ASSET PURCHASE AGREEMENT

ARTICLE I DEFINITIONS

1

1.01

Definitions.

1

ARTICLE II CONSIDERATION

3

2.01

Consideration.

3

2.02

Payment of Consideration.

3

2.03

Allocation of the Purchase Price.

3

2.04

Post-Closing Adjustment to Purchase Price.

4

2.05

Holback for Payment of Debt.

5

2.06

Retention of Earnest Money Deposit.

5

ARTICLE III ASSETS

5

3.01

Acquisition of the Assets.

5

3.02

Excluded Assets.

7

3.03

Assumed Liabilities; Excluded Liabilities.

8

3.04

Deliveries by Sellers and Stockholder.

8

3.05

Prorations and Charges.

9

ARTICLE IV CLOSING

9

4.01

Closing.

9

ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS AND STOCKHOLDER

10

5.01

Due Organization and Qualification.

10

5.02

Authorization; Non-Contravention; Approvals.

10

5.03

Capitalization and Ownership.

11

5.04

Subsidiaries.  Intentionally Omitted.

11

5.05

Financial Statements.

11

5.06

Interest Bearing Debt.

12

5.07

Real Property

12

5.08

Personal Property.

13

5.09

Material Customers and Contracts.

14

5.10

Permits.

15

5.11

Environmental Matters.

15

5.12

Labor and Employee Relations; Employment Matters.

16

5.13

Insurance.  Intentionally Omitted.

16

5.14

Compensation; Employment Agreements.

17

5.15

Noncompetition, Confidentiality and Nonsolicitation Agreements; Employee Policies.

17

5.16

Employee Benefit Plans.

17

5.17

Litigation and Compliance with Law.

19

5.18

Taxes.

20

5.19

Absence of Changes.

20

5.20

Accounts Receivable.

20

5.21

Absence of Certain Business Practices.

20

5.22

Competing Lines of Business; Related-Party Transactions.

20

5.23

Intangible Property.

20

5.24

Capital Expenditures.

20

5.25

Not Used.

20

5.26

Inventories.

21

5.27

Product Warranties.

21

5.28

No Implied Representations.

21

5.29

Disclosure.

21

ARTICLE VI REPRESENTATIONS AND WARRANTIES OF U.S. CONCRETE AND BUYER

21

6.01

Organization.

21

6.02

Authorization; Non-Contravention; Approvals.

22

ARTICLE VII CERTAIN COVENANTS

22

7.01

Access to Land and Records.

22

7.02

Future Cooperation.

23

7.03

Expenses.

23

7.04

Consulting Agreement.

23

7.05

Release from Encumbrances.

23

7.06

Change of Sellers Names.

24

7.07

Certain Supplies.

24

7.08

Continuing Employees.

24

7.09

Purchase of Hunting Personal Property.

24

7.10

Removal of Personal Property.

24

7.11

Post-Closing Consents.

24

7.12

Insurance.

24

7.13

Transition.

25

ARTICLE VIII CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER

25

8.01

Representations and Warranties.

25

8.02

Covenants.

25

8.03

No Adverse Proceeding.

25

8.04

Consents.

25

8.05

Survey.

25

8.06

Title Policy.

26

8.07

Transferability of Permits.

26

8.08

Environmental Review.

26

8.09

Due Diligence Review.

26

8.10

Board Approval.

26

ARTICLE IX INDEMNIFICATION

27

9.01

Non-Assumption of Liabilities.

27

9.02

Survival of Representations and Warranties.

27

9.03

Indemnification by Stockholder and Sellers.

28

9.04

Indemnification by U.S. Concrete.

28

9.05

Third Person Claims.

29

9.06

Non-Third Person Claims.

29

9.07

Indemnification Threshold.

29

9.08

Indemnification Limitation.

30

9.09

Indemnification for Negligence of Indemnified Party.

30

ARTICLE X NONCOMPETITION COVENANTS

30

10.01

Prohibited Activities.

30

10.02

Equitable Relief.

31

10.03

Reasonable Restraint.

31

10.04

Severability; Reformation.

31

10.05

Material and Independent Covenant.

31

ARTICLE XI NONDISCLOSURE OF CONFIDENTIAL INFORMATION

32

11.01

General.

32

11.02

Equitable Relief.

32

ARTICLE XII MISCELLANEOUS

32

12.01

Successors and Assigns; Rights of Parties.

32

12.02

Entire Agreement.

32

12.03

Counterparts.

