<PAGE>
As filed with the Securities and Exchange Commission on May 19, 1994
Registration No. ________________
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TEXAS INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 75-0832210
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7610 Stemmons Freeway, Suite 200, Dallas, Texas 75247
(Address of Principal Executive Offices) (Zip Code)
TEXAS INDUSTRIES, INC. STOCK OPTION PLAN
(Full title of the plan)
Robert C. Moore
Vice President - General Counsel
Texas Industries, Inc.
7610 Stemmons Freeway Suite 200
Dallas, Texas 75247
(Name and address of agent for service)
(214) 647-6700
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Offering Maximum
Title of Securities Amount to be Price Per Aggregate Amount of
to be Registered Registered(1) Unit(2) Offering Price(2) Registration Fee
____________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock
Par Value - $1.00
per share 1,000,000 shares $33.00 $33,000,000 $11,379.31
____________________________________________________________________________________________
<FN>
(1) Plus any additional shares of Common Stock as may become
issuable pursuant to the anti-dilution provisions of the Plan.
(2) Computed in accordance with Rules 457 (c) and (h), the
offering price and registration fee are computed on the basis of
the average of the high and low prices of the shares, as reported
by the New York Stock Exchange, on May 18, 1994.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed in (a) through (c) below are hereby
incorporated by reference into this Registration Statement.
All documents subsequently filed by Texas Industries, Inc. (the
"Company") or the Texas Industries, Inc. Stock Option Plan (the
"Plan") pursuant to Sections 13(a), 13(c), 14 or (15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") after the
date of this Registration Statement and prior to the filing of a
post-effective amendment to the Registration Statement which
indicates that all shares of Common Stock, $1.00 par value per
share offered hereunder, have been sold or that deregister all
such shares then remaining unsold, shall be deemed to be
incorporated herein by reference and to be a part hereof from
the date of filing of such documents.
(a) The Company's latest annual report filed
pursuant to Section 13 or 15(d) of the Exchange Act or
the latest prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, which contains, either directly
or by incorporation by reference, certified financial
statements for the Company's latest fiscal year for which
such statements have been filed.
(b) All other reports filed pursuant to Section 13
or 15(d) of the Exchange Act since the end of the fiscal
year covered by the annual report referred to in (a)
above.
(c) The description of the Common Stock contained
in the Company's registration statement filed pursuant to
section 12(b) or (g) of the Exchange Act, including any
amendment or report filed for the purpose of updating
such description.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of the State
of Delaware, a Delaware corporation has the power, under specified
circumstances, to indemnify its directors, officers, employees, and
agents in connection with actions, suits, or proceedings brought
against them by a third party or in the right of the corporation,
by reason of the fact that they were or are such directors,
officers, employees, or agents, against liabilities and expenses
incurred in any such action, suit or proceeding so long as they
acted in good faith and in a manner that they reasonably believed
to be in, or not opposed to, the best interests of such
corporation, and with respect to any criminal action, that they had
no reasonable cause to believe their conduct was unlawful. With
respect to suits by or in the right of such corporation, however,
indemnification is generally limited to attorneys' fees and other
expenses and is not available if such person is adjudged liable to
such corporation unless the court determines the indemnification is
appropriate. A Delaware corporation also has the power to purchase
and maintain insurance for such persons. Article Eleventh of the
Company's Certificate of Incorporation and Section 27 of the
Company's Bylaws provide for indemnification of directors and
officers to the fullest extent permitted by the General Corporation
Law of the State of Delaware.
Section 102(b)(7) of the General Corporation Law of the State
of Delaware provides that a certificate of incorporation may
contain a provision eliminating or limiting the personal liability
of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that
such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not
in good faith of which involve intentional misconduct or a knowing
violation of the law, (iii) under section 174 (relating to
liability of unauthorized acquisitions or redemptions of, or
dividends on, capital stock) of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. Article Eleventh of
the Company's Restated Certificate of Incorporation contains a
provision whereby the directors and officers of the Company shall
be fully protected and indemnified against any personal liability
that may arise by reason of any of their acts taken in good faith
on behalf or for the benefit of the Company to the fullest extent
permitted by the laws of the State of Delaware.
