EXHIBIT 2.2
EXCLUSIVE LICENSE AGREEMENT
THIS EXCLUSIVE LICENSE AGREEMENT ("Agreement") is made and entered
into as of this 10th day of October 1997, to be effective as of October 1,
1997, by and between ROBERT A. MILETI ("Mileti"), an individual, ROADWAY
SAFETY SYSTEMS, INC. ("Systems"), a Massachusetts corporation, QUIXOTE
CORPORATION, a Delaware corporation ("Quixote"), and TRANSAFE CORPORATION
("Transafe"), a Delaware corporation (Quixote and Transafe are referred to
together as "Transafe").
WITNESSETH:
WHEREAS, Mileti is the named inventor and holder of U.S. Patent No.
5,306,106 (the "'106 Patent"), applied for on August 14, 1992 and issued on
April 26, 1994; and
WHEREAS, Mileti is a shareholder, officer and director of Systems, and
Systems has been engaged to provide engineering and consulting services in
the transportation safety business;
WHEREAS, Transafe wishes to acquire, and Mileti wishes to convey on an
exclusive basis, all of Mileti's rights to the '106 Patent for its remaining
effective life, including but not limited to, the right to manufacture and
sell devices covered by the '106 Patent, pursuant to the compensation terms
set forth below; and
WHEREAS, Transafe, Mileti and Systems also wish to enter into an
arrangement whereby Mileti and Systems will agree not to compete with
Transafe or its affiliates in the transportation safety field(s);
WHEREAS, the transactions contemplated hereby transfer all substantial
rights in the '106 Patent as defined in Section 1235 of the Internal Revenue
Code of 1986, as amended;
NOW THEREFORE, in consideration of the mutual promises and covenants
set forth herein, and for other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows.
1. Exclusive License of Patent.
In exchange for the payments and other consideration described more
fully below, Mileti hereby grants to Transafe, its subsidiaries, and
affiliates, the sole and exclusive, worldwide right, use, and license
(including the right to sublicense) (a) to make, have made, use, offer to
sell, and sell all products covered by the 106 Patent, any and all
divisions, continuations and continuations-in-part of such Patent and any
and all reissues, renewals and extensions of such Patent, and any and all
foreign patents corresponding thereto (the Licensed Patents ), (b) to
practice and use the inventions covered by the Licensed Patents, and (c)
otherwise to exploit and claim all rights under the Licensed Patents,
(hereinafter the "License").
2. Compensation for the License.
In consideration for the exclusive license granted hereunder and for
the other consideration provided hereunder, Transafe shall pay to Mileti the
Non-contingent Payments and Contingent Payments set forth below, in
accordance with the payment schedules, accounting procedures and audit
rights set forth below.
a. Non-contingent Payment. Transafe shall make non-contingent
payments to Mileti (the "Non-contingent Payments") totaling Five Million
Fifty-Five Thousand Dollars ($5,055,000.00), without interest, payable as
follows:
(1) One Hundred Sixty-Five Thousand Dollars
($165,000.00) by wire transfer at the Closing;
(2) One Million Three Hundred Thousand Dollars
($1,300,000.00) by wire transfer, delivered to Mileti on January
2, 1998, of which Nine Hundred Thousand Dollars ($900,000.00)
represents the prepayment of the annual Non-contingent Payments
of Three Hundred Thousand Dollars ($300,000.00) for the years
starting October 1, 1997, October 1, 1998, and October 1, 1999;
and
(3) Three Million Six Hundred Thousand Dollars
($3,600,000.00) in twelve equal annual installments of Three
Hundred Thousand Dollars ($300,000.00) per year, without
interest, starting on October 1, 2000 and continuing on the
first day of October of each subsequent year up to and including
October 1, 2011.
