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Exhibit 3.26b
AGREEMENT OF LIMITED PARTNERSHIP
OF
REDI-MIX CONCRETE, L.P.
DATE: NOVEMBER 17, 2003
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THE PARTNERSHIP INTERESTS HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY JURISDICTION. NO
PARTNERSHIP
INTEREST MAY BE SOLD OR OFFERED FOR SALE (WITHIN THE MEANING OF ANY
SECURITIES
LAW) UNLESS A REGISTRATION STATEMENT UNDER ALL APPLICABLE
SECURITIES LAWS WITH
RESPECT TO THE INTEREST IS THEN IN EFFECT OR AN EXEMPTION FROM THE
REGISTRATION
REQUIREMENTS OF THOSE LAWS IS THEN APPLICABLE TO THE INTEREST. A
PARTNERSHIP
INTEREST ALSO MAY NOT BE TRANSFERRED OR ENCUMBERED UNLESS THE
PROVISIONS OF
ARTICLE V OF THIS AGREEMENT ARE SATISFIED.
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TABLE OF CONTENTS
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I. FORMATION OF
PARTNERSHIP............................................
1
1.1
Formation......................................................
1
1.2
Name...........................................................
1
1.3
Places of Business and
Registered Office....................... 1
1.4
Purpose........................................................
1
1.5
Title to Partnership
Property.................................. 1
1.6
Term...........................................................
1
II. CAPITALIZATION AND
RELATED MATTERS.................................. 1
2.1
Original
Capital............................................... 1
2.2
Additional
Funds............................................... 1
2.3
Capital
Accounts...............................................
1
2.4
Interest on and Return
of Capital.............................. 1
2.5
Negative Capital
Accounts...................................... 2
III. ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS TO THE
PARTNERS..... 2
3.1
Profits, Losses and
Distributive Shares of Tax Items........... 2
3.2
Distribution of Cash
Flow...................................... 2
IV. MANAGEMENT OF THE
PARTNERSHIP....................................... 2
4.1
The General
Partner............................................ 2
4.2
Limitations on Power
and Authority of the General Partner...... 2
4.3
Authority as to Third
Persons.................................. 3
4.4
Compensation and
Expenses of the General Partner............... 3
4.5
Limited
Partners...............................................
3
4.6
Partnership
Liabilities........................................ 3
4.7
Indemnity......................................................
3
V. ADMISSION OF
NEW LIMITED PARTNERS...................................
4
5.1
Procedure for
Admission........................................ 4
VI. LIQUIDATION AND
DISSOLUTION OF THE PARTNERSHIP...................... 4
6.1
Dissolution
Events............................................. 4
6.2
Withdrawal of or
Transfer by General Partner; Continuation..... 5
6.3
Method of
Liquidation.......................................... 5
6.4
Date of
Termination............................................
6
6.5
Death, Dissolution,
Legal Incompetency or Bankruptcy of a
Limited Partner................................................
6
VII.
MISCELLANEOUS.......................................................
7
7.1
Fiscal
Year....................................................
7
7.2
Records........................................................
7
7.3
Method of
Accounting........................................... 7
7.4
Notices........................................................
7
7.5
Amendments;
Waivers............................................ 7
7.6
Binding
Effect.................................................
7
7.7
Duplicate
Originals............................................ 7
7.8
Construction...................................................
7
7.9
Governing Law;
Jurisdiction.................................... 7
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7.10
Other Instruments..............................................
8
7.11
Legal Construction.............................................
8
7.12
Gender, Etc....................................................
8
7.13
Waiver of Partition and Certain Other Rights; Nature of
Interests in the Partnership...................................
8
7.14
Partner Approvals..............................................
8
7.15
Partner Meetings...............................................
8
7.16
Creditors Not Benefited........................................
9
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Exhibit A Definitions
ii
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I. FORMATION OF PARTNERSHIP
1.1
Formation. The Partners form a limited partnership under the
Act,
effective as of the date listed on the cover page of this
Agreement. Capitalized
terms not otherwise defined in this Agreement shall have the
meanings ascribed
thereto in Exhibit A.
1.2
Name. The name of the Partnership is on the cover page to this
Agreement. The General Partner may change the name of the
Partnership from time
to time. The General Partner also may adopt one or more fictitious
names for use
by the Partnership.
1.3
Places of Business and Registered Office. The principal office of
the
Partnership is at 1445 MacArthur Drive, #136, Carrollton, TX 75007.
John C.
Miller is the initial registered agent for the Partnership and the
registered
address of the Partnership is at 1445 MacArthur Drive, #136,
Carrollton, TX
75007. The General Partner may change the principal or registered
office or
registered agent of the Partnership from time to time. The General
Partner may
establish, maintain and abandon one or more additional places of
business for
the Partnership.
1.4
Purpose. The purpose of the Partnership is to conduct any
activity
permitted by law, any of which will be permitted regardless of
whether any
Partner or Affiliate has a direct or indirect interest in the
activity.
1.5
Title to Partnership Property. Property may be acquired in the name
of
the Partnership or in the name of an agent or nominee on terms and
conditions
the General Partner deems appropriate.
1.6
Term. The term of the Partnership will continue until 99 years from
the
effective date of the formation of the Partnership, subject to
earlier
termination under Article VI.
II. CAPITALIZATION AND RELATED MATTERS
2.1
Original Capital. The original capital of the Partnership will
consist
of cash contributions to be made by the Partners in the respective
amounts set
forth opposite their signatures on the signature page of this
Agreement. Each
Partner agrees to make the capital contribution required under this
Section
2.1(a), which will be due upon call by the General Partner. The
initial
Percentage Interest of each Partner is set forth opposite its
signature on the
signature page of this Agreement.