33

12.04

Brokers and Agents.

33

12.05

Notices.

33

12.06

Exercise of Rights and Remedies; Remedies Cumulative.

34

12.07

Reformation and Severability.

34

12.08

Section Headings; Gender.

34

12.09

Interpretation.

34

12.10

Governing Law.

35

12.11

Dispute Resolution.

35

           (a)          $250,000 in earnest money previously deposited by Buyer in escrow with Seller’s counsel, Scott Damuth (the “Earnest Money Deposit”); and

           (b)          the balance of the Consideration to the Sellers in cash (by wire transfer of immediately available funds in accordance with the wiring instructions for each Seller to be supplied by Stockholder no later than two business days prior to the Closing Date).

           (a)          The parties agree that the Consideration was determined as if the “working capital” (defined below) of Sellers was going to be $1.00 as of 12:01 a.m. on December 5, 2005.  Accordingly, the parties agree that the Consideration set forth in Section 2.01 shall be adjusted on the Adjustment Date (as defined below) to reflect the actual “working capital” of Sellers on the Closing Date, as shown on the balance sheet to be prepared in accordance with Section 2.04 (c) hereof.  If the total “working capital” of Sellers is greater than $1.00 as of 12:01 a.m. on December 5, 2005, then the Consideration paid pursuant to Section 2.01 shall be increased dollar for dollar for each dollar the “working capital” exceeds $1.00 as of 12:01 a.m. on December 5, 2005.  If the “working capital” of Sellers is less than $1.00 at 12:01 a.m. on December 5, 2005, then the Consideration  paid pursuant to Section 2.01 shall be decreased dollar for dollar for each dollar the “working capital” falls below $1.00 as of 12:01 a.m. on December 5, 2005.

           (b)          For purposes of this Agreement, “working capital” shall mean the “current assets” of Sellers on the Closing Date minus all “current liabilities” of Sellers on the Closing Date. For purposes of this Section, (A) the term “current assets” shall mean accounts receivable actually collected and deposits and other receivables, inventory, and prepaid expenses and  (B) the term “current liabilities” shall mean all trade accounts payable. In computing the adjustment amount provided for in this Section, the party owing payment to the other pursuant to this Section shall make such payment within 30 days after the Adjustment Date; provided, however, that Buyer shall withhold until the Adjustment Date from the Consideration otherwise payable to Sellers at Closing an amount equal to 50% of the aggregate balance of the Sellers’ accounts receivable  which are 90 days old or older on the Closing Date.

           (c)          On the date which is 120 days after the Closing Date (the “Adjustment Date”) the parties shall adjust the Consideration  in accordance with Section 2.4(a) above based on a balance sheet “working capital” of Sellers at 12:01 a.m. on December 5, 2005, prepared by Buyer and delivered to Stockholder at least seven days prior to the Adjustment Date.  Any dispute between the parties as to this Section 2.04 shall be resolved as set forth below.

           (d)          Any accounts receivable which are written off in whole or in part in connection with preparing the balance sheet described in subsection (c) above that are subsequently collected by Buyer after the Adjustment Date will be paid to the applicable Seller as soon as possible, but at least on a quarterly basis.  However, Buyer shall not be responsible to either Seller for any accounts receivable which are not collected.

           (e)          In the event of a dispute between the parties as to the “working capital”, the parties will have 30 days to resolve the dispute among themselves.  If the parties have not resolved such dispute within such 30-day period, then the parties shall select an arbitrator who shall decide the dispute within 30 days after being selected.  If the parties cannot agree on an arbitrator, then Buyer and Stockholder shall each select an arbitrator and the two arbitrators so selected shall select a third arbitrator.  The parties hereto each agree to be bound by the decision of the arbitrator(s) as to accounting matters.  In the event that three arbitrators are chosen, a majority decision will be required.  Each arbitrator selected must be an independent certified public accountant.  All costs of the arbitration shall be split equally between Buyer on the one hand and Stockholder on the other hand.

           (a)          default by Stockholder or either Seller under the terms of this Agreement;

           (b)          inability of Buyer to verify that the volumes or aggregate reserves related to the businesses of Sellers are as represented by Stockholder;

           (c)          discovery that a material portion of the Assets are not owned by Sellers, including, without limitation, any litigation contesting such title or ownership; and

           (d)          discovery that some or all of the Land contains Hazardous Substances or is otherwise in violation of Environmental Laws.

