Exhibit
10.6


 


EXECUTION
COPY


 


PERPETUAL LICENSE AGREEMENT


 


This PERPETUAL LICENSE
AGREEMENT is made as of December 10, 2003 by and between Peek Traffic,
Inc., a Delaware corporation and Peek Traffic Systems, Inc., a Florida
corporation (together “Licensor”),
and Vision Acquisition Corporation, a Delaware corporation (“Licensee”).  Licensor and Licensee are sometimes referred
to herein individually as a “Party” and together, as “Parties.”


 


RECITALS


 


A.            Licensee is entering into an asset purchase
agreement bearing the same date (the “Asset Purchase Agreement”) whereby the
Licensee will acquire substantially all of the assets and good will of
Licensor, which are defined in the Asset Purchase Agreement as the “Business.”  Capitalized terms which are not otherwise
defined herein shall have the meanings ascribed to such terms in the Asset
Purchase Agreement.


 


B.            Licensee wishes to obtain a license to use
the Licensed Name and Licensed Marks (as defined below) in connection with
Licensee’s continued operation of the Business and Licensor is willing to grant
Licensee a license to use the Licensed Name and Licensed Marks on the terms and
conditions set forth in this License Agreement.


 


C.            In accordance with the terms of the Asset
Purchase Agreement, the Licensor and Peek Traffic Systems, Inc., among others,
are executing and delivering to Licensee a Non-Competition Agreement bearing
the same date (the “Non-Competition
Agreement”).


 


D.            In accordance with the terms of the Asset
Purchase Agreement, it is a condition precedent to the Licensee’s obligations
thereunder that the Licensor shall have executed and delivered this License
Agreement in favor of the Licensee.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the mutual promises, covenants, provisions and agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:


 


1.             Definitions.  As used in this License
Agreement, the following terms shall have the following meanings:


 


(a)           “Europe” shall mean all of the countries
listed on Schedule 1.


 


(b)           “Licensed Name” shall mean the ‘Peek’ trade
name.


 

















 


(c)           “Licensed Marks” shall mean the marks
identified on Schedule 2.


 


(d)           “Registration” shall mean the trademark registration
of any governmental entity.


 


(e)           “Territory” shall mean the United States,
Canada, Mexico, Cuba, U.S. protectorates and U.S. possessions.


 


2.             License Rights.


 


(a)           Grant of Exclusive License. 
Licensor grants to
Licensee a fully-paid, exclusive, royalty-free, sub-licensable right and
license to use the Licensed Name and the Licensed Marks  in the Territory upon the
terms and conditions set forth herein.


 


(b)           Grant of Non-Exclusive License.  Licensor
grants to Licensee fully-paid, non-exclusive, royalty-free, sub-licensable
right and license to use the Licensed Name and the Licensed Marks everywhere
except Europe upon terms and conditions set forth herein.  Licensee may register the Licensed Name and
the Licensed Mark with any governmental entity outside of Europe.


 


(c)           Limitations on Use.


 


(i)            Except when Licensee uses the Licensed Name
and the Licensed Mark together, Licensee shall use the Licensed Name and
Licensed Marks only when following immediately with the word “Traffic.”


 


(ii)           Licensee may use the Licensed Name as
provided in Section 2(c)(i) and the Licensed Marks on stationary,
literature, products, and promotional materials for products sold in the
Business, on web sites for the Business, in press releases, in SEC filings, and
in any other manner useful for the operation of the Business.


 


(iii)          Licensee may use the Licensed Name in any
use, stylization or design; provided however, Licensor shall own any
such forms of the Licensed Name developed by Licensee, and such forms shall be
considered to be an additional form of the Licensed Name subject to the terms
of this License Agreement.


 


(iv)          Licensee and its parent company,
subsidiaries, sister companies and Affiliates may use the Licensed Name and
Licensed Marks as long as each entity complies with all the requirements of
this License Agreement.


 


(d)           Non-Exclusive License. 
If either party
registers the Licensed Name or the Licensed Mark with any governmental entity
outside of Europe and the Territory, then such party will grant the other party
a fully-


 


2

















 


paid,
non-exclusive, royalty-free, sublicensable right and license to use the
Licensed Name or Licensed Mark in such country.


 


3.             Term.  Unless earlier terminated pursuant to Section 7 below, the license granted in Section 2
to use the Licensed Name and Licensed Marks is perpetual.


 


4.             Covenants of Licensee.


 


(a)           Licensee shall use the Licensed Name and
Licensed Marks in compliance with applicable legal requirements and the terms
of this License Agreement.


 


(b)           Licensee shall take such steps, and execute
such further documents, as reasonably requested by Licensor in order to protect
Licensor’s interest in, title to, ownership and Registration of the Licensed
Name and Licensed Marks.  Licensee, however,
is not responsible for maintaining any Registrations for the Licensed Name or
the Licensed Marks.