The above discussion of the Company's Certificate of
Incorporation and Bylaws and Sections 102(b)(7) and 145 of the
General Corporation Law of the State of Delaware is not intended to
be exhaustive and is qualified in its entirety by such documents
and statutes.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to officers, directors, or persons
controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the
<PAGE>
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 Texas Industries, Inc. Stock Option Plan.
5.1 Opinion Letter of Legality by Locke Purnell Rain Harrell,
P.C.
15.1 Letter regarding Unaudited Interim Financial
Information by Ernst & Young.
23.1 Consent of Ernst & Young.
23.2 Consent of Locke Purnell Rain Harrell, P.C.
(included in the opinion filed as Exhibit 5.1 to
this Registration Statement and is incorporated
herein by reference).
24.1 Power of Attorney (contained on signature pages).
ITEM 9. UNDERTAKINGS
I. 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:
1. To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
2. 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;
<PAGE>
3. 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(A)(1) and I(A)(2)
do not apply if the registration statement is on Form S-3
or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is
contained in periodic reports filed 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.
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.
II. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's 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.
III. 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 Act 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, officer or controlling person in
connection with the securities being registered, 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 Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas, on May 18 , 1994.
TEXAS INDUSTRIES, INC.
(Registrant)
By: /s/ RICHARD M. FOWLER
___________________________
Richard M. Fowler
Vice President - Finance
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert D. Rogers, Richard M. Fowler and
James R. McCraw, or any one of them acting alone, his true and lawful
attorneys- in-fact and agents, with full power of substitution and
resubstitution, for him and in his 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 other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their or his substitute
or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT D. ROGERS President, Chief May 18, 1994
- -------------------- Executive Officer,
Robert D. Rogers Director
/s/ RICHARD M. FOWLER Vice President - May 18, 1994
- ---------------------- Finance
Richard M. Fowler
/s/ JAMES R. MCCRAW Vice President - May 18, 1994
- -------------------- Controller
James R. McCraw
/s/ RALPH B. ROGERS Chairman of the May 18, 1994
- -------------------- Board of Directors
Ralph B. Rogers
/s/ ROBERT ALPERT Director May 18, 1994
- -----------------
Robert Alpert
/s/ RICHARD I. GALLAND Director May 18, 1994
- ----------------------
Richard I. Galland
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ GORDON E. FORWARD Director May 18, 1994
- ---------------------
Gordon E. Forward
/s/ GERALD R. HEFFERNAN Director May 18, 1994
- -----------------------
Gerald R. Heffernan
/s/ IAN WACHTMEISTER Director May 18, 1994
- --------------------
Ian Wachtmeister
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Numbered Page
------- -------------
<S> <C> <C>
4.1 Texas Industries, Inc. Stock Option Plan. 10
5.1 Opinion Letter of Legality by Locke 19
Purnell Rain Harrell, P.C.
15.1 Letter regarding Unaudited Interim 22
Financial Information by Ernst &
Young.
23.1 Consent of Ernst & Young. 25
23.2 Consent of Locke Purnell Rain 19
Harrell, P.C. (included in the
opinion filed as Exhibit 5.1 to this
Registration Statement).
24.1 Power of Attorney (contained on 7
signature pages). </TABLE>
<PAGE>
EXHIBIT 4.1
<PAGE>
TEXAS INDUSTRIES, INC.
STOCK OPTION PLAN
1. NAME. This Plan shall be known as the "Texas Industries, Inc. Stock
Option Plan" (herein called the "Plan").