           (a)          all of each of the Sellers’ right, title, estate and interest in and to the following real estate and more fully described on Schedule 5.07 hereto:

               (i)          DeSoto (consisting of two parcels of approximately 5 acres and 4.511 acres, respectively);

               (ii)         Midlothian (consisting of approximately 17.5 acres);

               (iii)        Prosper (consisting of approximately 10.15 acres);

               (iv)        Mesquite (consisting of approximately 2.15 acres);

               (v)         Dallas (consisting of approximately 2.13 acres) leased by Go-Crete on a month to month oral basis; and

               (vi)        Chatfield (consisting of approximately 2098 acres) (collectively, the “Land”).

           (b)          all fixtures and other improvements located on the Land;

           (c)          all accounts receivable of each of the Sellers as of the close of business on the Closing Date;

           (d)          all inventory (including, without limitation, spare parts inventory) and works-in-progress of each of the Sellers;

           (e)          all customer lists, sales records, credit data and other information relating to customers of each of the Sellers;

           (f)          all right, title and interest of each of the Sellers in, to and under the contracts and agreements with customers and suppliers to which each of the Sellers are a party, except for any which are Excluded Liabilities (the “ Operating Agreements ”);

           (g)          all vehicles and other transportation equipment of each of the Sellers, including, without limitation, the vehicles and other transportation equipment set forth in Schedule 5.08;

           (h)          all of the furniture, fixtures, equipment, machinery, plants, tools, appliances, telephone systems, copy machines, signs, fax machines, implements, spare parts, supplies, leasehold improvements, construction in progress and all other tangible personal property of every kind and description owned by each of the Sellers or each of the Sellers leasehold interests therein (the “ Equipment ”), including, without limitation, the Equipment set forth in Schedule 5.08;

           (i)          all right, title and interest of each of the Sellers in, to and under all Permits (hereinafter defined) owned or possessed by each of the Sellers and relating to the businesses of each of the Sellers or all or any of the Assets, including, without limitation, the Permits set forth in Schedule 5.10;

           (j)          all right, title and interest of each of the Sellers in, to and under all Intangible Property of each of the Sellers, the goodwill associated therewith and the rights and privileges used in the conduct of the business of each of the Sellers and the right to recover for infringement thereon, including, without limitation, the Intangible Property set forth on Schedule 5.23;

           (k)          the names “Go-Crete” and “South Loop Development Corporation” and any derivations thereof, and any trade names or other assumed names under which either of the Sellers operate, and all phone numbers, fax numbers, email addresses and website addresses used in connection with the operation of the business of either of the Sellers.

           (l)          copies of each of the Sellers’ books, records, papers and instruments of whatever nature and wherever located that relate to the Assets;

           (m)          all right, title and interest of each of the Sellers in computer and communication equipment and hardware, including, without limitation, all radios, transmitters, GPS or other tracking instruments, central processing units, terminals, disk drives, tape drives, electronic memory units, printers, keyboards, screens, peripherals (and other input/output devices), modems and other communication controllers, networking equipment, and any and all parts and appurtenances thereto, together with all software and intellectual property used by each of the Sellers with such computer and communication equipment and hardware, to the extent such software and intellectual property is assignable;

           (n)          all right, title and interest of each of the Sellers in, to and under all rights, claims, causes of action, and options relating to or pertaining to their businesses or the foregoing Assets;

           (o)          all prepaid items, deposits and other similar assets of each of the Sellers which are associated with the Assets and their businesses, excluding that certain account of Go-Crete with the State of Texas or other entity relating to workers’ compensation matters (the “Deposit”);

           (p)          all other or additional privileges, rights, interest, properties and assets of each of the Sellers of every kind and description and wherever located that are used or intended for use in connection with, or that are necessary to the continued conduct of, their businesses presently being conducted, but not including the Excluded Assets; and

           (q)          all of the goodwill of each of the Sellers related to the Assets and their businesses.

           (a)          As further consideration for the purchase of the Assets, Buyer shall assume and discharge only the liabilities, obligations or contingencies of the Sellers specifically listed in Schedule 3.03(a), consisting of the trade accounts payable of Sellers as of the close of business on the Closing Date (the “ Assumed Liabilities ”).