 


(c)           Licensee agrees that it will not, during the
term of this License Agreement, or at any time thereafter:


 


(i)            use or register any trademark or trade name
identical with, or which is likely to cause confusion with, the Licensed Name
or Licensed Marks; or


 


(ii)           contest the validity or enforceability of
the Licensed Name or Licensed Marks or any registration therefor; or


 


(iii)          claim that the use of the Licensed Name and
Licensed Marks by it under this License Agreement has created any right, title
or interest in Licensee other than the license granted herein.


 


Provided
however, that the obligations of this paragraph will not apply if (i) the
Licensed Name or any of the Licensed Marks is/are found to be not protectible
or unenforceable by any court or national trademark office within the
Territory, and (ii) the Licensor does not retain any common law rights to
either the Licensed Name or Licensed Marks within the Territory.


 


(d)           The quality of any of Licensee’s goods sold
under the Licensed Marks or Licensed Name will be the same (or superior to) the
quality of the same goods sold under the Licensed Name and Licensed Marks
immediately prior to the date of this License Agreement.  Licensee agrees to send to Licensor, upon
Licensor’s request from time to time, samples of any such goods in order to
provide Licensor an opportunity to inspect the quality of such goods.


 


(e)           The Licensee shall not, and shall ensure
that its Affiliates do not, hold themselves out as acting as agent of the
Licensor.  The Licensee shall and shall
ensure that its Affiliates clearly indicate that they alone are responsible for



 


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the
supply of any products or provider of any services and shall do nothing to
suggest that the Licensor endorses any of them.


 


(f)            The Licensee shall not use the Licensed Name
and the Licensed Marks in Europe.


 


5.             Covenants, Representations and Warranties of Licensor. Licensor covenants, represents and
warrants to Licensee as follows:


 


(a)           except as agreed by Licensee, during the
term of this License Agreement, Licensor shall not use, nor authorize or
license any other Person to use the Licensed Name and Licensed Marks, or any
combination, derivation or variation thereof, or any mark which is confusingly
similar to the Licensed Mark or any name which is confusingly similar to the
Licensed Name, whether as the name of a Person, a product, or otherwise in the
Territory;


 


(b)           except to the extent permitted by Section 12 hereof, and
subject to Licensee’s rights in this License Agreement, during the term of this
License Agreement, Licensor will not sell, transfer, assign, license or
otherwise dispose of any interest in or right to use the Licensed Name and
Licensed Marks in the Territory to any other Person;


 


(c)           during the term of the Non-Competition
Agreement, Licensor will not use the Licensed Name and Licensed Marks, or take
any action with respect to the Licensed Name and Licensed Marks which could in
any way, directly or indirectly, cause Licensor to be in violation of the
Non-Competition Agreement;


 


(d)           Licensor is the sole owner of the Licensed
Name and the Licensed Marks, and has the sole right and full power to grant the
rights to Licensee provided for herein;


 


(e)           Licensor has obtained Registrations for the
Licensed Name and Licensed Marks identified on Schedule 2 and shall
use its best efforts to maintain the Registrations;


 


(f)            other than this License Agreement, the
Licensed Name and Licensed Marks are subject to no assignment, license, grant
of rights, encumbrance or agreement, whether by written agreement or arising as
a result of Licensor’s actions relating to the use of the Licensed Name and
Licensed Marks; and


 


(g)           to the knowledge of Licensor, the Licensed
Name and Licensed Marks do not infringe any trademark or proprietary right of
any other Person.


 


4

















 


6.             Goodwill.


 


(a)           The Licensee acknowledges that all goodwill
resulting from the use of the Licensed Marks and Licensed Name by the Licensee
and its Affiliates shall vest in the Licensor. 
All use of the Licensed Marks and Licensed Name by the Licensee and its
Affiliates shall be deemed to be use by the Licensor.


 


 (b)          The Licensee shall and shall ensure that its Affiliates shall at the
request of the Licensor from time to time, sign all documents and do all other
acts and things which the Licensor reasonably requires to vest in the Licensor,
or in the Licensor’s nominee, all goodwill which arises as a result of use of
the Licensed Marks and Licensed Name.


