by the corporation of all or any part of its assets, shall be deemed to

be a liquidation, dissolution or winding up of the corporation.

 

6.  An initial series of the Preferred Stock may be issued from time to time as

the Board of Directors may deem advisable with the following voting powers,

designations, preferences and relative, participating, optional or other special

rights and qualifications, limitations or restrictions:

 

(a) The number of shares to constitute such series shall be Ten Thousand

(10,000) and the distinctive designation of such series shall be "$5 Cumulative

Preferred Stock".

 

(b) The dividend rate on the shares of such series shall be Five Dollars ($5.00)

per annum, and the date or dates from and after which dividends shall accumulate

on any issued share of such series shall be the date of the first day following

the quarterly payment date next succeeding the date upon which such share was

issued.

 

(c) The shares of such series shall be redeemable and the price which the shares

of such series shall be entitled to receive upon the redemption thereof shall be

One Hundred Five Dollars ($105.00) per share.

 

(d) The shares of such series shall not be subject to the operation of any

retirement or sinking fund to be applied to the purchase or redemption of such

shares for retirement.

 

(e) The shares of such series shall not, as a matter of right, be convertible

into nor exchangeable for any shares of any other class or classes or of any

other series of the same or any other class or classes of stock of the

corporation.

 

(f) The preferential amount to which the holders of shares of such series shall

be entitled upon any liquidation, dissolution or winding up of the corporation

shall be One Hundred Dollars ($100.00) per share.

 

(g) Each share of the $5 Cumulative Preferred Stock, shall entitle the holder

thereof to one vote per share upon any question presented to any stockholders

meeting and shall be equal in voting power in all respects to each share of

Common Stock of the corporation.

 

                                 COMMON STOCK

 

1.  Subject to all of the rights of the Preferred Stock, dividends may be paid

upon the Common Stock as and when declared by the Board of Directors out of any

funds legally available therefor.

 

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     2. Upon any liquidation, dissolution or winding up of the corporation,

whether voluntary or involuntary, and after paying or providing for the payment

to the holders of shares of all series of the Preferred Stock of the full

distributive amounts to which they are respectively entitled as herein provided,

the remaining net assets of the corporation shall be distributed pro rata to the

holders of the Common Stock.

 

     3. Except as otherwise expressly provided herein or as fixed in any

resolution or resolutions adopted by the Board of Directors as provided herein

with respect to any series of the Preferred Stock and except as otherwise may be

required by law, the holders of the Common Stock shall have the exclusive right

to vote for the election of directors and for all other purposes, each holder of

Common Stock being entitled to one vote for each share thereof held. The holders

of a majority of the stock of the corporation entitled to vote must be present

in person or by proxy at each meeting of the stockholders to constitute a

quorum, less than a quorum, however, having power to adjourn.

 

                                    GENERAL

 

     1. No holder of any stock of the corporation shall be entitled as a matter

of right to purchase or subscribe for any part of any stock of the corporation,

authorized by this certificate, or of any additional stock of any class to be

issued by reason of any increase of the authorized stock of the corporation, or

of any bonds, certificates of indebtedness, debentures or other securities

convertible into stock of the corporation, but any stock authorized by this

certificate or any such additional authorized issue of new stock or of

securities convertible into stock may be issued and disposed of by the Board of

Directors to such persons, firms, corporations or associations for such

consideration and upon such terms and in such manner as the Board of Directors

may in their discretion determine without offering any thereof on the same terms

or on any terms to the stockholders then of record or to any class of

stockholders.

 

     2. The corporation shall be entitled to treat the person in whose name any

share, right or option is registered as the owner thereof for all purposes and

shall not be bound to recognize any equitable or other claim to or interest in

such share, right or option on the part of any other person, whether or not the

corporation shall have notice thereof, save as may be expressly provided by the

laws of the State of Delaware.

 

     3. A director shall be fully protected in relying in good faith upon the

books of account of the corporation or statements prepared by any of its

officials as to the value and amount of the assets, liabilities and/or net

profits of the corporation, or any other facts pertinent to the existence and

amount of surplus or other funds from which dividends might properly be declared

and paid.

