SC TO-T/A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE TO
(RULE 14d-100)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1) of
the Securities Exchange Act of 1934

(Amendment No. 6)

INFORMATION RESOURCES, INC.
(Name of Subject Company)

GINGKO ACQUISITION CORP.,
a wholly owned subsidiary of
GINGKO CORPORATION,
a company formed by
SYMPHONY TECHNOLOGY II-A, L.P.,
SYMPHONY TECHNOLOGY II GP, LLC,
ROMESH WADHWANI and affiliates of
TENNENBAUM & CO., LLC
and by
INFORMATION RESOURCES, INC. LITIGATION CONTINGENT
PAYMENT RIGHTS TRUST
(Names of Filing Persons—Offerors)

COMMON STOCK, PAR VALUE $0.01 PER SHARE
(and Associated Preferred Share Purchase Rights)
(Title of Class of Securities)

456905108
(Cusip Number of Class of Securities)

Gingko Corporation
c/o Symphony Technology Group
4015 Miranda Avenue, 2nd Floor
Palo Alto, California 94304
Telephone: (650) 935-9500
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Filing Persons)

Copies to:

Jeffrey D. Berman
John D. Amorosi
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000 Dhiya El-Saden
Gregory L. Surman
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000

o Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

Amount Previously Paid: ___________________	Filing Party: __________________
Form or Registration No.: __________________	Date Filed: _______________________

o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

x third-party tender offer subject to Rule 14d-1.

o issuer tender offer subject to Rule 13e-4.

o going-private transaction subject to Rule 13e-3.

o amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing is a final amendment reporting the results of the tender offer. o

Items 1 through 9 and Item 11.

                This Amendment No. 6 to the Tender Offer Statement on Schedule TO amends and supplements the statement originally filed with the Securities and Exchange Commission on September 8, 2003, as amended by Gingko Acquisition Corp., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Gingko Corporation, a Delaware corporation (“Parent”) and a company formed by Symphony Technology II-A, L.P., a Delaware limited partnership, Symphony Technology II GP, LLC, a Delaware limited liability company, Romesh Wadhwani and affiliates of Tennenbaum & Co., LLC, a Delaware limited liability company. The Schedule TO was also filed by Information Resources, Inc. Litigation Contingent Payment Rights Trust, a statutory trust formed by Information Resources, Inc. under the Delaware Statutory Trust Act. This Schedule TO relates to the offer by Purchaser to purchase all outstanding shares of common stock, par value $0.01 per share (the “Common Stock”), of Information Resources, Inc., a Delaware corporation (the “Company”), and the associated preferred share purchase rights (the “Rights”, and together with the Common Stock, the “Shares”) issued pursuant to the Rights Agreement, as amended and restated as of October 27, 1997, and as further amended as of June 29, 2003 and September 7, 2003, between the Company and Harris Trust and Savings Bank as Rights Agent (the “Rights Agreement”), for $3.30 per Share, net to the seller in cash, plus one contingent value right certificate (“CVR Certificate”) per Share representing the right to receive an amount equal to a portion of potential lawsuit proceeds, if any, of an antitrust lawsuit, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 8, 2003 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”). Any capitalized term that is used, and not defined, in this document shall have the meaning set forth in the Schedule TO. The information set forth in the Offer to Purchase and the related Letter of Transmittal is incorporated herein by reference with respect to Items 1 through 9 and 11 of this Schedule TO.

The Offer to Purchase is further amended as follows:

(1) The first full sentence on the cover of the Offer to Purchase is deleted and replaced with the following:

“THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON OCTOBER 31, 2003, UNLESS THE OFFER IS EXTENDED.”

(2) The fourth sentence of the first paragraph under the caption “Didn’t you commence an offer for my securities on July 14, 2003?” in the “Summary Term Sheet” section of the Offer to Purchase is deleted and replaced with the following sentence:

“As a result of this development and due to the listing requirements of the New York Stock Exchange, it is believed that the CVR certificates are unlikely to qualify for quotation on a national securities exchange that is comparable to the NASDAQ National Market.”

(3) The following sentence is added immediately following the last sentence of the third paragraph under the caption “Didn’t you commence an offer for my securities on July 14, 2003?” in the “Summary Term Sheet” section of the Offer to Purchase:

“In addition, we have irrevocably waived the condition to our offer that the CVR certificates be approved for quotation on the NASDAQ National Market (or a comparable national securities exchange), subject to satisfaction of the condition that the CVR certificates are approved for quotation on the OTC Bulletin Board.”

(4) In the “Summary Term Sheet” section of the Offer to Purchase, the first two sentences of the second paragraph under the caption “What is a CVR certificate and are there agreements governing the rights of tendering stockholders who receive the CVR certificates in the offer?” are deleted and replaced with the following text:

“By virtue of the CVR agreement, the trust will be entitled to be paid by Gingko Corporation an amount equal to 68% of any proceeds received by Information Resources in respect of the antitrust litigation (whether by settlement, judgment or otherwise), to the extent those proceeds are equal to or less than $200 million, and 75% of any such litigation proceeds in excess of $200 million, in each case subject to adjustments for certain items, including for taxes that Information Resources will be required to pay on the recovery (assumed to be at a rate of 34%), any contingency-based fees payable to outside counsel in connection with the litigation and amounts incurred by Gingko Corporation, Information Resources or the trust arising out of the fact that the CVR Certificates are being registered under the federal securities laws. The remaining 32% of any such proceeds, to the extent those proceeds are equal to or less than $200 million, and 25% of any such proceeds in excess of $200 million, (again, in each case, subject to certain adjustments) will be retained and remain the property of Information Resources and its then current owners.”

(5) The first sentence of the paragraph appearing in the “Summary Term Sheet” section of the Offer to Purchase under the caption “How long do I have to decide whether to tender in the offer?” is deleted and replaced with the following:

“You have until at least 12:00 Midnight, New York City time, on October 31, 2003, to decide whether to tender your shares in the offer.”

(6) The second sentence of the second paragraph under the caption “The rights agents may not have adequate funds to prosecute the antitrust litigation” in the section of the Offer to Purchase entitled “Special Considerations Relating to the CVR Certificates” is deleted and replaced with the following sentence:

“The trust may not be able to raise such additional funds or, if the trust is able to raise those funds, the terms of that financing may not be reasonable.”

(7) The caption “The rights agents may not have adequate funds to prosecute the antitrust litigation” in the section of the Offer to Purchase entitled “Special Considerations Relating to the CVR Certificates” is deleted and replaced with the following:

“If the rights agents do not have adequate funds to prosecute the antitrust litigation, there will be no possibility of payment on the CVR certificates.”

(8) The fourth sentence of the first paragraph under the caption “The CVR certificates may be difficult to sell due to the absence of an active trading market for the CVR certificates” in the section of the Offer to Purchase entitled “Special Considerations Relating to the CVR Certificates” is deleted and replaced with the following sentence:

“As a result of this development and due to the listing requirements of the New York Stock Exchange, it is believed that the CVR certificates are unlikely to qualify for quotation on a national securities exchange that is comparable to the NASDAQ National Market.”

(9) The following sentence is added immediately following the last sentence of the first paragraph appearing under the caption “The CVR certificates may be difficult to sell due to the absence of an active trading market for the CVR certificates” in the section of the Offer to Purchase entitled “Special Considerations Relating to the CVR Certificates”:

“In addition, we have irrevocably waived the condition to our offer that the CVR certificates be approved for quotation on the NASDAQ National Market (or a comparable national securities exchange), subject to satisfaction of the condition that the CVR certificates are approved for quotation on the OTC Bulletin Board.”

(10) The fourth sentence of the fourth full paragraph under the heading “Introduction” appearing in the Offer to Purchase is deleted and replaced with the following sentence:

“As a result of this development and due to the listing requirements of the New York Stock Exchange, it is believed that the CVR Certificates are unlikely to qualify for quotation on a national securities exchange that is comparable to the NASDAQ National Market.”

(11) The following sentence is added immediately following the last sentence of the fourth full paragraph under the heading “Introduction” appearing in the Offer to Purchase:

“In addition, we have irrevocably waived the condition to our Offer that the CVR Certificates be approved for quotation on the NASDAQ National Market (or a comparable national securities exchange), subject to satisfaction of the condition that the CVR Certificates are approved for quotation on the OTC Bulletin Board.”