           (b)          Notwithstanding anything to the contrary contained herein, neither U.S. Concrete nor Buyer shall assume or be liable for: (i) any fees, expenses, finder’s fees, brokerage commissions or advisory fees, expenses or commissions arising in connection with the consummation of the transactions contemplated by this Agreement; (ii) any Loss with respect to, arising out of or from any claim, action, suit or proceeding against or relating in any way to either of the Sellers, Stockholder or the Assets, whether disclosed or not, or now or hereafter arising, including without limitation, any claim arising out of or relating to any violation by either of the Sellers or Stockholder of (1) any agreement, contract or undertaking by which either of the Sellers or Stockholder are bound, or (2) any Law that applies to either of the Sellers, including, without limitation, any Environmental Law; and (iii) all Taxes payable by either of the Sellers or Stockholder for all periods prior to and including the Closing Date (collectively, the “ Excluded Liabilities ”).

           (c)          Neither U.S. Concrete nor Buyer assumes or agrees to pay, perform or discharge, or otherwise shall be responsible for, any Excluded Liabilities or any debt, liability or obligation of either of the Sellers or any Affiliate of either of the Sellers other than the Assumed Liabilities (collectively, the “ Retained Liabilities ”), whether accrued, absolute, contingent, known or otherwise.  Each of the Sellers and Stockholder agree that each of the Sellers and Stockholder shall remain solely responsible for, and each of the Sellers and Stockholder hereby agree jointly and severally to indemnify, defend, protect and hold harmless U.S. Concrete, Buyer and their respective officers, directors, employees, stockholders, agents, representative and Affiliates at all time from and after the date of this Agreement from and against all Losses and obligations, whether accrued, absolute, contingent or otherwise, arising from or in respect of any Retained Liabilities.

           (a)          special warranty deeds to the DeSoto, Midlothian, Prosper, Mesquite and Chatfield parcels of the Land to Buyer;

           (b)          an assignment by Sellers of their oral month-to-month leasehold rights to the Dallas parcel of the Land;

           (c)          one or more assignment and assumptions of the Operating Agreements, with consent if required and an acknowledgment that no defaults exist under the Operating Agreements (the “ Assignment of Operating Agreements ”);

           (d)          one or more assignment and assumptions of all leases for all leased vehicles and Equipment of either Seller reflected on Schedule 5.08, with the consent of the lessor if required and an acknowledgment that no defaults exist under the assignments (the “Assignment of Equipment Leases”);

           (e)          a general conveyance, assignment and bill of sale conveying all of the Assets (except as otherwise set forth above);

           (f)          consents, approvals or other forms of acknowledgement by all governmental entities required for the transfer of the Permits to Buyer;

           (g)          all motor vehicle Certificates of Title and registrations to the owned vehicles, if any, and all other certificates of title to any Asset covered by a certificate of title;

           (h)          certified copies of resolutions of the Stockholder and director(s) of the Sellers authorizing the execution of this Agreement, the sale of the Assets to Buyer, and the consummation of the transactions contemplated herein;

           (i)          an incumbency certificate of each of the Sellers;

           (j)          a good standing certificate of each of the Sellers;

           (k)          evidence of the payment in full of all Interest Bearing Debt;

           (l)          such other separate instruments of sale, assignment, or transfer reasonably required by Buyer necessary to vest in Buyer good and indefeasible title to the Assets, free and clear of all Encumbrances and to comply with the purposes and intent of this Agreement; and

           (m)          releases in form and substance satisfactory to U.S. Concrete executed by each of the Sellers and Stockholder releasing U.S. Concrete, Buyer and the Assets from any liability or obligation to either of the Sellers or Stockholder.

           (a)          Each of the Sellers has the full requisite corporate power and authority to execute, deliver and perform this Agreement and the ancillary documents and agreements described herein and to effect the transactions contemplated by this Agreement.  Stockholder has the full legal right, power and authority to execute, deliver and perform this Agreement.  The execution, delivery and performance of this Agreement and the transactions contemplated hereby have been approved by the board of directors of each of the Sellers and by Stockholder.  No additional corporate or other proceedings on the part of either of the Sellers or Stockholder are necessary to authorize the execution and delivery of this Agreement and the consummation by each of the Sellers and Stockholder of the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by each of the Sellers and Stockholder and, assuming the due authorization, execution and delivery hereof by U.S. Concrete and Buyer constitutes a valid and binding agreement of each of the Sellers and Stockholder, enforceable against each of them in accordance with its terms.