2. PURPOSE. The purpose of the Plan is to promote the growth and
general prosperity of Texas Industries, Inc. (the "Company") and its
subsidiary corporations, if any, by permitting the Company to grant both
incentive stock options ("ISO's") and nonqualified stock options ("NQSO's";
together with ISO's, herein called an "Option" or the "Options") to eligible
key employees of the Company, or of any parent or subsidiary corporation of the
Company (as defined in Section 425 of the Internal Revenue Code of 1986 (the
"Code")), whether such parent and/or subsidiaries are currently existing or
may hereafter be organized or acquired (herein called the "Affiliates"), to
purchase shares of the common stock (the "Common Stock") of the Company. Such
Options will be granted in order to attract and retain the best available
individuals for positions of substantial responsibility and to provide such
individuals with an additional incentive to contribute to the success of the
Company. It is the further purpose of this Plan that the ISO's which are
granted hereunder are intended to qualify as incentive stock options under
Section 422A of the Code.
3. ADMINISTRATION. This Plan shall be administered by the Board of
Directors of the Company (the "Board"). Subject to the express provisions of
the Plan, the Board shall have plenary authority, in is discretion, to
determine the terms of all Options granted under the Plan (which need not be
identical) including, without limitation, the purchase price of the shares
covered by each Option, the individual to whom, and the time or times at
which, Options shall be granted, the number of shares to be subject to each
Option, whether the Option shall be an incentive stock option or a
nonqualified stock option, when an Option can be exercised and whether in
whole or in installments. In making such determinations, the Board may take
into account the nature of the services rendered by the respective
individuals, their present and potential contributions to the success of the
Company and its subsidiaries and such other factors as the Board in its
discretion shall deem relevant. Subject to the express provisions of the
Plan, the Board shall have plenary authority to interpret the Plan, to
prescribe and rescind the rules and regulations relating to it and to make all
other determinations deemed necessary or advisable for the administration of
the Plan. The determinations of the Board on the matters referred to in this
paragraph 3 shall be conclusive. Notwithstanding anything to the contrary
contained herein, the Board may at any time, or from time to time, appoint a
committee (the "Committee") of at least two members, who shall be members of
the Compensation Committee of the Board (or such other members of the Board as
the Board may designate), each of whom shall be a "disinterested person" (as
defined in Rule 16b-3(d)(3) promulgated
<PAGE>
under the Securities Exchange Act of 1934 (the "Exchange Act")) and delegate
to such Committee authority to administer the Plan. Upon such appointment and
delegation, the Committee shall have all the powers, privileges and duties of
the Board, and shall be substituted for the Board, in the administration of
the Plan, except that the Committee shall not have the power to determine
whether shares reserved for issuance upon exercise of Options granted under
the Plan shall be unissued or issued shares, to appoint members of the
Committee, to terminate or to modify or amend the Plan. The Board may from
time to time appoint members of any such Committee in substitution for or in
addition to members previously appointed, may fill vacancies in the Committee
and may discharge the Committee. The Committee shall select one of its
members as its chairman and shall hold its meetings at such places and at such
times as it shall deem advisable. A majority of its members shall constitute
a quorum and all determinations shall be made by a majority of its members.
Any determination reduced to writing and signed by a majority of the members
shall be fully as effective as if it had been made by a majority vote at a
meeting duly called and held.
4. STOCK SUBJECT TO PLAN. Subject to the provisions of paragraph 13
hereof, the maximum number of shares which may be optioned and sold under the
Plan as Options are One Million (1,000,000) shares of the authorized, but
unissued, or reacquired Common Stock of the Company. In the event that any
Option shall, for any reason, terminate or expire or be surrendered without
having been exercised in full, the shares subject to such Option but not
purchased hereunder shall again be available to be granted as Options under
this Plan.
