Exhibit
10.4


 


EXECUTION
COPY


 


NON-ESCROWED
SHARES REGISTRATION RIGHTS AGREEMENT


 


This NON-ESCROWED SHARES
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into
December 10, 2003 (the “Effective Date”)  by
and between QUIXOTE CORPORATION, a Delaware corporation (“Quixote”), and
PEEK  CORPORATION, a Delaware
corporation (the “Stockholder”).


 


R
E C I T A L S


 


A.            Vision Acquisition
Corporation, a Delaware corporation, is an indirect subsidiary of Quixote and
Peek Traffic Inc., a Delaware corporation, and Peek Traffic System, Inc., a
Florida corporation, are direct subsidiaries of Stockholder;


 


B.            Vision Acquisition
Corporation, Peek Traffic, Inc. and Peek Traffic Systems, Inc. have entered
into an Asset Purchase Agreement dated as of the date hereof (the “Asset Purchase Agreement”).


 


C.            As a condition
precedent to the consummation of the transactions contemplated by the Asset
Purchase Agreement, Quixote has agreed to grant the Stockholder certain Form
S-3 registration rights with respect to the 30,120 shares of Quixote Common
Stock that are issued to it in accordance with the Asset Purchase Agreement,
and which are not subject to the Escrow Agreement dated December 10, 2003
(the “Escrow Agreement”)
by and among Vision Acquisition Corporation, Peek Traffic Systems, Inc., Peek
Traffic, Inc. and the named Escrow Agent, subject to the terms and conditions
of this Agreement.


 


NOW, THEREFORE, in
consideration of the facts stated in the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:


 


1.             REGISTRATION
RIGHTS


 


1.1           Certain
Definitions.  For purposes of this
Agreement:


 


(a)           1933 Act.  The term “1933 Act” means the U.S. Securities Act
of 1933, as amended, or any successor law.


 


(b)           1934 Act.  The term “1934 Act”  means the U.S. Securities Exchange Act of 1934, as amended,
or any successor law.


 


(c)           Business Day.  The term “Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of Chicago,
Illinois are authorized or obligated by law or executive order to close.


 


(d)           Form S-3.  The term “Form S-3”  means a registration statement filed under Form S-3 under
the 1933 Act, as such is in effect on the 


 

















 


Effective Date, or
any successor form of registration statement under the 1933 Act subsequently
adopted by the SEC which permits inclusion or incorporation of a substantial
amount of information by reference to other documents filed by Quixote with the
SEC.


 


(e)           Holder.  The term “Holder” means the Stockholder or any
transferee of record of any Registrable Securities to whom rights under this
Agreement have been duly transferred in accordance with the provisions of this
Agreement.


 


(f)            Notice of Sale.  The term “Notice of Sale”  means a written notice
specifying the intended manner of sale of Registrable Securities and the
identity of the person or entity for whose account the Registrable Securities
will be sold.


 


(g)           Prospectus.  The term “Prospectus”  means any prospectus
contained in a registration statement covering the sale of any Registrable
Securities.


 


(h)           Quixote Common
Stock.  The term “Quixote Common Stock”
means the common stock of Quixote Corporation, par value $0.01 – 2/3 per share.


 


(i)            Registrable
Securities.  The term “Registrable Securities”  means: 
(A) the 30,120 shares of Quixote Common Stock that are delivered as
Consideration Shares at the Closing pursuant to Section 2.6(b) of the
Asset Purchase Agreement, and are not subject to the Escrow Agreement; and (B)
any Quixote securities (and shares of Quixote Common Stock issued on conversion
of such securities, if applicable) that may be issued as a dividend or other
distribution, recapitalization or reclassification (including without
limitation shares of Quixote Common Stock issued in a subdivision and split of
Quixote’s outstanding Common Stock) with respect to, or in exchange for, or in
replacement of, shares of Quixote Common Stock described in clause (A) of this
Section 1.1(i) or in this clause (B); excluding
in all cases, however, from the definition of “Registrable Securities” any such shares
that:  (1) are effectively registered
under the 1933 Act other  than pursuant to a registration
statement filed pursuant to this Agreement and disposed of in accordance with
that Registration Statement; (2) sold pursuant to a registration statement
filed pursuant to this Agreement; or (3) sold pursuant to Rule 144 promulgated
under the 1933 Act or otherwise sold to the public.  Only shares of Quixote Common Stock shall be Registrable
Securities.  Except as provided in
clause (B) of the first sentence of this Section 1.1(i), without
limitation, the term “Registrable
Securities”  does  not  include any shares of
Quixote Common Stock that were not issued to the Stockholder in accordance with
the Asset Purchase Agreement.