(12) The first sentence of the fifth paragraph under the heading “Introduction” appearing in the Offer to Purchase is deleted and replaced with the following:

“We are making the Offer pursuant to an Agreement and Plan of Merger, dated as of September 7, 2003 (the “Agreement and Plan of Merger”) by and among the Company, Parent and Purchaser, as amended by Amendment No. 1 to the Agreement and Plan of Merger, dated as of October 19, 2003 (“Amendment No. 1”), among the Company, Parent and Purchaser (the Agreement and Plan of Merger, as amended by Amendment No. 1, the “Merger Agreement”).”

(13) The second sentence in the first paragraph appearing in the Offer to Purchase under “The Offer—Section 1—Terms of the Offer” is deleted and replaced with the following:

““Expiration Date” means 12:00 Midnight, New York City time, on October 31, 2003, unless extended, in which event “Expiration Date” means the latest time and date at which the Offer, as so extended, shall expire.”

(14) The following paragraph is inserted immediately following the second to last paragraph under the heading “The Offer—Section 10—Source and Amount of Funds”:

“This Offer to Purchase does not include historical financial statements of the Trust, as the Trust is a newly formed entity that currently has only nominal assets and liabilities. Future filings of the Trust under the Securities Exchange Act of 1934 will include financial statements of the Trust if, and to the extent, required by applicable law. In addition, the

Trust will be the indirect beneficiary of an escrow account established to fund expenses of the Litigation (as described under “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust—The CVR Agreement—Funding of Claims Expenses”). The Trust expects to include appropriate financial disclosure with respect to the income and losses on amounts deposited in and expenditures made from this escrow account in future Securities Exchange Act filings.”

(15) The second sentence of the 29th paragraph under the heading “The Offer—Section 11—Background of the Offer” is deleted and replaced with the following sentence:

“These discussions, which actively involved the Company Board, resulted in three principal changes to the Prior Offer: an increase in the participation rights of the Company's stockholders in the potential proceeds of the Litigation entitling them to 75% (as opposed to 60% previously proposed by Gingko Corporation) of any such proceeds above $200 million (subject to certain adjustments, including taxes), the conversion of those rights to a registered, tradeable security, and a reduction in the minimum number of Shares required to be tendered in the Offer.”

(16) The following paragraph is inserted immediately following the last paragraph under the heading “The Offer—Section 11—Background of the Offer”:

     “On September 8, 2003, representatives of Parent and the Company held a conference call regarding the terms of the Merger Agreement and Offer and certain business and other operational issues facing the Company. Additionally, since entering into the Merger Agreement, representatives of each of Parent and the Company were in frequent contact with the Company’s stockholders regarding the Merger Agreement and Offer and with each other regarding stockholders’ reactions to the Merger Agreement and Offer. On or about October 1, 2003, representatives of Parent spoke with a representative of Abrams Capital LLC (“Abrams Capital”), holder of approximately 10% of the outstanding Company’s Common Stock. In the course of that conversation, the Abrams Capital representative indicated that they were not prepared to tender their shares of Company Common Stock into the Offer, unless certain changes were made to the Offer, including, among other things, the appointment of a significant CVR Certificate holder as a Rights Agent under the CVR Agreement and an increase in the percentage of the aggregate after-tax proceeds to which the CVR Certificate holders are entitled under the CVR Agreement from the Litigation. In this conversation and in other discussions involving representatives of Parent and of Abrams Capital over the ensuing several days, Parent representatives defended the adequacy of the Offer and discussed various publicly disclosed issues with Abrams Capital relating to the Offer, the Litigation and the Company’s business.

     On October 6, 2003, in a conversation with Parent representatives, Abrams Capital proposed revised offer terms in which the CVR Certificate holders would receive in the aggregate 68% of any Litigation proceeds below $200 million. In the course of that conversation, Parent did not agree to the increase in value proposed by Abrams Capital and made clear that it continued to believe that the then existing terms of the Offer were fair. Parent also noted that if it were to even consider improving the Offer terms further, it would only do so if Abrams Capital agreed to enter into a tender and voting agreement obligating Abrams Capital to tender its shares into the Offer. On October 16, 2003, Abrams Capital indicated its willingness to enter into such a tender and voting agreement if Parent were willing to amend the terms of the Offer to provide that (a) a CVR Certificate holder would be appointed as a Rights Agent under the CVR Agreement and

(b) the CVR Certificate holders would be entitled to 68% of the aggregate proceeds from the Litigation below $200 million, as opposed to 60% of such proceeds below $200 million (as provided under the then current terms of the Offer), in each case subject to certain adjustments. In the evening on October 16, 2003, Parent informed the Company that it was considering the revised Offer terms proposed by Abrams Capital, and Parent representatives distributed revised documents to the Company that would give effect to those changes if Parent were to elect to so proceed. After the close of the market on October 17, 2003, Parent informed Abrams Capital of Parent’s willingness to make the improvements to the Offer that had been proposed by Abrams Capital, subject to the Company’s approval and the parties’ ability to negotiate mutually satisfactory definitive documentation, including a tender and voting agreement from Abrams Capital. Abrams Capital also indicated on that afternoon that it was aware of other IRI shareholders who might also be willing to enter into a tender and voting agreement with Parent.

     At meetings on October 18 and 19, 2003, the Company Board approved the revised offer terms and the revised documentation, and Parent, Purchaser and Abrams Capital entered into a tender and voting agreement, and Parent also entered into such an agreement with a holder of approximately 2.5% of the outstanding Company Common Stock. On October 19, 2003, Parent, Purchaser and the Company also entered into amendment no. 1 to the Merger Agreement.

     On October 20, 2003, Parent and the Company issued a press release announcing the improved offer terms.”

(17) The following paragraph is inserted immediately prior to the subheading “The Merger” appearing in the Offer to Purchase after the caption “The Merger Agreement” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust”:

     “Any CVRs or CVR Certificates issued to Parent or Parent’s permitted designee pursuant to any exercise of the Top-Up Option shall be deemed to have been cancelled, and to have no further force or effect, on and at the Effective Time.”

(18) The second to last sentence in the paragraph following the subheading “General” appearing in the Offer to Purchase after the caption “The CVR Agreement” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust” are deleted and replaced with the following:

     “An independent Rights Agent, who will not participate in any Settlement Decision (as defined below) will be chosen by a majority of the other four Rights Agents (the “Independent Rights Agent”). The Independent Rights Agent, and any successor to the Independent Rights Agent, must be a holder of (or be employed by a holder of) at least 2.5% of the outstanding CVR Certificates at the time of that selection (if there is such a holder who is willing to perform that service) who is not affiliated with Parent, the Company, TCP, Symphony and any of their respective affiliates. Any replacement of an Independent Rights Agent must be selected by like method within 15 days after the death, resignation or removal pursuant to the terms of the CVR Agreement of any predecessor of any such person.”

(19) The second paragraph following the subheading “Payment Calculation” appearing in the Offer to Purchase after the caption “The CVR Agreement” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal

Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust” is deleted and replaced with the following:

“The Trust is entitled to receive the CVR Payment Amount which is calculated using the following methodology. First, by calculating the “Base Preliminary CVR Payment Amount”, which equals (x) the Base CVR Percentage (generally 68%, and adjusted as described below under “—Adjustment of Percentages”) times the lesser of the (i) amount of Gross Litigation Proceeds (as defined below) actually received by the Company and its subsidiaries or their affiliates through the date of the Litigation Proceeds Certificate applicable to such CVR Payment Date and (ii) $200,000,000, minus (y) the Base CVR Percentagetimes 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) $200,000,000, minus (z) (1) the 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 $200,000,000; 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, and will be further adjusted in respect of credit support costs as described below under “—Funding of Claims Expenses”.”