5. ELIGIBILITY. The Committee may grant ISO's to any key employee,
including officers who are also employees, of the Company or any of its
Affiliates and non-employee Directors as provided in paragraph 9; provided,
however, that a person to whom an ISO is granted may not, at the time the ISO
is granted, own stock representing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of any of its
Affiliates, as determined in accordance with Section 425(d) of the Code. The
foregoing ten percent (10%) limitation shall be inapplicable if, at the time
the ISO is granted, the option price is at least one hundred ten percent
(110%) of the fair market value of the Common Stock subject to the ISO and the
ISO by its terms is not exercisable after the expiration of five (5) years
from the date the ISO is granted. The persons to whom ISO's shall be granted
shall herein be called "ISO Optionees". The Committee may grant NQSO's to any
key employee, including officers who are also employees, of the Company or any
of its Affiliates and non-employee Directors. The persons to whom NQSO's will
be granted shall herein be called the "NQSO Optionees". NQSO Optionees and
ISO Optionees shall herein be referred to collectively as "Optionees".
6. OPTION PRICE. Except as otherwise provided in this paragraph 6 or
paragraph 5 hereof, the purchase price of the Common Stock under each Option
shall
2
<PAGE>
be determined by the Board, but shall not be less than 100% of the fair market
value of the Common Stock at the time of the granting of such Option. "Fair
market value" shall be deemed to be the mean between the high and low sales
price of a share of Common Stock on the New York Stock Exchange on the day on
which the Option is granted. Provided, the minimum option price shall be 110%
of the fair market value of the Common Stock subject to an ISO if the ISO
Optionee, at the time the ISO is granted, would own stock possessing more than
10% of the total combined voting power of the Company or its Affiliates. The
aggregate fair market value (determined as of the time the ISO is granted) of
the shares of Common Stock with respect to which ISO's are exercisable for the
first time by an ISO Optionee during any calendar year (under all such plans
of the Company and its Affiliates) shall not exceed One Hundred Thousand
Dollars ($100,000.00).
7. TERM OF OPTIONS; SURRENDER OF OPTIONS. Subject to the provisions of
paragraphs 11 and 12, the maximum term of an Option granted hereunder shall be
ten years from the date of grant.
The Board shall be authorized, in its discretion, to permit the surrender
of outstanding options in exchange for the grant of new Options or to require
the surrender of outstanding options as a condition precedent to the grant of
new Options. The number of shares covered by the new Options, the option
price, the option period and other terms and conditions of the new Options
shall be determined in accordance with the Plan and may be different from the
provisions of the surrendered options.
8. EXERCISE OF OPTIONS. Unless otherwise provided in the option
agreement, and except as otherwise provided in the Plan, an Option granted
under the Plan shall be exercisable in whole, or in part, at any time during
the term of the Option.
The Board shall be authorized to establish the procedure for the exercise
of an Option, provided that the Company shall not be required to deliver
certificates for shares with respect to which an Option is exercised until the
purchase price of such shares shall have been paid in full. Payment shall be
made in cash, or in whole shares of Common Stock already owned by the holder
of the Option for a period of at least six months, or partly in cash and
partly in such Common Stock. An Option may be exercised by written notice to
the Company. Such notice shall state that the holder of the Option elects to
exercise the Option, the number of shares on respect of which it is being
exercised and the manner of payment for such shares, and shall either (i) be
accompanied by payment of the full purchase price of such shares, or (ii) fix
a date (not more than ten business days from the date of exercise) for the
payment of the full purchase price of such shares. Common Stock payments
(valued at the mean between the high and low sales prices of a share of Common
Stock on the New York Stock Exchange on the date of exercise) shall be made by
delivery of stock certificates in negotiable form. If certificates
representing Common Stock are used to pay all or part of the purchase price of
an Option, separate certificates shall be delivered by the Company
representing the same number of shares as each certificate
3
<PAGE>
so used, and an additional certificate shall be delivered representing any
additional shares to which the holder of the Option is entitled as a result of
the exercise of the Option. Except as provided in paragraphs 11 and 12
hereof, no Option may be exercised at any time unless the holder thereof is
then an employee of the Company or its Affiliates. The holder of an Option
shall have none of the rights of a stockholder with respect to the shares
subject to the Option until such shares shall be transferred to the holder
upon the exercise of his or her Option.