b. Contingent Payments. In addition to the Non-Contingent
Payments, Transafe shall make additional annual payments to Mileti
contingent upon the net sales volume of devices covered by the subject
matter of the Licensed Patents (the "Contingent Payments"), payable within
the first seven days of each calendar year starting in January of 1999, and
continuing through the January following expiration of the last to expire of
the Licensed Patents, and calculated as follows;
(1) All Contingent Payments shall be calculated
based on the "Total Net Sales" of any highway safety crash
barrel or other product or invention embodying the subject
matter claimed in a Licensed Patent ("Covered Products"), sold
by Transafe and any of its affiliates, assignees, licensees, or
successor(s) in interest, and any of their agents, distributors
or retailers. Contingent Payments shall only be due with
respect to Covered Products that are covered by an issued and
unexpired Licensed Patent in the country in which the Covered
Product is either manufactured, sold, or used. If Transafe
sells a Covered Product to an independent distributor who in
turn makes a sale of Covered Product, the only payment to be
made with respect to such sale shall relate to the sale of the
Covered Product by Transafe to such independent distributor, and
no Contingent Payment shall be due to Mileti with respect to
subsequent sales by the independent distributor; provided that:
(i) the independent distributor is not a corporate affiliate of
Transafe; (ii) there is no common ownership between Transafe (or
its affiliates) and the independent distributor (or its
affiliates); (iii) the sale to the independent distributor is at
a reasonable and fair market price in comparison to the price
paid by other independent distributors; and (iv) arranging for
the ultimate customer sale to occur through the distributor is
not motivated by any attempt to reduce or reallocate payments
which otherwise would be due to Mileti. For purposes of this
calculation, "Total Net Sales" shall be defined to include total
gross sales of Covered Products, when collected, minus: (i) any
discounts or rebates on sales prices (such as volume discounts
or rebates); (ii) shipping costs and freight; (iii) allowances;
(iv) returns of previously sold Covered Products where the sales
of those returned devices were otherwise included in total
sales; (v) warranty chargebacks; and (vi) sales and use taxes.
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(2) The calculation of Contingent Payments shall be
based on Total Net Sales occurring in each of fifteen annual
periods (the "Annual Periods"). The first Annual Period will run
from October l, 1997 through September 30, 1998 and the second
Annual Period will run from October 1, 1998 through September
30, 1999. Each subsequent annual period will likewise run from
the October 1 immediately succeeding the end of the prior Annual
Period, through the following September 30, until expiration of
the last of the Licensed Patents (presently anticipated to occur
on August 14, 2012).
(3) No Contingent Payments shall be due or owing on
the first Five Million Dollars ($5,000,000.00) of Total Net
Sales in any Annual Period through September 30, 2012. From the
date hereof through September 30, 2012, Contingent Payments will
be due on all Total Net Sales in each Annual Period in excess of
Five Million Dollars ($5,000,000.00) (the "Excess Total Net
Sales"), based on Six Percent (6%) of such Excess Total Net
Sales. For example, if Total Net Sales of Covered Products
covered by the Licensed Patents were $6 million between October
1, 1997 and September 30, 1998, then Excess Total Net Sales for
that Annual Period would total $1 million, and a Contingent
Payment equal to 6% of that amount, $60,000, would be payable to
Mileti within the first seven days of calendar year 1999.
(4) Transafe shall accompany each annual Contingent
Payment with an accounting certified as accurate by Transafe
(the "Accounting") of the Total Net Sales for the immediately
preceding Annual Period, which accounting shall fully and
accurately reflect: (i) the gross sales volume of Covered
Products for each month of that Annual Period, including units
sold and total dollars; (ii) an itemization of all discounts,
rebates, returns, exchanges or other deductions for each month
from gross sales volume to arrive at the Total Net Sales
calculation; (iii) the calculation of Mileti's Contingent
Payment for that annual period; and (iv) a summary narrative
explanation of any significant changes or trends in regard to
Total Net Sales for that Annual Period, or anticipated for the
next Annual Period.
(5) Transafe grants Mileti and any professional
accountants or auditors engaged by Mileti at his expense, the
right to audit the books of Transafe within ninety (90) days
after the receipt by Mileti of any Contingent Payment and
Accounting, in order to test the accuracy of such Accounting.