(20) The paragraph following the subheading “Security Interest of Trust” appearing in the Offer to Purchase after the caption “The CVR Agreement” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust” and the subheading entitled “Security Interest of Trust” are both deleted and replaced with the following text:

“Security Interest of the Trust, LaSalle Bank National Association and Key Corporate Capital, Inc. During the period (such period, the “Existing Credit Agreement Period”) beginning on the Acceptance Date and ending on the date that the Revolving Credit Agreement dated as of July 12, 2002 by and among LaSalle Bank National Association, Key Corporate Capital, Inc., 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 shall terminate and no longer have any force or effect, the following shall apply:

• 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 LaSalle Bank National Association and Key Corporate Capital, Inc. pursuant to the security and collateral documents related to the Revolving Credit Agreement, and any other security interest granted by the provisions of the CVR Agreement described in this sentence shall, with respect to the Company Retained Proceeds, rank junior to the Existing Lender Lien during the Existing Credit Agreement Period; and

• 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 the CVR Agreement during the Existing Credit Agreement Period, Parent, the Company and Purchaser shall as of the first issuance of the CVR Certificates grant to the Trust a continuing security interest in (1) any account established to support the prosecution of the Litigation and to pay Claims Expenses, and (2) any amount of the Gross Litigation Proceeds that is equal to the CVR Payment Amount (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 its subsidiaries).

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 the CVR Agreement on and after the Existing Credit Agreement Period, Parent, the Company and Purchaser shall, from and after the end of the Existing Credit Agreement Period, grant to the Trust a continuing security interest in any account established to support the prosecution of the Litigation and to pay Claims Expenses, 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 its subsidiaries).”

(21) The paragraph following the subheading “Other Permitted Security Interests” appearing in the Offer to Purchase after the caption “The CVR Agreement” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust” is deleted and replaced with the following paragraph:

“In addition to the security interests granted to the Trust, LaSalle Bank National Association and Key Corporate Capital, Inc., from and after the end of the Existing Credit Agreement Period, Parent, the Company and the Company subsidiaries shall be entitled to grant a 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); and/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 (the “Working Capital Lenders”) as collateral security for the indebtedness incurred by Parent and its subsidiaries under such facilities. No assignments or grants will relieve Parent, the Company or the Company subsidiaries of their obligations under the CVR Agreement.”

(22) The paragraph following the subheading “Other Assignments” appearing in the Offer to Purchase after the caption “The CVR Agreement” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust” is deleted and replaced with the following paragraph:

“Neither the Company nor Parent shall assign (or allow any subsidiaries of the Company to assign) any interest in the Gross Litigation Proceeds, the Litigation or the escrow accounts to any person, except (I) to LaSalle Bank National Association and Key Corporate Capital, Inc. as permitted under the CVR Agreement, (II) to the Trust as permitted under the CVR Agreement and/or (III) to the TCP Collateral Agent or the Working Capital Lenders as provided in the CVR Agreement. 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 its interests in the Litigation in excess of the amounts that are committed to be paid to the Trust to any person (other than a party adverse to the Company or such party's affiliates, employees or directors) if such assignment would not result in any encumbrances or other liens on the CVR Certificates, the Litigation, or the

Litigation Proceeds that would affect the Trust or CVR Certificate holders’ right to be paid amounts under the CVR Agreement or the Declaration of Trust.”

(23) The fourth sentence of the first paragraph following the subheading “Tradability” appearing in the Offer to Purchase after the caption “The Declaration of Trust” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust” is deleted and replaced with the following sentence:

“As a result of this development and due to the listing requirements of the New York Stock Exchange, it is believed that the CVR Certificates are unlikely to qualify for quotation on a national securities exchange that is comparable to the NASDAQ National Market.”

(24) The following sentence is added immediately following the last sentence of the first paragraph following the subheading “Tradability” appearing in the Offer to Purchase after the caption “The Declaration of Trust” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust”:

“In addition, we have irrevocably waived the condition to our Offer that the CVR Certificates be approved for quotation on the NASDAQ National Market (or a comparable national securities exchange), subject to satisfaction of the condition that the CVR Certificates are approved for quotation on the OTC Bulletin Board.”

(25) The following paragraphs are inserted immediately following the paragraph following the subheading “Dissolution of the Trust” appearing in the Offer to Purchase after the caption “The Declaration of Trust” under the heading “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust”:

“The Tender Agreement. The following is a summary of certain provisions of the form of Stockholder Tender and Voting Agreement (the “Tender Agreement”), a copy of which is filed as an exhibit to the Schedule TO and is incorporated in this Offer to Purchase by reference. This summary is qualified in its entirety by reference to the full text of the Tender Agreement.

General. In order to induce Parent and Purchaser to agree to the amendments to the CVR Agreement that have increased the Base CVR Percentage from 60% to 68%, Parent and Purchaser have requested that Abrams Capital LLC, holder of approximately 10% of the outstanding Company Common Stock and another holder of approximately 2.5% of the outstanding Company Common Stock (each an “Agreed Tendering Stockholder”) enter into, and each Agreed Tendering Stockholder has agreed to enter into, a Tender Agreement. Each Agreed Tendering Stockholder has agreed to tender in the Offer within two business days after October 18, 2003, and not withdraw or cause to be withdrawn, all Shares currently beneficially owned by that Agreed Tendering Stockholder and any of its affiliates and any additional Shares with respect to which that Agreed Tendering Stockholder or any of its affiliates becomes the beneficial owner after October 18, 2003 (collectively, the “Subject Shares”). If any Agreed Tendering Stockholder or any of its affiliates acquires any additional Subject Shares after having previously tendered its Subject Shares pursuant to the provisions of the Tender Agreement described in the preceding sentence, then that Agreed Tendering Stockholder shall also tender (or shall cause its affiliates to tender) those Subject Shares promptly

after the acquisition of those Shares and in any event before the then scheduled Expiration Date.

Voting. Each Agreed Tendering Stockholder has agreed that, if the Subject Shares of any Agreed Tendering Stockholder or any of its affiliates have not been previously accepted for payment and paid for by Purchaser pursuant to the Offer or, after the consummation of the Offer, that Agreed Tendering Stockholder or any of its affiliates acquires any additional (or otherwise beneficially owns) any Subject Shares, then such Agreed Tendering Stockholder will at any meeting of the stockholders of the Company, however called, or in any written consent in lieu thereof, it will, or will cause the record holder(s) of the Subject Shares then owned by that Agreed Tendering Stockholder or any of its affiliates to, vote all of those Subject Shares (i) in favor of the Merger and (ii) against any actual or proposed action, agreement or transaction that would impede, interfere with, delay, postpone, discourage or adversely affect the Merger, the Offer or any other transaction contemplated by or in connection with the Merger Agreement or the CVR Agreement.

Expiration. The Tender Agreement and the rights and obligations of the Agreed Tendering Stockholders, Parent and Purchaser under the Tender Agreement will terminate, and be of no further force or effect, on the earliest to occur of (a) the Effective Time, (b) the termination of the Tender Agreement by written notice from Purchaser to the Agreed Tendering Stockholder, (c) the termination of the Merger Agreement in accordance with its terms and (d) December 15, 2003 (if the Acceptance Date has not previously occurred) or February 29, 2003 (if the Acceptance Date has previously occurred). The parties to the Tender Agreement further agreed that the Tender Agreement shall remain in full force and effect even if the Merger Agreement, the CVR Agreement and/or the Declaration of Trust is amended, unless any such amendment is material to the Agreed Tendering Stockholder in which event the Tender Agreement and the rights and obligations of the Agreed Tendering Stockholder under the Tender Agreement shall terminate, and be of no further force or effect, on and as of the date of that amendment, unless Parent and Purchaser shall have obtained the prior written consent of the Agreed Tendering Stockholder for that amendment; provided that it is understood and agreed among the parties to the Tender Agreement that any reduction in the Offer Price or the Merger Consideration shall be deemed to be material to the Agreed Tendering Stockholder for purposes of the Tender Agreement provisions described in this sentence. The sections of the Tender Agreement addressing expenses, notices, governing law, contractual interpretation, validity, the Tender Agreement constituting the entire agreement with respect to its subject matter, the Tender Agreement not being intended to confer rights upon any third parties, nonsurvival of representations and warranties, jurisdiction and waiver of jury trial will survive any such termination.