 


7.             Infringement by Third Parties.  If
Licensee determines in its normal course of business that a person or entity is
infringing on or unlawfully using the Licensed Name or the Licensed Marks, it
shall promptly notify Licensor in writing. 
Within 90 days, Licensor will, in its sole discretion, either take any
necessary action, including, without limitation, filing suit and enjoining the
alleged infringement, or alternatively Licensor will provide written notice to
Licensee that Licensor has chosen not to take any action.  If Licensor chooses not to take any action
and accordingly notifies Licensee then Licensee may, at its own expense, take
any necessary action including, without limitation, filing suit and enjoining
the alleged infringement.  Should the
damages received be awarded on a theory of Licensee’s lost sales, then such
damages shall be provided to Licensee. 
If Licensee takes action against the potential infringement, and there
is an award of attorney fees and/or costs, such award shall be provided to
Licensee.  Licensee shall promptly
provide notice to Licensor of any and all applications for registration of actually
or potentially conflicting trademarks, as well as any and all infringements,
imitations, illegal uses, or misuses of any Licensed Name or the Licensed
Marks, that come to Licensee’s attention in its normal course of business.


 


8.             Termination.


 


(a)           This License Agreement may be terminated at
any time upon the express written agreement of the Parties.


 


(b)           If Licensee fails to perform or breaches any
of the material terms, conditions, or covenants in this License Agreement and
such breach is not substantially cured within ninety (90) days after Licensor
has given Licensee a written notice of such breach, Licensor may, at its sole
election, terminate this License Agreement. 
Nothing in this section shall be deemed to waive Licensor’s right
to obtain damages or injunctive relief for any breach by Licensee, whether
cured or uncured.


 


(c)           If Licensor fails to perform or breaches any
of the material terms, conditions, or covenants in this License Agreement and
such breach is not substantially cured within ninety (90) days after Licensee
has given Licensor a written notice of such breach, Licensee may, at its sole
election, terminate this 


 


5

















 


License
Agreement.  Nothing in this
section shall be deemed to waive Licensee’s right to obtain damages or injunctive
relief for any breach by Licensor, whether cured or uncured.


 


(d)           Upon any termination of the license granted
pursuant to this License Agreement, all the rights of Licensee pursuant to this
License Agreement shall immediately terminate and automatically revert to
Licensor, and Licensee shall discontinue all use of the Licensed Name and the
Licensed Marks within ninety (90) days and shall no longer have the right to
use the Licensed Name and the Licensed Marks or derivations thereof, or any
logo, trademark, or trade name based thereon; provided however, that
Licensee shall be entitled to use all materials bearing the Licensed Name on
hand on the date of the expiration.


 


(e)           Notwithstanding
Section 4(c)(ii) above, if Licensee contests the validity or enforceability
of the Licensed Name or Licensed Marks or any registration therefor then
Licensor may terminate this License Agreement.


 


(f)            As a result
of an action not brought by Licensee, should a court or national trademark
office determine that any of the Licensed Marks or Licensed Name is not
protectible, then this License Agreement shall be terminated with respect to
that Licensed Mark or Licensed Name, and Licensee may continue to use such
Licensed Mark or Licensed Name without being bound by any obligations of this
License Agreement.


 


9.             Waiver.  The
failure of either Party to insist upon strict compliance with any of the terms,
covenants or conditions of this License Agreement shall not be deemed a waiver
of such compliance or relinquishment of any right under this License Agreement
at any subsequent time.  A waiver under
this License Agreement shall be effective only if in writing and signed by the
Parties.


 


10.          Notice.  All
notices, requests demands, claims, and other communications hereunder will be
in writing.  Any notice, request,
demand, claim, or other communication hereunder shall be deemed duly given if
sent by facsimile (with written confirmation of receipt) (and a copy is mailed,
by registered or certified mail, return receipt requested, postage prepaid), or
if sent by a nationally recognized overnight delivery service (with written
confirmation of receipt in each case) addressed to the intended recipient, as
set forth below:


 


	
  If to Licensor:

  	
   

  	
  Peek Traffic, Inc.

  
	
   

  	
   

  	
  Peek Traffic Systems, Inc.

  
	
   

  	
   

  	
  c/o Peek Corporation

  
	
   

  	
   

  	
  2511 Corporate Way

  
	
   

  	
   

  	
  Palmetto, FL  34221

  
	
   

  	
   

  	
  Attn: Andy Roake

  
	
   

  	
   

  	
  Facsimile: (941) 365-0837

  



 


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  Copy to:

  	
   

  	
  Allen & Overy

  
	
   

  	
   

  	
  1221 Avenue of the Americas

  
	
   

  	
   

  	
  New York, NY 10020

  
	
   

  	
   

  	
  Attn: Hugh McDonald

  
	
   

  	
   

  	
  Facsimile: (212) 610-6399

  
	
   

  	
   

  	
   

  
	
  If to Licensee:

  	
   

  	
  Vision Acquisition Corporation

  
	
   

  	
   

  	
  One East Wacker Drive

  
	
   

  	
   

  	
  Chicago, Illinois  60601

  
	
   

  	
   

  	
  Attention:  Leslie J. Jezuit

  
	
   

  	
   

  	
  Facsimile:  (312) 467-0197

  
	
   

  	
   

  	
   

  
	
  Copy to:

  	
   

  	
  Holland & Knight LLC

  
	
   

  	
   

  	
  30th Floor

  
	
   

  	
   

  	
  131 S. Dearborn Street

  
	
   

  	
   

  	
  Chicago, IL  60603

  
	
   

  	
   

  	
  Attention:  Anne Hamblin
  Schiave

  
	
   

  	
   

  	
  Facsimile:  (312) 578-6666

  



 


Any
Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
facsimile, ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient.  Any Party may change the address to which
notices, requests, demands, claims, and other communications hereunder are to
be delivered by giving the other Parties notice in the manner herein set forth.