 


(j)            Registration.  The terms “register,” “registered,” and  “registration”
refer to a registration effected by preparing and filing a
registration


 


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statement in compliance
with the 1933 Act, and the declaration or ordering of effectiveness of such
registration statement.


 


(k)           Rule 415.  The term “Rule 415”  means Rule 415 promulgated under the 1933 Act, as such Rule
may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC.


 


(l)            SEC.  The term “SEC” or the term “Commission”  means the U.S. Securities and Exchange
Commission.


 


(m)          Shelf Registration. The term “Shelf Registration” shall mean a
registration effected pursuant to Section 1.2 hereof.


 


(n)           Shelf Registration Statement. 
The term “Shelf
Registration Statement” shall mean a “shelf” registration
statement of Quixote pursuant to the provisions of Section 1.2 of this
Agreement providing for the registration of, and the sale on a continuous or
delayed basis by the holders of, all of the Registrable Securities pursuant to
Rule 415 under the 1933 Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.  As the context may require,
“Shelf Registration Statement” shall include any Subsequent Shelf Registration
Statement.


 


Capitalized terms used in
this Agreement but not defined in this Section 1 or elsewhere in this
Agreement shall have the same meanings given to such terms in the Asset
Purchase Agreement.


 


1.2           Shelf Registration.


 


(a)           Filing and
Registration Period.  Subject
to the terms and conditions of this Agreement, on or before the tenth (10th)
Business Day following the Closing, Quixote shall prepare and file with the SEC
a Shelf Registration Statement on Form S-3 (or, if Quixote fails to qualify for
a Form S-3, such other form as it would then qualify for) providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the then outstanding Registrable Securities pursuant to Rule 415.  Quixote shall use its reasonable good faith
efforts to have such Shelf Registration Statement declared effective as soon as
practicable after its filing and to keep the Shelf Registration Statement
continuously effective during the period of time commencing on the date the
Shelf Registration Statement is declared effective under the 1933 Act by the
SEC (the “Effectiveness
Date”)  and ending
on the date that is three years  after the Effectiveness Date or such
earlier date when there are no more Registrable Securities (such period of time
being hereinafter called the “Registration Period”). 
Quixote shall have no duty or obligation to keep the Shelf Registration
Statement (or any Subsequent Registration Statement, as defined below)
effective after the expiration of the Registration Period. At the time the
Shelf Registration Statement 


 


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is initially declared
effective, each Holder that was a holder as of ten (10) Business Days prior to
the Effectiveness Date shall be named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to comply
with Item 507 of Regulation S-K and any other disclosure laws or regulations
applicable to selling securityholders under the Securities Act.


 


(b)           Subsequent
Registration.  Following the initial filing
and effectiveness of the Shelf Registration Statement, if the Shelf
Registration Statement or a Subsequent Registration Statement (as defined
below) thereafter ceases to be effective for any reason at any time during the
Registration Period, then Quixote shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall, within thirty (30) days of such cessation of effectiveness, file
an amendment to the Shelf Registration Statement seeking to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional “shelf” registration statement pursuant to Rule 415 covering all of
the then outstanding Registrable Securities (a “Subsequent Registration Statement”).  If a Subsequent Registration Statement is
filed, Quixote shall use its best efforts to cause the Subsequent Registration
Statement to be declared effective as soon as practicable after such filing and
to keep such registration statement continuously effective until the end of the
Registration Period.


 


(c)           Supplements and
Amendments. Subject to Section 1.2(e), Quixote further agrees to, after the
Effectiveness Date, supplement or amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by Quixote for such Shelf Registration Statement or by
the 1933 Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested by any Holder with respect to
information relating to such Holder, including without limitation any action
necessary to identify such Holder as a selling securityholder in the Shelf
Registration Statement and/or to describe such Holder’s intended methods of
distribution of Registrable Securities, and to use its reasonable best efforts
to cause any such supplement to be filed or amendment to become effective and
such Shelf Registration Statement to become usable as soon as thereafter
practicable.  Quixote agrees to furnish
to the Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.