Covenants. Except as expressly contemplated by the terms of the Tender Agreement, each Agreed Tendering Stockholder has covenanted not to:

• sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, assignment or other disposition of, any Subject Shares (or any interest therein) of that Agreed Tendering Stockholder or any of its affiliates to any person, other than Purchaser or Purchaser’s designee. Any attempted transfer or other disposition in violation of this subparagraph will be null and void;

• enter into, or otherwise subject any Subject Shares of that Agreed Tendering Stockholder or any of its affiliates to, any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney or otherwise, with respect to any such Subject Shares; or

• take any other action that would in any way restrict, limit or interfere with the performance of its obligations under the Tender Agreement or the transactions contemplated to be performed by it under the Tender Agreement.”

Item 10. Financial Statements.

Not applicable. The Offer to Purchase does not include historical financial statements of the Trust, as the Trust is a newly formed entity that currently has only nominal assets and liabilities. Future filings of the Trust under the Securities Exchange Act of 1934 will include financial statements of the Trust if, and to the extent, required by applicable law. In addition, the Trust will be the indirect beneficiary of an escrow account established to fund expenses of the Litigation (as described under “The Offer—Section 12—Purpose of the Offer; Plans for the Company; Stockholder Approval; Appraisal Rights; The Merger Agreement; The CVR Agreement; The Declaration of Trust—The CVR Agreement—Funding of Claims Expenses”). The Trust expects to include appropriate financial disclosure with respect to the income and losses on amounts deposited in and expenditures made from this escrow account in future Securities Exchange Act filings.

Item 11. Additional Information.

On October 20, 2003, Purchaser announced that it was revising the Offer. Under the CVR Certificates to be issued in the revised Offer, the CVR Certificate holders will receive, in the aggregate, 68% of any proceeds from its lawsuit against ACNielsen and others below $200 million - compared to 60% of such proceeds below $200 million in the Offer prior to revision - and 75% of those proceeds above $200 million, in each case subject to certain adjustments. In addition, Purchaser announced that it has irrevocably waived the condition to its Offer that the CVR Certificates be approved for quotation on the NASDAQ National Market (or a comparable national securities exchange), subject to satisfaction of the condition that the CVR Certificates are approved for quotation on the OTC Bulletin Board.

On October 20, 2003, Purchaser also announced that the expiration date of the Offer has been extended until 12:00 midnight, New York City time, on October 31, 2003, unless the Offer is extended to a later date. According to LaSalle Bank National Association who is serving as the Depositary in connection with the Offer, as of October 17, 2003, holders of approximately 3,141,610 Shares have tendered their Shares pursuant to the Offer. In addition, Purchaser announced that Purchaser and Information Resources have agreed to a revised CVR Agreement to provide that the fifth Independent Rights Agent for overseeing the ACNielsen litigation must be a holder of at least 2.5% of the outstanding CVR Certificates at his or her time of selection (if there is such a holder who is willing to perform that service) who is not affiliated with Parent, the Company, TCP, Symphony and any of their respective affiliates. All other terms of the Offer remain the same in all material respects.

In its press release, Purchaser also announced that two shareholders holding in the aggregate approximately 12.5% of the outstanding shares of Information Resources entered into written agreements with Purchaser and Parent committing them to tender all shares currently held by them within two business days (and any shares that they subsequently acquire). The press release issued by Purchaser announcing the revised Offer is incorporated by reference to Exhibit (a)(1)(J) to this Schedule TO.

Item 12. Additional Information.

(a)(1)(A)**** Offer to Purchase, dated September 8, 2003.

(a)(1)(B)**** Letter of Transmittal.

(a)(1)(C)**** Notice of Guaranteed Delivery.

(a)(1)(D)**** Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.

(a)(1)(E)**** Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.

(a)(1)(F)**** Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.

(a)(1)(G)**** Letter dated September 8, 2003 to Stockholders of Information Resources, Inc. who tendered shares pursuant to Purchaser’s prior offer launched July 14, 2003.

(a)(1)(H)** Text of press release issued by Gingko Acquisition Corp. and Information Resources, Inc. on September 8, 2003.

(a)(1)(I)+++ Text of press release issued by Gingko Acquisition Corp. on October 7, 2003.

(a)(1)(J)## Text of press release issued by Gingko Acquisition Corp. on October 20, 2003.

(a)(2)(A)**** Letter to Stockholders of Information Resources, Inc. from Symphony Technology Group dated as of September 8, 2003.

(a)(4)(A)*** Registration Statement on Form S-4 of Information Resources, Inc. Litigation Contingent Payment Rights Trust dated September 8, 2003.

(a)(4)(B)++++ Amendment No. 1 to Registration Statement on Form S-4 of Information Resources, Inc. Litigation Contingent Payment Rights Trust dated October 10, 2003.

(a)(5)(A)+ Transcript of Conference Call held by Purchaser and the Company on September 8, 2003.

(a)(5)(B)++ Analysis of CVRs Based on Agreed 34% Tax Rate vs. Hypothetical Sharing of NOL with CVR Holders distributed to shareholders on September 29, 2003.

(a)(5)(C)# Letter from Symphony Technology Group, on behalf of Gingko Acquisition Corp., and Information Resources, Inc. to Non-Institutional Stockholders of Information Resources, Inc. dated October 16, 2003.

(b)(1)**** Commitment letter dated as of September 7, 2003 among Tennenbaum Capital Partners, LLC, as agent for one or more entities managed by Tennenbaum Capital Partners, LLC, Gingko Corporation and Symphony Technology II-A, L.P.

(b)(2)**** Commitment letter dated as of September 7, 2003 among Symphony Technology II-A, L.P., Gingko Corporation and Information Resources, Inc.

(d)(1)**** Agreement and Plan of Merger dated as of September 7, 2003 by and among Gingko Corporation, Gingko Acquisition Corp. and Information Resources, Inc.

(d)(2)*** Form of Contingent Value Rights Agreement by and among Information Resources, Inc. Litigation Contingent Payment Rights Trust, Information Resources, Inc., Gingko Corporation, Gingko Acquisition Corp. and the Rights Agents (as defined therein).

(d)(3)*** Certificate of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust dated as of August 27, 2003.

(d)(4)*** Declaration of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust dated as of August 27, 2003.

(d)(5)*** Form of Amended and Restated Declaration of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust to be entered into among Information Resources, Inc., as Sponsor, and the institutional trustee, Delaware trustee, and litigation trustees to be named therein.

(d)(6)* Confidentiality Agreement, dated February 19, 2003, between Symphony Technology Group and Information Resources, Inc.

(d)(7) Amendment No. 1 to the Agreement and Plan of Merger, dated as of October 19, 2003, by and among Gingko Corporation, Gingko Acquisition Corp. and Information Resources, Inc.

(d)(8) First Amended and Restated Form of Contingent Value Rights Agreement by and among Information Resources, Inc. Litigation Contingent Payment Rights Trust, Information Resources, Inc., Gingko Corporation, Gingko Acquisition Corp. and the Rights Agents (as defined therein).

(d)(9) Form of Stockholder Tender and Voting Agreement by and among Gingko Corporation, Gingko Acquisition Corp. and [Name of Stockholder].

(g) Not applicable.

(h) Not applicable.

* Incorporated by reference to Parent’s and Purchaser’s Schedule TO filed with the SEC on July 14, 2003.

** Previously filed with the SEC on Parent’s and Purchaser’s Schedule TO-C, dated September 8, 2003.

*** Incorporated by reference to the Registration Statement on Form S-4 of Information Resources, Inc. Litigation Contingent Payment Rights Trust filed with the SEC on September 8, 2003.

**** Incorporated by reference to Parent’s and Purchaser’s Schedule TO, dated September 8, 2003.

+ Incorporated by reference to Purchaser’s filing pursuant to Rule 425 under the Securities Act of 1933 filed with the SEC on September 9, 2003.

++ Incorporated by reference to Purchaser’s filing pursuant to Rule 425 under the Securities Act of 1933 filed with the SEC on September 29, 2003.

+++ Incorporated by reference to Purchaser’s filing pursuant to Rule 425 under the Securities Act of 1933 filed with the SEC on October 7, 2003.