 


11.          Recitals.  The recitals are incorporated and made a
part of this License Agreement.


 


12.          Assignment.  This License Agreement is personal to the
Parties and neither Party hereto shall assign or otherwise transfer this
License Agreement or any rights hereunder without the prior consent of the
other Party hereto, provided that Licensee may assign or transfer this License
Agreement and\or any rights hereunder to any Person into or with which it may
be merged or consolidated or to which it may sell or transfer all or
substantially all of its assets, or to which it may sell all or substantially
all of the assets of the Business. Notwithstanding the foregoing, nothing in
this section will limit the right of Licensor to assign or otherwise transfer
this License Agreement in connection with the sale of the Licensed Name and
Licensed Mark.  Upon any permitted
assignment of this License Agreement, the assignee shall be substituted for the
assignor for all purposes of this License Agreement.


 


13.          Severability.  If any of the provisions contained in this
License Agreement shall be held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect any other provision
of this License Agreement, and this


 


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License Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained in this License Agreement.


 


14.          Entire
Agreement. 
Except as provided in the Asset Purchase Agreement, this License
Agreement contains the entire agreement of the parties with respect to the
Licensed Name.  This License Agreement
may not be amended except by an agreement in writing signed by the Parties.


 


15.          Counterparts.  This License Agreement may be executed in
one or more counterparts, all of which will be considered one and the same
License Agreement, and will become effective when one or more such counterparts
have been signed by each of the parties and delivered to the other parties.


 


16.          Applicable Law. 
This License Agreement (and any claims or disputes arising out of or
relating hereto or to the transactions contemplated hereby or to the inducement
or any Party to enter into herein, whether for breach of contract, tortious
conduct or otherwise and whether predicated on common law, statute or
otherwise) shall be governed by and construed under the laws of the State of
Illinois, without giving reference to the principles of conflicts of law.  Each of the Parties hereby agrees that any
suit, action or proceeding relating in any way to this License Agreement may be
brought and enforced in the Circuit Court of Cook County, Illinois or in the
District Court of the United States of America for the Northern District of
Illinois, Eastern Division, and in either case the Parties hereby submit to the
jurisdiction of each such court. Each Party hereby waives and agrees not to
assert, by way of motion or otherwise, in any such suit, action or proceeding,
any claim that the Party is not personally subject to the jurisdiction of the
above-named courts, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. The Parties consent and agree to service of process or other legal
summons for purpose of any such suit, action or proceeding by registered mail
addressed to a Party at its address listed in Section 10.


 


17.          Jointly
Prepared.  This License Agreement shall be deemed as
having been prepared jointly by the parties.


 


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LEFT BLANK]


 


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IN WITNESS WHEREOF, the parties hereto have executed this
Perpetual License Agreement on the date first above written.


 


	
  LICENSOR:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  PEEK
  TRAFFIC, INC.

  	
   

  	
  PEEK
  TRAFFIC SYSTEMS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ ANDREW ROAKE

  	
   

  	
  By:

  	
   /s/ ANDREW ROAKE

  
	
  Title:

  	
   Director

  	
   

  	
  Title:

  	
   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LICENSEE:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  VISION
  ACQUISITION CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ LESLIE JEZUIT

  	
   

  	
   

  
	
  Title:

  	
   President

  	
   

  	
   

  
								



 


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SCHEDULE 1


 


 


Albania


Austria


Armenia


Azerbaijan


Belarus


Belgium


Bosnia


Bulgaria


Croatia


Cyprus


Czech Republic


Denmark


Estonia


Finland


France


Georgia


Germany


Great Britain


Greece


Hungary


Iceland


Ireland


Italy


Kazakhstan


Kyrgyzstan


Latvia


Liechtenstein


Lithuania


Luxembourg


Macedonia


Malta


Moldova


Netherlands


Norway


Poland


Portugal


Romania


Russia


Serbia-Montenegro


Slovak Republic


Slovenia


Spain


Sweden


Switzerland


Tajikistan


Turkey


Turkmenistan


Ukraine


Uzbekistan


 


Any country that may become a member of the European
Union


 


10

















 


SCHEDULE 2


 


 





 


11