Transafe will cooperate fully with all reasonable requests for
information from Mileti or his accountants or auditors in
connection with such an audit. If any audit by Mileti discloses
actual Total Net Sales is greater than reported Total Net Sales,
then (i) Transafe shall reimburse Mileti for his overdue
Contingent or Non-Contingent Payments; and (ii) if the
difference between Total Net Sales and reported Total Net Sales
is greater than one hundred thousand dollars ($100,000), then
Transafe shall reimburse all costs of the audit, and Mileti
shall have the right to extend the audit to the Accounting for
the prior Annual Period, under the same terms set forth above.
Should any dispute arise between Mileti's professional
accountants or auditors and Transafe's professional accountants
or auditors in connection with any audit performed hereunder,
the parties to this Agreement hereby agree to submit such
dispute to binding arbitration in Chicago, Illinois under the
then-current rules of the American Arbitration Association, the
arbitrator to be affiliated with a Big Five accounting firm.
The costs of the arbitration will be assessed in the discretion
of the arbitrator.
(6) All Contingent Payments based on Net Sales effected in
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countries other than the United States shall accrue in the currency
of the country in which the sales are made. Transafe shall apply its
best efforts to secure U.S. dollar transfers in respect of such
payments, but solely for the convenience and account and at the
expense and risk of Mileti, and any and all loss of exchange value,
taxes or other expenses incurred in the transfer or conversion of
foreign currency into U.S. dollars, and any income, remittance, or
other taxes on such royalties required to be withheld at source shall
be borne exclusively and solely by Mileti. In the event U.S. dollars
are for any reason legally not available for transfer, Transafe may
discharge the payment obligations hereunder by depositing said
payments to the credit of Mileti, or his nominee, in any recognized
banking institution to be designated by Mileti in the country in which
the sales are made and in currency of that country.
(7) In the event that currency regulations of a country
in which sales are made prohibit payment or deposit of monies to
Mileti or his nominee, no payment hereunder shall accrue or be due and
payable for the period during which such currency restrictions
prevail.
3. Maintenance Fees.
Mileti shall retain legal title to the '106 Patent for the
purpose of securing the performance of Transafe hereunder. As owner of the
'106 Patent, Mileti agrees to pay all maintenance and annuity fees which may
become due thereon, and all maintenance and annuity fees on any foreign
patents corresponding thereto.
4. Enforcement of Patents.
Each party will notify the other party of any infringements by
third parties known to it. In the event that a third party appears to be
infringing the Licensed Patents, Transafe shall have the right, by written
notice to Mileti to bring suit for infringement, and to control such a suit
through attorneys of its own choice at its own expense, joining Mileti as
patent owner and party plaintiff, in order to pursue such suit. Mileti
shall have the option of participating in the prosecution of such suit by
Transafe by so notifying Transafe in writing within sixty (60) days of
Transafe's notice, that he wishes to participate and specifying the
percentage of his participation, which may be any percentage up to fifty
percent. Thereupon, Mileti shall promptly pay Transafe the percentage of
billed expenses involved, and then shall participate in the same percentage
of any net damage or settlement recovery (after the deduction of all
expenses including Contingent Payments due hereunder and those expenses
incident to the efforts made to stop the infringement involved) but Transafe
attorneys shall control the prosecution of such suit; provided, however,
Transafe shall consult with Mileti with respect to selection of its counsel.
Without additional compensation, Mileti agrees to perform all acts which may
become necessary or desirable to vest in Transafe the right to institute any
such suit and shall upon reasonable notice, cooperate to that end, to the
extent agreed by these parties as reasonable, necessary or desirable.
Transafe shall use reasonable efforts to insure that any settlement terms do
not prejudice Mileti's rights hereunder, but it is expressly acknowledged
that forbearance of claims for past infringement does not prejudice such
rights. Mileti retains the right to bring suit against any third party who
appears to be infringing one or more of the Licensed Patents against whom
Transafe elects not to bring suit.