++++ Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-4 of Information Resources, Inc. Litigation Contingent Payment Rights Trust filed with the SEC on October 10, 2003.

# Incorporated by reference to Purchaser’s filing pursuant to Rule 425 under the Securities Act of 1933 filed with the SEC on October 16, 2003.

## Incorporated by reference to Purchaser’s filing pursuant to Rule 425 under the Securities Act of 1933 filed with the SEC on October 20, 2003.

SIGNATURE

After due inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: October 20, 2003

GINGKO ACQUISITION CORP.

By: /s/ William Chisholm  

Name:
Title: William Chisholm
Executive Vice President

GINGKO CORPORATION

By: /s/ William Chisholm  

Name:
Title: William Chisholm
Executive Vice President

SYMPHONY TECHNOLOGY II-A, L.P.

By:	Symphony Technology II GP, LLC, its General Partner
By:	/s/ William Chisholm

Name:
Title: William Chisholm
Managing Member

SYMPHONY TECHNOLOGY II GP, LLC

By: /s/ William Chisholm  

Name:
Title: William Chisholm
Managing Member

ROMESH WADHWANI

/s/ Romesh Wadhwani 

Name: Romesh Wadhwani

TENNENBAUM & CO., LLC

By: /s/ Howard M. Levkowitz  

Name:
Title: Howard M. Levkowitz
Principal

INFORMATION RESOURCES, INC. LITIGATION CONTINGENT PAYMENT RIGHTS TRUST

By: Information Resources, Inc.,
its Sponsor

By: /s/  Joseph P. Durrett

Name:
Title: Joseph P. Durrett
Chairman, Chief Executive
Officer and President

EX-99.D7

Exhibit (d)(7)

AMENDMENT NO. 1

dated as of

October 19, 2003

to

AGREEMENT AND PLAN OF MERGER

dated as of

September 7, 2003

by

and among

INFORMATION RESOURCES, INC.,

GINGKO CORPORATION

and

GINGKO ACQUISITION CORP.

AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER

This AMENDMENT NO. 1 (together with the attachments hereto, this “Amendment”) dated as of October 19, 2003 to the Agreement and Plan of Merger dated as of September 7, 2003 (the “Merger Agreement”) by and among Gingko Corporation, a Delaware corporation (“Parent”), Gingko Acquisition Corp., a Delaware corporation and wholly owned Subsidiary (as hereinafter defined) of Parent (“Merger Sub”), and Information Resources, Inc., a Delaware corporation (the “Company”). Capitalized terms used, but not otherwise defined, in this Amendment shall have the meanings given to those terms in the Merger Agreement.

RECITALS

WHEREAS, the parties to the Merger Agreement desire to amend the Merger Agreement as set forth in this Amendment; and

WHEREAS, the parties hereto have duly authorized and approved this Amendment.

ACCORDINGLY, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Amendment and the Merger Agreement, as applicable, and for other good and valuable consideration (the receipt and sufficiency is hereby acknowledged and intending to be legally bound hereby), the parties hereto hereby agree as follow:

Section 1.     Interpretation of Certain Definitions in the Merger Agreement. References in the Merger Agreement to the term “this Agreement”, and the use therein of the terms “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference, shall be references to the Merger Agreement as amended by this Amendment, except in any instance in the Merger Agreement where any such reference relates to the date of the execution of the Merger Agreement in which instance that reference shall relate to the Merger Agreement as unamended hereby.

Section 2.     The Top-Up Option. Section 1.04(e) of the Merger Agreement is hereby amended by adding the following sentence to the end of that Section:

“Any CVRs or CVR Certificates issued to Parent or Parent’s permitted designee pursuant to any exercise of the Top-Up Option shall be deemed to have been cancelled, and to have no further force or effect, on and at the Effective Time.”

Section 3.        The CVR Agreement. (a) The seventh “WHEREAS” clause in the recitals to the Merger Agreement is hereby amended and restated in its entirety to read as follows:

2

“WHEREAS, the Company, Parent and Merger Sub propose to enter into a Contingent Value Rights Agreement, substantially in the form of Exhibit C hereto (as the same may be amended from time to time and together with any schedules, exhibits and annexes attached thereto, the “CVR Agreement”), with the Rights Agents (as defined therein) prior to the Acceptance Date (as defined herein) pursuant to which the Company will cause the CVR Trust (as defined herein) to issue the CVRs (as defined herein) as part of the Offer Price pursuant to the Offer or as a part of the Merger Consideration pursuant to the Merger; and”

(b)      The form of CVR Agreement that is attached as Exhibit C to the Merger Agreement is hereby deleted and replaced with the form of CVR Agreement that is attached as Exhibit 1 to this Amendment which new form shall be deemed to be the new Exhibit C to the Merger Agreement on and after the date hereof.

Section 4.     Extension of Expiration Date. The parties to this Amendment hereby agree to an extension of the Expiration Date to October 31, 2003, unless hereafter extended.

Section 5.     Interpretation. The headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning or interpretation of this Amendment. In this Amendment, unless a contrary intention appears, (a) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Amendment and the Merger Agreement as a whole and not to any particular Article, Section or other subdivision and (b) reference to any Article or Section means such Article or Section hereof. No provision of this Amendment shall be interpreted or construed against any party hereto solely because such party or its legal representative drafted such provision. Whenever the words “include,” “includes” or “including” are used in this Amendment, they shall be deemed to be followed by the words “, but not limited to,”.

Section 6.     Assignability; Governing Law. This Amendment and the Merger Agreement (including the documents and instruments referred to herein or therein) shall not be assigned by operation of law or otherwise, except that (a) Merger Sub may assign its rights and obligations under this Amendment and the Merger Agreement to any other wholly owned Subsidiary of Parent and (b) with the prior written consent of the Company (which shall not be unreasonably withheld or delayed), Parent may assign its rights and obligations under this Amendment and the Merger Agreement to any other Person that is an Affiliate of Symphony and Tennenbaum; provided that, in connection with any such assignment, Parent also assigns to the assignee Parent's rights and obligations under the Commitment Letters and the issuers of such Commitment Letters shall

3

have consented in writing to such assignment. THIS AMENDMENT AND THE MERGER AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.

Section 7.     Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

Section 8.     Amendments; Extensions. (a) This Amendment and the Merger Agreement may be amended by the parties hereto by action taken or authorized by their respective Boards of Directors at any time; provided that (i) after the Acceptance Date, (A) no amendment shall be made which decreases the Merger Consideration and (B) any such amendment will require the Independent Director Approval contemplated by Section 1.03 of the Merger Agreement and (ii) after the Company Stockholder Approval has been obtained (if required by the DGCL), there shall be made no amendment that by law requires further approval by stockholders of the Company without the further approval of such stockholders. This Amendment and the Merger Agreement may not be amended or waived except by an instrument in writing signed (in the case of an amendment) by each of the parties hereto or (in the case of a waiver) by the party(ies) against whom the waiver is to be effective.

(b) At any time prior to the Effective Time, by action taken or authorized by (i) the respective Boards of Directors of the parties hereto (which after the Acceptance Date will require, with respect to the Company, the Independent Director Approval contemplated by Section 1.03 of the Merger Agreement), the parties hereto may, to the extent legally allowed, extend the time for the performance of any of the obligations or other acts of the other parties hereto and (ii) its Board of Directors (which after the Acceptance Date will require, with respect to the Company, the Independent Director Approval contemplated by Section 1.03 of the Merger Agreement), any party(ies) hereto may waive (A) any inaccuracies in the representations and warranties of any other party(ies) contained herein, in the Merger Agreement or in any document delivered pursuant hereto or thereto or (B) compliance by any other party(ies) with any of the covenants or agreements of such other party(ies) or any conditions contained in this Amendment or the Merger Agreement (including, for the sake of clarity, Exhibit A thereto) to the performance of any of its or their obligations hereunder; provided that after the Company Stockholder Approval has been obtained (if required by the DGCL), there shall be made no waiver that by law requires further approval by stockholders of the Company without the further approval of such stockholders. Any agreement on the part of a party hereto to any such extension

4

or waiver shall be valid only if set forth in a written instrument signed on behalf of such party. The failure or delay of any party to this Amendment and the Merger Agreement to assert any of its rights under this Amendment or the Merger Agreement or otherwise shall not constitute a waiver of those rights. Additionally, no single or partial exercise of any right shall preclude any other or further exercise of that right or the exercise of any other right, power or privilege. The rights and remedies provided in this Amendment or the Merger Agreement shall be cumulative and not exclusive of any rights or remedies provided by law.

