Untitled Document

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MzuCPK+cHctMoEwGfMbhfWNJi71lQ+WuVkLX2L6KhzXURbvWnSXVTcf2T/mr3u1I Ox0enviVhM3Cil8ZqtmIrQ== 0000950103-03-002157.txt : 20031112 0000950103-03-002157.hdr.sgml : 20031112 20031112172333 ACCESSION NUMBER: 0000950103-03-002157 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20031103 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20031112 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INFORMATION RESOURCES LITIG CONTINGENT PYMT RIGHTS TRUST CENTRAL INDEX KEY: 0001260946 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ENGINEERING, ACCOUNTING, RESEARCH, MANAGEMENT [8700] FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-108592 FILM NUMBER: 03995008 MAIL ADDRESS: STREET 1: 4015 MIRANDA AVENUE 2ND FLOOR CITY: PALO ALTO STATE: CA ZIP: 94304 8-K 1 nov1003_8k.htm Untitled Document

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): November 3, 2003

INFORMATION RESOURCES, INC. LITIGATION
CONTINGENT PAYMENT RIGHTS TRUST
(Exact Name of Registrant as Specified in Its Charter)

Delaware	333-108592	20-0271216
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

Information Resources, Inc. Litigation
Contingent Payment Rights Trust
c/o Information Resources, Inc.
150 North Clinton Street
Chicago, Illinois 60661
(Address of Principal Executive Offices) (Zip Code)

Registrant’s telephone number, including area code (312) 726-1221

Not Applicable
(Former name or former address, if changed since last report)

ITEM 5. OTHER EVENTS AND REQUIRED FD DISCLOSURE.

On November 3, 2003, Information Resources, Inc. Litigation Contingent Payment Rights Trust (the “Litigation Trust”) entered into an Amended and Restated Declaration of Trust of the Litigation Trust (the “Litigation Trust Declaration”) effective as of October 31, 2003, with Information Resources, Inc. and the trustees of the Litigation Trust. A copy of the Litigation Trust Declaration is included as Exhibit 99.1 hereto and is incorporated herein by reference. Also on November 3, 2003, the Litigation Trust entered into a Contingent Value Rights Agreement (the “CVR Agreement”) effective as of October 31, 2003, with Information Resources, Inc., Gingko Corporation, Gingko Acquisition Corp. and the rights agents named therein. A copy of the CVR Agreement is included as Exhibit 99.2 hereto and is incorporated herein by reference.

ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS, AND EXHIBITS.

99.1

Amended and Restated Declaration of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust, dated as of October 31, 2003, by Information Resources, Inc. (along with its successors, as sponsor), Wachovia Bank of Delaware, National Association, as Delaware Trustee, Wachovia Bank of Delaware, National Association, as Institutional Trustee, Joseph P. Durrett, as Litigation Trustee and Eileen Kamerick, as Litigation Trustee.

99.2

Contingent Value Rights Agreement, dated as of October 31, 2003, by and among Information Resources, Inc., Gingko Corporation, Gingko Acquisition Corp., Joseph P. Durrett, as CVR Rights Agent, Eileen Kamerick, as CVR Rights Agent, William Chisholm, as Parent Rights Agent, Bryan Taylor, as Parent Rights Agent and Information Resources, Inc. Litigation Contingent Payment Rights Trust.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

INFORMATION RESOURCES, INC. LITIGATION CONTINGENT PAYMENT RIGHTS TRUST

By:

/s/ Joseph P. Durrett

Name: Joseph P. Durrett
Title: Litigation Trustee

By:

/s/ Eileen Kamerick

		Name: Eileen Kamerick Title: Litigation Trustee

November 12, 2003

INDEX TO EXHIBITS

EXHIBIT
NUMBER DESCRIPTION


99.1		Amended and Restated Declaration of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust, dated as of October 31, 2003, by Information Resources, Inc. (along with its successors, as sponsor), Wachovia Bank of Delaware, National Association, as Delaware Trustee, Wachovia Bank of Delaware, National Association, as Institutional Trustee, Joseph P. Durrett, as Litigation Trustee and Eileen Kamerick, as Litigation Trustee.

99.2

EX-99.1 3 nov1003_ex-9901.htm

EXHIBIT 99.1

AMENDED AND RESTATED DECLARATION OF TRUST

INFORMATION RESOURCES, INC. LITIGATION

CONTINGENT PAYMENT RIGHTS TRUST

dated as of

October 31, 2003

	Table of Contents

		Page

ARTICLE I.
INTERPRETATION AND DEFINITIONS		2
Section 1.01	Definitions	2

ARTICLE II.
ORGANIZATION		7
Section 2.01	Name	7
Section 2.02	Office	7
Section 2.03	Purposes and Powers of the Litigation Trust.	7
Section 2.04	Title to Property of the Litigation Trust	8
Section 2.05	Mergers	8

ARTICLE III.
TRUSTEES		10
Section 3.01	Authority	10
Section 3.02	Number of Trustees	10
Section 3.03	Delaware Trustee	10
Section 3.04	Institutional Trustee; Eligibility.	11
Section 3.05	Appointment, Removal and Resignation of the Institutional and Delaware
	Trustees.	11
Section 3.06	Vacancies Among Relevant Trustees; Effect of Vacancies	13
Section 3.07	The Litigation Trustees.	13
Section 3.08	Resignation of a Litigation Trustee	14
Section 3.09	Appointment of Successor Litigation Trustees.	14
Section 3.10	Meetings of the Trustees.	14
Section 3.11	Powers and Duties of Sponsor, Litigation Trustees and Institutional Trustee	15
Section 3.12	Certain Duties and Responsibilities of the Trustees	19
Section 3.13	Certain Rights of the Institutional Trustee	21
Section 3.14	Execution of Documents	23
Section 3.15	Not Responsible for Recitals or Issuance of CVR Certificates	23
Section 3.16	Filings With the Commission	23
Section 3.17	Default; Notice	23

ARTICLE IV.
PAYMENTS TO HOLDERS		24
Section 4.01	Payment to Holders	24
Section 4.02	Timing of Payments	24

	Table of Contents
	(continued)

		Page


ARTICLE V.
[RESERVED]		24

ARTICLE VI.
ISSUANCE AND DISTRIBUTION OF CVR CERTIFICATES		24
Section 6.01	General Provisions Regarding CVR Certificates	24
Section 6.02	Paying Agent, Transfer Agent and Registrar	25
Section 6.03	Form and Dating.	25
Section 6.04	Mutilated, Destroyed, Lost or Stolen Certificates	26
Section 6.05	Temporary CVR Certificates	27
Section 6.06	Issuance of CVR Certificates	27
Section 6.07	Cancellation	27

ARTICLE VII.
DISSOLUTION AND TERMINATION OF LITIGATION TRUST		27
Section 7.01	Dissolution and Termination of Litigation Trust.	27

ARTICLE VIII.
TRANSFER OF INTERESTS		28
Section 8.01	General.	28
Section 8.02	Transfer Procedures	28
Section 8.03	Deemed CVR Certificate Holders	31
Section 8.04	Restrictions on Transfer.	31
Section 8.05	Appointment of Successor Clearing Agency	32

ARTICLE IX.
HOLDERS OF CVR CERTIFICATES		32
Section 9.01	Limitations on Rights of Holders	32
Section 9.02	Limitations on Suits by Holders	32

ARTICLE X.
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS		34
Section 10.01	Liability.	34
Section 10.02	Exculpation	34
Section 10.03	Fiduciary Duty.	35
Section 10.04	Indemnification.	36
Section 10.05	Outside Businesses	37
Section 10.06	Compensation; Fee	37

ARTICLE XI.
ACCOUNTING		38
Section 11.01	Fiscal Year	38
Section 11.02	Certain Accounting Matters.	38
Section 11.03	Banking	38
Section 11.04	Withholding	38

	ii

	Table of Contents
	(continued)

		Page


ARTICLE XII.
AMENDMENTS AND MEETINGS		39
Section 12.01	Amendments.	39
Section 12.02	Meetings of Holders of CVR Certificates; Action by Written Consent	41

ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE		42
Section 13.01	Representations and Warranties of the Institutional Trustee	42
Section 13.02	Representations and Warranties of the Delaware Trustee	42

ARTICLE XIV.
MISCELLANEOUS		43
Section 14.01	Notices	43
Section 14.02	Governing Law	45
Section 14.03	Intention of Parties	46
Section 14.04	Headings	46
Section 14.05	Successors and Assigns	46
Section 14.06	Partial Enforceability	46
Section 14.07	Specific Performance	46
Section 14.08	Counterparts	46
Section 14.09	Consent to Jurisdiction	47
Section 14.10	Default Rules	47

iii

AMENDED AND RESTATED DECLARATION OF TRUST

This Amended and Restated Declaration of Trust (this “Declaration” or this “Agreement”) dated as of October 31, 2003, and to be effective as of the Acceptance Date (as defined herein), by the Trustees (as defined herein), Information Resources, Inc. (along with its successors, the “Sponsor”), and by the holders, from time to time, of undivided beneficial interests in the assets of the Information Resources, Inc. Litigation Contingent Payment Rights Trust (the “Litigation Trust”) to be issued pursuant to this Declaration;

WHEREAS, Delaware Trustee (as defined herein) and the Sponsor, by Declaration of Trust, dated and effective as of August 27, 2003 (the “Original Declaration”), and by a Certificate of Trust filed with the Secretary of the State of Delaware on the same date, established a statutory trust under the Delaware Statutory Trust Act;

WHEREAS, the Institutional Trustee, the Delaware Trustee and the Sponsor, by this declaration, hereby amend and restate the Original Declaration as set forth herein;

WHEREAS, the Sponsor has entered into an Agreement and Plan of Merger, dated as of September 7, 2003 (as the same has been or may be amended from time to time, the “Merger Agreement”), with Gingko Corporation (“Parent”) and Gingko Acquisition Corp. (“Merger Sub”), providing for the commencement by Parent and Merger Sub of a tender offer (the “Offer”) to purchase all of the outstanding shares of common stock, par value $0.01 per share, of the Sponsor, together with the associated preferred share purchase rights (the “Common Stock”), at a purchase price per share of Common Stock of one CVR Certificate (as defined herein) and $3.30 per share, net to the seller in cash, without interest, on the terms and subject to the satisfaction of the conditions set forth in the Merger Agreement;

WHEREAS, nothing in this Declaration shall be deemed to be or to effect an assignment (within the meaning of 31 U.S.C. 3727) of the Litigation; and

WHEREAS, as of the date hereof, no interests in the Litigation Trust have been issued;

NOW, THEREFORE, it being the intention of the parties hereto to continue the existence of the Litigation Trust as a statutory trust under the Statutory Trust Act and that this Declaration constitute the governing instrument of such statutory trust, the Trustees declare that all assets contributed to the Litigation Trust will be held in trust for the benefit of the holders of the beneficial interests in the assets of the Litigation Trust, subject to the provisions of this Declaration.

ARTICLE I.
INTERPRETATION AND DEFINITIONS

Section 1.01 Definitions. Unless the context otherwise requires:

(a) capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.01;

(b) a term defined anywhere in this Declaration has the same meaning throughout;

(c) all references to “the Declaration” or “this Declaration” are to this Declaration, in its entirety, as modified, supplemented or amended from time to time, and not to any particular Article, Section or subsection;

(d) all references to “herein” or “hereunder” refer to this Declaration in its entirety, as modified, supplemented or amended from time to time, and not to any particular Article, Section or subsection;

(e) all references in this Declaration to Articles and Sections and Exhibits are to Articles and Sections of and Exhibits to this Declaration unless otherwise specified;

(f) a reference to the singular includes the plural and vice versa; and

(g) a reference to the masculine includes the feminine and vice versa.

“Acceptance Date” means the date of this Agreement.

“Affiliate” has the same meaning as given to that term in Rule 405 of the Securities Act or any successor Rule thereunder.

“Agreement” has the meaning set forth in the preamble hereof.

“Authenticating Agent” has the meaning set forth in Section 6.01(c)

“Authorized Officer” of a Person means any Person that is authorized to bind such Person.

“Beneficial Ownership” has the meaning ascribed to such term in Rule 13d-3 under the Exchange Act in effect on the date hereof.

“Book Entry Interest” means a beneficial interest in one or more Global CVR Certificates, ownership and transfers of which shall be maintained and made through book entries by a Clearing Agency as described in Section 8.02.

“Business Day” means any day other than Saturday, Sunday or any other day on which banking institutions in Wilmington, Delaware are permitted or required by any applicable law to close.

“Clearing Agency” means an organization registered as a “Clearing Agency” pursuant to Section 17A of the Exchange Act that is acting as depositary for the CVR Certificates and in whose name (or in the name of a nominee of that organization) shall be registered a Global CVR Certificate and which shall undertake to effect book entry transfers and pledges of the CVR Certificates.

“Clearing Agency Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Clearing Agency effects book entry transfers and pledges of securities deposited with the Clearing Agency.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation.

“Commission” means the Securities and Exchange Commission.

“Commitment” means the obligation of Parent to pay to the Trust from time to time the CVR Payment Amounts.

“Corporate Trust Office” means the office of the Institutional Trustee at which the corporate trust business of the Institutional Trustee shall, at any particular time, be principally administered, which office at the date of execution of this Declaration is located at One Rodney Square, Suite 102, 920 King Street, New Castle County, Wilmington, Delaware 19801, Attention: Corporate Trust Administration, facsimile number (302) 888-7544.

“CVR Agreement” means the Contingent Value Rights Agreement of even date herewith among the Litigation Trust, the Sponsor, Parent, Merger Sub and the other persons party thereto.

“CVR Certificates” means the Contingent Value Right Certificates, including the Contingent Value Right Certificates issued upon the Acceptance Date and any other Contingent Value Rights Certificates issued by the Litigation Trust.

“CVR Payment Amount” means any payment received by the Trust pursuant to Section 2.3(a) of the CVR Agreement.

“CVR Payment Amount Account” has the meaning set forth in Section 3.11(d)(ii)(B).

“CVR Rights Agents” has the meaning set forth in the CVR Agreement.

“Damages” has the meaning set forth in Section 10.04(a).

“Declaration” has the meaning set forth in the preamble hereto.

“Default Rule” means a rule stated in the Statutory Trust Act that (i) structures, defines or regulates the finances, governance, operations or other aspects of a Delaware statutory trust organized under the Statutory Trust Act and (ii) applies except to the extent it is negated or modified through the provisions of a governing instrument.

“Definitive CVR Certificate” has the meaning set forth in Section 6.03(b).

“Delaware Trustee” has the meaning set forth in Section 3.03(a).

“Depositary” means, with respect to the CVR Certificates, DTC or another Clearing Agency.

“DTC” means The Depository Trust Company, New York, New York, the initial Clearing Agency.

“Effective Time” has the meaning set forth in the Merger Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation.

“Fiscal Year” has the meaning set forth in Section 11.01.

“Gingko Group” means Parent, and any of its respective successors, subsidiaries and Affiliates and the subsidiaries and Affiliates of its respective successors, including without limitation the Sponsor and its Affiliates and subsidiaries after the Merger.

“Global CVR Certificate” has the meaning set forth in Section 6.03(b).

“Holder” means a Person in whose name a CVR Certificate is registered on the register maintained by the Registrar pursuant to Section 6.02, such Person being a beneficial owner within the meaning of the Statutory Trust Act.

“Indemnified Person” means (a) the Institutional Trustee, the Delaware Trustee, any Affiliate of the Institutional Trustee or the Delaware Trustee, and any officers, directors, stockholders, members, partners, employees, representatives, custodians, nominees or agents of the Institutional Trustee and the Delaware Trustee; (b) any Litigation Trustee; (c) any Affiliate of any Litigation Trustee; (d) any partners, employees, representatives, agents, counsel and other advisors of any Litigation Trustee; (e) the Rights Agents and (f) any officer, employee, representative, agent, counsel or other advisors of the Litigation Trust or its Affiliates.

“Institutional Trustee” means the Trustee meeting the eligibility requirements set forth in Section 3.04 and duly appointed pursuant to this Declaration.

“Investment Company” means an investment company as defined in the Investment Company Act.

“Investment Company Act” means the Investment Company Act of 1940, as amended from time to time, or any successor legislation.

“Litigation” has the meaning set forth in the CVR Agreement.

“Litigation Proceeds” has the meaning set forth in the CVR Agreement.

“Litigation Trust” has the meaning set forth in the first paragraph of this Declaration.

“Litigation Trustees” has the meaning set forth in Section 3.07(a).

“Litigation Trust Property” means (a) the CVR Agreement and all proceeds and rights in respect of the CVR Agreement and (b) any other assets that may be held from time to time by the Litigation Trust.

“Litigation Trust Purpose” shall have the meaning set forth in Section 2.03(a).

“Merger” has the meaning set forth in the Merger Agreement.

“Merger Agreement” has the meaning set forth in the recitals hereof.

“Non-Cash Proceeds” has the meaning set forth in the CVR Agreement.

“Officers’ Certificates” means, (i) with respect to any Person other than Litigation Trustees, a certificate signed by an Authorized Officer of such Person, and (ii) with respect to the Litigation Trustees, a certificate signed by a majority of the Litigation Trustees then in office. Any Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in the Declaration shall include:

(i) a brief statement of the nature and scope of the examination or investigation undertaken by each Authorized Officer or Litigation Trustee in rendering the Certificate; and

(ii) a statement as to whether, in the opinion of each such Authorized Officer or Litigation Trustee, such condition or covenant has been complied with.

“Parent” has the meaning set forth in the recitals hereof.

“Paying Agent” has the meaning specified in Section 6.02.

“Payment Amount” shall mean an amount to be paid to a Holder of a CVR pursuant to this Declaration.

“Permitted Investment” means Cash Equivalents as defined in the CVR Agreement.

“Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.

“Registrar” has the meaning set forth in Section 6.02.

“Relevant Trustee” has the meaning set forth in Section 3.05(a).

“Responsible Officer” means, with respect to the Institutional Trustee, any officer within the Corporate Trust Office of the Institutional Trustee, including any managing director, vice-president, any assistant vice-president, any assistant secretary, the treasurer, any assistant treasurer or other officer of the Corporate Trust Office of the Institutional Trustee, in each case with direct responsibility for carrying out the responsibilities of the Institutional Trustee

hereunder and also means, with respect to a particular Litigation Trust matter, any other officer to whom such matter is referred because of that officer’s knowledge of and familiarity with the particular subject.

“Rights Agents” means those individuals acting as Rights Agents under the CVR Agreement.

“Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor legislation.

“Securities Law Requirements” means the securities laws applicable to the Litigation Trust and the rules and regulations of Nasdaq National Market or such other securities exchange as may be applicable.

“Sponsor” has the meaning set forth in the first paragraph of this Agreement.

“Sponsor Group” means Sponsor, any Affiliate of Sponsor, their respective successors and assigns, and any officers, directors, stockholders, members, partners, employees, representatives, custodians, nominees or agents of any such Person.

“Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code sec. 3801 et seq., as it may be amended from time to time, or any successor legislation.

“Successor Certificates” has the meaning set forth in Section 2.05(b)(i)(B).

“Successor Delaware Trustee” has the meaning set forth in Section 3.05(b).

“Successor Entity” has the meaning set forth in Section 2.05(b)(i).

“Successor Institutional Trustee” has the meaning set forth in Section 3.05(b).

“Transfer Agent” has the meaning set forth in Section 6.02.

“Trustee” or “Trustees” means each Person who has signed this Declaration as a Trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Institutional Trustee, Delaware Trustee or Litigation Trustee in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as Trustees hereunder.

ARTICLE II.
ORGANIZATION

Section 2.01 Name. The Litigation Trust shall continue to be named “Information Resources, Inc. Litigation Contingent Payment Rights Trust,” as such name may be modified from time to time by the Litigation Trustees following written notice to the Holders. The Litigation Trust’s activities may be conducted under the name of the Litigation Trust or any other name deemed advisable by the Litigation Trustees.

Section 2.02 Office. The address of the principal office of the Litigation Trust on the date of execution of this Declaration is:

Information Resources, Inc. Litigation Contingent Payment Rights Trust c/o Information Resources, Inc., 150 North Clinton Street, Chicago, Illinois 60661

On ten Business Days written notice to the Holders, the Sponsor and the Institutional Trustee, the Litigation Trustees may designate another principal office.

Section 2.03 Purposes and Powers of the Litigation Trust.

(a) The exclusive purposes and functions of the Litigation Trust (each, a “Litigation Trust Purpose”) are, and the Litigation Trust shall have the power and authority (i) to hold and enforce the CVR Agreement, for the purpose of, and in a manner consistent with, achieving the realization and distribution of amounts payable pursuant to the CVR Agreement; (ii) to issue the CVR Certificates as provided herein; (iii) upon receipt of payments of the CVR Payment Amount pursuant to the CVR Agreement, to distribute the CVR Payment Amount as provided herein; and (iv) to incur indebtedness or issue additional CVR Certificates in accordance with Sections 2.03(c) and 2.03(d). Anything to the contrary herein or in the Statutory Trust Act notwithstanding, the Trustees shall not at any time, on behalf of the Litigation Trust or the Holders, enter into or engage in any profit-making trade or business, and the Trustees shall have no powers to take, and shall not take, any actions hereunder other than such as are reasonably necessary and incidental to the achievement of the foregoing exclusive Litigation Trust Purposes.

(b) Notwithstanding anything in this Declaration or in any Default Rule of the Statutory Trust Act to the contrary, no Trustee shall have any power to (i) modify the terms of the CVR Agreement, (ii) invest money held by the Litigation Trust except amounts held pursuant to Sections 3.11(d)(ii)(B) hereof pending their use to pay expenses or make distributions, or (iii) after the Acceptance Date, issue any CVR Certificates except as provided herein.

(c) In order to raise funds for, or meet its obligation to pay, expenses reasonably necessary to preserve or protect assets of the Litigation Trust or to administer the Litigation Trust (including, without limitation, expenses related to the liability and indemnification obligations of the Litigation Trust), and solely in furtherance of Litigation Trust Purposes, the Litigation Trustees on behalf of the Litigation Trust may undertake the following:

(i) incur indebtedness that represents debt of the Litigation Trust (and not an ownership interest) for federal income tax purposes; and

7

(ii) issue additional CVR Certificates.

The Litigation Trustees shall provide any such amounts to the Institutional Trustee for deposit to a separate account to be drawn upon by the Litigation Trustees to pay expenses of the Litigation Trust.

(d) In order to raise funds for, or meet its obligation to pay, expenses related to the Litigation, the Litigation Trustees on behalf of the Litigation Trust shall, as and to the extent directed in writing by the CVR Rights Agents, undertake the following:

(i) incur indebtedness that represents debt of the Litigation Trust (and not an ownership interest) for federal income tax purposes; and

(ii) issue additional CVR Certificates.