 

     4. Without action by the stockholders, the shares of stock may be issued by

the corporation from time to time for such consideration as may be fixed from

time to time by the Board of Directors thereof, and any and all such shares so

issued, the full consideration for which has been paid or delivered, shall be

deemed fully paid stock and not liable to any further call or assessment

thereon, and the holder of such shares shall not be liable for any further call

or assessment thereon, or for any other payment thereon.

 

     Fifth. The minimum amount of capital with which it will commence business

is One Thousand and No/100 ($1,000.00) Dollars.

 

     Sixth. The name and place of residence of each of the incorporators are as

follows:

 

<TABLE>

<CAPTION>

              NAME                                       RESIDENCE         

          <S>                                       <C>

          S. L. Mackey                              Wilmington, Delaware

          K. D. Rau                                 Wilmington, Delaware

          H. Kennedy                                Wilmington, Delaware

</TABLE>

 

     Seventh.  This corporation is to have perpetual existence.

 

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<PAGE>

 

     Eighth. The private property of the stockholders shall not be subject to

the payment of corporate debts to any extent whatever.

 

     Ninth. All corporate powers shall be exercised by the Board of Directors,

except as otherwise provided by statute or by this Certificate of Incorporation.

 

     The directors of the corporation shall be elected by the stockholders of

the corporation at the time and in the manner specified in the By-laws of the

corporation; such election of directors need not be by ballot.

 

     Tenth. In furtherance and not in limitation of the powers conferred by the

laws of the State of Delaware, the Board of Directors is expressly authorized:

 

     1. To fix, determine and vary from time to time the amount to be maintained

as surplus and the amount or amounts to be set apart as working capital.

 

     2. To set apart out of any of the funds of the corporation available for

dividends, a reserve or reserves for any proper purposes and/or to abolish any

such reserve in the manner in which it was created.

 

     3. By resolutions adopted by the majority of the entire Board of Directors,

to make, amend, alter, change, add to or repeal By-laws for the corporation

without any action on the part of the stockholders. The stockholders of the

corporation shall not make, amend, alter, change, add to or repeal By-laws of

the corporation, either directly or by way of amending the Certificate of

Incorporation of this corporation, except by the affirmative vote of the holders

of 75 percent or more of the combined voting power of the then outstanding

shares of stock of all classes and series of the corporation entitled to vote

generally in the election of directors, voting together as a single class, at a

duly called meeting of the stockholders, provided that notice of the proposed

change in the By-laws is contained in the notice of the meeting. In addition to

any requirement of law or any other provision of this Certificate of

Incorporation or of the By-laws of this corporation, the affirmative vote of the

holders of 75 percent or more of the combined voting power of the then

outstanding shares of stock of all classes and series of the corporation

entitled to vote generally in the election of directors, voting together as a

single class, shall be required to amend, alter or repeal, or adopt any

provision inconsistent with, this Section 3 of this Article Tenth.

 

     4. To authorize and cause to be executed mortgages and liens without limit

as to amount upon the real and personal property of the corporation, including

after acquired property.

 

     5. From time to time to determine whether and to what extent and at what

times and places and under what conditions and regulations the books and

accounts of this corporation or any of them other than the stock ledger, shall

be open to the inspection of the stockholders, and no stockholder shall have any

right to inspect any account or book or document of the corporation, except as

conferred by law or authorized by resolution of the directors or of the

stockholders.

 

     6. To authorize the payment of compensation to the directors for services

to the corporation, including fees for attendance at meetings of the Board of

Directors, of the Executive Committee, and of other Committees, and to determine

the amount of such compensation and fees.

 

     7. To sell, lease or exchange all of its property and assets, including its

good will and its corporate franchises upon such terms and conditions and for

such consideration which may be in whole or in part shares of stock in and/or

other securities of any other corporation or corporations when and as authorized

by the affirmative vote of the holders of a majority of the stock issued and

outstanding having voting power given at a stockholders' meeting duly called for

that purpose or when authorized by the written consent of the holders of a

majority of the voting stock issued and outstanding.