Section 9.     Entire Agreement. This Amendment, the Merger Agreement (including the exhibits and schedules thereto) and the Confidentiality Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and negotiations, both written and oral, between the parties with respect to the subject matter of this Amendment and the Merger Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein has been made or relied upon by any party hereto. Neither this Amendment nor any provision hereof is intended to confer upon any Person (other than the parties hereto) any rights or remedies hereunder.

Section 10.     Severability. If any term or other provision of this Amendment is held by a court or other Governmental Agency of competent jurisdiction to be invalid, illegal or unenforceable, all other provisions of this Amendment shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Amendment so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 11.     Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Amendment or the transactions contemplated hereby shall be brought in any federal court located in the State of Delaware or any Delaware state court, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of those courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees

5

that service of process on such party as provided in Section 8.03 of the Merger Agreement shall be deemed effective service of process on such party.

     Section 12.     WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

     Section 13.     Full Force and Effect. Except as otherwise amended or modified pursuant to this Amendment, the Merger Agreement (including the exhibits and schedules thereto) shall remain in full force and effect and is hereby ratified and confirmed.

[signature page follows]

6

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the date first written above.

INFORMATION RESOURCES, INC.

By:  /s/ Joseph P. Durrett

Name: Joseph P. Durrett

Title:   Chairman, CEO and President

GINGKO CORPORATION

By:   /s/ William Chisholm

Name: William Chisholm

Title:    Executive Vice President

GINGKO ACQUISITION CORP.

By:   /s/ William Chisholm

Name: William Chisholm

Title:    Executive Vice President

7

EXHIBIT 1

8

EX-99.D8

Exhibit (d)(8)

FORM OF
CONTINGENT VALUE RIGHTS AGREEMENT

dated as of

[__], 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	9
Section 1.5	Benefits of Agreement	9
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	10
Section 2.1	[Reserved]	10
Section 2.2	Payment Procedures	10
Section 2.3	Payments to CVR Trust	13
ARTICLE III	THE RIGHTS AGENTS	14
Section 3.1	Certain Duties and Responsibilities	14
Section 3.2	Certain Rights of Rights Agents; Actions of the Rights Agents	16
Section 3.3	Not Responsible for Recitals or Issuance of CVRs	18
Section 3.4	Compensation, Reimbursement and Indemnification of the Rights Agents	18
Section 3.5	Resignation and Removal; Appointment of Successor	18
Section 3.6	Acceptance of Appointment by Successor	19
Section 3.7	Final Resolution	20
ARTICLE IV	[Reserved]	20
ARTICLE V	COVENANTS	20
Section 5.1	Prosecution of Litigation by Parent; Settlement; Periodic Reports; Claims Expenses	20
Section 5.2	Payment of CVR Payment Amount	25
Section 5.3	Federal Income Tax Treatment	25
Section 5.4	Expenses of the CVR Trust	25
Section 5.5	Liability Insurance	26

i

Table of Contents
(continued)

Page  

Section 5.6	Third Party Beneficiaries	26
ARTICLE VI	AMENDMENTS	27
Section 6.1	Amendments	27
Section 6.2	Execution of Amendments	27
Section 6.3	Effect of Amendments	27
ARTICLE VII	CONSOLIDATION, MERGER, SALE OR CONVEYANCE; JOINT AND SEVERAL RESPONSIBILITY
Section 7.1	Parent and the Company May Consolidate, Etc.	27
Section 7.2	Successor Substituted	28
Section 7.3	Joint and Several Responsibility	28

ii

FORM OF

CONTINGENT VALUE RIGHTS AGREEMENT

     This CONTINGENT VALUE RIGHTS AGREEMENT, dated as of ______, 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"), and ___________, _____________, ____________, _____________ (individually, a "Rights Agent" and collectively, 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

2

      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.

3

     "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

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      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 ____________ and __________ 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

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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 15 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 15 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.

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     "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 ____________________ and ___________________ and their respective successors pursuant to the applicable provisions of this Agreement.

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     "Person" means any individual, corporation, partnership, joint venture, limited liability Parent, 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:

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    (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 at ________________, fax: ___________ 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, California 94304, Attention: Managing Partner, fax: ___________ 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 _______, fax: ___________ 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 at ________________, fax: ___________ 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 ________________, fax: ___________ or at any other address previously furnished in writing to the other parties hereto; 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: ___________ 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. 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.

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     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

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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

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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 ________ 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

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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.

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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:

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(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

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

     (g) ______________¹ 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

_______________
1.      Insert name of a CVR Rights Agent.

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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.

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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.

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     (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.

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     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

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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

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

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     (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) and (2) 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

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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.

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     (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

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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 Trustees (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 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.

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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;

27

     (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]

28

INFORMATION RESOURCES, INC.

By:______________________________

Name:

Title:

GINGKO ACQUISITION CORP.

By:______________________________

Name:

Title:

GINGKO CORPORATION

By:______________________________

Name:

Title:

INFORMATION RESOURCES, INC.
LITIGATION CONTINGENT PAYMENT
RIGHTS TRUST

By: Information Resources, Inc., solely in the capacity as sponsor

By:______________________________

Name:

Title:

______________________________

as CVR Rights Agent

______________________________

as CVR Rights Agent

______________________________

as Parent Rights Agent

______________________________

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.

EX-99.D9 5 oct1703_exd9.htm

Exhibit (d)(9)

FORM OF
STOCKHOLDER TENDER AND VOTING AGREEMENT

among

     [NAME OF STOCKHOLDER],

GINGKO ACQUISITION CORP.

and

GINGKO CORPORATION

Dated as of October __, 2003

TABLE OF CONTENTS
ARTICLE I
TENDER OF SHARES; VOTING; EXPIRATION
Section 1.1	Tender of Shares	1
Section 1.2	Voting	2
Section 1.3	Expiration	2
Section 1.4	Conditions to Agreements in this Article I	2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Section 2.1	Valid Title	3
Section 2.2	Authority; Non-Contravention	3
Section 2.3	Total Shares	3
Section 2.4	Finder’s Fees	3
Section 2.5	Proxy	3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Section 3.1	Corporate Power and Authority	4
ARTICLE IV
COVENANTS OF THE STOCKHOLDER AND PARENT AND PURCHASER
Section 4.1	Covenants of the Stockholder	5
Section 4.2	Further Assurances; Certain Confidentiality Obligations of Parent	5
ARTICLE V
MISCELLANEOUS
Section 5.1	Expenses	6
Section 5.2	Specific Performance	6
Section 5.3	Notices	6
Section 5.4	Amendments and Waivers	7

Section 5.5	Assignment	7
Section 5.6	GOVERNING LAW	7
Section 5.7	Counterparts	8
Section 5.8	Interpretation	8
Section 5.9	Stop Transfer Restriction	8
Section 5.10	Entire Agreement; No Third Party Beneficiaries	8
Section 5.11	Validity	8
Section 5.12	Nonsurvival of Representations and Warranties	8
Section 5.13	Jurisdiction; WAIVER OF JURY TRIAL	8

– ii –

FORM OF STOCKHOLDER TENDER AND VOTING AGREEMENT

     STOCKHOLDER TENDER AND VOTING AGREEMENT dated as of October __, 2003 (as the same may be amended from time to time, this “Agreement”) among Gingko Corporation, a Delaware corporation (“Parent”), Gingko Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Purchaser”), and [Name of Stockholder] (the “Stockholder”), a beneficial owner of Company Common Stock of Information Resources, Inc., a Delaware corporation (the “Company”).