The Litigation Trustees shall provide any such amounts to the Institutional Trustee for deposit to a separate account to be drawn upon by the Rights Agents to pay Claims Expenses (as such term is defined in the CVR Agreement).

Section 2.04 Title to Property of the Litigation Trust. Legal title to all assets of the Litigation Trust shall be vested in the Litigation Trust. The Holders shall not have legal title to any part of the assets of the Litigation Trust, but shall have an undivided beneficial interest in the assets of the Litigation Trust.

Section 2.05 Mergers.

(a) The Litigation Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other body, except as described in paragraph (b) of this Section 2.05 or in a liquidation of the Litigation Trust in accordance with this Declaration.

(b) The Litigation Trust may, with the consent of Parent, the Institutional Trustee (which consent shall be given only upon receipt of the opinions delivered pursuant to this Section 2.05) and a majority of the Litigation Trustees and without the consent of the Delaware Trustee or the Holders of the CVR Certificates, consolidate, amalgamate, merge with or into, or be replaced by a statutory trust organized as such under the laws of any state of the United States; provided that:

     (i) if the Litigation Trust is not the survivor, such successor entity (the “Successor Entity”) either:

     (A) expressly assumes all of the obligations of the Litigation Trust under the CVR Certificates; or

     (B) substitutes for the CVR Certificates other securities having substantially the same terms as the CVR Certificates (the “Successor Certificates”);

8

     (ii) the Successor Certificates remain listed, or any Successor Certificates will be listed or quoted upon notification of issuance, on any national securities exchange or automated quotation system on which the CVR Certificates are then listed or quoted, if any;

     (iii) such merger, consolidation, amalgamation or replacement does not result in any material alteration of the Litigation Trust Property or adversely affect the rights, preferences and privileges of the Holders (including any Successor Certificates) in any material respect (other than with respect to any dilution of such Holders’ interests in the Successor Entity);

     (iv) such Successor Entity has purposes that are substantially identical to the Litigation Trust Purposes;

     (v) prior to such merger, consolidation, amalgamation or replacement, the Litigation Trust has received an opinion of nationally recognized outside counsel to the Litigation Trust experienced in such matters and selected by the Litigation Trustees to the effect that:

     (A) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders (including any Successor Certificates) in any material respect (other than with respect to any dilution of the Holders’ interest in the Successor Entity);

     (B) such merger, consolidation, amalgamation or replacement, will not cause the Litigation Trust (or the Successor Entity) to fail to be classified as a grantor trust for United States federal income tax purposes;

     (vi) without the unanimous consent of the Litigation Trustees and Sponsor, such merger, consolidation, amalgamation or replacement shall not result in any material change to the rights of any Indemnified Person or any member of the Sponsor Group, including, without limitation, their rights to indemnification, exculpation and compensation set forth in this Declaration and under Delaware law; and

     (vii) prior to such merger, consolidation, amalgamation or replacement the Institutional Trustee shall have received an opinion of counsel to the effect that all conditions precedent of this paragraph (b) to such transaction have been satisfied.

(c) Pursuant to Section 3815(f) of the Statutory Trust Act, in the case of a consolidation, amalgamation, or merger of the Litigation Trust with or into, or the replacement by, a person organized as such under the laws of any state of the United States, subject to the requirements described in Section 2.05(b) above and approval in accordance with Section 3815(a) of the Statutory Trust Act, the agreement of merger or consolidation may effect any amendment to this Declaration, or effect the adoption of a new governing instrument of the Litigation Trust if it is the surviving or resulting statutory trust in the merger or consolidation. Such amendment or new governing instrument shall be effective at the effective time or date of the merger or consolidation.

ARTICLE III.
TRUSTEES

Section 3.01 Authority. Except as specifically provided in this Declaration, the Institutional Trustee and the Litigation Trustees shall have exclusive and complete authority to carry out the Litigation Trust Purposes. An action taken by a Trustee in accordance with its powers shall constitute the act of and serve to bind the Litigation Trust, it being understood that except as provided expressly herein the Litigation Trustees may act only upon the vote or consent (such consent to be evidenced by a writing executed contemporaneously with or promptly following any oral consent) of a majority of the Litigation Trustees. In dealing with the Trustees acting on behalf of the Litigation Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Litigation Trust. Persons dealing with the Litigation Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration.

Section 3.02 Number of Trustees. There shall be one Delaware Trustee if required by Section 3.03; the Institutional Trustee may also serve as Delaware Trustee if it meets the applicable requirements, in which case Section 3.03 shall have no application to such entity in its capacity as Institutional Trustee. There shall be one Institutional Trustee as required by Section 3.04. There shall be two initial Litigation Trustees, subject to change as provided in Section 3.07.

Section 3.03 Delaware Trustee.

(a) If required by the Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall be:

	(i)	a natural person who is a resident of the State of Delaware; or
	(ii)	if not a natural person, an entity which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, including Section 3807 of the Statutory Trust Act.

(b) The Delaware Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more Authorized Officers. If at any time the Delaware Trustee shall cease to be eligible to so act under Section 3.03(a), the Delaware Trustee shall immediately resign in the manner and with the effect set forth in Section 3.05(a).

(d) Notwithstanding any other provision of this Declaration, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of any of the Trustees described in this Declaration. Except as set forth in this Section 3.03, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Statutory Trust Act and, to the extent required under the Statutory Trust Act or other applicable law and pursuant to the written

instructions of the Litigation Trustees, the execution and filing of any certificate with the Secretary of State of the State of Delaware.

Section 3.04 Institutional Trustee; Eligibility.

(a) There shall at all times be one Trustee which shall act as Institutional Trustee, which Trustee shall:

	(i)	not be an Affiliate of the Sponsor;
	(ii)	not offer or provide credit or credit enhancement to the Litigation Trust; and

	(iii)	be a corporation or banking association organized and doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial or District of Columbia authority. If such corporation or banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this Section 3.04(a)(iii), the combined capital and surplus of such corporation or banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.

(b) If at any time the Institutional Trustee shall cease to be eligible to so act under Section 3.04(a), the Institutional Trustee shall immediately resign in the manner and with the effect set forth in Section 3.05(a).

(d) The Institutional Trustee shall continue to serve as a Trustee until either:

(i) the Litigation Trust has been completely liquidated and all amounts received or receivable or potentially receivable pursuant to the CVR Agreement (including the final payment of the CVR Payment Amount) and not otherwise applied as provided herein and any other amounts shall have been distributed to the Holders pursuant to the terms hereof and of the CVR Certificates; or

(ii) a Successor Institutional Trustee has been appointed and has accepted that appointment in accordance with Section 3.05.

Section 3.05 Appointment, Removal and Resignation of the Institutional and Delaware Trustees.

(a) No resignation or removal of the Institutional or Delaware Trustee (each, a “Relevant Trustee”) and no appointment of a successor Relevant Trustee pursuant to this Article

shall become effective until the acceptance of appointment by the successor Relevant Trustee in accordance with the applicable requirements of this Section 3.05.

(b) Subject to the immediately preceding paragraph, a Relevant Trustee may resign at any time by giving written notice thereof to the other Trustees and the Holders. Upon the resignation of the Relevant Trustee, the Litigation Trustees shall appoint a successor (the “Successor Institutional Trustee” or the “Successor Delaware Trustee,” as applicable) who shall execute an instrument of acceptance as described in Section 3.05(e) below. If the instrument of acceptance by the successor Relevant Trustee required by this Section 3.05 shall not have been delivered to the Relevant Trustee within 30 days after the giving of such notice of resignation, the Relevant Trustee may petition, at the expense of the Litigation Trust, any court of competent jurisdiction for the appointment of a successor Relevant Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Relevant Trustee. The resigning Relevant Trustee shall have no liability for the selection of such successor pursuant to this Section 3.05.

(c) The Institutional Trustee or the Delaware Trustee, or both of them, may be removed by (i) the Litigation Trustees or (ii) Holders of a majority of the CVR Certificates outstanding, in each case by delivery of notification of removal to the Relevant Trustee (in its individual capacity and on behalf of the Litigation Trust) and the other Trustees, with such removal by Holders being permitted (x) if no default by the Litigation Trust with respect to its payment obligations under Article IV shall have occurred and be continuing, only for cause and (y) if a default by the Litigation Trust with respect to its payment obligations under Article IV shall have occurred and be continuing, either with or without cause. A Delaware Trustee who is a natural person may also be removed by the Litigation Trustees if such Delaware Trustee becomes incompetent or incapacitated, and shall be deemed removed if such Delaware Trustee dies. If a Relevant Trustee shall be so removed, the Litigation Trustees shall promptly appoint a successor Relevant Trustee or Trustees, and such successor Relevant Trustee or Trustees shall comply with the applicable requirements of Section 3.03 or Section 3.04, as the case may be. If no successor Relevant Trustee shall have been so appointed by the Litigation Trustees and accepted appointment in the manner required by this Section 3.05 within 30 days after delivery of notification of removal or after the Litigation Trust receives notice of the Delaware Trustee’s death, incompetence or incapacity, any Holder who has been a Holder of CVR Certificates for at least six months may, on behalf of himself and all others similarly situated, or the Relevant Trustee being removed may, petition any court of competent jurisdiction for the appointment of a successor Relevant Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a successor Relevant Trustee or Trustees. All accrued fees and expenses of a Relevant Trustee that has resigned or been removed as a Trustee pursuant to this Section 3.05 shall be paid to the Relevant Trustee within ten Business Days of resignation or removal.

(d) The Institutional Trustee shall give notice of each appointment of a successor Relevant Trustee to all Holders. Each notice shall include the name of the successor Relevant Trustee and the address of its Corporate Trust Office if it is the Institutional Trustee.

(e) In the case of the appointment hereunder of a successor Relevant Trustee, the retiring Relevant Trustee (except in the case of the death, incompetence or incapacity of a

Delaware Trustee who is a natural person) and each successor Relevant Trustee shall execute and deliver an amendment hereto wherein each successor Relevant Trustee shall accept such appointment and which shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers and duties of the retiring Relevant Trustee with respect to the CVR Certificates and the Litigation Trust; it being understood that nothing herein or in such amendment shall designate such Relevant Trustees as co-Trustees and upon the execution and delivery of such amendment the resignation or removal of the retiring Relevant Trustee shall become effective to the extent provided therein and each such successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Relevant Trustee; but, on request of the Litigation Trust or any successor Relevant Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver to such successor Relevant Trustee all Litigation Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder with respect to the CVR Certificates and the Litigation Trust.

(f) No Relevant Trustee shall be liable for the acts or omissions to act of any successor Relevant Trustee.

(g) Any Person into which the Relevant Trustee, as the case may be, may be merged or converted or with which either may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Relevant Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Relevant Trustee shall be the successor of the Relevant Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such Person shall be otherwise qualified and eligible under this Article.

Section 3.06 Vacancies Among Relevant Trustees; Effect of Vacancies.

The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not operate to dissolve, terminate or annul the Litigation Trust. Whenever a vacancy in the Institutional Trustee or the Delaware Trustee shall occur, until such vacancy is filled by the appointment of a Trustee in accordance with Section 3.05, the Institutional Trustee or the Delaware Trustee (as the case may be) remaining in office shall have all the powers granted to both the Institutional Trustee and the Delaware Trustee (as the case may be) and shall discharge all the duties imposed upon both the Institutional Trustee and the Delaware Trustee (as the case may be) by this Declaration; provided, however, that the Institutional Trustee shall have the powers of the Delaware Trustee and shall discharge the duties imposed upon the Delaware Trustee only if the Institutional Trustee is then able to fulfill the requirements of Section 3807 of the Statutory Trust Act.

Section 3.07 The Litigation Trustees.

(a) There shall be at all times no fewer than two Trustees (the “Litigation Trustees”) who shall be natural persons over the age of 21 years and who shall have the powers, duties and responsibilities of the Litigation Trustees hereunder. The initial Litigation Trustees shall be Joseph P. Durrett and Eileen Kamerick.

Section 3.08 Resignation of a Litigation Trustee. Any Litigation Trustee may resign as such by executing an instrument in writing and delivering that instrument to the remaining Litigation Trustee or Trustees, if any, and to the Institutional Trustee. In the event of the resignation of a Litigation Trustee, such Litigation Trustee shall promptly: (a) execute and deliver such documents, instruments and other writings as may be reasonably requested by the remaining Litigation Trustees or Litigation Trustee, or if there is no Litigation Trustee, the Institutional Trustee, to effect the termination of such Litigation Trustee’s capacity under this Declaration; (b) deliver to the remaining Litigation Trustees or Litigation Trustee all assets, documents, instruments, records and other writings related to the Litigation Trust as may be in the possession of such Trustee; and (c) otherwise assist and cooperate in effecting the assumption of such Litigation Trustee’s obligations and functions by his successor Litigation Trustee.

Section 3.09 Appointment of Successor Litigation Trustees.

(a) Upon the death, resignation or incompetency (determined by a court of competent jurisdiction) of a Litigation Trustee, the remaining Litigation Trustee, and no other Person, shall have the power to appoint a successor Litigation Trustee. In the event of the death, resignation or incompetency (as determined by a court of competent jurisdiction) of all of the Litigation Trustees so that there are no remaining Litigation Trustees, two Litigation Trustees shall be appointed by the CVR Rights Agents (as defined in the CVR Agreement), or if there are no CVR Rights Agents under the CVR Agreement, by a majority of the Persons still living who constituted the Board of Directors of the Sponsor upon the Acceptance Date.

(b) Any such appointment shall specify the date on which such appointment shall be effective. Every successor Litigation Trustee appointed hereunder shall execute, acknowledge and deliver to the Litigation Trust an instrument accepting such appointment, and thereupon such successor Litigation Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers and duties of a Litigation Trustee. No successor Litigation Trustee shall have any duty to investigate the administration of the Litigation Trust for any period prior to the effective date of such successor Litigation Trustee’s appointment, and no resigning Litigation Trustee shall be required or permitted, prior to final termination of the Litigation (including any proceedings to collect any recovery due the Litigation Trustees), to file any accounting proceeding.

Section 3.10 Meetings of the Trustees.

(a) Meetings of the Litigation Trustees may be held from time to time upon the call of any Litigation Trustee. Notice of any in-person meetings of the Litigation Trustees shall be hand delivered or otherwise delivered by the Litigation Trustee that has called such meeting to the other Litigation Trustees in writing (including by facsimile, with a hard copy by overnight mail) not less than five Business Days before such meeting. Notice of any telephonic meetings of such Litigation Trustees shall be hand delivered or otherwise delivered by the Litigation Trustee that has called such meeting to the other Litigation Trustees in writing (including by facsimile, with a hard copy by overnight mail) not less than two Business Days before a meeting.

Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of a Litigation Trustee at a meeting shall constitute a waiver of notice of such meeting except where such Litigation Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened. Any Litigation Trustee may also waive such notice of in-person or telephonic meetings in writing by hand delivering or otherwise delivering (including by facsimile, with a hard copy by overnight mail) such written waiver to all other Trustees. Unless provided otherwise in this Declaration, any action to be taken by the Litigation Trustees shall be taken with the approval of each Litigation Trustee.

(b) The Litigation Trustees may adopt their own rules and procedures but, unless otherwise provided by this Declaration, may act only with the unanimous agreement of the two Litigation Trustees or the agreement of the sole remaining Litigation Trustee prior to the appointment of a successor Litigation Trustee pursuant to Section 3.09. The Litigation Trustees may, in their discretion, delegate to one or more of the Litigation Trustees the authority to act on behalf of the Litigation Trustees as the Litigation Trustees may determine appropriate.

Section 3.11 Powers and Duties of Sponsor, Litigation Trustees and Institutional Trustee.

(a) The Sponsor shall have the power and authority as an agent of the Litigation Trust prior to the Acceptance Date and is hereby authorized and instructed to act on behalf of the Litigation Trust prior to the Acceptance Date with respect to the following matters:

     (i) the issuance of the CVR Certificates issued with respect to the Acceptance Date;

     (ii) the execution of the CVR Certificates issued with respect to the Acceptance Date in accordance with this Declaration;

     (iii) compliance with (or obtaining or qualifying for exceptions from) the Securities Act, the Exchange Act or applicable state securities or blue sky laws;

     (iv) the execution and filing of the registration statement under the Securities Act to register the CVR Certificates to be issued in connection with the transactions contemplated by the Merger Agreement (including any amendments or supplements thereto) and the preparation and filing of all documents filed therewith;

     (v) the use of its reasonable best efforts to permit trading of the CVR Certificates pursuant to the NASDAQ National Market System (or if, despite such reasonable best efforts, trading on the NASDAQ National Market System is not possible, on such other NASDAQ market or other market as shall, in the good faith judgment of the Sponsor, provide maximum available liquidity), commencing on the Acceptance Date;

     (vi) the notification of the Institutional Trustee and the Litigation Trustees in writing when the CVR Certificates are listed on any stock exchange or quoted on any automated quotation system, if prior to the Acceptance Date;

15

     (vii) the application for a taxpayer identification number; and

     (viii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.

(b) The actions taken by the Sponsor on behalf of the Litigation Trust or for its benefit pursuant to Section 3.11(a) and all transactions and agreements entered into in connection therewith shall be the actions of the Litigation Trust and shall be binding upon the Litigation Trust.

(c) The members of the Sponsor Group may consult with counsel (which counsel may be counsel to the Litigation Trust or counsel to any member of the Sponsor Group) outside consultants, advisors and other Persons as to matters the members of the Sponsor Group reasonably believe are within such other Person’s professional or expert competence, and the advice of such Persons shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by them hereunder in good faith reliance on such advice.

(d) in accordance with subparagraphs (i) and (ii) of this Section 3.11(d), the Litigation Trustees shall have the authority to enter into all transactions and agreements determined by the Litigation Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Litigation Trustees under this Declaration and to perform all acts in furtherance thereof (and all such transactions or agreements entered into or acts performed prior to the date hereof are hereby ratified and approved), including, without limitation, the following:

(i) The Litigation Trustees shall have the power and authority and are hereby authorized and instructed to act on behalf of the Litigation Trust with respect to the following matters and such other powers and authority:

     (A) the issuance and determination of the quantity and price of any CVR Certificates issued after the Acceptance Date in accordance with this Declaration;

(B) the execution of any CVR Certificates issued after the Acceptance Date in accordance with this Declaration;

     (C) after the Acceptance Date, the execution and delivery on behalf of the Litigation Trust, subject to Section 2.03(b), of any agreement with the Sponsor, and such other agreements as may, in the opinion of a majority of the Litigation Trustees, be necessary or desirable in connection with the Litigation Trust Purposes, including agreements with the Depositary and the Paying Agent;

     (D) after the Acceptance Date, subject to Section 3.16 hereof and Section 5.4 of the CVR Agreement, compliance with (or obtaining or qualifying for exceptions from) the Securities Act, the Exchange Act or applicable state securities or blue sky laws or other applicable laws;

16

     (E) after the Acceptance Date, subject to Section 3.16 hereof and Section 5.4 of the CVR Agreement, the execution and filing of one or more registration statements and prospectuses (including any amendments or supplements thereto) relating to the CVR Certificates and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;

     (F) after the Acceptance Date, subject to Section 3.16 hereof and Section 5.4 of the CVR Agreement, the continuation of the designation of the CVR Certificates for trading on any national stock exchange or quotation on the NASDAQ Stock Market’s National Market System or other automated quotation system until such time as the CVR Certificates are no longer eligible for such designation on any such exchange or quotation system;

     (G) the carrying out of any of the powers or obligations of the Litigation Trust or of the Litigation Trustees under the CVR Agreement;

     (H) the Litigation Trustees shall direct the Sponsor to make the payments required pursuant to Section 5.4 of the CVR Agreement;

     (I) the sending of notices (other than notice of default), and other information regarding the CVR Certificates to the Holders in accordance with this Declaration;

     (J) the taking of any action to cause the Litigation Trust not to be deemed to be an Investment Company under the Investment Company Act;

     (K) the bringing, defense, payment, collection, compromise, taking of legal action, or other adjustment of claims or demands which arise out of or in connection with a breach by Parent or the Sponsor of any of its obligations under the CVR Agreement or, subject to the limitations set forth in Section 3.11, of any of its obligations hereunder;

     (L) the due preparation and filing of all applicable tax returns and tax information reports that are required to be filed with respect to the Litigation Trust;

     (M) the compliance by the Litigation Trust with the indemnification obligations of the Litigation Trust; and

     (N) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.

(ii) The Institutional Trustee shall have the power, duty and authority and is hereby authorized and instructed to act on behalf of the Litigation Trust with respect to the following matters:

     (A) the authentication of the CVR Certificates in accordance with Section 6.01(b);

     (B) prior to the receipt of the CVR Payment Amount, the establishment at the direction of the Litigation Trustees of one non-interest bearing demand deposit account or trust account at a commercial bank reasonably acceptable to the Litigation Trustees for the purpose of holding the CVR Payment Amount (the “CVR Payment Amount Account”), and upon receipt of the CVR Payment Amount and at the written direction of the Litigation Trustees, the investment of the CVR Payment Amount, until disbursed pursuant to the terms of this Declaration, in a Permitted Investment which is held until its maturity;

     (C) the distribution through the Paying Agent of the Payment Amount and other amounts owed to the Holders in respect of the CVR Certificates in accordance with the terms of this Declaration;

     (D) at the written direction of the Litigation Trustees, the sending of notices of a breach by Parent or the Sponsor of its obligations under the CVR Agreement or a breach by the Sponsor of its obligations under this Declaration or default by the Litigation Trust of its payment obligations pursuant to Article IV hereof;

     (E) at the written direction of the Litigation Trustees, the execution and delivery of letters or documents to, or instruments with, the Depositary relating to the CVR Certificates;

     (F) to the extent provided in this Declaration, the winding up of the affairs of and liquidation of the Litigation Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;

     (G) the taking of all actions that may be necessary or appropriate for the preservation and the continuation of the Litigation Trust’s valid existence, rights, franchises and privileges as a statutory trust under the laws of the State of Delaware and, to the extent specifically directed in written notice(s) provided to it by the Litigation Trustees, of each other jurisdiction in which such existence is necessary, to protect the limited liability of the Holders or to enable the Litigation Trust to effect the Litigation Trust Purposes;

     (H) at the written direction of the Litigation Trustees, the bringing, defense, payment, collection, compromise, arbitration, taking of legal action, or other adjustment of claims or demands which arise out of or in connection with a breach by Parent or the Sponsor of any of its obligations under the CVR Agreement, or, subject to the limitations set forth in Section 10.02, by the Sponsor of any of its obligations hereunder;

     (I) the taking of all actions and performance of such duties as may be specifically required of the Institutional Trustee pursuant to the terms of the CVR Certificates; and

(J) the taking of any action incidental to the foregoing as the Institutional Trustee may from time to time determine to be necessary or advisable to give effect to the terms of this Declaration for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).