5. Third Party Claim of Infringement or Invalidity of Patents.
In the event that a claim is made by a third party that a Covered
Product infringes a patent or that a Licensed Patent is invalid, Transafe
shall promptly advise Mileti of that fact, and Transafe may defend and/or
settle such suit, when and if filed; provided, however, Transafe shall not
settle any such suit without the consent of Mileti, which consent shall not
be
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unreasonably withheld. Transafe and Mileti shall share the expenses for
defense of such suit (and any damages and settlements) as set forth below.
In lieu of Mileti's advancing expenses (or damages), Transafe shall offset
up to one third (1/3) of the expenses (or damages) against any payments
including Non-Contingent Payments otherwise due or to become due to Mileti
after the later of February 1, 1998 or the commencement of the suit, but
such offset against the Non-Contingent Payments in any one year shall not
exceed One Hundred Thousand Dollars ($100,000); provided, however, any
unpaid portion of Mileti's share of expenses (or damages) arising in one
year shall cumulate and shall be offset against future year's Contingent
Payments and Non-Contingent Payments. Mileti, at Transafe's request and
without cost to Transafe, will cooperate and render reasonable assistance to
Transafe in the defense or settlement of any such claim or suit. If a
Licensed Patent (or the claim or claims covering a product sold thereunder)
is finally declared by any court of competent jurisdiction to be invalid or
unenforceable for any reason, no Contingent Payments shall be due or owing
for sales of products made subsequent to the date of such declaration;
provided however, if such declaration of invalidity or unenforceability
arises from litigation initiated by third parties unrelated to and
unaffiliated with Transafe and Quixote, then, in addition, no Non-Contingent
payments shall be due or owing for sales of products made subsequent to the
date of such declaration.
6. Improvements and Technical Data.
a. Mileti will disclose to Transafe all improvements
relating to the Licensed Patents and products covered thereby which are
invented, developed or otherwise acquired by Mileti during the term of this
Agreement, and Transafe shall automatically have, subject to all the terms
and conditions of this Agreement but without any additional payment, a
worldwide exclusive license with respect to such improvements and any
patents or patent applications which Mileti may secure or file thereon or in
connection therewith. Mileti will obtain patent protection on any
improvements at Transafe's cost, if Transafe requests.
b. At Closing and from time to time thereafter, Mileti
will make available to Transafe, without further payment, all of his
laboratory, technical, manufacturing, and marketing data and information
relating to Covered Products and the Licensed Patents, including all data or
information made or acquired by Mileti prior to the date hereof with respect
to manufacturing quotes and cost estimates; subject, however, to waiver of
any confidentiality obligations between Mileti and Roadway Safety Services,
Inc.
7. Non-Competition and Confidentiality Covenants
a. Mileti Non-compete. In consideration of the
compensation set forth above, Mileti hereby expressly covenants that he,
directly or indirectly: (i) will not offer or perform, nor will he accept
compensation for, any engineering or consulting services with regard to
highway safety products, transportation safety issues, or related subjects
within Mileti's range of experience or expertise, either on his own behalf
or on behalf of any other person or entity who is or who may become, in
direct or indirect competition with Transafe or its subsidiaries, affiliates
or successors, in any respect of the highway safety or crash safety products
market anywhere in the world; (ii) will not own, manage, operate, provide
financing to, or join, control or participate in the ownership, management,
operation or control of, or provision of financing to, any business wherever
located (whether in corporate, proprietorship or partnership form or
otherwise), if such business is competitive with the Business or Transafe,
or with any other business operated by Transafe; (iii) will not do or say
anything which is harmful to the reputation of the Business or which may
lead any person to cease to deal with Transafe on substantially equivalent
terms to those previously offered to Roadway or at all; or (iv) will not
seek to contract with or engage in such a way as to adversely affect the
Business any person who or which is party to an agreement with or has
otherwise been engaged to manufacture, assemble, supply or deliver products,
goods, materials or services to the Business or Transafe,
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at any time.