     WHEREAS, Parent and Purchaser have entered into the Agreement and Plan of Merger dated as of September 7, 2003 with the Company (as the same is to be amended in accordance with Section 1.4, the “Merger Agreement”), pursuant to which (a) Purchaser has commenced a tender offer for all of the outstanding Company Common Stock and (b) after successful completion of that tender offer, it is expected that Purchaser will be merged with and into the Company, in each case in accordance with the terms and conditions of the Merger Agreement;

     WHEREAS, in order to induce Parent and Purchaser to agree to the amendments to the CVR Agreement that have been made on and as of the date hereof increasing the Base CVR Percentage from 60% to 68%, Parent and Purchaser have requested that the Stockholder enter into, and the Stockholder has agreed to enter into, this Agreement;

     WHEREAS, the Stockholder, Parent and Purchaser desire to make certain representations, warranties, covenants and agreements in connection with this Agreement; and

     WHEREAS, capitalized terms used, but not defined, in this Agreement shall have the respective meanings assigned to those terms in the Merger Agreement.

     NOW, THEREFORE, in consideration of the premises and of the representations, warranties, covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

ARTICLE I
TENDER OF SHARES; VOTING; EXPIRATION

     Section 1.1      Tender of Shares. Subject to Section 1.4

          (a)      promptly, but in any event no later than two business days, after the date of this Agreement, the Stockholder shall tender (or cause the relevant record holder(s) to tender) in the Offer, and not withdraw or cause to be withdrawn, all shares of Company Common Stock currently beneficially owned by the Stockholder and any of its affiliates and any additional shares of Company Common Stock with respect to which the Stockholder or

any of its Affiliates becomes the beneficial owner after the date of this Agreement (collectively, the “Subject Shares”); and

          (b)      if the Stockholder or any of its affiliates acquires any additional Subject Shares after having previously tendered its Subject Shares pursuant to the preceding sentence, then the Stockholder shall also tender (or shall cause its affiliates to tender), and not withdraw or cause to be withdrawn, those Subject Shares promptly after the acquisition of those shares and in any event before the then scheduled Expiration Date.

     Section 1.2      Voting. If the Subject Shares of the Stockholder or any of its affiliates have not been previously accepted for payment and paid for by Purchaser pursuant to the Offer or, after the consummation of the Offer, the Stockholder or any of its affiliates acquires any additional (or at that otherwise beneficially owns) any Subject Shares, then the Stockholder hereby agrees that at any meeting of the stockholders of the Company, however called, or in any written consent in lieu thereof, it shall, or shall cause the record holder(s) of the Subject Shares then owned by the Stockholder or any of its affiliates to, vote all of those Subject Shares (i) in favor of the Merger and (ii) against any actual or proposed action, agreement or transaction that would impede, interfere with, delay, postpone, discourage or adversely affect the Merger, the Offer or any other transaction contemplated by or in connection with the Merger Agreement or the CVR Agreement.

     Section 1.3      Expiration. This Agreement and the rights and obligations of the respective parties hereto under this Agreement shall terminate, and be of no further force or effect, on the earliest to occur of (a) the Effective Time, (b) the termination of this Agreement by written notice from Purchaser to the Stockholder, (c) the termination of the Merger Agreement in accordance with its terms and (d) December 15, 2003 (if the Acceptance Date has not previously occurred) or February 29, 2003 (if the Acceptance Date has previously occurred). The parties hereto further agree that this Agreement shall remain in full force and effect even if the Merger Agreement, the CVR Agreement and/or the Declaration of Trust is amended, unless any such amendment is material to the Stockholder in which event this Agreement and the rights and obligations of the Stockholder under this Agreement shall terminate, and be of no further force or effect, on and as of the date of that amendment, unless Parent and Purchaser shall have obtained the prior written consent of the Stockholder for that amendment; provided that it is understood and agreed that any reduction in the Offer Price or the Merger Consideration shall be deemed to be material to the Stockholder for purposes of this sentence. Sections 5.1, 5.3, 5.6, 5.8, 5.10, 5.11, 5.12 and 5.13 of this Agreement shall survive any termination of this Agreement pursuant to this Section 1.3.

     Section 1.4      Condition to Agreements in this Article I. The rights and obligations of the parties under this Amendment shall be subject to the satisfaction of the condition precedent that Parent, Merger Sub and the Company shall have entered into an amendment to the Merger Agreement and the CVR Agreement that provides that the Base CVR Percentage shall be equal to 68%. Once the parties shall have entered into any such

– 2 –

amendment, this Agreement, and all of the parties’ rights and obligations under this Agreement, shall have full force and effect.

ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER

     The Stockholder represents and warrants to Parent and Purchaser as follows:

     Section 2.1      Valid Title. The Stockholder and/or one or more of its affiliates is (are) the sole, true, lawful and beneficial owner of its Subject Shares with no restrictions on any rights of disposition, voting or transfer pertaining thereto.

     Section 2.2      Authority; Non-Contravention. The Stockholder has the requisite organizational power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Stockholder and the consummation by it of the transactions contemplated by this Agreement have been duly authorized by all necessary action (including any consultation, approval or other action by or with any other person). This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable against it in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and similar laws relating to creditors’ rights and to general principles of equity. The execution and delivery of this Agreement by the Stockholder does not, and the consummation of the transactions contemplated of it by this Agreement and compliance by it with the provisions of this Agreement will not, conflict with or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under, or result in the creation of any lien upon any of its properties or assets under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order, decree or other instrument binding on the Stockholder. No consent, approval, order or authorization of, or registration, declaration or filing with or exemption by any Governmental Entity is required by or with respect to it in connection with its execution and delivery of this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for applicable requirements, if any, under the Exchange Act and the rules and regulations thereunder.

     Section 2.3      Total Shares. Except to the extent of any Subject Shares acquired by the Stockholder or any of its affiliates after the date hereof (which shall become Subject Shares of the Stockholder upon that acquisition), the Stockholder and its affiliates beneficially own in the aggregate the number of shares of Company Common Stock that is set forth on the signature page hereto opposite its name, and those shares are the only shares of Company Common Stock beneficially owned by it or any such affiliates on the date of this Agreement.

     Section 2.4      Finder’s Fees. No investment banker, broker or finder is entitled to a commission or fee from Parent, Purchaser, the Company or any of their respective affiliates

– 3 –

in respect of this Agreement based upon any arrangement or agreement made by or on behalf of the Stockholder.

     Section 2.5      Proxy. None of the Subject Shares of the Stockholder are subject to any voting agreement or proxy on the date of this Agreement, except as expressly contemplated by this Agreement.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER

     Parent and Purchaser represent and warrant to the Stockholder that:

     Section 3.1      Corporate Power and Authority; Non-Contravention. Parent and Purchaser each have all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Parent and Purchaser and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of each of Parent and Purchaser. This Agreement has been duly executed and delivered by each of Parent and Purchaser and constitutes a valid and binding obligation of each of Parent and Purchaser, respectively, enforceable against each of them in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and similar laws relating to creditors’ rights and to general principles of equity. The execution and delivery of this Agreement by Parent and Purchaser and the consummation by each of them of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action (including any consultation, approval or other action by or with any other person). This Agreement has been duly executed and delivered by each of Parent and Purchaser and constitutes a valid and binding obligation of Parent and Purchaser, enforceable against each such Person in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and similar laws relating to creditors’ rights and to general principles of equity. The execution and delivery of this Agreement by Parent and Purchaser does not, and the consummation of the transactions contemplated of it by this Agreement and compliance by it with the provisions of this Agreement will not, conflict with or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under, or result in the creation of any lien upon any of its properties or assets under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order, decree or other instrument binding on either of them. No consent, approval, order or authorization of, or registration, declaration or filing with or exemption by any Governmental Entity is required by or with respect to either Parent or Purchaser in connection with their execution and delivery of this Agreement or the consummation by either of them of the transactions contemplated by this Agreement, except for applicable requirements, if any, under the Exchange Act and the rules and regulations thereunder.

– 4 –

ARTICLE IV
COVENANTS OF THE STOCKHOLDER AND PARENT AND PURCHASER

     Section 4.1      Covenants of the Stockholder.