(e) The Trustees are authorized and directed to conduct the affairs of the Litigation Trust and to operate the Litigation Trust so that the Litigation Trust will not fail to be classified as a grantor trust for United States federal income tax purposes (or in any other manner that would result in the Litigation Trust not being subject to tax for United States federal income tax purposes). In this connection, the Trustees are authorized to take any action, not inconsistent with applicable laws, the certificate of trust or this Declaration, as amended from time to time, that the Litigation Trustees determine in their discretion to be necessary or desirable for such purpose, even if such action adversely affects the interests of the Holders. The Trustees may retain counsel and outside advisors that they reasonably believe to be experts with respect to the foregoing tax matters, and the Trustees shall be deemed to have satisfied the provisions of this Section 3.11(d) by employing such expert(s) for such purpose and by following the advice of such experts in connection with the foregoing, and the Trustees shall not be liable for any actions taken or not taken at the direction of such expert(s).

(f) The Litigation Trustees may consult with counsel (which counsel may be counsel to the Litigation Trust or counsel to any member of the Gingko Group), outside consultants, advisors and other Persons as to matters the Litigation Trustees reasonably believe are within such other Person’s professional or expert competence, and the advice of such Persons shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by them hereunder in good faith reliance on such advice.

(g) Any Trustee may also be a Holder or an officer, director, employee or Affiliate of a Holder, and will have all the rights of such a Holder to the same extent as if such Trustee were not a Trustee.

Section 3.12 Certain Duties and Responsibilities of the Trustees.

(a) The Institutional Trustee, before the occurrence of any breach by Parent or the Sponsor of any of its obligations under the CVR Agreement or a breach by the Sponsor after the Acceptance Date of any of its obligations under this Declaration, and after the curing of any such breach by the Sponsor, shall undertake to perform only such duties as are specifically set forth in this Declaration and no implied covenants shall be read into this Declaration against the Institutional Trustee. In case of a breach by Parent or the Sponsor of any of its obligations under the CVR Agreement or a breach by the Sponsor of its obligations hereunder after the Acceptance Date, the Institutional Trustee shall exercise such of the rights and powers vested in it by this Declaration as set forth in written instructions of the Litigation Trustees (or, if authorized elsewhere in this Agreement, by the required number of Holders of the CVR Certificates).

(b) The duties and responsibilities of the Trustees shall be as provided by this Declaration and the Statutory Trust Act. Notwithstanding the foregoing, no provision of this Declaration shall require any Trustee to expend or risk such Trustee’s own funds or otherwise

incur any financial liability in the performance of any of such Trustee’s duties hereunder, or in the exercise of any of such Trustee’s rights or powers. Whether or not therein expressly so provided, every provision of this Declaration relating to the conduct or affecting the liability of or affording protection to the Trustees shall be subject to the provisions of this Article.

(c) All payments made by the Institutional Trustee or a Paying Agent in respect of the CVR Certificates shall be made only after all fees and expenses of the Delaware Trustee and the Institutional Trustee have been paid and only from (i) payments received by the Litigation Trust from Parent pursuant to the CVR Agreement and (ii) proceeds from the liquidation of other assets of the Litigation Trust upon the winding up of the Litigation Trust. Each Holder, by its acceptance of a CVR Certificate, agrees that it will look solely to the CVR Payment Amounts received by the Trust and that neither any Trustee nor the Sponsor, Parent or Merger Sub shall be personally liable to such Holder for any amount distributable in respect of any CVR Certificate or for any other liability in respect of any CVR Certificate.

(d) In performing its duties hereunder:

	(i)	the Institutional Trustee shall not be liable for any error or judgment made in good faith by an authorized officer of the Institutional Trustee, unless it shall be proved that the Institutional Trustee was grossly negligent in ascertaining the pertinent facts;

	(ii)	the Institutional Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Litigation Trustees or the Holders of not less than a majority of the CVR Certificates then outstanding, relating to the time, method and place of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any power conferred upon the Institutional Trustee under this Declaration;

	(iii)	the Institutional Trustee’s sole duty with respect to the custody, safekeeping and physical preservation of the Payment Amount shall be to deal with such property in a similar manner as the Institutional Trustee deals with similar property for its own account, subject to the provisions regarding protections and limitations on liability afforded to the Institutional Trustee under this Declaration;

	(iv)	the Institutional Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree in writing with the Litigation Trustees; and money held by the Institutional Trustee need not be segregated from other funds held by it except in relation to the CVR Payment Amount maintained by the Institutional Trustee pursuant to Section 3.11(d)(ii)(B) except to the extent otherwise required by law; provided that the Institutional Trustee may conclusively rely upon the Payment Notice in determining which amounts are to be so segregated and shall fully be protected in so relying, and shall be entitled to assume that any other amounts received are to be deposited to an Expenses Account.

Section 3.13 Certain Rights of the Institutional Trustee. Subject to the provisions of Section 3.12:

(a) the Institutional Trustee may conclusively rely and shall fully be protected in acting or refraining from acting in good faith upon any resolution, opinion of counsel, certificate, written representation of a Holder, transferee or Litigation Trustee, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, CVR Certificate, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties;

(b) if (i) in performing its duties under this Declaration, the Institutional Trustee is required to decide between alternative courses of action, or (ii) in construing any of the provisions of this Declaration, the Institutional Trustee finds the same ambiguous or inconsistent with any other provisions contained herein, or (iii) the Institutional Trustee is unsure of the application of any provision of this Declaration, then, except as to any matter as to which the Litigation Trustees or the Holders have directed the Institutional Trustee, the Institutional Trustee shall take such action, or refrain from taking such action, as the Institutional Trustee in its sole discretion shall deem advisable and in the best interests of the Holders, in which event the Institutional Trustee shall have no liability except for its own bad faith, gross negligence or willful misconduct;

(c) any direction or act of the Litigation Trustees contemplated by this Declaration shall be sufficiently evidenced by an Officers’ Certificate;

(d) the Institutional Trustee may consult with counsel (which counsel may be counsel to the Litigation Trustees or appointed by the Sponsor or Parent (or any successor to such Persons) at the direction of the Litigation Trustees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Institutional Trustee shall have the right at any time to seek instructions concerning the administration of this Declaration from any court of competent jurisdiction;

(e) the Institutional Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration at the request or direction of any of the Litigation Trustees or the Holders pursuant to this Declaration, unless the Institutional Trustee has been provided with security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(f) the Institutional Trustee shall not be required to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, CVR Certificate, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by a majority of the Holders of CVR Certificates then outstanding, but the Institutional Trustee may make such further inquiry or investigation into such facts or matters as it may see fit;

(g) except as otherwise expressly provided in this Declaration, the Institutional Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Declaration;

(h) any action taken by the Institutional Trustee or its agents authorized by this Declaration to be taken by the Institutional Trustee shall bind the Litigation Trust and the Holders, and the signature of the Institutional Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Institutional Trustee to so act or as to its compliance with any of the terms and provisions of this Declaration, both of which shall be conclusively evidenced by the Institutional Trustee’s or its agent’s taking such action;

(i) no provision of this Declaration shall be deemed to impose any duty or obligation on the Institutional Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Institutional Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Institutional Trustee shall be construed to be a duty;

(j) whenever in the administration of the provisions of this Declaration the Institutional Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence, willful misconduct or bad faith on the part of the Institutional Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Institutional Trustee and such certificate, in the absence of gross negligence or bad faith on the part of the Institutional Trustee, shall be full warrant to the Institutional Trustee for any action taken, suffered or omitted by it under the provisions of this Declaration upon the faith thereof;

(k) in no event shall the Institutional Trustee be liable for the selection of investments for funds permitted to be invested hereunder or for investment losses thereon, and the Institutional Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Litigation Trustees to provide timely written investment direction with respect to funds permitted to be invested hereunder;

(l) the Institutional Trustee may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for the actions of, or for the supervision of, any agent, attorney, custodian or nominee so appointed; and

(m) the Institutional Trustee shall not be deemed to have notice of the occurrence of the events described in Section 3.17 unless a Responsible Officer of the Institutional Trustee shall have received written notice of such event or a Responsible Officer of the Institutional Trustee shall have obtained actual knowledge thereof.

Section 3.14 Execution of Documents. The Sponsor and any Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her or its power for the purpose of executing any documents contemplated in Section 3.11.

Section 3.15 Not Responsible for Recitals or Issuance of CVR Certificates. The recitals contained in this Declaration and the CVR Certificates shall be taken as the statements of the Litigation Trust, and neither the Trustees nor the Sponsor assume any responsibility for their correctness. The Sponsor and the Trustees make no representations as to the value or condition of the Litigation Trust Property or any part thereof. Except as otherwise specifically provided in Article XIII, the Sponsor and the Trustees make no representations as to the validity or sufficiency of this Declaration or the CVR Certificates.

Section 3.16 Filings With the Commission. So long as the Litigation Trust is subject to the reporting obligations of the Exchange Act, the Litigation Trustees shall, on behalf of the Litigation Trust, cause to be prepared, executed and filed with the Commission quarterly reports on Form 10-Q and an annual report on Form 10-K. Unless otherwise required by the Commission, such reports will contain only an overview of the status of the Litigation and disclosure of the amounts that have been expended for the relevant period and any contingent or incurred but unpaid expenses (including compensation deferred by the Litigation Trustees) that the Litigation Trust will be obligated to pay in the future. The Litigation Trustees shall also, on behalf of the Litigation Trust, cause to be prepared, executed and filed with the Commission, reports on Form 8-K upon the occurrence of a material judicial decision in the Litigation or in the event of any agreement to settle the Litigation. It is hereby agreed and understood that such reports on Form 10-Q, 10-K or 8-K will not include financial statements or any valuation of the Litigation except as otherwise required by applicable law or rules of the Commission. Notwithstanding any other provision of this Agreement, Parent shall be entitled, and shall be given a reasonable opportunity, to review and comment on any filing made by the Litigation Trust with the Securities and Exchange Commission, or otherwise made to satisfy Securities Law Requirements, and no such filing shall be made without the prior written consent of Parent (such consent not to be unreasonably withheld); provided that Parent and the Litigation Trustees agree to take such actions as are necessary to permit the Litigation Trust to comply with its obligations under Securities Law Requirements in a timely manner. Parent shall cooperate with the Litigation Trustees to permit the Litigation Trustees to obtain such information as may be necessary to comply with Securities Law Requirements.

Section 3.17 Default; Notice. The Institutional Trustee shall, within 90 days after actual notice of the occurrence of (i) a breach by Parent or the Sponsor of any of its payment obligations under the CVR Agreement, (ii) a breach by the Sponsor after the Acceptance Date of its obligations hereunder, or (iii) a default by the Litigation Trust in payment of the Payment Amount to the Holders pursuant to Article IV hereof, transmit by mail, first class postage prepaid, to the Holders, notice of such default actually known to a Responsible Officer of the Institutional Trustee, unless such default has been cured before the giving of such notice; provided, however, the Institutional Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Institutional Trustee in good faith determines that the withholding of such notice is in the best interests of the Holders.

ARTICLE IV.
PAYMENTS TO HOLDERS

Section 4.01 Payment to Holders. The Litigation Trust will make payments from time to time to the Holders of the CVR Certificates upon the receipt of the applicable payments of any CVR Payment Amounts. On each applicable payment date specified by the Litigation Trustees pursuant to Section 4.02, provided that the Institutional Trustee has received notice no later than five (5) Business Days prior to such date of (i) such date and the amount of the CVR Payment Amount from the Litigation Trustees and (ii) the applicable account name, number and other applicable information from the Paying Agent (if the Institutional Trustee is not also the Paying Agent), the Institutional Trustee shall transfer such CVR Payment Amount to such account of the Paying Agent, and the Paying Agent shall promptly make the applicable payments to the Holders. Each CVR Certificate will entitle the Holder thereof to receive a fraction (equal to 1 divided by the total number of CVR Certificates outstanding) of any CVR Payment Amount within 60 days after the Litigation Trust receives such CVR Payment Amount.

Section 4.02 Timing of Payments. The Litigation Trust will make payments of amounts as contemplated by Section 4.01 to the Holders as of record dates determined by the Litigation Trustees. Payment will be made on payment dates, which will also be set by the Litigation Trustees. The Litigation Trustees shall promptly notify the Institutional Trustee and the Paying Agent in writing of any such dates.

ARTICLE V.
[RESERVED]

ARTICLE VI.
ISSUANCE AND DISTRIBUTION OF CVR CERTIFICATES

Section 6.01 General Provisions Regarding CVR Certificates.

(a) The Litigation Trust shall be authorized to issue one class of undivided beneficial interests in the assets of the Litigation Trust, which may be issued in an unlimited number and shall be represented by CVR Certificates substantially in the form of Exhibit A.

(b) Notwithstanding any other provision of this Declaration, the Litigation Trust shall, and the Litigation Trustees shall use their reasonable best efforts to cause the Litigation Trust to, (i) issue CVR Certificates in accordance with this Article VI at such times and in such amounts as shall be necessary to satisfy the obligations of Merger Sub and Parent pursuant to the Offer and the Merger Agreement and (ii) maintain the effectiveness of such registration statements and prospectuses as are required under the terms of the Merger Agreement. Neither the Litigation Trust, nor any Trustee acting on behalf of the Litigation Trust, shall take any action that would result in a breach of the Merger Agreement or the CVR Agreement by Parent or any Affiliate of Parent.

(c) CVR Certificates shall be executed by the Sponsor or by at least one Litigation Trustee after the Acceptance Date. Upon written order of the Litigation Trust signed by one Litigation Trustee, or upon the written order of an Authorized Officer of the Sponsor with respect to CVR Certificates to be issued upon the Acceptance Date, the Institutional Trustee shall

authenticate the CVR Certificates for original issue. The Institutional Trustee may appoint an authenticating agent (an “Authenticating Agent”) acceptable to the Litigation Trustees or the Sponsor, if such appointment occurs prior to the Acceptance Date, to authenticate the CVR Certificates.

(d) Upon issuance of the CVR Certificates as provided in this Declaration, the CVR Certificates so issued shall be deemed to be validly issued, fully paid and non-assessable.

(e) Every Person, by virtue of having become a Holder in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration.

Section 6.02 Paying Agent, Transfer Agent and Registrar. The Litigation Trust shall maintain in Charlotte, North Carolina, an office or agency where the CVR Certificates may be presented for payment (the “Paying Agent”), and an office or agency where CVR Certificates may be presented for registration of transfer (the “Transfer Agent”). The Litigation Trust shall keep or cause to be kept at such office or agency a register for the purpose of registering CVR Certificates and transfers and exchanges of CVR Certificates, such register to be held by a registrar (the “Registrar”). The Litigation Trustees may appoint the Paying Agent, the Registrar, and the Transfer Agent and may appoint one or more additional Paying Agents or one or more co-Registrars, or one or more co-Transfer Agents in such other locations as they shall determine. The term “Paying Agent” includes any additional paying agent, the term “Registrar” includes any additional registrar or co-Registrar and the term “Transfer Agent” includes any additional or co-Transfer Agent. The Litigation Trustees may change any Paying Agent without prior notice to any Holder. The Litigation Trustees shall notify the Institutional Trustee of the name and address of any Paying Agent, Transfer Agent and Registrar not a party to this Declaration. The Litigation Trust hereby confirms the appointment of Wachovia Bank, National Association to act as Paying Agent, Transfer Agent and Registrar for the CVR Certificates, pursuant to an agreement, dated as of August 27, 2003, between Gingko Acquisition Corp. and Wachovia Bank, National Association.

Section 6.03 Form and Dating.

(a) The CVR Certificates and the Institutional Trustee’s certificate of authentication thereon shall be substantially in the form of Exhibit A, which is hereby incorporated in and expressly made a part of this Declaration. CVR Certificates may be typed, printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Sponsor prior to the Acceptance Date, and the Litigation Trustees after the Acceptance Date, as conclusively evidenced by such party’s execution thereof. The CVR Certificates may have letters, numbers, notations or other marks of identification or designation and such legends or endorsements required by law, stock exchange rule, agreements to which the Litigation Trust is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Sponsor upon the Acceptance Date, and the Litigation Trustees after the Acceptance Date). The Litigation Trustees shall furnish any such legend not contained in Exhibit A to the Institutional Trustee in writing. Each CVR Certificate shall be dated the date of its authentication. The form of CVR Certificate set forth in Exhibit A is part of the terms of this Declaration and to the extent applicable, the Institutional Trustee, the Delaware Trustee, the

Litigation Trustees and the Sponsor, by their execution and delivery of this Declaration, expressly agree to such terms and provisions and to be bound thereby. The Litigation Trust, in issuing the CVR Certificates may use “CUSIP” numbers (if then generally in use), and, if so, the Institutional Trustee shall indicate the “CUSIP” numbers of the CVR Certificates in notices of redemption and related materials as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the CVR Certificates or as contained in any notice of redemption and related materials.

(b) CVR Certificates shall be issued in the form of individual certificates in definitive, fully registered form without distribution coupons (each, a “Definitive CVR Certificate”), and/or in the form of one or more permanent global CVR Certificates in definitive, fully registered form without distribution coupons with the appropriate global legends (each, a “Global CVR Certificate”). The number of CVR Certificates represented by the Global CVR Certificate may from time to time be increased or decreased by adjustments made on the records of the Registrar and the Depositary or its nominee as hereinafter provided. CVR Certificates issued pursuant to Section 6.06 shall be issued in the form specified by the Sponsor in writing and CVR Certificates issued pursuant to Section 2.03(c)(ii) or 2.03(d)(ii) shall be issued in the form determined by the Litigation Trustee. Notwithstanding anything to the contrary, a Global CVR Certificate can only represent a single class of CVR Certificates.

(c) This Section 6.03(c) shall apply only to the Global CVR Certificates. If Global CVR Certificates are issued as provided in Section 6.03(b), the Litigation Trust shall execute and the Institutional Trustee shall, in accordance with this Section 6.03, authenticate and deliver initially one or more Global CVR Certificates that (a) shall be registered in the name of Cede & Co. or other nominee of such Depositary and (b) shall be delivered by the Institutional Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Institutional Trustee as custodian for the Depositary. Clearing Agency Participants shall have no rights under this Declaration with respect to any Global CVR Certificates held on their behalf by the Depositary or by the Institutional Trustee as the custodian of the Depositary or under such Global CVR Certificates, and the Depositary may be treated by the Litigation Trust, the Institutional Trustee and any officer, director, employee, or agent of the Litigation Trust or the Institutional Trustee as the absolute owner of such Global CVR Certificates for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Litigation Trust, the Institutional Trustee or any agent of the Litigation Trust or the Institutional Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and the Clearing Agency Participants, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global CVR Certificates.

(d) Any Person with a beneficial interest in a Global CVR Certificate may exchange such interest for Definitive CVR Certificates of the same class represented by the Global CVR Certificate.

Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates. If: (a) any mutilated CVR Certificates should be surrendered to the Registrar, or if the Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any CVR Certificate; and (b) there shall be delivered to the Institutional Trustee, the Registrar and the Litigation Trustees such

security or indemnity as may be required by them to keep each of them harmless; then, in the absence of notice that such CVR Certificate shall have been acquired by a protected purchaser, a Litigation Trustee on behalf of the Litigation Trust shall execute and the Institutional Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen CVR Certificate, a new CVR Certificate of like denomination. In connection with the issuance of any new CVR Certificate under this Section 6.04, the Registrar or the Institutional Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate CVR Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant CVR Certificates, as if originally issued, whether or not the lost, stolen or destroyed CVR Certificate shall be found at any time.

Section 6.05 Temporary CVR Certificates. Until definitive CVR Certificates are ready for delivery, the Litigation Trustees may prepare and the Institutional Trustee shall authenticate temporary CVR Certificates. Temporary CVR Certificates shall be substantially in the form of definitive CVR Certificates but may have variations that the Litigation Trustees consider appropriate for temporary CVR Certificates. Without unreasonable delay, a Litigation Trustee shall prepare and the Institutional Trustee shall authenticate definitive CVR Certificates in exchange for temporary CVR Certificates, whereafter such temporary CVR Certificates shall be cancelled and be of no further force or effect.

Section 6.06 Issuance of CVR Certificates. The Litigation Trust shall issue to such party or parties as Sponsor shall instruct (consistent with the terms of the Merger Agreement) CVR Certificates at such times and in such amounts as are required to permit Parent and Merger Sub to comply with their obligations under the Merger Agreement.

Section 6.07 Cancellation. The Sponsor and the Litigation Trustees at any time may deliver CVR Certificates to the Institutional Trustee for cancellation. The Registrar shall forward to the Institutional Trustee any CVR Certificates surrendered to it for registration of transfer. The Institutional Trustee shall promptly cancel all CVR Certificates surrendered for registration of transfer, payment, replacement or cancellation and shall destroy such canceled CVR Certificates in accordance with its customary practices and procedures. The Institutional Trustee may not issue new CVR Certificates that have been delivered to the Institutional Trustee for cancellation.

ARTICLE VII.
DISSOLUTION AND TERMINATION OF LITIGATION TRUST

Section 7.01 Dissolution and Termination of Litigation Trust.

(a) The Litigation Trust shall dissolve at such time as the Litigation Trustees have received written notice from the Rights Agents, in accordance with the terms of the CVR Agreement, that the Last CVR Payment Date (as defined in the CVR Agreement) has occurred and that the CVR Agreement will terminate in accordance with its terms.

(b) As soon as is practicable after the occurrence of an event referred to in Section 7.01(a), and after completion of winding up of the Litigation Trust, satisfaction of liabilities of

the Litigation Trust in accordance with the Statutory Trust Act by the Litigation Trustees and distribution of all amounts due and owing to the Holders, the Litigation Trustees shall terminate the Litigation Trust by filing a certificate of cancellation executed by the Litigation Trustees and the Institutional Trustee with the Secretary of State of the State of Delaware.

(c) The provisions of Sections 3.03(d), 3.13, 10.01, 10.02, 10.04, 10.06, 14.01, 14.02 and 14.09 shall survive the termination of the Litigation Trust.

ARTICLE VIII.
TRANSFER OF INTERESTS

Section 8.01 General.

(a) Where CVR Certificates are presented by or on behalf of a Holder to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal number of CVR Certificates represented by different certificates, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfer and exchanges, a Litigation Trustee shall execute and the Institutional Trustee shall authenticate CVR Certificates at the Registrar’s request.