 


(d)           Notice of Sale;
Timing and Manner of Sale.  Each
Holder of Registrable Securities wishing to sell Registrable Securities
pursuant to a Shelf Registration Statement and related Prospectus agrees to
deliver a completed and signed Notice of Sale to Quixote before 5:00 p.m. local
Chicago time on the second Business Day prior to any intended distribution of
Registrable Securities under the Shelf Registration Statement.  A Notice of Sale must indicate the Holder’s
intention to sell Registrable Securities pursuant to the Shelf Registration Statement
(or Subsequent Registration Statement, as applicable) and the Holder’s intended
plan of distribution of such Registrable Securities (which must conform to the
plan of distribution contained in the prospectus for the Shelf Registration 


 


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(or Subsequent
Registration, as applicable)).  A Notice
of Sale shall indicate a period of time, beginning after the second (2nd)
Business Day following the date the Notice of Sale is delivered and not to
exceed sixty (60) days, during which the Holder intends to sell Registrable
Securities (the “Designated
Sale Period”). The Holder may sell Registrable Securities during
the Designated Sale Period, unless the Holder has received a Deferral Notice
from Quixote in accordance with Section 1.2(e).  A new Notice of Sale must be delivered by Quixote by the Holder
after the Designated Sale Period expires. 
A Holder may also sell Registrable Securities in a bona fide private
offering if the selling Holder provides Quixote with a written opinion of
counsel, satisfactory to counsel to Quixote, that such offer and sale is an
exempt transaction under the 1933 Act and applicable state securities laws,
complies with all requirements for such exemption(s) and is not made with use
of the prospectus for the Shelf Registration (or Subsequent Registration, if
applicable).


 


(e)           Deferral Period. If, at the time
Quixote receives a Notice of Sale or otherwise during a Designated Sale Period,
(A) the SEC has issued a stop order suspending the effectiveness of a Shelf
Registration or has initiated proceedings with respect to a Shelf Registration
under Section 8(d) or 8(e) of the 1933 Act, (B) any event has occurred or
any fact exists  (a “Material Event”)
as a result of which any Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any Prospectus shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) any pending corporate development has occurred or
exists, the disclosure of which would, in good faith judgment of the Board of
Directors of Quixote, be premature or otherwise inadvisable at such time or
could have a material adverse effect on Quixote or its stockholders,  Quixote
will (i) in the case of clause (B) above, subject to the second succeeding
sentence, as promptly as practicable, prepare and file, if necessary pursuant
to applicable law, a post-effective amendment to such Registration Statement or
a supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document that would be incorporated by
reference into such Registration Statement and Prospectus so that such
Registration Statement does not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and such Prospectus does not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, and, in the case of a post-effective amendment to a
Registration Statement, subject to the second succeeding sentence, use its
reasonable best efforts to cause it to be declared effective as promptly as is
practicable, and (ii) give notice to the Holders that the availability of such
Registration Statement is suspended (a “Deferral Notice”) and, upon
receipt of any Deferral Notice, each Holder agrees not to


 


5

















 


sell
any Registrable Securities pursuant to such Registration Statement until such
Holder’s receipt of copies of the supplemented or amended Prospectus provided
for in clause (i) above, or until it is advised in writing by Quixote that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus.  Subject to the next
sentence, Quixote will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the reasonable judgment of Quixote, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of Quixote and (z) in
the case of clause (C) above, as soon as in the reasonable discretion of Quixote,
such suspension is no longer appropriate. Quixote shall be entitled to exercise
its right under this Section 1.2(e) to suspend the availability of the
Shelf Registration Statement or any Prospectus no more than one (1) time in any
six month period, and any such period during which the availability of the
Registration Statement and any Prospectus is suspended (the “Deferral Period”)
shall not exceed 30 days. The Holders hereby agree that upon receipt of any
Deferral Notice from the Company, each Holder shall, and shall cause each of
its officers, directors, employees, affiliates, advisors, agents and
representatives to, keep confidential all nonpublic information set forth in
such notice including the existence or terms of such Deferral Notice.