           (b)          The execution, delivery and performance of this Agreement by each of the Sellers and Stockholder does not, and the consummation by each of the Sellers and Stockholder of the transactions contemplated hereby will not, violate or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the creation of any Encumbrance upon any of the Assets under any of the terms, conditions or provisions of, (i) the Articles of Incorporation and Bylaws of either of the Sellers, (ii) any Law applicable to Stockholder or either of the Sellers or any of the Assets of Stockholder or either of the Sellers, or (iii) any agreement, note, bond, mortgage, indenture, deed of trust, license, franchise, Permit (hereinafter defined), concession, lease or other instrument, obligation or agreement of any kind to which Stockholder or either of the Sellers as it relates to the Assets are now a party or by which either of the Sellers or any of the Assets may be bound or affected.

           (c)          Except as set forth in Schedule 5.02, no declaration, filing or registration with, or notice to, or authorization, consent or approval of, any Governmental Authority or third party is necessary for the execution and delivery of this Agreement by either of the Sellers and Stockholder or the consummation by either of the Sellers and Stockholder of the transactions contemplated hereby.  Except as set forth in Schedule 5.02, none of the contracts or agreements with Material Customers (hereinafter defined) or Operating Agreements or Permits requires notice to, or the consent or approval of, any Governmental Authority or other third party for the execution, delivery or performance of this Agreement by either of the Sellers and Stockholder or to any of the transactions contemplated hereby to remain in full force and effect following such transaction.

           (a)          The Sellers have delivered to U.S. Concrete and Buyer true, complete and correct copies of the following financial statements:  (i) Go-Crete’s audited balance sheet as of May 31, 2004 and May 31, 2005, and a statement of income, cash flow and retained earnings for the years then ended (the “Year-End Financial Statements”), and (ii) Go-Crete’s balance sheet as of September 30, 2005 (the “Balance Sheet Date”), and a statement of income, cash flow and retained earnings for the quarter then ended ((i) and (ii) being collectively, the “Financial Statements”).  The Financial Statements (including any footnotes thereto) have been prepared on a consistent basis throughout the periods indicated.  The Financial Statements (including any footnotes thereto) are true, complete and correct and present fairly the financial condition and the results of the operations of the applicable Seller for the period indicated thereon.  All reserves for contingent risks are appropriate and sufficient to cover all costs reasonably expected to be incurred from such risks.  The Financial Statements are consistent with the books and records of the applicable Seller (which books and records are correct and complete).

           (b)          The Year-End Financial Statements (including all footnotes thereto) are true and accurate, have been prepared from the books and records of each of the Sellers in accordance with generally accepted accounting principals in the United States of America applied on a consistent basis throughout the periods covered thereby and present fairly and accurately the financial position, results of operations and cash flow of the Sellers as of the dates of such statements and for the periods covered thereby.  The books of account of each of the Sellers have been kept accurately in all material respects in the ordinary course of business, the transactions entered therein represent bona fide transactions, and the revenues, expenses, assets and liabilities of each of the Sellers have been properly recorded therein in all material respects all in accordance with past practice of each of the Sellers consistently applied.

           (a)          Neither of the Sellers have ever owned, leased or otherwise occupied, had an interest in or operated any real property other than the Land.  The legal description and current use of each parcel of Land is attached hereto as Schedule 5.07.  One or both of the Sellers has good, valid fee simple title to each parcel of the Land, including all mineral rights thereto except as may be set forth in the Title Policies (hereinafter defined).  Except as set forth on Schedule 5.07:

              (i)          The Land is fully licensed, permitted and authorized for the operation of the business of each of the Sellers conducted thereon under all Laws relating to the protection of the environment, the Land and the conduct of such business thereon (including, without limitation, all zoning restrictions and land use requirements).

              (ii)         The Land is usable for its current uses and can be used by Buyer after the Closing for such uses without violating any Law or private restriction, and such uses are legal conforming uses.  There are no proceedings or amendments pending and brought by or threatened by any third party which would result in a change in the allowable uses of the Land or which would modify the right of Buyer to use the Land for its current uses.

              (iii)        There is public ingress and egress to and from each parcel of the Land and all public utilities required for the operation of the Land are installed and operational and all installation and connection charges have been paid in full.

              (iv)        Except as may be set forth in the Title Policies, no third parties have any rights to drill or explore for, collect, produce, mine, excavate, deliver or transport oil, gas, coal, or other minerals in, on, beneath, across, over, through, from or to any portion of the Land.

              (v)         None of the Sellers, Stockholder or the Land now is, or ever has been, involved in any litigation or administrative proceeding seeking to impose fines, penalties or other liabilities or seeking injunctive relief for violation of any applicable Laws relating to the environment.