(b) CVR Certificates may only be transferred by a Holder, in whole or in part, in accordance with the terms and conditions set forth in this Declaration and in the terms of the CVR Certificates. Any transfer or purported transfer of any CVR Certificate not made in accordance with this Declaration shall be null and void and will be deemed to be of no legal effect whatsoever and any such transferee shall be deemed not to be the holder of such CVR Certificates for any purpose, including but not limited to the receipt of the Payment Amount, and such transferee shall be deemed to have no interest whatsoever in such CVR Certificates.

(c) The Registrar shall provide for the registration of CVR Certificates and of transfers of CVR Certificates, which will be effected without charge but only upon payment (with such indemnity as the Registrar may require) in respect of any tax or other governmental charges that may be imposed in relation to it. Upon surrender for registration of transfer of any CVR Certificates, the Registrar shall cause one or more new CVR Certificates to be issued in the name of the designated transferee or transferees. Every CVR Certificate surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the Registrar duly executed by the Holder or such Holder’s attorney duly authorized in writing. Each CVR Certificate surrendered for registration of transfer shall be canceled by the Institutional Trustee pursuant to Section 6.07. A transferee of a CVR Certificate shall be entitled to the rights and subject to the obligations of a Holder hereunder upon the receipt by such transferee of a CVR Certificate issued in the name of such transferee and otherwise executed and authenticated as provided herein. By acceptance of a CVR Certificate, each transferee shall be deemed to have agreed to be bound by this Declaration.

Section 8.02 Transfer Procedures.

(a) Transfer and Exchange of Definitive CVR Certificates. When Definitive CVR Certificates are presented to the Registrar (x) to register the transfer of such Definitive CVR Certificates, or (y) to exchange such Definitive CVR Certificates for an equal number of

Definitive CVR Certificates of another number, the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive CVR Certificates surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Litigation Trust and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.

(b) Restrictions on Transfer of a Definitive CVR Certificate for a Beneficial Interest in a Global CVR Certificate. A Definitive CVR Certificate may not be exchanged for a beneficial interest in a Global CVR Certificate except upon satisfaction of the requirements set forth below. Upon receipt by the Institutional Trustee of a Definitive CVR Certificate, duly endorsed or accompanied by appropriate instruments of transfer, together with written instructions directing the Institutional Trustee to make, or to direct the Depositary to make, an adjustment on its books and records with respect to a Global CVR Certificate to reflect an increase in the number of the CVR Certificates represented by the Global CVR Certificate, then the Institutional Trustee shall cancel such Definitive CVR Certificate and cause, or direct the Depositary to cause, the aggregate number of CVR Certificates represented by the Global CVR Certificate to be increased accordingly. If no Global CVR Certificates are then outstanding, a majority of Litigation Trustees shall execute and the Institutional Trustee or the Authenticating Agent shall authenticate, an appropriate number of Global CVR Certificates.

(c) Transfer and Exchange of Global CVR Certificates. The transfer and exchange of Global CVR Certificates or beneficial interests therein shall be effected through the Depositary, in accordance with this Declaration and the procedures of the Depositary therefore. Notwithstanding any other provisions of this Declaration, a Global CVR Certificate may not be transferred as a whole except by the Depositary to a nominee of the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(d) Transfer of a Beneficial Interest in a Global CVR Certificate for a Definitive CVR Certificate.

(i) Any Person having a beneficial interest in a Global CVR Certificate may upon request, and if accompanied by the information specified below, exchange such beneficial interest for a Definitive CVR Certificate, representing the same number of CVR Certificates. Upon receipt by the Institutional Trustee from the Depositary or its nominee on behalf of any Person having a beneficial interest in a Global CVR Certificate of written instructions or such other form of instructions as is customary for the Depositary or the Person designated by the Depositary as having such a beneficial interest in such Global CVR Certificate, then the Institutional Trustee shall cause, in accordance with the standing instructions and procedures of the Depositary, the aggregate liquidation amount of the Global CVR Certificate to be reduced on its books and records and, following such reduction, a Litigation Trustee shall execute and the Institutional Trustee or the Authenticating Agent shall authenticate, an appropriate number of Definitive CVR Certificates.

29

(ii) Definitive CVR Certificates issued in exchange for a beneficial interest in a Global CVR Certificate pursuant to this Section 8.02(d) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from Clearing Agency Participants or indirect participants or otherwise, shall instruct the Institutional Trustee. The Institutional Trustee shall deliver such CVR Certificates to the Persons in whose names such CVR Certificates are so registered in accordance with the instructions of the Depositary.

(e) Definitive CVR Certificates If No Depositary.

If at any time:

(i) the Depositary notifies the Institutional Trustee and the Litigation Trustees that the Depositary is unwilling or unable to continue as Depositary for the Global CVR Certificates and a successor Depositary for the Global CVR Certificates is not appointed by the Litigation Trust at the direction of the Litigation Trustees within 90 days after delivery of such notice; or

(ii) the Litigation Trustees notify the Institutional Trustee in writing to issue Definitive CVR Certificates under this Declaration, then a Litigation Trustee shall execute, and the Institutional Trustee or Authenticating Agent, upon receipt of a written order of the Litigation Trust signed by a Litigation Trustee requesting the authentication and delivery of Definitive CVR Certificates to the Persons designated by the Litigation Trustees, shall authenticate and deliver Definitive CVR Certificates, in an aggregate amount equal to the amount of Global CVR Certificates, in exchange for such Global CVR Certificates.

(f) Cancellation or Adjustment of a Global CVR Certificate. At such time as all beneficial interests in a Global CVR Certificate have either been exchanged for Definitive CVR Certificates to the extent permitted by this Declaration or redeemed, repurchased or canceled in accordance with the terms of this Declaration, such Global CVR Certificate shall be returned to the Depositary for cancellation or retained and canceled by the Institutional Trustee. At any time prior to such cancellation, if any beneficial interest in a Global CVR Certificate is exchanged for Definitive CVR Certificates, CVR Certificates represented by such Global CVR Certificate shall be reduced and an adjustment shall be made on the books and records of the Institutional Trustee (if it is then the custodian for such Global CVR Certificate) with respect to such Global CVR Certificate, by the Institutional Trustee to reflect such reduction.

(g) Obligations with Respect to Transfers and Exchanges of CVR Certificate.

	(i)	To permit registrations of transfers and exchanges, a Litigation Trustee shall execute and the Institutional Trustee or Authenticating Agent shall authenticate Definitive CVR Certificates and Global CVR Certificates at the Registrar’s or Depository’s request, as applicable.

	(ii)	Registrations of transfers or exchanges will be effected without charge, but only upon payment (with such indemnity as the Institutional Trustee or the Registrar

		may require) in respect of any tax or other governmental charge that may be imposed in relation to it.

	(iii)	All CVR Certificates issued upon any registration of transfer or exchange pursuant to the terms of this Declaration shall evidence the same security and shall be entitled to the same benefits under this Declaration as the CVR Certificates surrendered upon such registration of transfer or exchange.

Section 8.03 Deemed CVR Certificate Holders. The Litigation Trust, the Litigation Trustees, the Trustees, the Paying Agent, the Transfer Agent or the Registrar may treat the Person in whose name any CVR Certificate shall be registered on the books and records of the Litigation Trust as of the applicable record date as the sole holder of such CVR Certificate (and of the undivided beneficial interest in the assets of the Litigation Trust represented by such CVR Certificate) for purposes of receiving payment of the Payment Amount and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such CVR Certificate or in the rights represented by such Certificate on the part of any other Person, whether or not the Litigation Trust, the Litigation Trustees, the Trustees, the Paying Agent, the Transfer Agent or the Registrar shall have actual or other notice thereof.

With respect to Global CVR Certificates issued by the Litigation Trust (i) the Trustees may deal with the Depositary as the authorized representative of the Holders; (ii) the rights of the holders of beneficial interests in the Litigation Trust shall be exercised only through the Depositary and shall be limited to those established by law and agreement between such holders of beneficial interests and the Depositary and/or direct participants of the Depositary; (iii) the Depositary will make book-entry transfers among the direct participants of the Depositary and will receive and transmit distributions on the CVR Certificates to such direct participants; and (iv) the direct participants of the Depositary shall have no rights under this Declaration under or with respect to any of the CVR Certificates held on their behalf by the Depositary, and the Depositary may be treated by the Trustees and their respective agents, employees, officers and directors as the absolute owner of the CVR Certificates for all purposes whatsoever.

Section 8.04 Restrictions on Transfer.

(a) Except as otherwise expressly provided herein and subject to applicable law, a Holder may, voluntarily or involuntarily, directly or indirectly, sell, transfer, assign, donate, pledge or otherwise encumber or dispose of any interest in all or any portion of CVR Certificates held by such Holder (a “Transfer”) without restriction.

(b) Notwithstanding any other provision of this Agreement, no member of the Gingko Group shall, individually or taken together with all other members of the Gingko Group, as a result of such Transfer obtain Beneficial Ownership of CVR Certificates equal to or greater than 15% of the CVR Certificates then outstanding.

(c) Notwithstanding any other provision of this Agreement, no Transfer of a CVR Certificate may be made to any defendant in the Litigation or to any affiliate, associate or agent of any such defendant (other than Information Resources, Inc. or its affiliates, successors or assigns).

(d) The Registrar shall not record on the books and records of the Litigation Trust any transfer of CVR Certificates made in violation of this Section 8.04, and any such transfer shall, to the fullest extent permitted by law, be null and void ab initio.

Section 8.05 Appointment of Successor Clearing Agency. If any Clearing Agency elects to discontinue its services as securities depositary with respect to the CVR Certificates, the Litigation Trustees, in their sole discretion, shall appoint a successor Clearing Agency with respect to such CVR Certificates.

ARTICLE IX.
HOLDERS OF CVR CERTIFICATES

Section 9.01 Limitations on Rights of Holders. The Holders of the CVR Certificates acknowledge that:

(a) the Holders, in their capacities as Holders, are not stockholders of the Sponsor or any successor of the Sponsor, will have no rights to dividends, liquidation preferences or other distributions with respect to the CVR Certificates other than the payments described in Article IV, and will have no voting rights except as expressly described herein. The CVR Agreement is solely a contractual obligation among Parent, Merger Sub, the Sponsor, the Litigation Trust, and the Rights Agents. The Holders have no rights under the CVR Agreement by reason of their ownership of CVR Certificates and the Sponsor has no liability under the CVR Agreement to the Holders;

(b) the Holders have no rights with respect to, or interest in, (i) the Litigation, (ii) the Sponsor (or any successor thereto), or (iii) any amount received by Parent or any other member of the Gingko Group with respect to the Litigation, including any judgment or settlement proceeds;

(c) nothing in this Declaration shall be construed to create any partnership or joint venture between the Sponsor, any member of the Gingko Group, and the Holders;

(d) (i) the Litigation is solely an asset of the Sponsor and its subsidiaries and their successors, and (ii) the Litigation shall be conducted by and on behalf of the Sponsor and its subsidiaries and their successors in accordance with the terms of the CVR Agreement;

(e) the liability of the Trustees and members of the Sponsor Group is limited to the extent set forth in this Declaration.

Section 9.02 Limitations on Suits by Holders.

(a) To the fullest extent permitted by law, no Holder of CVR Certificates shall have any right by virtue or by availing itself of any provision of this Declaration to institute any action or proceeding other than a suit by such Holder for nonpayment of amounts due and owing with respect to such Holder’s CVR Certificates following a payment of the CVR Payment Amount to the Litigation Trust and payment of the CVR Payment Amount by the Litigation Trust to other Holders, at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Declaration, or for the appointment of a Trustee, receiver, liquidator, custodian or other similar

official or for any other remedy hereunder, unless such Holder previously shall have given to the Institutional Trustee written notice of default and of the continuance thereof as herein before provided, and unless also the Holders of not less than 50% of the CVR Certificates outstanding shall have made written request upon the Institutional Trustee to institute such action or proceeding in its own name as Trustee hereunder and shall have offered to the Institutional Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Institutional Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding; it being understood and intended, and being expressly covenanted by the Holder of every CVR Certificate with every other Holder of CVR Certificates and the Institutional Trustee, that no one or more Holders shall have any right in any manner whatever by virtue or by availing itself or themselves of any provision of this Declaration to effect, disturb or prejudice the rights of any other such Holder, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Declaration, except in the manner herein provided and for the equal, ratable and common benefit of all Holders. For the protection and enforcement of the provisions of this Section, each and every Holder and the Institutional Trustee shall be entitled to such relief as can be given either at law or in equity.

(b) Any proceeding by Holders shall be instituted only in accordance with the following procedures:

     (i) The prospective plaintiff(s) shall deliver to the Institutional Trustee (which shall promptly deliver a copy thereof to the Litigation Trustees and the Sponsor) a printed or typewritten statement not more than 10 pages in length containing (i) the name(s) and address(es) of the prospective plaintiff(s), (ii) a statement of the nature and amount of each plaintiff’s interest in the CVR Certificates, and (iii) a description of the nature and grounds of the claims to be asserted and the relief or remedy sought.

     (ii) The Institutional Trustee shall promptly notify the prospective plaintiff(s) of the number of copies needed for distribution to Holders and the postage, printing and administrative costs for preparing and mailing the statement of the prospective plaintiff(s), a response by the Litigation Trustees, as applicable, which shall not exceed 10 pages in length, a consent form described below and a return envelope. Upon receipt of a certified check or wire transfer of immediately available funds for such postage, printing and administrative costs, the Institutional Trustee shall promptly mail these materials to the Holders. Sixty days after mailing, the responses received shall be open to inspection by the prospective plaintiff(s) or any Holder at reasonable times during business hours at the office of the Litigation Trust designated for such purposes.

     (iii) The mailing to Holders shall include a consent form reading substantially as follows:

     “In response to the Information Resources, Inc. Litigation Contingent Payment Rights Trust mailing dated ,

     ______ I HEREBY CONSENT TO SUCH SUIT.

33

     ______ I DO NOT CONSENT TO SUCH SUIT.

Signature

__________________________________
Printed or Typed Name of Holder

Date:

___________________________

“If this response is not returned by ____________, you will be considered as not consenting to such suit.”

ARTICLE X.
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS

Section 10.01 Liability.

(a)	Except as expressly set forth in this Declaration, the Trustees shall not be:
	(i)	personally liable for the payment of any amounts, including, without limitation, the amounts to be received with respect to their CVR Certificates, which payment shall be made solely from the CVR Payment Amount, if any, and other assets of the Litigation Trust, if any; or

	(ii)	required to pay to the Litigation Trust or to any Holder any deficit upon dissolution of the Litigation Trust or otherwise.

(b) Pursuant to Section 3803(a) of the Statutory Trust Act, the Holders of the CVR Certificates shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware.

Section 10.02 Exculpation.

(a) To the fullest extent permitted by law, no Indemnified Person and no member of the Sponsor Group shall be liable, responsible or accountable in damages or otherwise to the Litigation Trust, the Holders or any Indemnified Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person or member of the Sponsor Group, except that the Sponsor or any Trustee shall be liable for any such loss, damage or claim incurred by reason of such party’s gross negligence or willful misconduct with respect to such acts or omissions and, in any event, any liability will be limited to actual, proximate, quantifiable damages; provided, that nothing in this Section 10.02(a) is intended to limit the any Trustees’ right to insurance obtained by the Litigation Trust and the proceeds of such insurance. In connection with purchasing insurance policies of the Litigation Trust, the Litigation Trustees or the Sponsor, as applicable, shall use reasonable best efforts to have the insurer expressly waive any right of subrogation on the part of the insurer against the Trustees.

Notwithstanding the preceding, the Litigation Trust, acting through the Litigation Trustees, may enforce, institute or maintain a suit, action or proceeding against Parent or Merger Sub for breach of any of its obligations under the CVR Agreement. Fees and expenses incurred by the Gingko Group in such a suit, action or proceeding described in the preceding sentence shall not be set off against the Litigation Proceeds (in order to calculate the CVR Payment Amounts).

(b) An Indemnified Person and any member of the Sponsor Group shall be fully protected in relying in good faith upon the records of the Litigation Trust and upon such information, opinions, reports or statements presented to the Litigation Trust by any Person as to matters the Indemnified Person or member of the Sponsor Group reasonably believes are within such other Person’s professional or expert competence, and, if selected by such Indemnified Person or member of the Sponsor Group, has been selected by such Indemnified Person or member of the Sponsor Group with reasonable care by or on behalf of the Litigation Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which payment to Holders might properly be paid.

Section 10.03 Fiduciary Duty.

(a) To the extent that, at law or in equity, an Indemnified Person or member of the Sponsor Group has duties (including fiduciary duties) and liabilities relating thereto to the Litigation Trust, the Holders or to any other Person, an Indemnified Person or member of the Sponsor Group acting under this Declaration shall not be liable to the Litigation Trust, the Holders or to any other Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person or member of the Sponsor Group otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of the Indemnified Person or member of the Sponsor Group. The Sponsor and the Trustees shall have only those duties set forth in this Declaration and, to the greatest extent permitted by applicable law, the Sponsor and the Trustees shall have no implied duties.

(b)	Unless otherwise provided herein:
	(i)	Whenever a conflict of interest exists or arises between any Indemnified Person or member of the Sponsor Group, on the one hand, and the Litigation Trust or any Holder or any other Person on the other hand; or

	(ii)	Whenever this Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person or member of the Sponsor Group shall act in a manner that is, or provides terms that are, fair and reasonable to the Litigation Trust, any Holder or any other Person,

such Indemnified Person or member of the Sponsor Group shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith

by such Indemnified Person or member of the Sponsor Group, the resolution, action or terms so made, taken or provided by such Indemnified Person or member of the Sponsor Group shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of such Indemnified Person or member of the Sponsor Group at law or in equity or otherwise.

(c) Whenever in this Declaration an Indemnified Person or member of the Sponsor Group is permitted or required to make a decision:

(i) in its “discretion” or under a grant of similar authority, the Indemnified Person or member of the Sponsor Group shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Litigation Trust, the Holders or any other Person; or

(ii) in its “good faith” or under another express standard, the Indemnified Person or member of the Sponsor Group shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law.

Section 10.04 Indemnification.

(a) The Litigation Trust shall indemnify, to the fullest extent permitted by law, any Indemnified Person in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of or relating to the Litigation Trust, the CVR Certificates, the distribution of the CVR Certificates, the Litigation or any acts or omissions of the Sponsor or the Trustees in their capacity or purportedly in their capacity as Sponsor or Trustees, as applicable, against any and all losses, liabilities, damages, judgments, demands, suits, claims, assessments, charges, fines, penalties and other costs and expenses, including attorneys’ fees and expenses and other fees and expenses associated with the defense of a claim or incurred by such Indemnified Person in obtaining indemnification under this Declaration, whether or not in a formal proceeding (collectively, “Damages”).

(b) Notwithstanding Section 10.04(a), no indemnification shall apply if plaintiffs establish in a final and nonappealable judicial determination by clear and convincing evidence that such damages arose because such Indemnified Person was grossly negligent or engaged in willful misconduct. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such Indemnified Person was grossly negligent or engaged in willful misconduct.

(c) To the fullest extent permitted by law, expenses (including attorneys’ fees and expenses) incurred by an Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in Sections 10.04(a) shall be paid by the Litigation Trust in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking (without bond or security) by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Litigation Trust as authorized in this Section 10.04.

(d) All rights to indemnification under this Section 10.04 shall be deemed to be provided by a contract between the Litigation Trust and each Indemnified Person who serves in such capacity at any time while this Section 10.04 is in effect. Any repeal or modification of this Section 11.04 shall not affect any rights or obligations then existing.

(e) The Litigation Trust shall purchase and maintain, or shall cause to be purchased and maintained, insurance to cover its indemnification obligations set forth herein. The Litigation Trustees, on behalf of the Litigation Trust, shall provided notice to the other Trustees and the Sponsor, 30 days prior to the expiration or termination of such insurance.

(f) For purposes of this Section 10.04, references to “the Litigation Trust” shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger involving the Litigation Trust, so that any Person who is or was a director, Trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, Trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 10.04 with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued.

(g) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 10.04 shall continue as to a Person who has ceased to be an Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a Person.

Section 10.05 Outside Businesses. Any Indemnified Person or member of the Sponsor Group may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Litigation Trust, and the Litigation Trust and the Holders shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Litigation Trust, shall not be deemed wrongful or improper. No Indemnified Person or member of the Sponsor Group shall be obligated to present any particular investment or other opportunity to the Litigation Trust even if such opportunity is of a character that, if presented to the Litigation Trust, could be taken by the Litigation Trust, and any Indemnified Person or member of the Sponsor Group shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Indemnified Person or member of the Sponsor Group may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, Trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates; provided that, as set forth in Section 3.04(a), the Institutional Trustee shall not offer or provide credit or credit enhancement to the Litigation Trust.

Section 10.06 Compensation; Fee. The Litigation Trust shall:

(a) pay to the Institutional Trustee and the Delaware Trustee from time to time, upon the approval of the Litigation Trustees, reasonable compensation for all services rendered by them hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee); and

(b) except as otherwise expressly provided herein, reimburse the Trustees upon request for all reasonable expenses, disbursements and advances incurred or made by the Trustees in accordance with any provision of this Declaration (including the compensation and the expenses and disbursements of their respective agents and counsel).

The provisions of Section 10.04 and this Section 10.06 shall survive the dissolution of the Litigation Trust and the termination of this Declaration and the removal or resignation of any Trustee.

ARTICLE XI.
ACCOUNTING

Section 11.01 Fiscal Year. The fiscal year (“Fiscal Year”) of the Litigation Trust shall be the calendar year, or such other year as is required by the Code.

Section 11.02 Certain Accounting Matters.

(a) At all times during the existence of the Litigation Trust, the Litigation Trustees shall keep, or cause to be kept, full books of account, records and supporting documents, which shall reflect in reasonable detail each transaction of the Litigation Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied. The books of account and the records of the Litigation Trust shall be examined by and reported upon as of the end of each Fiscal Year of the Litigation Trust by a firm of independent certified public accountants selected by the Litigation Trustees.

(b) The Litigation Trustees, with the cooperation of the Institutional Trustees, shall cause to be duly prepared and delivered to each of the Holders any annual United States federal income tax information statement required by the Code, containing such information with regard to the CVR Certificates held by each Holder as is required by the Code and the regulations promulgated thereunder. Notwithstanding any right under the Code to deliver any such statement at a later date, the Litigation Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Litigation Trust.

(c) The Litigation Trustees shall cause to be duly prepared and filed an annual United States federal income tax return on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Litigation Trustees on behalf of the Litigation Trust with any state or local taxing authority.