9. GRANT OF OPTION TO NON-EMPLOYEE DIRECTORS. Effective on the date
each non-employee Director is first elected by the Board of Directors or at an
annual meeting of the Company's shareholders (an "Annual Meeting") to the
Board of Directors and thereafter re-elected to the Board of Directors of the
Company at an Annual Meeting of the Company's shareholders for a three-year
term, such non-employee Director shall automatically be granted a stock option
under the Plan covering 5,000 shares of Common Stock. For the purpose of this
paragraph 9, a "non-employee Director" is defined as a person who has not been
an employee of the Company (or any subsidiary of the Company) for all or any
part of the preceding fiscal year. The per share exercise price of such
Option shall be equal to the fair market value of the Common Stock (as
determined in accordance with paragraph 6) on the date of election or
re-election to the Board, as the case may be.
10. FORM OF OPTION. ISO's granted pursuant to this Plan shall be
evidenced by Incentive Stock Option Agreements in such form and on such terms
consistent with the provisions of this Plan as the Board shall from time to
time adopt and NQSO's granted pursuant to this Plan shall be evidenced by
Nonqualified Stock Option Agreements in such form and on such terms consistent
with the provisions of this Plan as the Committee shall from time to time
adopt.
11. TERMINATION OF EMPLOYMENT. In the event that an individual to whom
an Option has been granted under this Plan ceases to be an employee of the
Company or its Affiliates otherwise than by reason of death, such Option may,
subject to the provisions of this paragraph 11, be exercised (to the extent of
the number of shares purchasable under the Option by the individual upon the
termination of his or her employment) at any time (a) within one year after
the termination of his or her employment due to his or her "permanent and
total disability", as defined in Section 22(e)(3) of the Code (hereinafter
"total disability"); (b) within three months after the termination of
employment by reason of retirement pursuant to any retirement plan of the
Company or its Affiliates ("Retirement"); or (c) within three months after the
termination of his or her employment other than as described in the preceding
clauses (a) and (b); PROVIDED, however, the option greement may specify a
shorter period of time during which the Option may be exercised after a
termination of employment as described in the preceding clauses (a), (b) and
(c). Notwithstanding the foregoing, in no event may an Option be exercised
after expiration of its stated term. Options granted under the Plan shall not
be affected by any change of employment so long as
4
<PAGE>
the holder continues to be an employee of the Company or its Affiliates. The
option agreement may contain such provisions as the Board may approve with
reference to the effect of approved leaves of absence for employees. Nothing
in the Plan or in any Option granted pursuant to the Plan shall confer on any
individual any right to continue in the employ of the Company or its
Affiliates or interfere in any way with the right of the Company or its
Affiliates to terminate his or her employment at any time, with or without
cause, notwithstanding the possibility that the number of shares purchasable
or exercisable by the employee under his or her Option may thereby be reduced
or eliminated.
12. DEATH OF HOLDER OF OPTION. In the event of the death of an
individual to whom an Option has been granted under the Plan, such Option
(unless the Option shall have been previously terminated pursuant to the
provisions of paragraph 11, or, with respect to Options granted to employees,
the option agreement provides otherwise) may be exercised (to the extent of
the number of shares purchasable by the individual at the time of his or her
death) by a legatee or legatees of such individual under his or her last will,
or by his or her personal representatives or distributees, at any time within a
period of one year (notwithstanding any longer period of time that would
otherwise be permitted under paragraph 11) after his or her death, but not
after the expiration of the Option's stated term.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Notwithstanding any
other provisions of the Plan, option agreements may contain appropriate
provisions for the adjustment of the number and class of shares subject to
each outstanding Option and the option prices in the event of changes in the
outstanding Common Stock of the Company by reason of any stock dividend,
split-up, recapitalization, combination or exchange of shares, merger,
consolidation or liquidation and the like, and, in the event of any such
change in the outstanding Common Stock of the Company, the aggregate number
and class of shares available under the Plan and the maximum number of shares
as to which Options may be granted to any individual shall be appropriately
adjusted by the Board, whose determination shall be conclusive.