 


1.3           Limitations.  Notwithstanding the provisions of
Section 1.2 above, Quixote shall not be obligated to effect any
registration, qualification or compliance of Registrable Securities pursuant to
Section 1.2 of this Agreement, and the Holders shall not be entitled to
sell Registrable Securities pursuant to any registration statement filed under
Section 1.2 of this Agreement, as applicable:


 


(a)           in any particular
jurisdiction in which Quixote would be required to qualify to do business or to
execute a general consent to service of process in effecting such registration,
qualification or compliance, unless Quixote is already subject to service of
process in such jurisdiction; or


 


(b)           if the SEC refuses
to declare such registration effective due to the participation of any
particular Holder in such registration (unless such Holder withdraws all such
Holder’s Registrable Securities from such registration statement).


 


1.4           Shares Otherwise
Eligible for Resale.  Notwithstanding anything herein
to the contrary, Quixote shall not be obligated to effect or continue to keep
effective any such registration, registration statement, qualification or
compliance with respect to the Registrable Securities held by any particular
Holder:


 


(a)           if Quixote or its
legal counsel shall have received a “no-action” letter or similar written
confirmation from the SEC that all the Registrable Securities then held by such
Holder may be resold by such Holder without registration under the 1933 Act
pursuant to the provisions of Rule 144 


 


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promulgated under
the 1933 Act (or successor provisions), and without any volume or manner of
sale restrictions.;


 


(b)           if legal counsel
to Quixote shall deliver a written opinion to Quixote, its transfer agent and
the Holders, in form and substance reasonably acceptable to Quixote, to the
effect that all the Registrable Securities then held by such Holder may be
resold by such Holder without registration under the 1933 Act pursuant to the
provisions of Rule 144 promulgated under the 1933 Act, and without any volume
or manner of sale restrictions; or


 


(c)           after expiration
or termination of the Registration Period.


 


1.5           Eligibility for
Form S-3. Quixote represents and warrants that it is currently eligible to
register the resale of all the Registrable Securities by the Holder on a
registration statement on Form S-3 under the 1933 Act for the account of the
Holder. Quixote shall file all reports required to be filed by Quixote with the
SEC in a timely manner and take all other actions which may be required so as
to maintain such eligibility for the use of Form S-3.


 


1.6           Expenses.  Quixote shall pay all expenses incident to
Quixote’s performance of its obligations incurred in connection with any
registration effected by Quixote pursuant to this Agreement (excluding
underwriters’ and brokers’ discounts and commissions), including without
limitation all filing, registration and qualification, printers’, legal and
accounting fees, but specifically excluding any legal fees and expenses of
counsel or other advisors retained by the Holders of Registrable Securities
(except as provided in Section 1.7(n)) and any underwriting discounts,
brokerage fees and commissions incurred by Holders of Registrable Securities.


 


1.7           Obligations of
Quixote.  Subject to Sections 1.2, 1.3
and 1.4 above, when required to effect the registration of any Registrable
Securities under the terms of this Agreement, Quixote will:


 


(a)           prepare and file
with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution contemplated;


 


(b)           promptly prepare
and file with the SEC such amendments and supplements to such registration
statement and Prospectus and in connection therewith as may be necessary to
comply with the provisions of the 1933 Act with respect to the distribution of
all Registrable Securities covered by such registration statement;


 


(c)           furnish to the
Holders such number of copies of the Prospectus relating to the Shelf
Registration Statement (or Subsequent


 


7

















 


Registration Statement, as applicable), including a
preliminary prospectus (and amendments or supplements thereto), in conformity
with the requirements of the 1933 Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them;


 


(d)           use its best
efforts to register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such jurisdictions as
will be reasonably requested by the Holders; provided that Quixote will not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such state or jurisdiction unless
Quixote is already so qualified or subject to service of process, respectively,
in such jurisdiction;


 


(e)           promptly notify
each Holder and if requested by any such Holder or counsel, confirm such advice
in writing when a Registration Statement has become effective and when any
post-effective amendment thereto has been filed and becomes effective, or of
the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose;


 