Section 11.03 Banking. The Litigation Trust may maintain one or more bank accounts in the name and for the sole benefit of the Litigation Trust; provided, however, that all payments received by the Litigation Trust pursuant to the CVR Agreement shall be maintained separately from other funds.

Section 11.04 Withholding. The Litigation Trustees or any Paying Agent shall comply with all withholding requirements under United States federal, state and local law. The Litigation Trustees or any Paying Agent shall request, and the Holders shall provide to the Litigation Trustees or any Paying Agent, as applicable, such forms or certificates as are

necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Litigation Trustees or any Paying Agent to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Litigation Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Litigation Trustees or any Paying Agent is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Holder. In the event of any claimed overwithholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual distributions made, the Litigation Trustees or any Paying Agent may reduce subsequent distributions by the amount of such withholding. The Litigation Trustees and any Paying Agent may retain counsel (which may be counsel to the Litigation Trust or counsel to any member of the Gingko Group) and/or outside advisors that it reasonably believes to be experts with respect to tax matters, and the Institutional Trustee and any Paying Agent shall be deemed to have satisfied the requirements of the first sentence by retaining such expert(s) for such purpose and acting in accordance with the instructions of such expert(s), and they shall not be liable for any actions taken or not taken at the direction of such expert(s).

ARTICLE XII.
AMENDMENTS AND MEETINGS

Section 12.01 Amendments.

(a) Except as otherwise provided in this Declaration, this Declaration may only be amended by a written instrument approved and executed by:

	(i)	the Sponsor;

	(ii)	the Institutional Trustee;

	(iii)	the Litigation Trustees in accordance with the last sentence of Section 3.10(a); and

	(iv)	if the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee, the Delaware Trustee.

(b) Notwithstanding any other provision of this Article XII, no amendment shall be made, and any such purported amendment shall be void and ineffective unless the Institutional Trustee shall have first received:

     (A) an Officers’ Certificate from the Litigation Trustees that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the CVR Certificates); and

     (B) an opinion of counsel (who may be counsel to the Litigation Trust or the Litigation Trustees) that such amendment is permitted by, and

39

conforms to, the terms of this Declaration (including the terms of the CVR Certificates).

     (C) an opinion of a nationally recognized outside counsel to the Litigation Trust experienced in such matters and selected by Litigation Trustees to the effect that such amendment will not cause the Litigation Trust to fail to be classified as a grantor trust for United States federal income tax purposes.

     (D) Except as provided in this Section 12.01, no amendment shall be made, and any such purported amendment shall be void and ineffective unless the Holders of a majority of the CVR Certificates then outstanding shall have consented to such amendment.

     (E) In addition to and notwithstanding any other provision in this Declaration, without the consent of each affected Holder, this Declaration may not, except as permitted by this Section 12.01, be amended to (i) discriminate among Holders, (ii) restrict the right of a Holder to institute suit for the enforcement of any such payment on or after such occurrence, or (iii) modify the definition of Payment Amount.

     (F) Section 2.03(a) and this Section 12.01 shall not be amended without the consent of the Holders of 66 2/3 percent of the CVR Certificates then outstanding.

     (G) No amendment that materially adversely affects the rights, powers, immunities or indemnities of the Delaware Trustee, Institutional Trustee, the Litigation Trustees or the Sponsor under this Declaration may be made without the consent of such affected person.

     (H) Subject to Section 12.01(b), this Declaration may be amended by the Sponsor, the Institutional Trustee and the Litigation Trustees without the consent of the Holders of the CVR Certificates:

	(i)	to cure any ambiguity;

	(ii) to correct or supplement any provision in this Declaration that may be defective or inconsistent with any other provision of this Declaration;

	(iii) to add to the covenants, restrictions or obligations of the Litigation Trustees or to alter the allocation of duties between the Litigation Trustees and the Institutional Trustee;

	(iv) to modify, eliminate or add to any provision of this Declaration to such extent as may be necessary to ensure that the Litigation Trust (a) will be classified for United States federal income tax purposes at all times as a grantor trust, (b) will not be required to register as an Investment Company under the Investment Company Act (including

without limitation to conform to any change in any applicable Rule under the Investment Company Act or written change in interpretation or application thereof by any legislative body, court, government agency or regulatory authority) or (c) is able to issue additional CVR Certificates;

provided, however, that no such modification, elimination or addition referred to in clauses (i), (ii), (iii) or (iv) shall adversely affect the powers, preferences or special rights of Holders or cause the Litigation Trust to fail to continue to be classified as a grantor trust for purposes of United States federal income taxation.

(I) The Sponsor, Institutional Trustee and Delaware Trustee may, but shall have no obligation to, execute any amendment which materially adversely affects its rights, powers, immunities or indemnities.

(c) Any amendment permitted under this Section 12.02 shall be presented by a Litigation Trustee to the other Trustees and the Sponsor for approval and execution in accordance with this Section 13.02. Any such amendment shall be delivered to the Institutional Trustee upon its effectiveness and shall be filed by the Litigation Trustees with the Commission if and as appropriate under applicable law in the opinion of the Litigation Trustees.

Section 12.02 Meetings of Holders of CVR Certificates; Action by Written Consent.

(a) Meetings of the Holders may be called at any time by the Litigation Trustees to consider and act on any matter on which Holders are entitled to act under the terms of this Declaration, the terms of the CVR Certificates or the rules of any stock exchange or automated quotation system on which the CVR Certificates are listed or admitted for trading, if any. The Litigation Trustees shall call a meeting of the Holders if directed to do so by the Holders of at least 25% of CVR Certificates. Such direction shall be given by delivering to the Litigation Trustees one or more calls in a writing stating that the signing Holders wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called.

(b) Except to the extent otherwise provided in the terms of the CVR Certificates, the following provisions shall apply to meetings of Holders:

(i) notice of any such meeting (with a copy to the Institutional Trustee) shall be given by the Litigation Trustees to all the Holders having a right to vote thereat at least 20 days and not more than 60 days before the date of such meeting.

Whenever a vote, consent or approval of the Holders is permitted or required under this Declaration or the rules of any stock exchange or automated quotation system on which the CVR Certificates are listed or admitted for trading, if any, such vote, consent or approval may be given at a meeting of the Holders. Any action that may be taken at a meeting of the Holders may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders owning not less than the minimum amount of CVR Certificates that would be necessary to authorize or take such action at a meeting at which all Holders having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders entitled to vote who have not consented in writing. The Litigation Trustees may specify that any written ballot submitted to the Holders for the purpose of taking any action

without a meeting shall be returned to the Litigation Trust within the time specified by the Litigation Trustees;

(ii) each Holder may authorize any Person to act for it by proxy on all matters in which a Holder is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder executing it. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the Statutory Trust Act or the Delaware General Corporation Law relating to proxies; each meeting of the Holders shall be conducted by the Litigation Trustees or by such other Person that the Litigation Trustees may designate; and

(iii) unless the Statutory Trust Act, this Declaration or the terms of the CVR Certificates or the listing rules of any stock exchange on which the CVR Certificates are then listed for trading, if any, otherwise provide, the Litigation Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote.

ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE

Section 13.01 Representations and Warranties of the Institutional Trustee. The entity that acts as initial Institutional Trustee represents and warrants to the Litigation Trust and to the Sponsor at the date of this Declaration, and each entity that acts as a Successor Institutional Trustee represents and warrants to the Litigation Trust at the time of such entity’s acceptance of its appointment as Successor Institutional Trustee, that:

(a) the entity is a corporation or banking association with trust powers, duly organized, validly existing and in good standing under the laws of the United States or a State thereof with power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration;

(b) the execution, delivery and performance by the entity of this Declaration has been duly authorized by all necessary corporate action on the part of the Institutional Trustee. This Declaration has been duly executed and delivered by the entity, and it constitutes a legal, valid and binding obligation of the entity, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors’ rights generally and to general principles of equity (regardless of whether considered in a proceeding in equity or at law); and

(c) the execution, delivery and performance of this Declaration by the entity does not conflict with or constitute a breach of the charter or by-laws of the entity.

Section 13.02 Representations and Warranties of the Delaware Trustee. The Trustee that acts as initial Delaware Trustee represents and warrants to the Litigation Trust and to the Sponsor at the date of this Declaration, and each Successor Delaware Trustee represents and warrants to the Litigation Trust at the time of the Successor Delaware Trustee’s acceptance of its appointment as Delaware Trustee, that:

(a) the Delaware Trustee, if other than an individual, is duly organized, validly existing and in good standing under the laws of the State of Delaware, with power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration;

(b) the Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and this Declaration. This Declaration under Delaware law constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors’ rights generally and to general principles of equity (regardless of whether considered in a proceeding in equity or at law); and

(c) the Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of Delaware and, in either case, a Person that satisfies for the Litigation Trust the requirements of Section 3807 of the Statutory Trust Act.

ARTICLE XIV.
MISCELLANEOUS

Section 14.01 Notices. All notices provided for in this Declaration shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows:

(a) if given to the Litigation Trust, in care of the Litigation Trustees and the Institutional Trustee at the addresses set forth below (or such other address as the Litigation Trust may give notice of to the Holders of the CVR Certificates):

Joseph P. Durrett, Litigation Trustee
Information Resources, Inc. Litigation Contingent Payment Rights Trust
c/o Information Resources, Inc.
150 North Clinton Street
Chicago, IL 60661
Facsimile: (312) 726-0541

with a copy to:

Eileen Kamerick, Litigation Trustee
Information Resources, Inc. Litigation Contingent Payment Rights Trust
c/o Information Resources, Inc.
150 North Clinton Street
Chicago, IL 60661
Facsimile: (312) 726-0541

and to:

Wachovia Bank of Delaware, National Association
One Rodney Square
Suite 102
920 King Street
New Castle County
Wilmington, DE 19801
Attention: Corporate Trust Administration
Facsimile: (302) 888-7544

(b) if given if given to the Sponsor, at the mailing address set forth below (or such other address as the Sponsor may give notice of to the Litigation Trustees):

Information Resources, Inc.
150 North Clinton Street
Chicago, IL 60661
Attention: General Counsel
Facsimile: (312) 726-0541

(c) if given to the Delaware Trustee, at the mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the Holders of the CVR Certificates):

Wachovia Bank of Delaware, National Association
One Rodney Square
Suite 102
920 King Street
New Castle County
Wilmington, DE 19801
Attention: Corporate Trust Administration
Facsimile: (302) 888-7544

(d) if given to the Institutional Trustee, at the mailing address set forth below (or such other address as the Institutional Trustee may give notice of to the Holders of the CVR Certificates).

One Rodney Square
Suite 102
920 King Street
New Castle County
Wilmington, DE 19801
Attention: Corporate Trust Administration
Facsimile: (302) 888-7544

(e) if given to the Litigation Trustees, at each mailing address set forth below (or such other address as the Litigation Trust may give notice of to the Holders of the CVR Certificates):

Joseph P. Durrett, Litigation Trustee
Information Resources, Inc. Litigation Contingent Payment Rights Trust
c/o Information Resources, Inc.
150 North Clinton Street
Chicago, IL 60661
Facsimile: (312) 726-0541

Eileen Kamerick, Litigation Trustee
Information Resources, Inc. Litigation Contingent Payment Rights Trust
c/o Information Resources, Inc.
150 North Clinton Street
Chicago, IL 60661
Facsimile: (312) 726-0541

(f) if given to any Holder, at the address set forth on the books and records of the Litigation Trust.

All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver the same.

Section 14.02 Governing Law. This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to the principles of conflict of laws of the State of Delaware or any other jurisdiction that would call for the application of the law of any jurisdiction other than the State of Delaware; provided, however, that, to the fullest extent permitted by law, there shall not be applicable to the Litigation Trust, the Trustees or this Declaration any provision of the laws (statutory or common) of the State of Delaware pertaining to trusts, other than the Delaware Statutory Trust Act, that relate to or regulate, in a manner inconsistent with the terms hereof (a) the filing with any court or governmental body or agency of Trustee accounts or schedules of Trustee fees and charges, (b) affirmative requirements to post bonds for Trustees, officers, agents or employees of a trust, (c) the necessity for obtaining court or other governmental approval concerning the acquisition, holding or disposition of real or

personal property, (d) fees or other sums payable to trustees, officers, agents or employees of a trust, (e) the allocation of receipts and expenditures to income or principal, (f) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding or investing trust assets or (g) the establishment of fiduciary or other standards of responsibility or limitations on the acts or powers of trustees that are inconsistent with the limitations or liabilities or authorities and powers of the trustees as set forth or referenced in this Declaration. Section 3540 and, to the fullest extent permitted by applicable law, Section 3561, of Title 12 of the Delaware Code shall not apply to the Litigation Trust.

Section 14.03 Intention of Parties. It is the intention of the parties hereto that the Litigation Trust be classified for United States federal income tax purposes as a grantor trust that is formed to hold the Commitment and receive payments pursuant to the CVR Agreement for distribution to holders of CVR Certificates, as provided for herein. The provisions of this Declaration shall be interpreted to further this intention of the parties.

Section 14.04 Headings. Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof.

Section 14.05 Successors and Assigns. Whenever in this Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether or not so expressed.

Section 14.06 Partial Enforceability. If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.

Section 14.07 Specific Performance. The Sponsor and the Litigation Trustees hereby agree that the obligations imposed on each such party in this Declaration are special, unique and of an extraordinary character, and that, in the event of breach by such party, damages would not be an adequate remedy and the injured party shall be entitled to specific performance and injunctive and other equitable relief, including declaratory relief, in addition to any other remedy to which it may be entitled, at law or in equity; and each such party hereby further agrees to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief.

Section 14.08 Counterparts. This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees and the Sponsor to any of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.

Section 14.09 Consent to Jurisdiction. The Trustees, the Sponsor and any Person becoming a Holder hereunder hereby consent to (i) the non-exclusive jurisdiction of the Courts of the State of Delaware and any Federal Court sitting in Wilmington, Delaware, and (ii) service of process by mail at their last known address.

Section 14.10 Default Rules. Regardless of whether this Declaration specifically refers to particular Default Rules:

(a) if any provision of this Declaration conflicts with a Default Rule, the provision of this Declaration controls and the Default Rule is modified or negated accordingly to the fullest extent permitted under the Statutory Trust Act,

(b) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Declaration, the Default Rule is modified or negated accordingly to the fullest extent permitted under the Statutory Trust Act, and

(c) the fact that some Default Rules are referred to herein shall not limit the application of Section 14.10(a) or (b) in those instances where no Default Rule has been referred to herein.

[Signature Pages Follow]

IN WITNESS WHEREOF, the undersigned have caused these presents to be executed to be effective as of the day and year first above written.

INFORMATION RESOURCES, INC.

By:	/s/ Joseph P. Durrett

Name:
Title:

Joseph P. Durrett
Chief Executive Officer and President

WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
as Delaware Trustee

By:	/s/ Rita M. Ritrovato

Name:
Title:

Rita M. Ritrovato
Trust Officer

WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
as Institutional Trustee

By:	/s/ Rita M. Ritrovato

Name:
Title:

Rita M. Ritrovato
Trust Officer

/s/ Joseph P. Durrett

Joseph P. Durrett, as Litigation Trustee

/s/ Eileen A. Kamerick

Eileen Kamerick, as Litigation Trustee

EXHIBIT A TO DECLARATION OF TRUST
FORM OF CONTINGENT VALUE RIGHTS CERTIFICATE

[FORM OF FACE OF CERTIFICATE]

[The following two paragraphs apply only to Certificates in global form.]

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE LITIGATION TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [CEDE & CO.], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [CEDE & CO.], HAS AN INTEREST HEREIN.]

[TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW.]


CERTIFICATE NUMBER		NUMBER OF CONTINGENT VALUE RIGHTS CERTIFICATES

CUSIP NO: 45676E 10 7

CERTIFICATE EVIDENCING UNDIVIDED BENEFICIAL INTERESTS
IN THE ASSETS OF
INFORMATION RESOURCES, INC.
LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
CONTINGENT VALUE RIGHTS CERTIFICATES

INFORMATION RESOURCES, INC. LITIGATION CONTINGENT PAYMENT RIGHTS TRUST, a statutory trust created under the laws of the State of Delaware (the “Litigation Trust”), hereby certifies that _________________ (the “Holder”) is the registered owner of _________________ (_________) certificates of the Litigation Trust representing undivided beneficial interests in the assets of the Litigation Trust, designated the Contingent Value Rights Certificates (the “CVR Certificates”). Subject to the Declaration (as defined below), the CVR Certificates are transferable on the books and records of the Litigation Trust, in person or by a duly authorized attorney, upon surrender of this Certificate duly endorsed and in proper form for transfer. The CVR Certificates represented hereby are issued pursuant to the designation, rights, privileges, restrictions, preferences and other terms and provisions of, and shall in all respects be subject to, the provisions of the Amended and Restated Declaration of Trust of the Litigation Trust, dated as of October 31, 2003, as amended (the “Declaration”). Capitalized terms used herein but not defined shall have the meaning given them in the Declaration. The Institutional Trustee will provide a copy of the Declaration to the Holder without charge upon written request to the Litigation Trust at its principal place of business.

Upon receipt of this CVR Certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder.

This CVR Certificate is governed by, and construed in accordance with, the laws of the State of Delaware, without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the Litigation Trust has duly executed this Contingent Value Rights Certificate.

INFORMATION RESOURCES, INC. LITIGATION CONTINGENT PAYMENT RIGHTS TRUST

By: _____________________________
Name:
Title: Litigation Trustee

CERTIFICATE OF AUTHENTICATION

This is one of the CVR Certificates referred to in the within-mentioned Declaration.

WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
as Institutional Trustee

By: ___________________________
Name:
Title:

EX-99.2 4 nov1003_ex-9902.htm

Exhibit 99.2

CONTINGENT VALUE RIGHTS AGREEMENT

dated as of

October 31, 2003

by and among

INFORMATION RESOURCES, INC.,

GINGKO CORPORATION,

GINGKO ACQUISITION CORP.,

THE RIGHTS AGENTS NAMED HEREIN

AND

INFORMATION RESOURCES, INC.

LITIGATION CONTINGENT PAYMENT RIGHTS TRUST

	Table of Contents
		Page


ARTICLE I	DEFINITIONS AND OTHER PROVISIONS OF GENERAL
	APPLICATION	1

Section 1.1	Definitions	1
Section 1.2	Notices	8
Section 1.3	Effect of Headings	9
Section 1.4	Successors and Assigns	10
Section 1.5	Benefits of Agreement	10
Section 1.6	Governing Law	10
Section 1.7	Legal Holidays	10
Section 1.8	Severability Clause	10
Section 1.9	Counterparts	10
Section 1.10	Effectiveness	10
Section 1.11	Entire Agreement	10

ARTICLE II	CONTINGENT VALUE RIGHTS	11

Section 2.1	[Reserved]	11
Section 2.2	Payment Procedures	11
Section 2.3	Payments to CVR Trust	13

ARTICLE III	THE RIGHTS AGENTS	15

Section 3.1	Certain Duties and Responsibilities	15
Section 3.2	Certain Rights of Rights Agents; Actions of the Rights Agents	17
Section 3.3	Not Responsible for Recitals or Issuance of CVRs	19
Section 3.4	Compensation, Reimbursement and Indemnification of the Rights Agents	19
Section 3.5	Resignation and Removal; Appointment of Successor	19
Section 3.6	Acceptance of Appointment by Successor	20
Section 3.7	Final Resolution	21

ARTICLE IV	[Reserved]	21


ARTICLE V	COVENANTS	21

Section 5.1	Prosecution of Litigation by Parent; Settlement; Periodic Reports; Claims Expenses	21
Section 5.2	Payment of CVR Payment Amount	26
Section 5.3	Federal Income Tax Treatment	26
Section 5.4	Expenses of the CVR Trust	26
Section 5.5	Liability Insurance	27


	i

	Table of Contents
	(continued)
		Page

Section 5.6	Third Party Beneficiaries	27

ARTICLE VI	AMENDMENTS	28

Section 6.1	Amendments.	28
Section 6.2	Execution of Amendments	28
Section 6.3	Effect of Amendments	28

ARTICLE VII	CONSOLIDATION, MERGER, SALE OR CONVEYANCE; JOINT
	AND SEVERAL RESPONSIBILITY	28

Section 7.1	Parent and the Company May Consolidate, Etc	28
Section 7.2	Successor Substituted	29
Section 7.3	Joint and Several Responsibility	29

CONTINGENT VALUE RIGHTS AGREEMENT

This CONTINGENT VALUE RIGHTS AGREEMENT, dated as of October 31, 2003 (this “Agreement”), is entered into by and among Information Resources, Inc. a Delaware corporation (the “Company”), Gingko Corporation, a Delaware corporation, (“Parent”) and Gingko Acquisition Corp., a Delaware corporation (“Merger Sub”), Joseph P. Durrett, Eileen Kamerick, William Chisholm and Bryan Taylor (individually and the Independent Rights Agent (as defined below), a “Rights Agent” and collectively and together with the Independent Rights Agent, the “Rights Agents”), and Information Resources, Inc. Litigation Contingent Payment Rights Trust, a Delaware statutory trust (the “CVR Trust”).

RECITALS:

WHEREAS, the Company, Parent, and Merger Sub have entered into an Agreement and Plan of Merger dated as of September 7, 2003 (as the same has been or may be amended from time to time, the “Merger Agreement”), pursuant to which at the Effective Time the Company and Merger Sub will be merged with the Company continuing as the Surviving Corporation;

WHEREAS, upon consummation of the Merger, the Company will become a wholly-owned subsidiary of Parent;

WHEREAS, the consideration that shall be paid by Parent pursuant to the Merger Agreement includes contingent value rights certificates of the CVR Trust as hereinafter described; and

WHEREAS, all things necessary have been done to make the contingent value rights certificates of the CVR Trust, when issued pursuant to the Merger Agreement and the CVR Trust Agreement (as defined below), the valid obligations of the CVR Trust and to make this Agreement a valid agreement of Parent and the CVR Trust, in accordance with its terms.

NOW, THEREFORE, for and in consideration of the premises and the consummation of the transactions referred to above, it is mutually covenanted and agreed as follows:

ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.1 Definitions.

(a) For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

     (i) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;

     (ii) all accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles”

means such accounting principles as are generally accepted in the United States at the time of any computation;

     (iii) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; and

     (iv) unless the context otherwise requires, words describing the singular number shall include the plural and vice versa, words denoting any gender shall include all genders and words denoting natural Persons shall include corporations, partnerships and other Persons and vice versa.

(b) Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Merger Agreement. The following additional terms shall have the meanings ascribed to them as follows:

“Affiliate” of a Person means a Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned Person.