b. Systems Non-compete. In consideration for Transafe's
payment to Systems of Thirty-Five Thousand Dollars ($35,000.00), Systems
expressly covenants that it will: (i) not compete, directly or indirectly,
with Transafe or its subsidiaries, affiliates or successors, in any aspect
of the highway safety or transportation products market anywhere in the
world, during the entire term that payments are being made to Mileti by
Transafe in accordance with the terms of this Agreement; (ii) not use any
trade name or continue to use the corporate name "Roadway," in any business
relating to highway or transportation safety or products; and (iii) change
its corporate name within thirty (30) days of Closing to "RSS, Inc."
c. Confidentiality. Mileti and Systems agree to maintain
in confidence and not to disclose to others, and not to directly or
indirectly use for the benefit of anyone other than Transafe, any
confidential information relating to or in connection with the Licensed
Patents or the inventions covered thereby, including but not limited to
plans and specifications, data, prototypes, processes, and other proprietary
information and trade secrets, and any information with respect to payments
made pursuant to this Agreement and other information learned from audits
performed pursuant to Section 2b(6), without the prior written approval of
Transafe.
d. Remedies. Transafe, Mileti and Systems agree and
acknowledge that money damages may not be an adequate remedy for any breach
of the provisions of this Agreement and that Transafe, Mileti and Systems
shall be entitled to apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without
posting a bond or other security) in order to enforce or prevent any
violation of the provisions of this Agreement.
8. Representations and Warranties,
a. By Mileti. Mileti hereby expressly represents and
warrants to Transafe the following:
(1) He is the named Mileti and holder of the
'106 Patent; he is the sole inventor of the invention
covered by the '106 Patent; he has not assigned or
licensed, nor has he agreed to assign or license, nor is
required to assign or license, the '106 Patent or the
Licensed Patents to any other party; and he is aware of no
other party having any rights to the '106 Patent or
Licensed Patents or claiming invalidity of the '106 Patent
or Licensed Patents except as reflected in: (i) the
allegations which have been made in litigation involving
Mileti, Energy Absorption Systems, Inc. ("Energy"),
Roadway Safety Service, Inc. ("Roadway") and Systems,
currently pending in the United States District Court for
the Northern District of Illinois, at Docket No. 93-C-
2147; and (ii) the allegations which have been made in
litigation involving Mileti and Roadway currently pending
in the United States District Court for the District of
Massachusetts at Case No. 96-12158-RGS and the United
States Court of Appeals for the Federal Circuit at Appeal
No. 97-1378.
(2) The application for the '106 Patent was
filed with the United States Patent and Trademark Office
on August 14, 1992, and the '106 Patent is not scheduled
to expire until August 14, 2012; no applications for
foreign patent protection were filed with respect to the
'106 Patent, and no divisions, continuations,
continuations-in-part, reissues, renewals, and extensions
have been applied for or obtained, with respect to the
'106 Patent.
(3) He has sole and full right, power and
authority to license the Licensed Patents and enter into
this Agreement, and his entry into this Agreement does not
violate or conflict with
6
any agreement to which he is a party or by which he is bound.
(4) Except as alleged in the litigation
referenced in paragraph (a)(1) above, Mileti: has
conceived the invention covered by the 106 Patent
entirely on his own time and the invention does not result
from any work performed by him for his employer; has not
used any equipment, supplies, facilities, or trade secret
information of his employer, and the invention does not
relate to the business of his employer or to his
employer s actual or demonstrably anticipated research or
development, and no claims have been made to such effect.
b. By Systems. Systems represents and warrants to
Transafe the following:
(1) Systems is a corporation duly organized, validly
existing and in good standing under the laws of each jurisdiction
in which the nature of its business requires qualification, and has
full corporate power and authority to carry on the business in
which it is engaged and to use and own the properties owned and
used by it. Mileti is a shareholder of Systems.
(2) Systems has full power and authority to execute
and deliver this License Agreement and to perform its obligations
hereunder.
(3) This Agreement constitutes the valid and legally
binding obligation of Systems, enforceable in accordance with its
terms and conditions.