(f)            promptly notify
each Holder of Registrable Securities covered by such Registration Statement, at
any time during a Designated Sale Period when an event described in
Section 1.2(e) has occurred, which notice may state that it constitutes a
Deferral Notice, in which event the provisions of Section 1.2(e) shall
apply;


 


(g)           Holders who hold a majority of the
Registrable Securities included in the Shelf Registration Statement (or
Subsequent Registration Statement) determine to use underwriters as part of
their plan of distribution for the Registrable Securities, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, including, without limitation, customary representations, warranties,
covenants, indemnification and contribution obligations, and legal opinion and
accounting letter delivery requirements, with the underwriters identified by
such Holders;


 


(h)           shall notify each Holder as promptly as
practicable after becoming aware of a Material Event of the happening of such
event and subject to Section 1.2(e), use its best efforts promptly to
prepare a supplement or amendment to the registration statement to correct such
untrue statement or omission, and deliver such number of copies of such
supplement or amendment to each Holder as such Holder may reasonably request;


 


(i)            advise the
Holders, promptly after it shall receive notice or obtain knowledge thereof, of
the issuance of any stop order by the SEC suspending the effectiveness of such
registration statement under the Act or the initiation or threatening of any
proceeding for such purpose, and promptly use its


 


8

















 


best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued;


 


(j)            use its best
efforts to comply with all applicable laws related to such registration
statement and offering and sale of securities and all applicable rules and
regulations of governmental authorities in connection therewith (including,
without limitation, the 1933 Act and the 1934 Act and the rules and regulations
promulgated by the Commission) and make generally available to its security
holders as soon as practicable (but in any event not later than fifteen (15)
months after the effectiveness of such registration statement) an earnings
statement of Quixote and its subsidiaries complying with Section 11(a) of
the 1933 Act;


 


(k)           shall hold in confidence and not make any
disclosure of information concerning an Holder provided to Quixote unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any registration statement, (iii) the
release of such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this or any other agreement,
and further agrees that it shall, upon learning that disclosure of such
information concerning an Holder is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt notice to
such Holder and allow such Holder, at the Holder’s expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, such information;


 


(l)            shall use its best
efforts to secure designation and quotation of all the Registrable Securities
covered by the registration statement on the Nasdaq National Market System or,
if, Quixote’s Common Stock is not so authorized for quotation on such system,
such automated quotation system or securities exchange on which Quixote Common
Stock is then quoted or listed;


 


(m)          shall cooperate with the Holders who hold
Registrable Securities being offered to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) representing the
Registrable Securities to be offered pursuant to any registration statement and
enable such certificates to be in such denominations or amounts, as the Holders
may reasonably request and registered in such names as the Holders may request.
Not later than the date on which any registration statement registering the
resale of Registrable Securities is declared effective, Quixote shall deliver
to its transfer agent instructions, accompanied by any reasonably required
opinion of counsel, that permit sales of unlegended securities in a timely
fashion that complies with then mandated securities settlement procedures for
regular way market transactions;


 


9

















 


(n)           shall permit a single
firm of counsel, designated as selling shareholders’ counsel by the Holders who
hold a majority of the Registrable Securities being sold, which shall initially
be Allen & Overy (“Designated Counsel”), to review and comment upon the
registration statement(s) and all amendments and supplements thereto a
reasonable period of time prior to their filing with the SEC, and not file any
document in a form to which such counsel reasonably objects.  Quixote shall reimburse the Holders for the
reasonable fees and disbursements of the Designated Counsel for legal services
provided Holders after the Effectiveness Date in connection with registrations
of Registrable Securities under this Agreement; and


 


(o)           shall take all
other reasonable actions necessary to expedite and facilitate disposition by
the Holders of Registrable Securities pursuant to any registration statement.


 


1.8           Furnish
Information.  It shall be a condition
precedent to the obligations of Quixote to take any action pursuant to this
Agreement that the selling Holders will furnish to Quixote such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition and plan of distribution of such Registrable Securities
as shall be required to timely effect the registration of their Registrable
Securities.


 


1.9           Delay of
Registration.  No Holder will have any right
to obtain or seek an injunction restraining or otherwise delaying any
registration that is the subject of this Agreement as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.