“After-Tax Litigation Proceeds” with respect to any Litigation Proceeds means (i) the amount of such Litigation Proceeds less (ii) the Assumed Tax Liability with respect to such Litigation Proceeds.

“Assumed Tax Liability” with respect to any Litigation Proceeds means an amount equal to the product of (i) Assumed Tax Rate times (ii) the amount of such Litigation Proceeds.

“Assumed Tax Rate” shall mean 34%.

“Base Amount” means $200,000,000.

“Base CVR Percentage” means 68%; provided that if the Merger Agreement is terminated after the Acceptance Date but prior to the Effective Time, the Base CVR Percentage shall be 68% times the quotient of (i) the number of shares of Company Common Stock that were accepted for payment pursuant to the Offer divided by (ii) the sum of (A) number of shares of Company Common Stock outstanding immediately prior to commencement of the Offer (including any shares of Restricted Stock) plus (B) the number of shares of Company Common Stock that would be acquired upon exercise of all of the Company Options which would have been paid amounts under Section 2.10 of the Merger Agreement if the Merger had been completed; provided, further that in the event of any exercise of appraisal rights by holders of Company Common Stock with respect to the Merger, the Base CVR Percentage shall be (x) 68% times (y) one minus the quotient of (i) the number of Appraisal Shares divided by (ii) the sum of (A) the number of shares of Company Common Stock outstanding immediately prior to commencement of the Offer (including any shares of Restricted Stock) plus (B) the number of shares of Company Common Stock that would be acquired upon exercise of all of the Company Options which would have been paid amounts under Section 2.10 of the Merger Agreement if the Merger had been completed.

“Base Preliminary CVR Payment Amount” for any CVR Payment Date equals (before any adjustments required under Section 5.1(f)(ii)) (x) Base CVR Percentage times the lesser of the (i) amount of Gross Litigation Proceeds actually received by the Company and the Company Subsidiaries or their Affiliates through the date of the Litigation Proceeds Certificate applicable to such CVR Payment Date and (ii) the Base Amount, minus (y) the Base CVR Percentage times the Assumed Tax Liability with respect to the lesser of (i) all of the Gross Litigation Proceeds actually received by the Company through the date of the Litigation Proceeds Certificate applicable to such CVR Payment Date and (ii) the Base Amount, minus (z) (1) Base CVR Percentage times (2) one minus the Assumed Tax Rate, times (3) the amount of any fees paid for services provided by outside counsel in connection with prosecuting the Litigation that are contingent on the success of the Litigation and which are calculated on the basis of the portion of the Gross Litigation Proceeds that are less than or equal to the Base Amount; provided, however, the Base Preliminary CVR Payment Amount for the Last CVR Payment Date shall be increased by the amount by which the Claims Expenses are less than $10,000,000.

“Board of Directors” means the board of directors of Parent.

“Board Resolution” means a copy of a resolution certified by the secretary or an assistant secretary of Parent to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Rights Agents.

“Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions in Chicago, Illinois are authorized or obligated by law or executive order to remain closed.

“Cash Equivalents” means (a) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than six months from the date of acquisition, (b) certificates of deposit with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case with any commercial bank organized and in existence under the laws of the United States and having capital and surplus in excess of $500 million, (c) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (a) and (b) above entered into with any financial institution meeting the qualifications specified in clause (b) above, (d) commercial paper having the highest rating obtainable from Moody’s Investors Service, Inc. or Standard & Poor’s Ratings Services and in each case maturing within 180 days after the date of acquisition, (e) investments in commercial paper, maturing not more than 180 days after the date of acquisition, issued by a corporation organized and in existence under the laws of the United States or any foreign country recognized by the United States with a rating at the time as of which any investment therein is made of “P-1” (or higher) according to Moody’s Investor Service, Inc. or “A-1” (or higher) according to Standard & Poor’s Ratings Services, and (f) money market mutual funds substantially all of the assets of which are of the type described in the foregoing clauses (a) through (e) above.

“Cash Proceeds” means all compensation, damages, penalties, interest and other payments in the form of cash or Cash Equivalents, if any, recovered or received by the Company and the Company Subsidiaries or any of their Affiliates as a result of the Litigation, whether such

compensation, damages, penalties, interest or other payments are recovered or received pursuant to court order at trial or upon appeal or pursuant to the terms of any settlement agreement.

“Claims Expenses” means the sum of all direct expenses paid after the date of the Merger Agreement by Parent, the Company, Company Subsidiaries and their Affiliates to prosecute the Litigation (i) including any amounts paid to or on behalf of the Rights Agents pursuant to Section 3.4 of this Agreement but (ii) excluding (A) fees paid in exchange for services provided by outside counsel in connection with prosecuting the Litigation that are contingent on the success of the Litigation; (B) any payment of Firm Expenses; (C) any fees, expenses or costs associated with the CVR Trust; and (D) any fees, expenses or costs associated with registering the CVRs under the Securities Act or any fees, expenses or costs associated with complying with the Securities Act, the Exchange Act, and other securities laws.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commission” means the Securities and Exchange Commission of the United States of America.

“Company Retained Proceeds” has the meaning specified in Section 5.1(h) of this Agreement.

“Compliance Commitments” shall mean any Non-Cash Proceeds that provide the Company, the Company Subsidiaries, and their Affiliates with no substantial benefits or protections other than the benefits and protections to which they are entitled under applicable law.

“Control” (including the terms “controlled”, “controlled by” and “under common control with”) means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of stock, including the power to dispose of or vote such stock, as trustee or executor, by contract or otherwise.

“CVR Payment Amount” for any CVR Payment Date means the sum of the (i) Base Preliminary CVR Payment Amount for such date plus (ii) the Excess Preliminary CVR Payment Amount for such date; provided, however, the CVR Payment Amount for any date shall be reduced by (A) one minus the Assumed Tax Rate multiplied by (B) the sum of (i) the aggregate amount of expenses as of the CVR Payment Date (and not previously included in the computation of the CVR Payment Amount) that the Company has incurred (whether directly or reimbursed) under Section 5.4 to comply with Securities Law Requirements or in connection with the registration of the CVRs under the Securities Act plus (ii) the amount of Excess Insurance Expenses incurred (whether directly or reimbursed) as of the CVR Payment Date (and not previously included in the computation of the CVR Payment Amount). To the extent the adjustment amount referred to in the proviso to the prior sentence exceeds the CVR Payment Amount otherwise payable on the CVR Payment Date, the CVR Payment Amount for such CVR Payment Date shall be reduced to zero and the amount of the excess adjustment shall be carried over and reduce (but not below zero) any future CVR Payment Amounts until the aggregate amount of such adjustment amounts has been utilized to reduce CVR Payment Amounts.

“CVR Payment Date” means any date that any CVR Payment Amount is paid by Parent to the CVR Trust.

“CVR Rights Agents” means Joseph P. Durrett and Eileen Kamerick and their respective successors pursuant to the applicable provisions of this Agreement.

“CVR Trust” has the meaning set forth in the Recitals.

“CVR Trust Agreement” means the Amended and Restated Declaration of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust, of even date herewith, as from time to time amended, modified, supplemented or restated.

“CVRs” means those Contingent Value Rights Certificates issued under the CVR Trust Agreement.

“Escrow Agreement” means any agreement entered into with an escrow agent pursuant to Section 5.1(e) on terms that are acceptable to a majority of the Rights Agents.

“Excess CVR Percentage” means 75%; provided that if the Merger Agreement is terminated after the Acceptance Date but prior to the Effective Time, the Excess CVR Percentage shall be 75% times the quotient of (i) the number of shares of Company Common Stock that were accepted for payment pursuant to the Offer divided by (ii) the sum of (A) number of shares of Company Common Stock outstanding immediately prior to commencement of the Offer (including any shares of Restricted Stock) plus (B) the number of shares of Company Common Stock that would be acquired upon exercise of all of the Company Options which would have been paid amounts under Section 2.10 of the Merger Agreement if the Merger had been completed; provided, further that in the event of any exercise of appraisal rights by holders of Company Common Stock with respect to the Merger, the Excess CVR Percentage shall be (x) 75% times (y) one minus the quotient of (i) the number of Appraisal Shares divided by (ii) the sum of (A) the number of shares of Company Common Stock outstanding immediately prior to commencement of the Offer (including any shares of Restricted Stock) plus (B) the number of shares of Company Common Stock that would be acquired upon exercise of all of the Company Options which would have been paid amounts under Section 2.10 of the Merger Agreement if the Merger had been completed.

“Excess Insurance Expenses” means with respect to any CVR Payment Date, the aggregate amount of expenses as of the CVR Payment Date (and not previously included in the computation of the CVR Payment Amount) incurred either pursuant to Section 5.5(a) (including, for purposes of the Last CVR Payment Date, the amount of premiums paid to acquire liability insurance coverage for six years following the Last CVR Payment Date) or in order to obtain and maintain directors’ and officers’ insurance for Parent, the Company and their Subsidiaries (including to obtain or maintain such insurance between the Acceptance Date and the Effective Time), but in each case only the aggregate amount in excess of the aggregate amount that would have been paid pursuant to Section 5.5(a), or in respect of such insurance for Parent, the Company and their Subsidiaries, if the CVRs were non-transferable contractual rights rather than publicly traded, registered securities. Such amounts shall be determined in accordance with Section 5.5(b).

“Excess Preliminary CVR Payment Amount” for any CVR Payment Date equals (x) the Excess CVR Percentage times the amount by which the Gross Litigation Proceeds actually received by the Company and the Company Subsidiaries or their Affiliates through the date of the Litigation Proceeds Certificate applicable to such CVR Payment Date exceeds the Base Amount, minus (y) (1) the Excess CVR Percentage times (2) the Assumed Tax Liability with respect to the Gross Litigation Proceeds in excess of the Base Amount actually received by the Company and the Company Subsidiaries through the date of the Litigation Proceeds Certificate, minus (z) (1) the Excess CVR Percentage times (2) one minus the Assumed Tax Rate times (3) the amount of any fees paid for services provided by outside counsel in connection with prosecuting the Litigation that are contingent on the success of the Litigation and which are calculated on the basis of the Gross Litigation Proceeds that are in excess of the Base Amount.

“Exchange Act” means the Securities and Exchange Act of 1934, as amended from time to time, or any successor legislation, and any regulations or rules promulgated thereunder.

“Existing Credit Agreement” means the Revolving Credit Agreement dated as of July 12, 2002 by and among the Lenders, the Company and the Company’s wholly owned U.S. Subsidiaries, as the same may be or may have been amended from time to time.

“Existing Credit Agreement Period” has the meaning specified in Section 5.1(h) of this Agreement.

“Existing Lender Lien” has the meaning specified in Section 5.1(h) of this Agreement.

“Firm Expenses” has the meaning specified in Section 2.2(e) of this Agreement.

“Gross Litigation Proceeds” means the sum of (i) any and all Cash Proceeds plus (ii) the fair market value of any and all Non-Cash Proceeds (as determined pursuant to Section 2.2 or 3.1(d), as applicable).

“Holder” means a Person in whose name a CVR is registered on the register maintained by the Registrar.

“Independent Rights Agent” means (i) such person who (a) is selected within 30 days following the first issuance of CVRs by a majority of the Rights Agents (other than the Independent Rights Agent), (b) is a holder of (or is employed by a holder of) at least 2.5% of the outstanding CVRs at the time of that selection (but only if there is such a holder at that time who is willing to serve in that capacity) and (c) is not an Affiliate of any of the Company, Parent, Symphony Technology Group, Tennenbaum Capital Partners, LLC or any of their respective Affiliates and (ii) any replacement thereof thereafter selected by like method within 30 days after the death, resignation or removal pursuant to the terms hereof of any predecessor of any such person. Once selected, the Independent Rights Agent shall be joined to this Agreement pursuant to an agreement reasonably acceptable to the majority of the Rights Agents (other than the Independent Rights Agent), the Company, Parent, and the Independent Rights Agent.

“Last CVR Payment Date” shall mean the date determined by a majority of the Rights Agents as the date on which the last CVR Payment Amount is to made under this Agreement (or

the date on which it is determined by a majority of the Rights Agents that no payment of CVR Payment Amount shall be made pursuant to this Agreement).

“Lenders” means LaSalle Bank National Association and Key Corporate Capital, Inc.

“Litigation” means the litigation and claims that the Company and the Company Subsidiaries have filed or asserted as described on Exhibit A to this Agreement and any amendments thereto and any similar future lawsuits, claims or appeals brought by Parent, Company, the Company Subsidiaries or their Affiliates related to such matters or arising out of the conduct involved in such litigation and claims.

“Litigation Proceeds” means the (A) sum of (i) any and all Cash Proceeds plus (ii) the fair market value of any and all Non-Cash Proceeds (as determined pursuant to Section 2.2 or 3.1(d), as applicable) less (B) any fees paid for services provided by outside counsel in connection with prosecuting the Litigation that are contingent on the success of the Litigation.

“Litigation Proceeds Certificate” has the meaning specified in Section 2.2(a) of this Agreement.

“Litigation Trustees” means the Litigation Trustees under the CVR Trust Agreement.

“Merger Agreement” has the meaning set forth in the recitals to this Agreement.

“Non-Cash Proceeds” means all compensation, damages, penalties, interest, agreements, commitments, undertakings and other benefits and protections (whether provided by contract, court order or applicable law and including, without limitation, Compliance Commitments (having a fair market value of zero in accordance with Section 2.2(a))) not in the form of cash or Cash Equivalents, if any, recovered or received by the Company or the Company Subsidiaries or any of their Affiliates as a result of the Litigation, whether such compensation, damages, penalties, interest, agreements, commitments, undertakings or other benefits or protections are recovered or received pursuant to court order at trial or upon appeal or pursuant to the terms of any settlement agreement.

“Officer’s Certificate” means a certificate signed by the chairman of the Board of Directors or the president, any vice president, the controller, the treasurer, the secretary or any assistant secretary, in each case of Parent, in his or her capacity as such an officer, and delivered to the Rights Agents.

“Opinion of Counsel” means a written opinion of counsel, who shall be selected by a majority of the Rights Agents.

“Parent” has the meaning set forth in the first paragraph of this Agreement.

“Parent Rights Agents” means William Chisholm and Bryan Taylor and their respective successors pursuant to the applicable provisions of this Agreement.

“Person” means any individual, corporation, partnership, joint venture, limited liability company, business trust, association, joint-stock company, trust, estate, unincorporated organization or government or any agency or political subdivision thereof.

“Registrar” has the respective meaning specified in the CVR Trust Agreement.

“Resolution” has the meaning specified in Section 2.2(e) of this Agreement.

“Rights Agent” means one of the Persons named as the “Rights Agents” in the first paragraph of this Agreement or the Independent Rights Agent, until a successor Rights Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Rights Agent” shall mean such successor Rights Agent.

“Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor legislation, and any regulations or rules promulgated thereunder.

“Securities Law Requirements” has the meaning set forth in Section 5.4.

“Settlement Decision” means any decision to grant consent to the settlement of any aspect or portion of the Litigation or otherwise to dismiss with prejudice any claim of the Company or a Company Subsidiary against any party in the Litigation (and any other determination specified in Section 3.1(d) relating to such a decision).

“Strategic Decision” means, with respect to the Litigation, any decision that involves the appeal of any aspect of the case (whether after a verdict or on a interlocutory basis), the addition of any claim or party, changing legal counsel or the basis for payment of attorney’s fees, any admission of liability with respect to any claim against the Company in the Litigation, or any other proposed decision or determination that in the opinion of outside counsel representing the Company and Company Subsidiaries in the Litigation would represent a material change or development in strategy with respect to the Litigation and result in a substantial likelihood that the recovery or receipt by the Company and Company Subsidiaries of any amount of Litigation Proceeds (whether pursuant to a court order at trial or upon appeal or pursuant to the terms of any settlement agreement) will be delayed; provided, however, a Strategic Decision shall not include any action that constitutes (in whole or in part) a Settlement Decision.

“Subsidiary” when used with respect to any Person means any corporation or other organization, whether incorporated or unincorporated, of which such Person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization, or any organization of which such Person is a general partner.

“Surviving Person” has the meaning set forth in Section 7.1(a)(1).

Section 1.2 Notices. Any request, demand, authorization, direction, notice, consent, or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with:

(a) the Parent Rights Agents shall be sufficient for every purpose hereunder if in writing and delivered personally, telecopied or mailed first-class postage prepaid or sent by a nationally recognized overnight courier to the Parent Rights Agents addressed to them in care of Symphony Technology Group, 4015 Miranda Avenue, 2nd Floor, Palo Alto, California 94304, fax: (312) 726-0541 or at any other address previously furnished in writing to the other parties hereto;

(b) Parent or Merger Sub shall be sufficient for every purpose hereunder if in writing and delivered personally, telecopied or mailed first-class postage prepaid or sent by a nationally recognized overnight courier to Parent or Merger Sub addressed to it in care of Symphony Technology Group, 4015 Miranda Avenue, 2nd Floor, Palo Alto, CA 94304, Attention: Managing Partner, fax: (650) 935-9501 or at any other address previously furnished in writing to the other parties hereto;

(c) the CVR Trust shall be sufficient for every purpose hereunder if in writing and delivered personally, telecopied or mailed first-class postage prepaid or sent by a nationally recognized overnight courier to the CVR Trust addressed to it at Information Resources, Inc. Litigation Contingent Payment Rights Trust, in care of Information Resources, Inc., 150 North Clinton Street, Chicago, IL 60661, Attention: Joseph P. Durrett, Litigation Trustee, fax: (312) 726-0541, with a copies to (i) Eileen Kamerick, Litigation Trustee, in care of Information Resources, Inc. at the address previously set forth for Information Resources, Inc. and (ii) Wachovia Bank of Delaware, National Association, One Rodney Square, Suite 102, 920 King Street, New Castle County, Wilmington, DE 19801, Attention: Corporate Trust Administration, fax: (302) 888-7544 or at any other address previously furnished in writing to the other parties hereto;

(d) the CVR Rights Agents shall be sufficient for every purpose hereunder if in writing and delivered personally, telecopied or mailed first-class postage prepaid or sent by a nationally recognized overnight courier to the CVR Rights Agents addressed to them in care of Information Resources, Inc., 150 North Clinton Street, Chicago, IL 60661, fax: (312) 726-0541 or at any other address previously furnished in writing to the other parties hereto;

(e) the Independent Rights Agent shall be sufficient for every purpose hereunder if in writing and delivered personally, telecopied or mailed first-class postage prepaid or sent by a nationally recognized overnight courier to the Independent Rights Agent addressed to him or her at the address specified by the Independent Rights Agent in writing to the other parties hereto after his or her selection; or

(f) the Company shall be sufficient for every purpose hereunder if in writing and delivered personally, telecopied or mailed first-class postage prepaid or sent by a nationally recognized overnight courier to the Company addressed to it at 150 North Clinton Street, Chicago, Illinois 60601, Attention: General Counsel, fax: (312) 726-0541 or at any other address previously furnished in writing to the other parties hereto.

Section 1.3 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

Section 1.4 Successors and Assigns. All covenants and agreements in this Agreement by Parent shall bind its successors and assigns, whether so expressed or not.

Section 1.5 Benefits of Agreement. Subject to Section 5.6, nothing in this Agreement, express or implied, shall give to any Person (other than the parties hereto) any benefit or any legal or equitable right, remedy or claim under this Agreement or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto.

Section 1.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed and performed wholly within such state without giving effect to the choice of law principles of such state.

Section 1.7 Legal Holidays. In the event that a CVR Payment Date shall not be a Business Day, then (notwithstanding any provision of this Agreement to the contrary) any payment required to be made in respect of the CVRs on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the applicable CVR Payment Date.

Section 1.8 Severability Clause. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the court or other tribunal making such determination is authorized and instructed to modify this Agreement so as to effect the original intent of the parties as closely as possible so that the transactions and agreements contemplated herein are consummated as originally contemplated to the fullest extent possible.

Section 1.9 Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be deemed to constitute but one and the same instrument.

Section 1.10 Effectiveness. This Agreement shall be effective from and after the first issuance of CVRs in payment for shares of Company Common Stock pursuant to the Offer. This Agreement shall be deemed terminated and of no force or effect, and the parties hereto shall have no liability hereunder, if the Merger Agreement is terminated in accordance therewith prior to the Acceptance Date.

Section 1.11 Entire Agreement. This Agreement, the Merger Agreement and the CVR Trust Agreement represent the entire understanding of the parties hereto with reference to the transactions and matters contemplated hereby and thereby and this Agreement, the Merger Agreement and the CVR Trust Agreement supersede any and all prior oral or written agreements regarding the transactions and matters contemplated hereby and thereby. If and to the extent that any provision of this Agreement is inconsistent or conflicts with the Merger Agreement or the CVR Trust Agreement, this Agreement shall govern and be controlling.

ARTICLE II
CONTINGENT VALUE RIGHTS

Section 2.1 [Reserved]

Section 2.2 Payment Procedures.

(a) As promptly as practicable but in no event later than 30 days after each receipt by the Company or the Company Subsidiaries or any of their Affiliates of any Litigation Proceeds (other than Litigation Proceeds received as a result of a Settlement Decision) or after a determination that no Litigation Proceeds shall be received, Parent shall deliver to the Rights Agents a certificate (the “Litigation Proceeds Certificate”) setting forth, in each case, in reasonable detail (i) the amount of any Cash Proceeds received by the Company or the Company Subsidiaries or their Affiliates, if any, (ii) a detailed description of Non-Cash Proceeds received by the Company or the Company Subsidiaries or their Affiliates, if any, (iii) the fair market value of any Non-Cash Proceeds and the methodology used, and calculations made, to determine such fair market value (it being understood that fair market value shall be determined on an arm’s-length basis and without regard to any liens or other encumbrances on the Non-Cash Proceeds granted or created by Parent, the Company, the Company Subsidiaries, or their Affiliates and that Compliance Commitments shall have a fair market value of zero), (iv) an itemized list of the Claims Expenses incurred to date and any Claim Expenses reasonably expected to be incurred before the Last CVR Payment Date, (v) an itemized list of the expenses as of the CVR Payment Date (and not previously included in the computation of the CVR Payment Amount) that the Company has incurred (whether directly or reimbursed) under Section 5.4 to comply with Securities Law Requirements or in connection with the registration of the CVRs under the Securities Act, (vi) the calculation of the CVR Payment Amount, if any, through the date of the Litigation Proceeds Certificate, (vii) any assumptions underlying the determination of any item used in making the necessary calculations for such calculations, and (viii) any financial or other documentation reasonably necessary to sufficiently support such calculations.

(b) Within 30 days of delivery of the Litigation Proceeds Certificate, each CVR Rights Agent shall give written notice to Parent and each of the other Rights Agents specifying whether such CVR Rights Agent agrees or objects (a “Notice of Agreement” and a “Notice of Objection”, respectively) to the Litigation Proceeds Certificate and the computation of the CVR Payment Amount.