 

     8. This corporation may in its By-laws, confer powers additional to the

foregoing upon the directors, in addition to the powers and authorities

expressly conferred upon them by law.

 

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<PAGE>

 

Eleventh. A director of the corporation shall not be disqualified by his office

from dealing or contracting with the corporation, either as a vendor, purchaser

or otherwise, nor shall any transaction or contract of the corporation be void

or voidable by reason of the fact that any director or any firm of which any

director is a member or any corporation of which any director is a share holder,

officer or director is in any way interested in such transaction or contract,

provided that such transaction or contract is or shall be authorized, ratified

or approved either (1) by a vote of a majority of a quorum of the Board of

Directors or of the Executive Committee without counting in such majority or

quorum any director so interested, or member of a firm so interested, or a share

holder, officer or director of a corporation so interested, or (2) by the

written consent or by the vote at any stockholders' meeting of the holders of

record of a majority of all the outstanding shares of stock of the corporation

entitled to vote, nor shall any director be liable to account to the corporation

for any profits realized by or from or through any such transaction or contract

of the corporation authorized, ratified or approved as aforesaid by reason of

the fact that he or any firm of which he is a member, or any corporation of

which he is a share holder, officer or director was interested in such

transaction or contract. Nothing herein contained shall create liability in the

events above described or prevent the authorization, ratification or approval of

such transactions or contracts in any other manner permitted by law.

 

Any contract, transaction or act of the corporation or of the Board of Directors

which shall be ratified by a quorum of the stockholders entitled to vote at any

annual meeting or at any special meeting called for that purpose shall be valid

and binding as though ratified by every stockholder of the corporation;

provided, however, that any failure of the stockholders to approve or ratify

such contract, transaction or act when and if submitted, shall not be deemed in

any way to invalidate the same or to deprive the corporation, its directors or

officers of their right to proceed with such contract, transaction or action.

 

It is hereby expressly provided that the directors and officers and former

directors and officers of the corporation shall be fully protected and

indemnified against any personal liability to others that may arise by reason of

any of their actions taken in good faith on behalf or for the benefit of the

corporation to the full extent permitted by the laws of the State of Delaware.

 

To the fullest extent permitted by the Delaware General Corporation Law as

amended from time to time, Directors and former directors of the corporation

shall not be liable to the corporation or its stockholders for monetary damages

for breach of fiduciary duty as a director.

 

Twelfth. Any action required or permitted to be taken by the stockholders of the

corporation must be effected at a duly called annual or special meeting of

stockholders of the corporation and may not be effected by any consent in

writing by such stockholders. In addition to any requirement of law or any other

provision of this Certificate of Incorporation or of the By-laws of this

corporation, the affirmative vote of the holders of 75 percent or more of the

combined voting power of the then outstanding shares of stock of all classes and

series of the corporation entitled to vote generally in the election of

directors, voting together as a single class, shall be required to amend, alter

or repeal, or adopt any provision inconsistent with, this Article Twelfth.

 

Thirteenth. If the By-laws so provide, the stockholders and directors shall have

power to hold their meetings, to have an office or offices and to keep the books

of this corporation (subject to the provisions of the statute), outside the

State of Delaware, at such places as may from time to time be designated by the

By-laws or by resolution of the directors.

 

Fourteenth. This corporation reserves the right to amend, alter, change or

repeal any provision contained in this Certificate of Incorporation in the

manner now or hereafter prescribed by law, and all rights conferred on officers,

director and stockholders herein are granted subject to this reservation.

 

Fifteenth. A. Except as set forth in Paragraph B. of this Article Fifteenth, the

affirmative vote of the holders of eighty percent (80%) of the outstanding stock

of the Company entitled to vote shall be required for:

 

(i) any merger or consolidation to which the Company or any of its subsidiaries

and an Interested Person (as hereinafter defined) are parties;

 

                                     -38-

<PAGE>

 

(ii) any sale or other disposition by the Company, or any of its subsidiaries,

of all or any substantial part of its assets to an Interested Person;

 

(iii) any purchase or other acquisition by the Company, or any of its

subsidiaries, of all or any substantial part of the assets of an Interested

Person; and

 

(iv) any other transaction with an Interested Person which requires the approval

of the Shareholders of the Company under the Delaware Business Corporation Law,

as in effect from time to time.