 


1.10         Indemnification.


 


(a)           By Quixote.  To the extent permitted by law, Quixote will
indemnify, defend and hold harmless each Holder against any losses, claims,
damages, or liabilities (joint or several) to which such Holder may become
subject, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) are caused by any of the following statements, omissions or
violations (collectively, a “Violation”):


 


(i)            any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement filed by Quixote pursuant to this Agreement pursuant to
which Registrable Securities are sold, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements thereto;


 


(ii)           the omission or
alleged omission to state in such registration statement, preliminary
prospectus or final prospectus or any 


 


10

















 


amendments or
supplements thereto, a material fact required to be stated therein, or
necessary to make the statements therein not misleading; or


 


(iii)          any violation or
alleged violation by Quixote of the 1933 Act, the 1934 Act, any U.S. federal or
state securities law or any rule or regulation promulgated under the 1933 Act,
the 1934 Act or any U.S. federal or state securities law in connection with the
offering of Registrable Securities covered by such registration statement;


 


provided
however, that the indemnity agreement contained in this subsection 1.9(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the written consent
of Quixote (which consent shall not be unreasonably withheld), nor shall
Quixote be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon one or more
Violations which occur in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder, to the extent it is established that any such losses, claims,
damages or liabilities result from the fact that such Holder sold Registrable
Securities to a person to whom there was not sent or given, by or on behalf of
such Holder a copy of the Prospectus (as then amended or supplemented, if
Quixote shall have furnished any amendments or supplements thereto) at or prior
to the written confirmation of the sale of the Registrable Securities to such
person, nor if such losses, claims, damages or liabilities result from an
untrue statement or alleged untrue statement or an omission or alleged omission
contained in such preliminary Prospectus that was corrected in the Prospectus
(as so amended or supplemented), unless such failure is the result of
noncompliance by Quixote with its obligations to deliver copies of the
Prospectus to such Holder; nor shall this indemnity inure to the benefit of any
Holder, from whom the person asserting any such losses, claims, damages or
liabilities purchased the Registrable Securities concerned to the extent it is
established that, at the time of such purchase, such Holder had received
written notice from Quixote that the use of such Prospectus was suspended as
provided in this Agreement.


 


(b)           By Selling Holders.  To the extent permitted by law, each selling
Holder will indemnify and hold harmless Quixote, each of its directors, each of
its officers who have signed the registration statement, each person, if any,
who controls Quixote within the meaning of the 1933 Act, any underwriter and
any other Holder selling securities under such registration statement, against
any losses, claim, damages or liabilities (joint or several) to which Quixote
or any such director, officer, controlling person, underwriter or other such
Holder may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
one or more Violations, in each case to the extent (and only to the extent)
that such Violations occur in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such 


 


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Holder will
indemnify and reimburse Quixote or any such director, officer, controlling
person, underwriter or other Holder for any reasonable attorneys’ fees and
other expenses reasonably incurred by Quixote or any such director, officer,
controlling person, underwriter or other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action,
as incurred; provided  however,
that the indemnity agreement contained in this subsection 1.10(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
indemnifying Holder, which consent shall not be unreasonably withheld; and provided  further that the total
amounts payable in indemnity by a Holder under this subsection 1.10(b) in
respect of any Violation shall not exceed the net proceeds received by such
Holder in the registered offering out of which such Violation arises.


 


(c)           Notice.  Promptly after receipt by an indemnified
party under this Section 1.10 of notice of the commencement of any action
(including any governmental action) against such indemnified party, such
indemnified party will, if a claim for indemnification or contribution in
respect thereof is to be made against any indemnifying party under this
Section 1.10, deliver to the indemnifying party a written notice of the
commencement thereof and, if the indemnifying party is Quixote, Quixote shall
have the right and obligation to control the defense of such action, and if
Quixote fails to defend such action it shall indemnify and reimburse the
Selling Holders for any reasonable attorneys’ fees and other expenses
reasonably incurred by them in connection with investigating or defending such
action; provided  however,
that:  (i) Quixote shall also have the
right, at its option, to assume and control the defense of any action with
respect to which Quixote or any person entitled to be indemnified by the
Selling Holders under Section 1.10(b) is entitled to indemnification from
the Selling Holders; (ii) the indemnified party or parties shall have the right
to participate at its own expense in the defense of such action and (but only
to the extent agreed in writing with Quixote and any other indemnifying party
similarly noticed) to assume the defense thereof with counsel mutually
satisfactory to the parties; and (iii) an indemnified party shall have the
right to retain its own counsel, with the fees and expenses of such counsel to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due to
an actual or potential conflict of interests between such indemnified party and
any other party represented by such counsel in such proceeding.  The failure of an indemnified party to
deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party
of any liability to the indemnified party under this Section 1.10, but the
omission so to deliver written notice to the indemnifying party will not
relieve the indemnifying party of any liability that it may have to any
indemnified party otherwise than under this Section 1.10.