(c) If each CVR Rights Agent delivers a Notice of Agreement and any CVR Payment Amount is payable, Parent shall pay such amounts to the CVR Trust in accordance with Section 2.3(a).

(d) If either CVR Rights Agent delivers a Notice of Objection within such 30 day period, Parent shall continue to hold the Cash Proceeds in the bank account established under Section 5.1(d) (as invested as set forth in Section 5.1(d)); provided, however, that if the Cash Proceeds held in such account exceeds the aggregate CVR Payment Amount as set forth in the Objection Certificate (as defined below), the amount of cash held in such bank account may be reduced to the CVR Payment Amount as set forth in the Objection Certificate. Any interest

generated by such investments or accretions in value resulting from such investments shall increase the CVR Payment Amount.

(e) As promptly as practicable following delivery of such Notice of Objection, the applicable CVR Rights Agent shall deliver to Parent and each other Rights Agent a certificate (an “Objection Certificate”) setting forth in reasonable detail each of the objections to the calculations, valuations, methodologies, lists, computations, assumptions and other information, including, without limitation, the fair market value of any Non-Cash Proceeds (collectively, the “Determinations”) that the CVR Rights Agent has to the applicable Litigation Proceeds Certificate. If the other CVR Rights Agent does not agree with the Objection Certificate (or any objections within such Objection Certificate), then the CVR Payment Amount shall be as set forth in the Litigation Proceeds Certificate and Parent shall pay such amounts in accordance with Section 2.3(a). If within ten days of the delivery of the Objection Certificate, the other CVR Rights Agent agrees, in whole or in part, with the Objection Certificate, Parent and the Rights Agents shall subject the Determinations set forth in the Litigation Proceeds Certificate that are in dispute to Deloitte & Touche LLP or any other mutually agreed upon independent public accounting firm of national standing that shall have expertise in the valuation of assets and properties (the “Firm”). The Firm shall be instructed to determine whether the Determinations set forth in the Litigation Proceeds Certificate that are in dispute are correct in all material respects. If the Firm determines that such Determinations are correct, the CVR Payment Amount shall be as set forth in the Litigation Proceeds Certificate, and each CVR Rights Agent shall be deemed to have delivered a Notice of Agreement with respect to such Litigation Proceeds Certificate and Parent shall pay such amounts in accordance with Section 2.3(a). If the Firm determines that any of the Determinations set forth in the Litigation Proceeds Certificate are incorrect in any respect (whether or not material), the Firm’s resulting calculation of the CVR Payment Amount shall be binding on all parties hereto (the “Resolution”) and Parent, upon notice of such Resolution, shall pay such amounts in accordance with Section 2.3(a). If the Resolution results in the CVR Payment Amount determined by Parent to be less than the CVR Payment Amount determined by the Firm, the CVR Payment Amount payable to the CVR Trust shall be increased by the interest on such differential calculated from the date 45 days after delivery of the Litigation Proceeds Certificate at an interest rate equal to the average rate actually earned on Cash Equivalents pursuant to Section 2.2(d). All costs and expenses billed by the Firm in connection with the performance of its duties described herein (“Firm Expenses”) shall be paid by Parent; provided, however, that if Parent’s determination of the CVR Payment Amount is:

     (i) greater than or equal to 95% of the CVR Payment Amount determined by the Firm, then 100% of the Firm Expenses shall be deducted from the CVR Payment Amount;

     (ii) greater than or equal to 85% of the CVR Payment Amount determined by the Firm, but less than 95% of the CVR Payment Amount determined by the Firm, then 50% of the Firm Expenses shall be deducted from the CVR Payment Amount; or

     (iii) less than 85% of the CVR Payment Amount determined by the Firm, then Parent shall not be reimbursed for any portion of the Firm Expenses.

(f) If a CVR Rights Agent does not deliver a Notice of Agreement or a Notice of Objection to a Litigation Proceeds Certificate within the 30-day period described above, the CVR Rights Agent shall be deemed to have delivered a Notice of Agreement with respect to such Litigation Proceeds Certificate.

(g) Any Litigation Proceeds received after the Acceptance Date but prior to the Effective Time shall, for all purposes under the Agreement, be deemed to have been received on the Closing Date. If the Merger Agreement is terminated after the Acceptance Date but prior to the Effective Time, any Litigation Proceeds received after the Acceptance Date but prior to such termination shall, for all purposes under the Agreement, be deemed to have been received on the date of such termination.

(h) Notwithstanding the foregoing, the provisions of this Section 2.2 (other than Section 2.2(g) and the definition of Litigation Proceeds Certificate) shall not apply to any Litigation Proceeds Certificate received as a result of a Settlement Decision.

Section 2.3 Payments to CVR Trust.

(a) If any CVR Payment Amount is determined to be payable in accordance with Section 2.2 or Section 3.1(e), Parent shall pay such amount to the CVR Trust within two (2) Business Days after such determination is final accompanied by an Officer’s Certificate stating that the amount paid is the CVR Payment Amount as determined in accordance with Section 2.2 or Section 3.1(e), as the case may be.

(b) In the event that the Company and the Company Subsidiaries or their Affiliates receive payments of Litigation Proceeds on more than one date, then the CVR Payment Amount with respect to any such Litigation Proceeds shall be paid with respect to each such receipt of Litigation Proceeds and the procedures described in Section 2.2 and Section 2.3(a) shall apply to each such receipt of Litigation Proceeds. Subject to the required adjustment for the Last CVR Payment Date as required under the definition of CVR Payment Amount, the calculation of the CVR Payment Amount following the calculation of the initial CVR Payment Amount shall be made on a cumulative basis to reflect the receipt of all Gross Litigation Proceeds, the prior payment of any CVR Payment Amounts, and the calculation of all Assumed Tax Liabilities from the date of this Agreement to the date of determination of each such subsequent CVR Payment Amount, and any payments of fees for services provided by outside counsel in connection with prosecuting the Litigation that are contingent on the success of the Litigation from the date of this Agreement to the date of determination of each subsequent CVR Payment Amount (it being understood, however, that in no event shall the CVR Trust or the Holders be obligated or required to refund to Parent or any of its Affiliates any portion of any CVR Payment Amount previously paid to the CVR Trust).

(c) The determination by Parent and the Rights Agents of any CVR Payment Amount pursuant to the procedures set forth in Section 2.2, absent a mathematical error, shall be final and binding on Parent, Parent’s Affiliates, the Company, the Company’s Subsidiaries, and the CVR Trust.

(d) Except in the specific cases specified in this Agreement, no interest shall accrue on any amounts payable to the CVR Trust.

ARTICLE III
THE RIGHTS AGENTS

Section 3.1 Certain Duties and Responsibilities.

(a) The Rights Agents undertake to perform such duties and only such duties as are specifically set forth in this Agreement. The Rights Agents shall exercise such of the rights and powers vested in them by this Agreement, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided, however, that the Rights Agents shall not be liable for any acts or omissions except to the extent that the Rights Agents have engaged in willful misconduct or bad faith.

(b) No provision of this Agreement shall be construed to relieve the Rights Agents from liability for their own willful misconduct or bad faith, except that no provision of this Agreement shall require the Rights Agents to expend or risk their own funds or otherwise incur any financial liability in the performance of any of their duties hereunder or in the exercise of any of their rights or powers.

(c) The Rights Agents shall have the sole power and duty to direct and supervise all matters involving the Litigation (including trial strategy and planning and settlement strategy) on behalf of Parent, the Company, the Company Subsidiaries and their Affiliates; provided that all decisions and determinations with respect to the Litigation (including, without limitation, any Settlement Decision or Strategic Decision) shall be made in accordance with Section 3.1(d) hereof. Either one or both of the CVR Rights Agents (as they may mutually decide in their discretion) shall have primary responsibility for the day-to-day direction and supervision of the Litigation and may, without the approval of any of Parent, the Company, the Company Subsidiaries or any of the other Rights Agents, make decisions and determinations in accordance with Section 3.1(d) hereof with respect to the day-to-day conduct of the Litigation and such decisions shall be deemed to made on behalf of all of the Rights Agents. Notwithstanding the foregoing, (i) the approval of a majority of the Rights Agents (including the Independent Rights Agent) shall be required for any Strategic Decision and (ii) the approval of a majority of the Rights Agents (other than the Independent Rights Agent) shall be required for any Settlement Decision; provided, however, if there is a vacancy with respect to any Rights Agent (other than the Independent Rights Agent), the approval of all Rights Agents (other than the Independent Rights Agent) shall be required for any Settlement Decision.

(d) In making any decision or determination with respect to the Litigation (including, without limitation, any Settlement Decision or Strategic Decision) the Rights Agents shall act in good faith with a view to maximizing the present value of the Litigation Proceeds to the Company, the Company Subsidiaries and the CVR Trust. Without limiting the generality of the foregoing, in connection with any Settlement Decision, the Rights Agents shall consider:

	(A)	the aggregate amount of After-Tax Litigation Proceeds to be received in connection with the proposed settlement;
	(B)	the benefit to the Company and the Company Subsidiaries of any agreements, commitments or undertakings to be made in connection with such settlement that restrict future anti-competitive or allegedly anti-competitive conduct by one or more parties to the Litigation;
	(C)	if consent to such settlement is withheld, the probability of the Company and the Company Subsidiaries receiving greater After-Tax Litigation Proceeds in connection with a subsequent settlement or other resolution of the Litigation;
	(D)	the probable timing of such subsequent settlement or other resolution of the Litigation and the probable amount of any additional After-Tax Litigation Proceeds to be received in connection therewith; and
	(E)	the discounted present value of such prospective additional After-Tax Litigation Proceeds.

The discount rate applicable to the value of such prospective additional After-Tax Litigation Proceeds shall be determined by the applicable majority of the Rights Agents as determined in accordance with the last sentence of Section 3.1(c) and shall give due regard to the financial and other costs to the Company, the Company Subsidiaries and the CVR Trust of postponing settlement or other resolution of the Litigation.

(e) In connection with the approval of any Settlement Decision, the applicable majority of the Rights Agents for Settlement Decisions as determined in accordance with the last sentence of Section 3.1(c) shall determine the amount, or a methodology for determining the amount, of any Litigation Proceeds resulting from the settlement and the fair market value (determined on an arm’s-length basis and without regard to any liens or encumbrances granted or created by Parent, the Company, the Company Subsidiaries, or their Affiliates and with Compliance Commitments having a fair market value of zero) of any Non-Cash Proceeds. As promptly as practicable (but in no event later than 30 days after the settlement), the Rights Agents shall deliver to Parent a Litigation Proceeds Certificate setting forth the matters described in Section 2.2(a) and, absent mathematical error, the amounts set forth in such Litigation Proceeds Certificate shall be binding on Parent and the CVR Trust. Upon receipt of any Litigation Proceeds resulting from the settlement, Parent shall compute the CVR Payment Amount in a manner consistent with the Litigation Proceeds Certificate and shall pay the CVR Payment Amount to the CVR Trust in accordance with Section 2.3(a) (accompanied by the Officer Certificate’s setting forth the CVR Payment Amount).

(f) The Rights Agents shall confer in person or by telephone at least once per month, but in any event as frequently as necessary to keep all Rights Agents and the Independent Rights Agent informed about material developments in the Litigation, on at least three days’ prior notice. At least one such conference per month shall include a briefing by the CVR Rights Agents that describes the progress of the Litigation and summarizes any material decisions or

determinations that were made without seeking the approval of the Independent Rights Agent or either of Parent Rights Agents.

(g) Joseph P. Durrett shall preside at all meetings or conferences of Rights Agents, unless he is removed from this capacity by majority vote of the other Rights Agents then in office. In the event he or she is removed or is unwilling or unable to preside at all meetings or conferences, his or her successor shall be elected by majority vote of the Rights Agents then in office.

(h) The Rights Agents shall establish procedures for making decisions in an expedited manner in the case of exigent or emergency circumstances arising in connection with the Litigation.

(i) The Rights Agents shall be deemed to be agents of Parent and the Company for all purposes relating to evidentiary privileges, including attorney-client privileges.

(j) Any Rights Agent that receives a notice provided pursuant to this Agreement shall provide such notice to all other Rights Agents.

Section 3.2 Certain Rights of Rights Agents; Actions of the Rights Agents. The Rights Agents undertake to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Rights Agents. In addition:

(a) the Rights Agents may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document believed by them to be genuine and to have been signed or presented by the proper party or parties;

(b) whenever the Rights Agents shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agents may, in the absence of bad faith or willful misconduct on their part, rely upon an Officer’s Certificate;

(c) the Rights Agents may engage and consult with counsel of their selection and the written advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by them hereunder in good faith and in reliance thereon;

(d) the Rights Agents may engage and consult with accounting firms, tax experts, valuation firms and other experts and third parties that they, in their sole and absolute discretion, deem appropriate or necessary to enable them to discharge their duties hereunder;

(e) the Rights Agents may direct employees of Parent, the Company, and Company Subsidiaries, and their Affiliates to respond to discovery requests, attend and prepare for depositions, prepare for and testify at trial, or take any other action that the Rights Agents believe is necessary or prudent in prosecuting the Litigation. If an employee of Parent, the Company, the Company Subsidiaries, or their Affiliates takes any action in accordance with this

Section 3.2(e), Parent shall be entitled to be paid an amount equal to (I) (i) the hours that the employees are required to work in connection with such engagement times (ii) the hourly rate of such employee (determined by dividing (A) the sum (without duplication) of (1) the employee’s annual salary payable in cash at the time of the engagement plus (2) the employee’s annual bonus for the prior fiscal year plus (3) the employment taxes that the employer is required to pay with respect to such amounts plus (4) the out-of-pocket costs of Parent, the Company, the Company Subsidiaries, or their Affiliates, as the case may be, of all other employee benefits, including employer-paid health care, employer-paid life insurance premiums, and employer contributions to savings and pension plans, in respect of the employee, by (B) the product of (x) 52 weeks less the number of weeks of vacation to which the employee is entitled during the current calendar year times (y) if such employee is a full-time employee, 40, or if such employee is not a full time employee, the number of hours that such employee is expected to work each week) plus (II) the out-of-pocket expenses incurred by Parent, the Company, the Company Subsidiaries, or their Affiliates, as the case may be, in connection with such engagement. Prior to commencing any engagement, Parent shall provide to the engaging Rights Agents an estimate of the number of hours that Parent expects that its or its Affiliates’ employees will expend in connection with the engagement, the position of the employees that it expects to work on the engagement, an estimate of the hourly rate of such employees, and an estimate of any material out-of-pocket expenses Parent expects to be incurred in connection with such engagement. During the course of the engagement, Parent shall submit to the engaging Rights Agents an update of the estimate (including a statement of actual hours worked by each employee and the hourly rate of such employee and actual out-of-pocket expenses incurred) not less than monthly (or any shorter period as reasonably requested by the engaging Rights Agents at the time of the engagement) or at anytime that Parent knows that the actual amount of work will materially exceed the initial estimate. Parent shall submit separate bills for each engagement at the end of each fiscal quarter setting forth the name of the employee that worked on the engagement, the hours such employee spent for such fiscal quarter on such engagement (accompanied by appropriate billing sheets prepared by such employee), the hourly rate for such employee (accompanied by any reasonable evidence of such rate that the engaging Rights Agent requests), and the out-of-pocket expenses incurred (accompanied by receipts for any material item). The Rights Agents shall direct that the bill be paid out of the Escrowed Funds. Notwithstanding the foregoing, the Rights Agents shall not be required to pay for (and shall not treat as Claims Expenses any amounts allocable to) the following: (A) the first $100,000 billed and approved by the Rights Agents pursuant to this Section 3.2(e), (B) any employee time spent personally preparing for or testifying at a trial, (C) any employee time spent attending or preparing for his or her depositions; (D) any employee time spent exercising the rights and duties of a Rights Agent; (E) any employee time spent defending a claim against the Company, the Company Subsidiaries, Parent, or its Affiliates in the Litigation; or (F) other than matters specified in Section 3.2(e), any employee time spent or out-of-pocket expenses incurred in the performance of the Company’s or Parent’s obligations pursuant to this Agreement.

(f) the Rights Agents shall not be required to give any note or surety in respect of the execution of the such powers or otherwise in respect of the premises; and

(g) the initial Rights Agents may be Holders of CVRs.

Except as otherwise expressly provided in this Agreement, all decisions of the Rights Agents shall be taken by majority vote of the Rights Agents; provided, however, that the right to engage parties (including employees of the Company, the Company Subsidiaries, Parent, or their Affiliates) to perform services (i) with respect to the day-to-day conduct of the Litigation shall be made by the CVR Rights Agents with the primary responsibility for day-to-day conduct as set forth in Section 3.1(c), (ii) with respect to Strategic Decisions shall be made by the applicable majority of Rights Agents required for Strategic Decisions as set forth in Section 3.1(c), and (iii) with respect to Settlement Decisions shall be made by the applicable majority of Rights Agents required for Settlement Decisions as set forth in Section 3.1(c).

Section 3.3 Not Responsible for Recitals or Issuance of CVRs. The recitals contained herein shall be taken as the statements of Parent, and the Rights Agents assume no responsibility for their correctness. The Rights Agents make no representations as to the validity or sufficiency of this Agreement, the CVR Trust Agreement, or the CVRs. The Rights Agents shall not be accountable or liable for the use or application by Parent of the Litigation Proceeds or Non-Cash Proceeds.

Section 3.4 Compensation, Reimbursement and Indemnification of the Rights Agents. Parent agrees that the following shall be payable as Claims Expenses:

(a) to pay to each of the CVR Rights Agents at least $5,000 on the first day of each month following the Acceptance Date until the Last CVR Payment Date and to pay the Independent Rights Agent a fair and reasonable amount of compensation until the Last CVR Payment Date that is agreed to by a majority of the Rights Agents (other than the Independent Rights Agent);

(b) except as otherwise expressly provided herein, to pay to or on behalf of the Rights Agents, upon the request of the Rights Agents, all reasonable expenses and disbursements incurred or to be incurred by the Rights Agents in connection with the discharge of their duties under this Agreement (including, without limitation, the reasonable compensation and the expenses and disbursements of their counsel, tax experts, valuation firms and other experts and third parties as contemplated in Section 3.2); and

(c) to indemnify the Rights Agents and hold them harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses and reasonable disbursements of any kind or nature whatsoever (including, without limitation, the reasonable compensation and the expenses and disbursements of their counsel, tax experts, valuation firms and other experts and third parties as contemplated in Section 3.2) that may be imposed on, asserted against or incurred by them under this Agreement, and the Rights Agents shall be so indemnified under this Agreement for their own ordinary or gross negligence, but the Rights Agents do not have the right to be indemnified under this Agreement for their own willful misconduct or bad faith.

Section 3.5 Resignation and Removal; Appointment of Successor.

(a) The Rights Agents may resign at any time by giving written notice thereof to Parent and the CVR Trust and other Rights Agents.

(b) Parent may remove a Parent Rights Agent at any time by giving written notice to the CVR Trust and other Rights Agents. All of the Rights Agents (other than the Independent Rights Agent) may remove the Independent Rights Agent at any time by giving written notice thereof to Parent and CVR Trust. A CVR Rights Agent may not be removed by Parent, the Company, the Company Subsidiaries, their Affiliates, any of the other Rights Agents, or the CVR Trust.

(c) In the event that any of the Rights Agents resigns, is removed or becomes incapable of acting, then such Rights Agent shall not be entitled to any compensation payable pursuant to Section 3.4 from and after the date of his resignation or removal.

(d) If a Parent Rights Agent shall resign, be removed or become incapable of acting, Parent, by a Board Resolution, shall promptly appoint a qualified successor Parent Rights Agent that may be an officer of Parent. If a CVR Rights Agent shall resign or become incapable of acting, the remaining CVR Rights Agent shall promptly appoint a qualified successor CVR Rights Agent who is a Holder of a CVR. If the Independent Rights Agent shall resign, be removed, or become incapable of acting, his or her successor shall be appointed by the unanimous agreement of the remaining Rights Agents. If, within 90 days after a resignation of a CVR Rights Agent or incapability of a CVR Rights Agent, or the occurrence of such vacancy of a CVR Rights Agent, a successor CVR Rights Agent shall not have been appointed, the Litigation Trustees may appoint any Person who is willing to serve as successor CVR Rights Agent. The successor CVR Rights Agent so appointed shall under the provisions of this Section 3.5(d), forthwith upon his acceptance of such appointment in accordance with this Section 3.5(d), become a successor CVR Rights Agent. If no successor CVR Rights Agent shall have been so appointed by the remaining CVR Rights Agent or the Litigation Trustees, any surviving person who is on the board of directors of the Company as of the initial issuance of the CVRs may petition any court of competent jurisdiction for the appointment of a successor CVR Rights Agent.

(e) Parent shall give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent to the other Rights Agents and to the CVR Trust. Each notice shall include the name and address of the successor Rights Agent. If Parent fails to send such notice within ten days after acceptance of appointment by a successor Rights Agent, the successor Rights Agent shall cause the notice to be mailed at the expense of Parent.

Section 3.6 Acceptance of Appointment by Successor. Every successor Rights Agent appointed hereunder shall execute, acknowledge and deliver to Parent and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Rights Agent; but, on request of Parent or the successor Rights Agent, such retiring Rights Agent shall execute and deliver an instrument transferring to such successor Rights Agent all the rights, powers and CVR Trusts of the retiring Rights Agent.

Section 3.7 Final Resolution. On the Last CVR Payment Date, this Agreement shall terminate; provided, however, that the provisions of Sections 1.2, 1.6 and 3.4(c) shall survive the termination of the Agreement.

ARTICLE IV

[Reserved]

ARTICLE V

COVENANTS

Section 5.1 Prosecution of Litigation by Parent; Settlement; Periodic Reports; Claims Expenses.

(a) In each case as directed by the Rights Agents pursuant to Section 3.1(c) hereof, Parent and the Company shall, and shall cause the Company Subsidiaries and Affiliates to, prosecute the Litigation and/or seek a settlement of the Litigation.

(b) None of Parent, Company, any Company Subsidiary, or their Affiliates shall make any Settlement Decision without obtaining prior approval from the applicable majority of the Rights Agents as determined in accordance with the last sentence of Section 3.1(c).