14. SUBSTITUTED OPTIONS. Anything herein to the contrary
notwithstanding, ISO's and NQSO's may, at the discretion of the Board, be
granted under the Plan in substitution for options to purchase shares of
capital stock of another corporation which is merged into, consolidated with,
or all or a substantial portion of the property or stock of which is acquired
by, the Company or one of its subsidiaries. The terms and conditions of the
substitute options so granted may vary from the terms and conditions set forth
in this Plan to such extent as the Board or Committee at the time of grant may
deem appropriate (but only to the extent consistent with the requirements of
Rule 16b-3 under the Exchange Act) in order to conform, in whole or in part,
to the provisions of the options in substitution for which they are granted.
5
<PAGE>
15. EFFECT OF CHANGE IN CONTROL. Notwithstanding any contrary waiting
period, installment period or other limitation or restriction in any option
agreement or in the Plan, in the event the Company or the stockholders of the
Company enter into an agreement not approved by a vote of eighty percent (80%)
of the Board of Directors in accordance with Article FIFTEENTH of the
Company's Certificate of Incorporation to dispose of all or substantially all
of the assets or stock of the Company by means of a sale, reorganization,
liquidation or otherwise, an Option shall become immediately exercisable with
respect to the full number of shares subject to that Option, notwithstanding
the specific terms regarding exercise contained in the instrument or
instruments evidencing the granting of such Option, during the period
commencing as of the date of such agreement and ending when the disposition of
assets or stock contemplated by the agreement is consummated or the agreement
is terminated.
16. TERM OF PLAN; AMENDMENT. This Plan shall become effective upon its
adoption by the Board subject to approval within twelve (12) months thereafter
by the holders of a majority of all the issued and outstanding capital stock
of the Company, voting as a single class and represented at an annual or
special meeting of the stockholders of the Company. Notwithstanding the
foregoing, Options may be granted by the Committee as provided herein upon
adoption of the Plan by the Board, subject to such subsequent stockholder
approval. The Board may amend the Plan from time to time in such respects as
the Board may deem advisable without the approval of the stockholders of the
Company unless such amendment would (a) increase the maximum number of shares
of Common Stock as to which ISO's may be granted under the Plan; or (b) change
the class of employees eligible to receive ISO's under the Plan; or
(c) disqualify an ISO granted under the Plan from satisfying the requirement
for an incentive stock option under the Code, in which case the affirmative
vote of the holders of a majority of the securities of the Company present, or
represented, and entitled to vote at a meeting duly held in accordance with
the laws of the State of Delaware shall be required to approve any amendment
to the Plan which would, as determined for purposes of Rule 16b-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934
(or any successor at the time in effect), (x) materially increase the benefits
accruing to participants under the Plan, (y) materially increase the number of
shares of Common Stock which may be issued under the Plan, or (z) materially
modify the requirements as to eligibility for participation in the Plan.
Notwithstanding the foregoing, the Plan provisions shall not be amended more
than once every six months, other than to comport with changes in the Internal
Revenue Code, the Employee Retirement Income Security Act, or the rules
thereunder.
17. OPTIONS NOT TRANSFERABLE. Options granted under this Plan may not
be sold, pledged, assigned, hypothecated or otherwise transferred in any
manner other than by will or the laws of descent and distribution and shall
not be otherwise assignable by operation of law or subject to execution,
attachment or similar process.
6
<PAGE>
Options may be exercised during the lifetime of an Optionee only by such
Optionee, or his or her attorney-in-fact. Any attempted sale, pledge,
assignment, hypothecation or other transfer of an Option contrary to the
provisions hereof and the levy of any execution, attachment or similar process
upon an Option shall be null and void and without force or effect. No
exercise of an Option by an attorney-in-fact or transfer of any Options by will
or by the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished with written notice
thereof and an authenticated copy of the will and/or such other evidence as
the Committee may deem necessary to establish the validity of the exercise or
transfer and the acceptance by the transferee or transferees of the terms and
conditions of the option agreement with respect to such Option.