 

B. The provisions of Paragraph A. shall not be applicable to any transaction

approved by vote of eighty percent (80%) of the Board of Directors if, at the

time of the Board's approval of such transaction, the Board included no director

whose election had been effected by the vote of an Interested Person in

opposition to the recommendation of Management, and the transaction provides

that the Shareholders receive for their shares cash or other consideration equal

to, or greater than, the highest price paid by an Interested Person for any

shares of the Company (including brokerage commissions and/or soliciting

dealers' fees).

 

C. As used in this Article Fifteenth the term "Interested Person" shall mean any

person, firm or corporation, or any group thereof acting or intending to act in

concert, including any person directly or indirectly controlling or controlled

by or under direct or indirect common control with such person, firm or

corporation or group, which owns of record or beneficially, directly or

indirectly, five percent (5%) or more of any class of voting securities of the

Company.

 

D. The Board of Directors of the Company shall have full power and authority to

interpret, construe and apply the provisions of this Article Fifteenth.

 

E. The affirmative vote of the holders of eighty percent (80%) of the

outstanding stock of the Company entitled to vote shall be required to amend,

alter or repeal this Article Fifteenth.

 

F. For purposes of any vote required by this Article Fifteenth, all classes of

voting stock of the Company shall be considered as one class.

 

We, the undersigned, being all of the incorporators for the purpose of forming a

corporation in pursuance of an act of the Legislature of the State of Delaware,

entitled "An Act Providing a General Corporation Law", (approved March 10,

1899), and the acts amendatory thereof and supplemental thereto, do make and

file this Certificate of Incorporation, hereby declaring and certifying that the

facts herein stated are true, and accordingly hereunto have set our respective

hands and seals this 17th day of April, A. D. 1951.

 

 

                              S. L. Mackey             (SEAL)

 

                              K. D. Rau                (SEAL)

 

                              H. Kennedy               (SEAL)

 

 

CERTIFICATE OF INCORPORATION

OF

TEXAS INDUSTRIES, INC.

FIRST: The name of the corporation (hereinafter called the Corporation) is Texas Industries, Inc.

SECOND: The address, including street, number, city, and county, of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, County of New Castle, Wilmington, Delaware 19801 and the name of the registered agent of the Corporation in the State of Delaware at such address is The Corporation Trust Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (as amended from time to time, the DGCL).

FOURTH: The aggregate number of shares which the Corporation shall have authority to issue is 100,000 shares of common stock, par value $0.01 per share. Each share of common stock shall be entitled to one vote and to all other rights of stockholders.

FIFTH: All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed by or under the direction of, the board of directors of the Corporation (the Board of Directors). The size of the Board of Directors shall be determined as set forth in the bylaws of the Corporation, as in effect from time to time (the Bylaws). The election of directors need not be by written ballot unless the Bylaws shall so require.

SIXTH: In furtherance and not in limitation of the powers conferred upon the Board of Directors by law, the Board of Directors is expressly authorized to adopt, amend or repeal from time to time the Bylaws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to alter and repeal bylaws made by the Board of Directors.

SEVENTH: It is hereby expressly provided that the directors and officers and former directors and officers of the corporation shall be fully protected and indemnified against any personal liability to others that may arise by reason of any of their actions taken in good faith on behalf or for the benefit of the Corporation to the


fullest extent permitted by the laws of the State of Delaware. To the fullest extent permitted by the DGCL, directors and former directors of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.

EIGHTH: The books of the Corporation may (subject to any statutory requirements) be kept outside the State of Delaware as may be designated by the Board of Directors or in the Bylaws.

NINTH: The Corporation shall not be governed by Section 203 of the DGCL.

 

[As Filed: 07-02-2014]