(c) Until the Litigation has been settled or is final and not subject to further judicial review (by appeal or otherwise), each of Parent, the Company, the Company Subsidiaries, their Affiliates and the Rights Agents shall cooperate in order to ensure that (i) all of the Rights Agents receive, by the last Business Day of each fiscal quarter of Parent, a report describing the status of the Litigation, which report shall describe, in summary fashion, the total Claims Expenses incurred through the date of such report, the status of all pending court proceedings related to the Litigation, whether any new claims or proceedings have been brought by Parent, the Company, the Company Subsidiaries or their Affiliates related to the Litigation, the status of any counterclaims brought by the defendants related to the Litigation, and the status of any settlement negotiations among Parent, the Company, the Company Subsidiaries and their Affiliates and the defendants with respect to the Litigation and (ii) except as otherwise required by applicable law or court order, all of the Rights Agents are granted access to any and all records, documents, personnel and any other sources of information that are in the possession, custody or control of Parent and its Affiliates as the Rights Agents shall determine are reasonably necessary or desirable in order to review Settlement Decisions and Strategic Decisions, if any. Parent, the Company, the Company Subsidiaries, and their Affiliates shall cooperate with the Rights Agents in providing the assistance of any of their officers and employees (subject to the requirements of Section 3.2(e)) and, to the extent that Parent or the Company believes in its reasonable determination that it is required to have its employees expend efforts in prosecuting the Litigation, but does not have sufficient time to obtain prior approval from the applicable Rights Agents for such efforts, Parent and the Company shall be

entitled to be reimbursed for any reasonable amount of hours expended in such effort in accordance with the principles of Section 3.2(e).

(d) All Cash Proceeds shall be held in a separate bank account invested in Cash Equivalents, free of any liens or encumbrances of any kind, until the CVR Payment Amount has been determined with respect to such Cash Proceeds. Once determined, the CVR Payment Amount shall be paid to the CVR Trust within two (2) Business Days in accordance with Section 2.3(a). To the extent that Parent does not pay the CVR Trust the entire CVR Payment Amount, the CVR Payment Amount shall be increased by the ratable share of the interest earned in such separate bank account from the date it was owed to the CVR Trust until payment is actually made to the CVR Trust. To the extent that a Rights Agent or the CVR Trust incurs any out-of-pocket expenses (including legal expenses) in successfully pursuing payment of amounts due hereunder, Parent shall pay such expenses and such expenses shall not constitute Claims Expenses.

(e) Parent agrees to provide funds in the amount of $10,000,000 to support the prosecution of the Litigation and the payment of Claims Expenses. Upon the first issuance of CVRs in payment for shares of Company Common Stock pursuant to the Offer, $10,000,000 (the “Escrowed Funds”) shall be placed in an escrow account with a bank organized and in existence under the laws of the United States (which bank shall be reasonably acceptable to a majority of the Rights Agents and have capital and surplus in excess of $500 million (an “Acceptable Bank”)), free of any liens or encumbrances of any kind (except for any liens allowed under Section 5.1(h)), and the Escrowed Funds shall be drawn down in accordance with the instructions of the Rights Agents, as provided in the applicable Escrow Agreement; provided, however, that (A) Parent may withhold or permit to be withheld up to $5,000,000 of the Escrowed Funds from the initial escrow deposit, or subsequently withdraw or permit to be withdrawn such funds from the escrow, after giving proper notice to each Rights Agent and the CVR Trust, if such funds are replaced with one or more letters of credit issued by an Acceptable Bank on terms reasonably acceptable to a majority of the Rights Agents for the benefit of the Rights Agents and (B) Parent may, at any time and from time to time, withdraw or permit to be withdrawn Escrowed Funds, after giving proper notice to each Rights Agent, if an equivalent amount is deposited as Escrowed Funds in another escrow account with an Acceptable Bank free of any liens or encumbrances of any kind (except for liens allowed under Section 5.1(h)) pursuant to terms of the applicable Escrow Agreement; provided, further, that at any time the sum of (i) all Escrowed Funds plus (ii) the total face amount of all letters of credit issued for the benefit of the Rights Agents shall be at least equal to (iii) $10,000,000 minus (iv) the cumulative amount of Claims Expenses paid as of the time. To the extent that letters of credit have replaced Escrowed Funds pursuant to clause (A) of the preceding sentence or another escrow account has been funded pursuant to clause (B) of the preceding sentence, the Rights Agents shall, to the extent they are required to pay certain Claims Expenses, first use Escrowed Funds, to the extent available, not in the additional escrow account and then shall draw on the letters of credit or the additional escrow account (in an amount equal to the amounts not paid plus $250,000), as the case may be, if after first requesting that Parent pay such Claims Expenses directly, such expenses are not paid within five (5) business days of the request. The parties hereto agree that nothing in this Agreement shall obligate Parent or its Affiliates or prevent Parent or its Affiliates from providing in their sole and absolute discretion (upon terms to be

agreed at that time), aggregate funds in excess of $10,000,000 to support the prosecution of the Litigation and the Claims Expenses.

(f) (i) The costs of Parent in connection with the Escrowed Funds as set forth on Exhibit B (the “Credit Support Costs”) shall be paid by Parent; provided, however, that until the earlier of (1) the date on which the cumulative Claim Expenses paid equal $5,000,000 and (2) the date on which the principal trial proceeding with respect to the Litigation commences, the Credit Support Costs shall be Claims Expenses and Parent shall be reimbursed for such amounts out of the Escrowed Funds. To the extent that Parent incurs Credit Support Costs that are not Claims Expenses, such amounts shall be referred to as “Parent Credit Support Costs” and to the extent that Parent incurs Credit Support Costs that are Claims Expenses, such amounts shall be referred to as “CVR Credit Support Costs.”

(ii) If any Parent Credit Support Costs or CVR Credit Support Costs are incurred, the Base Preliminary CVR Payment Amount for the first CVR Payment Date after the incurrence of such costs shall be adjusted as follows: the Base Preliminary CVR Payment Amount otherwise computed in accordance with this Agreement shall be (1) increased by an amount equal to the product of (A) 100% less the Base CVR Percentage times (B) such CVR Credit Support Costs and (2) decreased by an amount equal to the product of (A) the Base CVR Percentage times (B) such Parent Credit Support Costs. To the extent the adjustment required under this Section 5.1(f)(ii) would result in a Base Preliminary CVR Payment Amount that is less than zero, the Base Preliminary CVR Payment Amount shall be reduced to zero and the amount of the excess adjustment shall be carried over and reduce (but not below zero) any future Base Preliminary CVR Payment Amounts until the aggregate amount of such excess adjustment has been utilized to reduce Base Preliminary CVR Payment Amounts.

(g) The CVR Rights Agents may cause the CVR Trust to issue additional CVRs in accordance with the CVR Trust Agreement or to incur indebtedness that is debt for United States federal income tax purposes in accordance with the CVR Trust Agreement, to obtain funds to pay any Claims Expenses not funded pursuant to Section 5.1(e).

     (h) (i) Neither Parent, nor the Company, nor Company Subsidiaries shall enter into any agreement that would restrict Parent’s right to be able to make the payments to the CVR Trust under this Agreement or restrict the ability of the Company or Company Subsidiaries to distribute funds to Parent to fund such payments.

     (ii) During the period (such period, the “Existing Credit Agreement Period”) beginning on the Acceptance Date and ending on the date that the

23

Existing Credit Agreement shall terminate and no longer have any force or effect, the following shall apply:

     (A) The excess of the Gross Litigation Proceeds over the CVR Payment Amount (the “Company Retained Proceeds”) shall be subject to a first priority security interest (the “Existing Lender Lien”) for the benefit of the Lenders pursuant to the security and collateral documents related to Existing Credit Agreement, and any other security interest granted pursuant to this Section 5.1(h)(ii) shall, with respect to the Company Retained Proceeds, rank junior to the Existing Lender Lien during the Existing Credit Agreement Period; and

     (B) As security for prompt and complete payment and performance when due of all CVR Payment Amounts and all covenants and obligations to be performed by Parent, the Company, and Company Subsidiaries pursuant to this Agreement during the Existing Credit Agreement Period, Parent, the Company and Merger Sub shall hereby as of the first issuance of the CVRs pledge, hypothecate, and assign and grant to the CVR Trust a continuing security interest in (1) any account established pursuant to Section 5.1(e), (2) the Litigation and (3) an amount of the Gross Litigation Proceeds that is equal to the CVR Payment Amount (whether such amount of the Gross Litigation Proceeds arise before or after the commencement of a case under the United States Bankruptcy Code or any other domestic or foreign bankruptcy law by or against Parent, the Company, or Company Subsidiaries), and Parent, the Company, and Company Subsidiaries shall prepare, execute, and file any and all forms reasonably requested by any Rights Agent to perfect and maintain such security interests.

     (iii) As security for prompt and complete payment and performance when due of all CVR Payment Amounts and all covenants and obligations to be performed by Parent, the Company, and Company Subsidiaries pursuant to this Agreement on and after the Existing Credit Agreement Period (the “Obligations”), Parent, the Company and Merger Sub shall hereby, on and as of the end of the Existing Credit Agreement Period, pledge, hypothecate, and assign and grant to the CVR Trust a continuing security interest in any account established pursuant to Section 5.1(e), the Litigation and all Gross Litigation Proceeds (whether such Gross Litigation Proceeds arise before or after the commencement of a case under the United States Bankruptcy Code or any other domestic or foreign bankruptcy law by or against Parent, the Company, or Company Subsidiaries), and Parent, the Company, and Company Subsidiaries shall prepare, execute, and file any and all forms reasonably requested by any Rights Agent to perfect and maintain such security interest.

     (iv) From and after the end of the Existing Credit Agreement Period, Parent, the Company, and the Company Subsidiaries shall be entitled to grant a

24

security interest and lien in the Litigation and the Gross Litigation Proceeds to (A) Tennenbaum Capital Partners, LLC (or any affiliate, fund or account managed by Tennenbaum Capital Partners, LLC (together with their successors and assigns, the “TCP Collateral Agent”)) as collateral security for indebtedness incurred by Parent and its subsidiaries in connection with the contemplated recapitalization of Parent and its subsidiaries following the Merger (including any liens or security interests granted in connection with any refinancing, replacement, restatement, or refunding in whole or in part of such indebtedness); or (B) for the benefit of lenders or lending syndicates that provide senior working capital facilities to Parent or its subsidiaries from time to time (“Working Capital Lenders”) as collateral security for the indebtedness incurred by Parent and its subsidiaries under such facilities. No assignments or grants under this Section 5.1(h)(iv) shall relieve Parent, the Company or the Company Subsidiaries of their obligations under this Agreement.

     (v) As a condition to granting a lien or security interests under Section 5.1(h)(iv), the Rights Agents, the CVR Trust, Parent, the TCP Collateral Agent, any Working Capital Lenders and the Company shall enter into an intercreditor agreement the principal terms of which will provide (A) the liens upon and security interests in the Litigation and Gross Litigation Proceeds granted to the CVR Trust, the TCP Collateral Agent, and the Working Capital Lenders, respectively, shall be ranked equally and ratably, (B) that if Gross Litigation Proceeds are received, (1) the Cash Proceeds shall be held in a separate bank account as established under Section 5.1(d) and (2) once the CVR Payment Amount is determined with respect to the Gross Litigation Proceeds, the Cash Proceeds in excess of the CVR Payment Amount shall be deposited solely in one or more restricted blocked accounts subject solely to the security interests therein granted to TCP Collateral Agent and any Working Capital Lenders pending distribution in accordance with the agreements between Parent, certain Affiliates of Parent, the Company, the TCP Collateral Agent, and the Working Capital Lenders.

     (vi) Neither the Company nor Parent shall assign (or allow any Company Subsidiaries to assign) any interest in the Gross Litigation Proceeds, the Litigation, or any account established under Section 5.1(e) to any Person, except (I) to the Lenders as provided in Section 5.1(h)(ii)(A), (II) to the CVR Trust as provided in Sections 5.1(h)(ii)(A) and 5.1(h)(iii) and/or (III) to the TCP Collateral Agent or the Working Capital Lenders as provided in Section 5.1(h)(iv); provided, however, at any time after a trial verdict in the Litigation disposing of all material claims, Parent, the Company and the Company Subsidiaries shall be entitled to sell or assign any or all of their interests in the Litigation in excess of the amounts that are committed to be paid to the CVR Trust, to any person (other than another party in the Litigation or such other party’s Affiliates, employees or directors) if such assignment would not result in any encumbrances or other liens on the CVRs, the Litigation, or the Litigation Proceeds that would affect the CVR Trust or the Holders’ rights to be paid amounts under this Agreement or the CVR Trust Agreement.

(i) None of Parent, the Company, or the Company Subsidiaries shall initiate settlement negotiations or expand settlement negotiations with respect to any aspect or portion of the Litigation without the prior permission of the applicable majority of Rights Agents for Settlement Decisions as set forth in the last sentence of Section 3.1(c) and Parent and the Company agree that such powers shall vest with the Rights Agents as provided in Section 3.1(c). No Rights Agent shall initiate settlement negotiations without first informing each other Rights Agent of such settlement negotiations and obtaining consent to pursue such negotiations from the applicable majority of Rights Agents as determined in the last sentence of Section 3.1(c) for Settlement Decisions. If one or more Rights Agents are allowed to entertain or initiate settlement negotiations, such Rights Agents shall keep each other Rights Agent reasonably informed regarding the status of such negotiations (including any expansion of such negotiations) and any Rights Agents shall, if such Rights Agents request, be allowed to participate in the settlement negotiations.

(j) If Parent, the Company, the Company Subsidiaries, their Affiliates, or any Rights Agent receives any communication from any other party to the Litigation regarding possible settlement negotiations, the party receiving the communication shall be entitled to review such other party’s proposals, provided that such receiving party (i) shall inform each of the Rights Agents regarding the fact (and content) of such communication and proposals as promptly as possible (and under no circumstances more than three days) thereafter and (ii) shall not engage in settlement negotiations or expand settlement negotiations without the required permission of the Rights Agents as set forth in Section 5.1(i).

Section 5.2 Payment of CVR Payment Amount. Parent shall duly and promptly pay all amounts due to the CVR Trust in accordance with the terms of this Agreement.

Section 5.3 Federal Income Tax Treatment. Parent and the Company shall not (and shall cause each of their Affiliates not to) treat any CVR Payment Amount as payments of interest or other ordinary income items (except as required under Code section 483) and neither Parent nor the Company shall (nor shall they allow any of their Affiliates to) take any position inconsistent with such treatment (unless required by a determination that is final after Parent or its Affiliates has defended such matter in good faith).

Section 5.4 Expenses of the CVR Trust. Subject to the following sentences of this Section 5.4, the Company agrees to pay all expenses of the CVR Trust; provided that the Company’s obligation to pay for such expenses shall be limited to those expenses for which the Company has provided prior written approval (not to be unreasonably withheld), in such form as the Company and the Litigation Trustees shall agree. Notwithstanding the foregoing, the Company agrees to pay all expenses of the CVR Trust that are reasonably necessary to enable the CVR Trust to comply with applicable securities laws or with the rules and regulations of the Nasdaq National Market or such other national securities exchange as may be applicable (collectively, “Securities Law Requirements”) and all decisions with respect to the incurrence of such expenses shall be subject to the approval of the majority of the Rights Agents; provided, that if the Rights Agents fail to authorize such expenses as are reasonably necessary for the CVR Trust to satisfy its Securities Law Requirements, the Litigation Trustees shall be entitled to incur such expenses and the Company shall pay all such incurred expenses that are reasonably necessary and documented. The Company further agrees to pay all expenses of the CVR Trust

incurred with respect to the indemnification obligations of the CVR Trust under Section 10.04 of the CVR Trust Agreement; provided, that the Company’s obligations with respect to the purchase and maintenance of liability insurance to cover such indemnification obligations shall be limited to those obligations provided in Section 5.5(a)(ii). The Company shall have no obligation with respect to indebtedness for borrowed money incurred at any time by the CVR Trust. Any expenses of the CVR Trust not imposed on the Company pursuant to this Section 5.4, and all expenses with respect to indebtedness for borrowed money incurred at any time by the CVR Trust, shall be general obligations of the CVR Trust, payable out of the assets of the CVR Trust (including out of amounts paid to the CVR Trust pursuant to this Agreement).

Section 5.5 Liability Insurance.

(a) The Company shall acquire and maintain liability insurance policies (and shall maintain such policies or replacements therefore continuously in effect until the sixth anniversary of the Last CVR Payment Date) affording coverage (i) to the Rights Agents for their actions under this Agreement and (ii) to cover indemnification obligations of the CVR Trust pursuant to Section 10.04 of the CVR Trust Agreement. Such policies shall provide at least the same coverage amounts and shall contain terms and conditions that are no less advantageous to the beneficiaries thereof as provided in policies provided by Parent or its Subsidiaries or any ultimate parent of the foregoing to directors and officers of such parties. The insurance carriers, coverage terms and limits and the annual premiums for such policies shall be reasonably acceptable to a majority of the Rights Agents (or all Rights Agents, if there is a vacancy). The premiums of all such policies shall be paid by the Company.

(b) Within 30 days of the end of each year occurring before the Last CVR Payment Date (and on the Last CVR Payment Date), or, if earlier than the end of the first such year, as promptly as practicable but in no event later than 30 days after the first receipt by the Company or its Subsidiaries of Litigation Proceeds or the reaching of a Settlement Decision, a majority of the Rights Agents (or, if there is any vacancy with the Rights Agents, all Rights Agents) shall determine the amount of Excess Insurance Expenses incurred for such prior period. Such determination shall be binding on the Company and the Rights Agents for purposes of the CVR Payment Amount and shall not be subject to adjustment pursuant to Section 2.2.

Section 5.6 Third Party Beneficiaries. The Indemnified Persons (as defined in the CVR Trust Agreement) are specifically acknowledged as third party beneficiaries of the obligations of the Company pursuant to Section 5.4 to fund the indemnification obligations of the CVR Trust under Section 10.04 of the CVR Trust Agreement and pursuant to Section 5.5(a)(ii) to acquire and maintain insurance policies with respect to such indemnification obligations. The Delaware Trustees and Institutional Trustee (as such terms are defined in the CVR Trust Agreement) of the CVR Trust are specifically acknowledged as third party beneficiaries of the Company’s obligations pursuant to Section 5.4 as such obligations relate to indemnification and the payment of fees and expenses payable to such parties. Each such party shall have the right to bring actions to enforce the provisions of such sections for which such party has been acknowledged as a third party beneficiary in the event of any default by the Company in the performance of its obligations thereunder.

ARTICLE VI

AMENDMENTS

Section 6.1 Amendments.

(a) This Agreement may not be amended except by an instrument in writing signed by Parent, each of Parent Rights Agents, and each of the CVR Rights Agents. The CVR Rights Agents shall not approve any amendment to this Agreement that would cause the CVR Trust to fail to be classified as a grantor trust for United States federal income tax purposes.

(b) Promptly after the execution by Parent and the Rights Agents of any amendment pursuant to the provisions of this Section 6.1, Parent shall mail a notice thereof by first class mail to the CVR Trust setting forth in general terms the substance of such amendment.

Section 6.2 Execution of Amendments. In executing any amendment permitted by this Article, the Rights Agents shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement. The Rights Agents may, but are not obligated to, enter into any such amendment that affects the Rights Agents’ own rights, privileges, covenants or duties under this Agreement or otherwise.

Section 6.3 Effect of Amendments. Upon the execution of any amendment under this Article, this Agreement shall be modified in accordance therewith, such amendment shall form a part of this Agreement for all purposes and every Person hereto shall be bound thereby.

ARTICLE VII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
JOINT AND SEVERAL RESPONSIBILITY

Section 7.1 Parent and the Company May Consolidate, Etc.

(a) Parent and the Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:

     (1) Parent or the Company shall consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which Parent or the Company is merged or the Person that acquires by conveyance or transfer, or that leases, the properties and assets of Parent or the Company substantially as an entirety (the “Surviving Person”) shall expressly assume payment of amounts as required under this Agreement and the performance of every duty and covenant of this Agreement on the part of Parent or the Company to be performed or observed;

28

     (2) Parent or the Company has delivered to the Rights Agents an Officer’s Certificate, stating that such consolidation, merger, conveyance, transfer or lease complies with this Article VII and that all conditions precedent herein provided for relating to such transaction have been complied with; and

     (3) after giving effect to any such transaction, the Surviving Person shall not be, or be affiliated in any manner with, the parties adverse to the Company in the Litigation.

(b) For purposes of this Section 7.1, “convey, transfer or lease its properties and assets substantially as an entirety” shall mean properties and assets contributing in the aggregate at least 80% of Parent’s or the Company’s total consolidated revenues as reported in Parent’s or the Company’s last available periodic financial report (quarterly or annual, as the case may be).

Section 7.2 Successor Substituted. Upon any consolidation of or merger by Parent or the Company with or into any other Person, or any conveyance, transfer or lease of the properties and assets substantially as an entirety to any Person in accordance with Section 7.1, the Surviving Person shall succeed to, and be substituted for, and may exercise every right and power of, Parent or Company, as the case may be, under this Agreement with the same effect as if the Surviving Person had been named as Parent or the Company, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Agreement.

Section 7.3 Joint and Several Responsibility. Parent, the Company and Merger Sub are jointly and severally responsible for the performance of all actions, and the payment of all sums, required under this Agreement of either such party.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers to be effective as of the day and year first above written.

INFORMATION RESOURCES, INC.

By:	/s/ Joseph P. Durrett
	Name:	Joseph P. Durrett
	Title:	Chief Executive Officer and President


GINGKO ACQUISITION CORP.

By:	/s/ William Chisholm
	Name:	William Chisholm
	Title:	Executive Vice President


GINGKO CORPORATION

By:	/s/ William Chisholm
	Name:	William Chisholm
	Title:	Executive Vice President


INFORMATION RESOURCES, INC. LITIGATION CONTINGENT PAYMENT RIGHTS TRUST By: Information Resources, Inc., solely in the capacity as sponsor

By:	/s/ Joseph P. Durrett
	Name:	Joseph P. Durrett
	Title:	Chief Executive Officer and President


/s/ Joseph P. Durrett
Joseph P. Durrett, as CVR Rights Agent

/s/ Eileen Kamerick
Eileen Kamerick, as CVR Rights Agent

	/s/ William Chisholm
	William Chisholm, as Parent Rights Agent

	/s/ Bryan Taylor
	Bryan Taylor, as Parent Rights Agent

EXHIBIT A

INFORMATION RESOURCES, INC., VS. THE DUN & BRADSTREET
CORPORATION, A.C. NIELSEN CO. AND IMS INTERNATIONAL, INC., NO. 96
CIV. 5716

EXHIBIT B

LIBOR plus 7.5% on the portion of the Escrowed Funds (or the face amount of letter of
credits established in lieu of the Escrowed Funds) equal to $5,000,000.

-----END PRIVACY-ENHANCED MESSAGE-----