18. CONFORMITY WITH INTERNAL REVENUE CODE. ISO's granted under this
Plan are intended to satisfy all requirements for incentive stock options
under the Code and, notwithstanding any other provision of this Plan, the Plan
and all ISO's granted under it shall be so construed and all contrary
provisions shall be so limited in scope and effect and, to the extent they
cannot be so limited, they shall be void.
19. TIME OF GRANTING OF OPTIONS. Except in the case of substituted
options, the effective date of the granting of an Option (the "Granting Date")
shall be the date on which the Board approves the granting of such Option.
Each grantee of an Option shall be notified promptly of the grant of the
Option and a written option agreement shall promptly be executed and delivered
by or on behalf of the Company and the grantee, provided that such grant of
an Option shall expire if a written option agreement is not signed by such
grantee (or his or her agent or attorney) and delivered to the Company within
60 days after the Granting Date.
20. WITHHOLDING. The Company's obligation to deliver shares of Common
Stock under the Plan shall be subject to applicable federal, state and local
tax withholding requirements.
Applicable federal, state and local tax withholding requirements may be
satisfied in whole or in part by an Option holder electing (hereinafter an
"Election") any combination of the following: (i) to have the Company
withhold, upon exercise of an Option, shares of Common Stock or
(ii) delivering to the Company already owned and unencumbered shares of Common
Stock. The aggregate value of the shares of Common Stock that may be withheld
or delivered to the Company pursuant to an Election may not exceed the amount
required to be withheld. The value of each share withheld or delivered shall
be the mean between the high and low sales price of shares of common stock of
the New York Stock Exchange on the date that the amount of tax required to be
withheld is determined under applicable tax laws (the "Tax Date"). An
Election may only be made prior to the Tax Date and is irrevocable. The
Committee may disapprove any Election or may suspend or terminate the right to
make Elections. Elections made by Option holders who are subject to Section
16(b) of the Exchange Act are subject to the following additional restrictions:
7
<PAGE>
(i) The Election must be made either six months prior to the Tax
Date; or, if the Tax Date does not occur until six months after the date
of exercise (due to applicable tax rules), the full amount of shares
of Common Stock otherwise issuable upon exercise of the nonqualified
stock option will be issued and transferred to the Option holder upon
exercise, but such option holder shall be unconditionally obligated to
tender back to the Company the proper number of shares of Common Stock on
the Tax Date to comply with his or her Election, plus cash for any amount
required to be withheld and not satisfied by the tender of shares.
(ii) The Election may not be made for a Tax Date that occurs within
six months of the grant of the Option.
21. SEPARABILITY. If any of the terms or provisions of this Plan
conflict with the requirements of Rule 16b-3 under the Exchange Act (as the
same may be amended from time to time), then such terms or provisions shall be
deemed inoperative to the extent they so conflict with the requirements of
said Rule 16b-3 and/or Section 422A of the Code.
If this Plan does not contain any provisions required to be included
hereunder under Section 422A of the Code (as the same shall be amended from
time to time), such provisions shall be deemed to be incorporated herein with
the same force and effect as if such provision had been set out at length
herein.
22. NON-EXCLUSIVITY OF THE PLAN. Neither the adoption of the Plan by
the Board nor the submission of the Plan to the stockholders of the Company
for approval shall be construed as creating any limitations on the power of
the Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either generally applicable or
applicable only in specific cases.
23. TERMINATION OF THE PLAN. The Board may terminate the Plan at any
time. Any such termination shall not affect any restrictions previously
imposed upon the shares of Common Stock issued pursuant to this Plan or upon
the Options already granted, and such restrictions and Options shall remain in
full force and effect thereafter as if this Plan had not been terminated.