 


12

















 


(d)           Survival.  The obligations of Quixote and Holders under
this Section 1.9 shall survive the completion of any offering of
Registrable Securities in a registration statement pursuant to this Agreement,
and otherwise.


 


1.11         Duration and
Termination of Quixote’s Obligations. 
Quixote will have no obligations pursuant to Section 1.2 of this
Agreement with respect to any Notice of Sale or other request or requests for
registration (or inclusion in a registration) made by any Holder or to maintain
or continue to keep effective any registration or registration statement
pursuant hereto:  (a) after the
expiration or termination of the Registration Period; (b) with respect to a
particular Holder if, in the opinion of counsel to Quixote, all such Registrable
Securities proposed to be sold by such Holder may be sold without registration
under the 1933 Act pursuant to Rule 144 promulgated under the 1933 Act and
without any volume or manner of sale restrictions; or (c) if all Registrable
Securities have been registered and sold pursuant to a registration effected
pursuant to this Agreement and/or have been transferred in transactions in
which registration rights hereunder have not been assigned in accordance with
this Agreement.


 


1.12         Rule 144
Requirements.  Quixote agrees to:


 


(a)           file with the SEC
in a timely manner all reports and other documents required of it under the
Securities Act and the 1934 Act; and


 


(b)           furnish to any
Holder of Registrable Securities upon request (i) a written statement as to its
compliance with the requirements of Rule 144(c) and the reporting requirements
of the 1933 Act and the 1934 Act, (ii) a copy of its most recent annual or
quarterly report, and (iii) such other reports and documents of Quixote as such
Holder may reasonably request to avail itself of any similar rule or regulation
of the SEC allowing himself, herself or itself to sell any such securities
without registration.


 


2.             TRANSFER
OF REGISTRATION RIGHTS


 


The rights to cause Quixote to register
Registrable Securities pursuant to this Agreement may be assigned by a Holder
only in connection with the transfer of the Registrable Securities to which
such registration rights relate (A) to a Holder Affiliate without the prior
written consent of Quixote or (B) to any other person with the prior written
consent of Quixote, which may not be unreasonably withheld; provided, however, that no such transfer
shall be effective unless (i) a transferor shall, within ten (10) days after
such transfer, furnish to Quixote written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned and (ii) such transferee shall agree in
writing to be subject to all restrictions and obligations set forth in this Agreement
and in the Standstill Agreement dated as of the date of this Agreement between
Quixote and the original Holder.  A
“Holder Affiliate” for purposes of this Section 2 is a transferee or
assignee of Registrable Securities that is (a) a subsidiary, parent, general
partner, limited partner, retired partner,


 


13

















 


member
or retired member, or stockholder of a Holder, (b) a family member of such
Holder or trust for the benefit of such an individual, or (c) is an entity
affiliated by common control (or other related entity) with such Holder.


 


3.             GENERAL
PROVISIONS


 


3.1           Notices.  All notices, requests, payments,
instructions, or other documents to be given hereunder shall be in writing or
by written telecommunication, and shall be deemed to have been duly given if
(i) delivered personally (effective upon delivery), (ii) mailed by registered
or certified mail, return receipt requested, postage prepaid (effective five
business days after dispatch), (iii) sent by a reputable, established courier
service that guarantees next business day delivery (effective the next business
day), or (iv) sent by facsimile or electronic mail, followed within 24 hours by
confirmation by one of the foregoing methods (effective upon the first business
day after receipt of the facsimile or electronic mail in complete, readable
form).  Notices to each party shall be
addressed as set forth below (or to such other address as the recipient party
may have furnished to the sending party for the purpose pursuant to this
Paragraph 3.1).