(4) Neither the execution and the delivery of this
License Agreement nor the consummation of the transactions
contemplated hereby will violate any statute, regulation, rule,
judgment, order, decree, stipulation, injunction, charge or other
restriction of any government, government agency or court to which
Systems or Mileti is subject or bound or any provision of Systems
charter or bylaws, or will conflict with, result in a breach of,
constitute a default under, result in an acceleration of, or create
in any party the right to accelerate, terminate, modify or cancel
or require any notice under any contract, lease, sublease, license,
sublicense, franchise, permit, indenture agreement or mortgage or
other arrangement to which either Mileti or Systems is a party or
by which it or he is bound, or to which any of its or his assets
are subject.
c. By Transafe. Transafe hereby expressly represents and
warrants to Mileti and Systems the following:
(1) Transafe is a corporation duly organized, validly
existing and in good standing under the laws of each jurisdiction
in which the nature of its business requires such qualification,
and has the full power and authority to carry on the business in
which it is engaged, and to own and use the properties owned and
used by it.
(2) Transafe has full power and authority to execute
and deliver this License Agreement and to perform its obligations
hereunder, and this License Agreement constitutes the valid and
legally binding obligation of Transafe, enforceable in accordance
with its terms and conditions.
(3) Neither the execution and delivery of this
License Agreement, nor the consummation of the transactions
contemplated hereby will violate any statute, regulation, rule,
judgment, order, decree, stipulation, injunction, charge or other
restriction of any government, governmental agency or court to
which Transafe is subject or bound or any provision of Transafe's
charter or bylaws, or will conflict with, result in a breach of,
constitute a default under, result in the
7
acceleration of, or create in any party the right to accelerate,
terminate, modify or cancel or require any notice under any contract,
lease, sublease, license, sublicense, franchise, permit, agreement or
any other arrangement to which Transafe is a party or by which it is
bound or to which any of its assets is subject.
(4) Transafe intends to begin active
marketing and sale of Covered Products promptly, including
highway crash barrels which are the same or similar to the
"Universal Module" crash barrels formerly sold by Roadway.
Transafe intends to continue to actively market and sell
Covered Products throughout the term of this Agreement
absent presently unforeseen inventions or developments in
the market likely to make such continued marketing and
sales of Covered Products unprofitable.
(5) Transafe will not during the term of
this Agreement pursue a discounting or marketing strategy
with respect to Covered Products that Transafe knows or
should know will have the effect of significantly reducing
the amount of total net sales as a percentage of total
gross sales of Covered Products with the intent of
reducing payments to Mileti, except as otherwise might be
required to meet market demands of a competitive product.
9. Closing.
The closing of the transactions contemplated by this License
Agreement (the "Closing") shall take place at the offices of McBride Baker &
Coles, 500 West Madison Street, 40th Floor, Chicago, Illinois 60661,
commencing at 9:00 a.m. local time on the second business day following the
satisfaction or waiver of all of the conditions to the obligations of the
parties to consummate the transactions contemplated hereby, or such other
date as the parties mutually determine ("Closing Date").
10. Term and Termination.
a. The term of this Agreement shall be for the life of the
last to expire of the Licensed Patents unless terminated pursuant hereto.
b. This Agreement and the parties' obligations hereunder
shall terminate (1) upon the final declaration of a court of competent
jurisdiction that the Licensed Patents are invalid or unenforceable except
as referenced in Section 5; or (2) at such time as the Federal Highway
Administration (or its successors or agents) determine(s) that frangible
crash barrels are not approved apparatus or equipment for purpose of federal
reimbursement.
c. Termination of this Agreement shall not relieve the
parties of any obligation accruing prior to such termination.
d. Upon termination of this Agreement prior to its stated
term, Transafe shall have the right to dispose of any inventory then on
hand, for a period not to exceed 12 months.
11. Heirs, Successors and Assigns.
Neither party shall have the right to assign the obligations
provided under this Agreement, without the express written consent of the
other party, provided that such consent shall not be unreasonably withheld.