8
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EXHIBIT 5.1
<PAGE>
May 18, 1994
Texas Industries, Inc.
7610 Stemmons Freeway
Suite 200
Dallas, TX 75247
Re: Registration Statement on Form S-8, Texas Industries, Inc.
1993 Stock Option Plan
Gentlemen:
Pursuant to your request, we have examined a copy of the Texas
Industries, Inc. 1993 Stock Option Plan (the "Plan"), which was approved by
the Board of Directors of Texas Industries, Inc. (the "Company") on July 14,
1993 and by the Stockholders of the Company on October 19, 1993. We have also
examined the Certificate of Incorporation of the Company, as amended, the
Bylaws of the Company, as amended, and corporate proceedings of the Company
relating to the Plan as reflected in minutes of meetings of the Board of
Directors and Stockholders of the Company.
Based upon our examination of the foregoing papers and documents,
together with the examination of such other papers and documents and the
investigation of such matters of law as we have deemed relevant or necessary
in rendering this opinion, we hereby advise you that we are of the opinion
that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware.
2. The Company is authorized by its Certificate of Incorporation, as
amended, to issue 15,000,000 shares of Common Stock having a par value of
$1.00 per share. You have advised that on April 4, 1994, there were
11,078,357 shares of Common Stock issued and outstanding.
3. The Plan has been duly adopted by the Board of Directors of the
Company and approved by a majority vote of the Stockholders of the Company,
and constitutes a legal, valid and binding obligation of the Company
enforceable in accordance with its terms.
<PAGE>
Texas Industries, Inc.
May 4, 1994
Page 2
4. Shares of the Common Stock of the Company purchasable upon the
exercise of options granted under the Plan will, upon issuance by the Company
in accordance with the terms of the respective agreements under which such
options may be granted, be duly and validly issued, and will be fully paid and
nonassessable, whether such shares shall theretofore have been authorized but
unissued shares of the Common Stock of the Company or shares reacquired by
the Company and held by it as treasury shares, provided that the purchase
price under each such agreement shall be at least equal to the par value of
the shares issued thereunder.
We consent to the use of this opinion in connection with the Registration
Statement on Form S-8 filed by the Company with the Securities and Exchange
Commission for the registration under the Securities Act of 1933, as amended,
of 1,000,000 shares of the Common Stock of the Company for issuance upon the
exercise of options granted pursuant to the Plan.
Very truly yours,
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
By: /s/ DAN BUSBEE
------------------------
Dan Busbee
<PAGE>
EXHIBIT 15.1
<PAGE>
May 18, 1994
Stockholders and Board of Directors
Texas Industries, Inc.
We are aware of the incorporation by reference in the Registration Statement
(Form S-8 No. 33-_____) of Texas Industries, Inc. pertaining to the Texas
Industries, Inc. Stock Option Plan for the registration of 1,000,000 shares of
its common stock of our reports dated September 16, 1993, December 15, 1993
and March 21, 1994 relating to the unaudited consolidated interim financial
statements of Texas Industries, Inc. which are included in its Form 10-Q for
the quarters ended August 31, 1993, November 30, 1993 and February 28, 1994.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a
part of the registration statement prepared or certified by accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ ERNST & YOUNG
Dallas, Texas
<PAGE>
EXHIBIT 23.1
<PAGE>
Consent of Independent Auditors
We consent to the incorporation by reference of our report dated July 14,
1993, with respect to the consolidated financial statements of Texas
Industries, Inc. incorporated by reference in its Annual Report (Form 10-K)
for the year ended May 31, 1993 and the related financial statement schedules
included therein, filed with the Securities and Exchange Commission in the
Registration Statement (Form S-8 No. 33- ) pertaining to the Texas
Industries, Inc. Stock Option Plan of Texas Industries, Inc.
/s/ ERNST & YOUNG
May 18, 1994
Dallas, Texas