2.2
Additional Funds. No Partner will have any obligation to advance
any
additional funds to the Partnership (either as a loan or capital
contribution)
other than as expressly set forth in Section 2.1.
2.3
Capital Accounts. A separate capital account will be maintained
for
each Partner in accordance with Section 704(b) of the Code and the
Treasury
Regulations promulgated thereunder as interpreted by the General
Partner.
2.4
Interest on and Return of Capital. No Partner will be entitled to
any
interest on his capital account or on his contributions to the
capital of the
Partnership. Except as expressly
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provided in this Agreement, no Partner will have the right to
demand or receive
the return of all or any part of his capital or to receive property
other than
cash from the Partnership.
2.5
Negative Capital Accounts. No Partner will be required to pay to
the
Partnership or to any other Partner any deficit or negative balance
which may
exist from time to time in the Partner's capital account.
III.
ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS TO THE PARTNERS
3.1
Profits, Losses and Distributive Shares of Tax Items. Profits
and
losses of the Partnership for any fiscal year will be determined in
accordance
with the requirements of the Code and the Treasury Regulations
promulgated
thereunder as interpreted by the General Partner and shall be
allocated to the
Partners in accordance with their respective Percentage
Interests.
3.2
Distribution of Cash Flow. Subject to Section 6.3, after
establishing
cash reserves (1) required by any loan agreements or similar
arrangements to
which the Partnership is subject, and/or (2) necessary to satisfy
contingencies
reasonably anticipated for, or associated with, the Partnership's
business, any
remaining available cash or other property of the Partnership as
determined by
the General Partner will be distributed at such time or times,
determined by the
General Partner, to the Partners in accordance with their
respective Percentage
Interests.
IV. MANAGEMENT OF THE PARTNERSHIP.
4.1
The General Partner. The business and affairs of the Partnership
will
be managed by the General Partner. Except as otherwise expressly
provided in
Section 4.2 of this Agreement, all determinations relating to the
business and
affairs of the Partnership (including without limitation all
decisions required
or permitted to be made by the Partnership as a participant in any
other
Partnership in which it may have an interest) will be made by the
General
Partner in its sole discretion and will not give rise to any right
or claim by
any Partner or the Partnership unless made in violation of an
express provision
of this Agreement. The General Partner will have complete authority
to take, in
its own name or in the name of the Partnership, any action that the
General
Partner determines to be appropriate under this Agreement or for
the conduct of
the business of the Partnership. All decisions and actions taken by
the General
Partner under the authority of this Section 4.1 will be binding
upon all of the
Partners and the Partnership. The General Partner will not be
liable or
accountable, in damages or otherwise, to the Partnership or to any
other Partner
for anything it may do or refrain from doing, except in the case of
its willful
breach of a material provision of this Agreement or gross
negligence in
connection with the business and affairs of the Partnership.
4.2
Limitations on Power and Authority of the General Partner. Anything
in
this Agreement to the contrary notwithstanding, the General Partner
will not
have the authority to do any of the following:
(a) Any act in contravention of this Agreement;
(b) Any act which would make it impossible to carry on the
ordinary
business of the Partnership, including the Transfer of all or
substantially
all
of the assets of the
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Partnership in a single transaction or in a series of
transactions
constituting components of a larger transaction;
(c) Confess a judgment against the Partnership except in
connection
with
the settlement of an action or proceeding;
(d) Execute or deliver any general assignment for the benefit
of
creditors of the Partnership;
(e) Commence (as the debtor) a case in bankruptcy, or commence (as
the
debtor) any proceeding under any other insolvency law, or permit or
consent
to
any such proceeding to be commenced against the Partnership or to
remain
undismissed for a period of more than five (5) days; or
(f) Possess property of the Partnership or assign the
Partnership's
rights in specific property for other than Partnership
purposes.
4.3
Authority as to Third Persons. Notwithstanding Sections 4.1 and
4.2,
the signed statement of the General Partner reciting the authority
or the
necessary approval of the General Partner for any action, as to any
third
Person, will be conclusive evidence of the authority of the General
Partner to
take that action. Each Partner will promptly execute instruments
determined by
the General Partner to be appropriate to evidence the authority of
the General
Partner to consummate any transaction permitted by this
Agreement.
4.4
Compensation and Expenses of the General Partner. The General
Partner
will not receive any compensation from the Partnership for serving
as General
Partner, but all expenses incurred by, or allocated by any Partner
or Affiliate
to, the General Partner in connection with its service as General
Partner will
be paid or promptly reimbursed by the Partnership.
4.5
Limited Partners. The Limited Partners, in their capacities as
Limited
Partners, may not act for or bind the Partnership and may not
participate in the
general management, conduct or control of the Partnership's
business or affairs.
Nothing contained in this Section 4.5 will prohibit any Limited
Partner or any
partner, shareholder, owner, officer, director, employee, agent or
authorized
representative thereof from acting as an officer, director,
employee, agent or
other representative of any General Partner.
4.6
Partnership Liabilities. The General Partner will have no liability
for
the return of the Partners' capital contributions. All liabilities
of the
Partnership, including without limitation indemnity obligations
under Section
4.7, will be liabilities of the Partnership as an entity, and will
be paid or
satisfied from Partnership assets. No liability of the Partnership
will be
payable in whole or in part by any Partner in his capacity as a
Partner (other
than the General Partner and then only in its capacity as such, as
determined by
a nonappealable order of a court of competent jurisdiction and
subject to
Section 4.7) or by any partner, shareholder, director, officer,
agent or advisor
of any Partner or Affiliate.
4.7
Indemnity. Subject to the limitations con