              (vi)        No third party has a present or future right to possession of all or any part of the Land.

              (vii)       No portion of any improvements on any parcel of the Land encroach onto neighboring properties and no improvements from neighboring properties encroach onto any portion of the Land.

              (viii)      No portion of the Land contains any areas that could be characterized as disturbed, undisturbed or man made wetlands or as “waters of the United States” pursuant to any Applicable Laws or the procedural manuals of the Environmental Protection Agency, U.S. Army Corps of Engineers or the Texas Department of Environmental Protection, whether such characterization reflects current conditions or historic conditions which have been altered without the necessary permits or approvals.

              (ix)        There are no mechanics’ liens affecting the Land and no work has been performed thereon at the request of either of the Sellers within 120 days of the date hereof for which a mechanic’s lien could be filed.

              (x)         There are no levied or pending special assessments affecting all or any part of the Land and none is threatened.

              (xi)        There are no pending or threatened condemnation or eminent domain proceedings affecting all or any part of the Land.

           (a)          Attached as Schedule 5.08(a) is a complete and accurate list and a complete description as of the date hereof of all personal property of each of the Sellers including true and correct copies of leases for Equipment and other personal property, if any, used in the operation of the businesses of each of the Sellers.  All of the tangible assets, plants, materials handling equipment, machinery and other equipment of each of the Sellers are in good working order and repair, normal wear and tear excepted;

           (b)          At the Closing each of the Sellers will have good title to, or a valid leasehold interest in the Assets, free and clear of all Encumbrances;

           (c)          All leases set forth on Schedule 5.08(a) are in full force and effect and constitute valid and binding agreements of the parties thereto (and their successors) in accordance with their respective terms.  No default by either of the Sellers, or any other party to any of such leases, exists or would exist except for the passage of time or delivery of a notice or both; and

           (d)          All fixed assets used by each of the Sellers in the operation of the businesses of each of the Sellers are either owned by each of the Sellers or leased by the Sellers under an agreement indicated on Schedule 5.08(a).  The combined fixed assets of each of the Sellers (together with the real property assets) constitute all of the real and personal property necessary for the operation of such businesses both by each of the Sellers and by Buyer following the Closing and include all of the Permits, consents and other approvals necessary to operate such business both before and after Closing.

           (a)          Schedule 5.09 (i) sets forth an accurate list of all customers representing 5% or more of either of the Seller’s revenues, on an individual basis, for each of the previous two fiscal years (the “ Material Customers ”), and (ii) sets forth an accurate list and briefly describes all material contracts, warranties, commitments, understandings, instruments and similar agreements and arrangements relating to the Assets to which either of the Sellers are currently a party or by which either of the Sellers or any of their properties are bound, each of which shall be deemed material (the “ Listed Agreements ”).  Prior to the Closing Date, each of the Sellers shall make available to U.S. Concrete and Buyer true, complete and correct copies of all the Listed Agreements.

           (b)          No Material Customer has canceled or substantially reduced or, to the knowledge of either of the Sellers or Stockholder, is threatening to cancel or substantially reduce its purchases of either of the Seller’s products or services, and (ii) each of the Sellers and any other party to the Listed Agreements are in compliance with all material commitments and obligations pertaining to such party under such agreements and is not, nor has such party been asserted to be, in default, violation or breach of any such Listed Agreement, and no event has occurred and is continuing that constitutes or with notice or the passage of time or both, would constitute a default, violation or breach under any such Listed Agreement.  The Listed Agreements are in full force and effect and constitute valid and binding agreements of each of the Sellers and the other parties thereto in accordance with their respective terms.

           (c)          Except as set forth in Schedule 5.09, neither of the Sellers, Stockholder nor any officer, employee, stockholder, director, representative or agent thereof is a party to any contract, arrangement, commitment or understanding among themselves or with any customer of either of the Sellers for the repurchase of products, sharing of fees, rebating of charges, bribes, kickbacks or other similar arrangements.

           (d)          Schedule 5.09 sets forth a summary of each outstanding bid or proposal by each of the Sellers that, if awarded to either of the Sellers, contemplates payments to either of the Sellers in excess of $10,000 and that is subject to acceptance or award by a third party.

           (e)          Schedule 5.09 sets forth a summary of each of the Sellers’ open jobs and a job cost schedule as of the Balance Sheet Date.  There has not been a decline in either of the Sellers’ gross profit percentage since the Balance Sheet Date.