 


If to Quixote:


 


Quixote Corporation


One East Wacker Drive


Chicago, Illinois 
60601


Facsimile No.: (312) 467-0197


Attention: 
Leslie J. Jezuit


 


With a copy to:


 


Holland & Knight LLC


131 S. Dearborn Street,
30th Floor


Chicago, Illinois 60603


Facsimile No.: (312)
578-6666


Attention: 
Anne Hamblin Schiave


 


If to Stockholder:


 


Peek Corporation


2511 Corporate Way


Palmetto, FL 
34221


Attn: Andy Roake, CEO


Facsimile: 941-365-0837


 


14

















 


With a

copy

(which

shall not

constitute

notice)

to:                           Allen & Overy


1221 Avenue of the Americas


New York, NY 10020


Attn:  Hugh
McDonald


Facsimile: 
212-610-6399


 


or at such other address as
the party to be served with notice may have furnished in writing to the party
seeking or desiring to serve notice as a place for the service of notice.


 


3.2           Entire Agreement.  This Agreement constitutes and contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties with
respect to the subject matter hereof.


 


3.3           Amendment of
Rights.  Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Quixote and Holders who own a
majority of all the Registrable Securities then outstanding.  Any amendment or waiver effected in
accordance with this Section 3.3 shall be binding upon each Holder, each
permitted successor or assignee of each Holder and Quixote.


 


3.4           Governing Law.  This Agreement shall be governed by,
construed and enforced under the internal laws (without regard to principles of
conflicts of laws) of the State of Illinois. 
Any legal action, suit or proceeding arising out of or relating to this
Guaranty or the transactions contemplated hereby shall be instituted
exclusively in the courts of the State of Illinois, located in the City of
Chicago or, provided subject matter jurisdiction exists, in the United States
Federal Court for the Northern District of Illinois, located in Chicago,
Illinois, and each party hereto agrees not to assert as a defense in any such
action, suit or proceeding, any claim that it is not subject personally to the
jurisdiction of such courts, that its property is exempt or immune from
attachment or execution, that the action, suit or proceeding is brought in an
inconvenient forum, that the venue of the action, suit or proceeding is
improper or that this Agreement or the subject matter hereof may not be
enforced in or by such court.  Each
party further irrevocably submits to the exclusive jurisdiction of such courts
in any such action, suit or proceeding.


 


15

















 


3.5           Severability.  If one or more provisions of this Agreement
are held to be unenforceable under applicable law, then such provision(s) will
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and will be enforceable in
accordance with its terms.


 


3.6           No Third Party
Beneficiaries.  Nothing in this Agreement,
express or implied, is intended to confer upon any person, other than the
parties hereto and their permitted successors and assigns, any rights or
remedies under or by reason of this Agreement.


 


3.7           Captions.  The headings and captions to sections of
this Agreement have been inserted for identification and reference purposes
only and will not be used to construe or interpret this Agreement.


 


3.8           Counterparts.  This Agreement may be executed in
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.


 


3.9           Effectiveness of
Agreement.  Regardless of when signed,
this Agreement will not become effective or binding unless and until the
Closing as such term is defined in the Asset Purchase Agreement.


 


[Signature Page Follows]


 


16

















 


[Signature Page to Non-Escrowed Shares Registration Rights
Agreement}


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement effective as of the Effective Date.


 


	
  QUIXOTE CORPORATION

  	
   

  	
  PEEK CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ LESLIE JEZUIT

  	
   

  	
  By:

  	
   /s/ ANDREW ROAKE

  
	
  Title:

  	
   President

  	
   

  	
  Its:

  	
   Director

  
						



 


17

















 


Exhibit A


 


to


 


Non-Escrowed Shares Registration Rights Agreement


 


 


	
  Name and Address

  of Stockholder

  	
   

  	
  Number of Registrable Securities

  Owned By the Stockholder

  
	
   

  	
   

  	
   

  
	
  Peek Corporation

  2511 Corporate Way

  Palmetto, FL  34221

  	
   

  	
  30,120

  



 


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