This Agreement shall be binding upon and shall inure to the benefit of the
parties, as well as their respective heirs, successors and assigns. If
death or disability prevents Mileti from exercising any of his rights
hereunder, then those rights shall be exercisable by Mileti's heirs,
representatives, executors, assigns or designees; provided, however, such
heirs, representatives, executor, assigns or designees shall also be bound
to perform and honor Mileti's obligations hereunder.
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12. Legal Counsel.
Each party represents that before the execution of this Agreement,
such party had the benefit of legal counsel of such party's selection, and
that such party executed this Agreement only after consulting with such
legal counsel.
13. Consideration.
Each signatory to this Agreement expressly states that he or it is
enters into this Agreement for adequate consideration.
14. Construction; No Agency; No Waiver.
The parties hereby expressly agree and acknowledge that this
Agreement has been drafted jointly and is not to be construed against any
party on the ground that such party was responsible for the preparation of
this Agreement, or on any related ground. Nothing herein contained will be
deemed to constitute the parties as joint venturers, partners or agents of
each other. No failure on the part of either party to exercise, and no
delay in exercising, and no course of dealing with respect to, any right,
power or remedy under this Agreement shall operate as a waiver thereof. The
express waiver by either party of a breach of any provision shall not be
construed as a waiver of any succeeding breach of the same or another
provision. The remedies in this Agreement are cumulative and are not
exclusive of any other remedies provided by law or equity.
15. Severability.
If any covenant or provision contained herein is determined to be
void or unenforceable, in whole or in part, it shall not be deemed to affect
or impair the validity of any other covenant or provision.
16. Counterparts.
This Agreement may be executed in any number of duplicate
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute but one and same instrument.
17. Notices. All notices, requests, demands, claims, and other
communication hereunder will be in writing. Any notice, request, demand,
claim or other communication hereunder shall be deemed when: (a) delivered
by hand (with written confirmation of receipt), (b) sent by facsimile (with
written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate address and facsimile
numbers set forth (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Transafe: Leslie J. Jezuit
Transafe Corporation
One East Wacker Drive
Chicago, IL 60601
Facsimile: (312) 467-1356
With a Copy To: Anne Hamblin Schiave
McBride Baker & Coles
500 West Madison Street
40th Floor
Chicago, IL 60661
Facsimile: (312) 993-9350
If to Mileti
and Systems: Robert A. Mileti
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Roadway Safety Systems, Inc.
P.O. Box 436
Portsmouth, NH 03802
Facsimile: ( )
With a Copy To: David R. Cohen
Kirkpatrick & Lockhart, L.L.P.
1500 Oliver Building
Pittsburgh, PA 15222
Facsimile: (412) 355-6501
18. Choice of Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Illinois, without
regard to its conflict of law principles.
19. Full Integration.
This Agreement is an integrated agreement containing the entire
understanding among the parties regarding the matters addressed herein and
may not be amended, extended or otherwise modified except by written
agreement of each of the parties. Except as set forth herein, no
representation, warranty or promise has been made or relied upon by any of
the parties in executing this Agreement. This License Agreement shall
prevail over all prior communications between and among the parties or their
representatives regarding the makers addressed herein.
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IN WITNESS WHEREOF, the undersigned parties, each intending to be
legally bound, hereby execute this License Agreement as of the day and date
first written above.
WITNESS: ROBERT A. MILETI
/s/ Robert A. Mileti
--------------------
Date: Date: October 8, 1997
ATTEST: ROADWAY SAFETY SYSTEMS, INC.
By: /s/ Robert A. Mileti
-------------------------
Date: Title: President
Date: October 8, 1997
ATTEST: TRANSAFE CORPORATION
By: /s/ Leslie J. Jezuit
-------------------------
Date: Title: President & CEO
Date: October 10, 1997
ATTEST: QUIXOTE CORPORATION
By: /s/ Leslie J. Jezuit
-------------------------
Date: Title: President & CEO
Date: October 10, 1997
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