         (a)      Except as expressly contemplated by the terms of this Agreement, the Stockholder shall not:

(i)	sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, assignment or other disposition of, any Subject Shares (or any interest therein) of the Stockholder or any of its affiliates to any person, other than Purchaser or Purchaser’s designee. Any attempted transfer or other disposition in violation of this Section 4.1(a)(i) shall be null and void;
(ii)	enter into, or otherwise subject any Subject Shares of the Stockholder or any of its affiliates to, any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney or otherwise, with respect to any Subject Shares; or
(iii)	take any other action that would in any way restrict, limit or interfere with the performance of its obligations hereunder or the transactions contemplated to be performed by it hereunder.

          (b)      The Stockholder hereby irrevocably and unconditionally waives, and agrees to prevent the exercise of, any rights of appraisal or rights to dissent in connection with the Merger that he may have with respect to any Subject Shares of the Stockholder or any of its affiliates.

     Section 4.2      Further Assurances; Certain Confidentiality Obligations of Parent. The Stockholder will take all further actions that Parent or Purchaser may from time to time reasonably request for the purpose of giving effect to the transactions contemplated by this Agreement. Parent and Purchaser acknowledge that the identity of the Stockholder is confidential information. [Accordingly, Parent and Purchaser shall keep that confidential information in confidence and not disclose it to any third party without the prior written consent of the Stockholder, except that Parent and Purchaser may: (i) disclose the information to its officers, directors, attorneys, accountants or financial advisors who need to know it for the purpose of completing the Merger Agreement and who agree to keep it confidential; (ii) make any disclosures that may be required under the Securities Act of 1933, the Securities Exchange Act of 1934, the rules or regulations promulgated under either such Act or otherwise by the Securities and Exchange Commission; and (iii) note in press releases and public statements that certain stockholders, in addition to Abrams Capital LLC, have agreed to tender their shares of Company Common Stock, so long as no such press release or public statement identifies the Stockholder by name as being one of such stockholders. If Parent or Purchaser is required to make a disclosure under (ii) above,

– 5 –

Parent and Purchaser will notify Stockholder in advance of such disclosure.] [This restriction only appears in one of the agreements.]

ARTICLE V
MISCELLANEOUS

     Section 5.1      Expenses. All costs and expenses incurred by any party in connection with this Agreement shall be paid by the party incurring that cost or expense.

     Section 5.2      Specific Performance. The parties hereto agree that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that the parties will be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

     Section 5.3      Notices. All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which is confirmed) or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other address for a party as is specified by like notice):

(a)	if to Purchaser or Parent to:
		Gingko Acquisition Corp. c/o Symphony Technology Group. 4015 Miranda Avenue 2nd Floor Palo Alto, California 94304 Attention: Managing Partner Facsimile: (650) 935-9501
		with copies to:
		Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: John D. Amorosi Facsimile: (212) 450 3010

– 6 –

(b)  if to the Stockholder, to it at the address or facsimile number found under the Stockholder’s name on the signature pages hereof, with copies to:

or to any other address or facsimile number as that party may hereafter specify for this purpose by notice to the other parties. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received before 5 p.m. on a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt.

     Section 5.4      Amendments and Waivers. This Agreement (or any right, remedy or obligation hereunder) may not be modified, amended, altered or supplemented or waived, except (a) in the case of a modification, amendment, alteration or supplement, upon the execution and delivery of a written agreement executed by each of the parties hereto or (b) in the case of a waiver, by delivery of a written instrument executed by the party(ies) against which the waiver is to be effective.

     Section 5.5      Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of each of the other parties and any such purported assignment without such prior written consent shall be null and void; provided, however, that Purchaser and Parent may assign this Agreement and any of their respective rights, interests and obligations hereunder to any of their respective direct or indirect Subsidiaries without such prior written consent, but no such assignment shall relieve either such party of its obligations under this Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns. The Stockholder agrees that this Agreement and its obligations hereunder shall attach to the Subject Shares of the Stockholder and its affiliates and shall be binding upon any person or entity to which legal or beneficial ownership of those Subject Shares shall pass, whether by operation of law or otherwise, including, but not limited to, the Stockholder’s heirs, guardians, administrators, successors or investors.

     Section 5.6      GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE, EXECUTED, DELIVERED AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ANY APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.

– 7 –

     Section 5.7      Counterparts. This Agreement may be executed in two or more counterparts, all of which will be considered one and the same agreement and will become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.

     Section 5.8      Interpretation. When a reference is made in this Agreement to a Section, such reference will be to a Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement they will be deemed to be followed by the words “but not limited to”. As used in this Agreement, the term “affiliate” shall have the meaning set forth in Rule 12b-2 of the Exchange Act.

     Section 5.9      Stop Transfer Restriction. In furtherance of this Agreement, the Stockholder shall and hereby does authorize Purchaser’s counsel to notify the Company’s transfer agent that there is a stop transfer restriction with respect to all of the Subject Shares of the Stockholder and its affiliates (and that this Agreement places limits on the voting and transfer of those shares).

     Section 5.10      Entire Agreement; No Third Party Beneficiaries. This Agreement (i) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and (ii) is not intended to confer upon any person, other than the parties hereto, any rights or remedies hereunder.

     Section 5.11      Validity. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provisions hereof, which will remain in full force and effect. Upon any determination that any term or other provision is invalid or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in order that the transactions contemplated by this Agreement may be consummated as originally contemplated to the fullest extent possible under applicable law.

     Section 5.12      Nonsurvival of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement will survive the Effective Time or any termination of this Agreement. This Section 5.13 shall not limit any covenant or agreement of a party that by its terms expressly contemplates performance after the Effective Time.

     Section 5.13      Jurisdiction; WAIVER OF JURY TRIAL. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the United States District Court for the Southern District of New York or any New York State court sitting in New York City, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any

– 8 –

cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of New York, and each of the parties hereby irrevocably consents to the jurisdiction of those courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on that party as provided in Section 5.3 shall be deemed effective service of process on such party. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

[Remainder of page intentionally left blank.]

– 9 –

     IN WITNESS WHEREOF, Parent, Purchaser and the Stockholder have caused this Agreement to be signed, in the case of Parent and Purchaser, by their respective officers thereunto duly authorized, as of the date first written above.

	GINGKO CORPORATION
	By:__________________________ Name: Title:
	GINGKO ACQUISITION CORP.
	By:__________________________ Name: Title:
Number of Shares Owned	[NAME OF STOCKHOLDER]
	By:__________________________ Name: Title: Address: Facsimile No.

– 10 –

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

EX-99.D9

Exhibit (d)(9)

FORM OF
STOCKHOLDER TENDER AND VOTING AGREEMENT

among

     [NAME OF STOCKHOLDER],

GINGKO ACQUISITION CORP.

and

GINGKO CORPORATION

Dated as of October __, 2003

TABLE OF CONTENTS
ARTICLE I
TENDER OF SHARES; VOTING; EXPIRATION
Section 1.1	Tender of Shares	1
Section 1.2	Voting	2
Section 1.3	Expiration	2
Section 1.4	Conditions to Agreements in this Article I	2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Section 2.1	Valid Title	3
Section 2.2	Authority; Non-Contravention	3
Section 2.3	Total Shares	3
Section 2.4	Finder’s Fees	3
Section 2.5	Proxy	3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Section 3.1	Corporate Power and Authority	4
ARTICLE IV
COVENANTS OF THE STOCKHOLDER AND PARENT AND PURCHASER
Section 4.1	Covenants of the Stockholder	5
Section 4.2	Further Assurances; Certain Confidentiality Obligations of Parent	5
ARTICLE V
MISCELLANEOUS
Section 5.1	Expenses	6
Section 5.2	Specific Performance	6
Section 5.3	Notices	6
Section 5.4	Amendments and Waivers	7

Section 5.5	Assignment	7
Section 5.6	GOVERNING LAW	7
Section 5.7	Counterparts	8
Section 5.8	Interpretation	8
Section 5.9	Stop Transfer Restriction	8
Section 5.10	Entire Agreement; No Third Party Beneficiaries	8
Section 5.11	Validity	8
Section 5.12	Nonsurvival of Representations and Warranties	8
Section 5.13	Jurisdiction; WAIVER OF JURY TRIAL	8

– ii –

FORM OF STOCKHOLDER TENDER AND VOTING AGREEMENT

     STOCKHOLDER TENDER AND VOTING AGREEMENT dated as of October __, 2003 (as the same may be amended from time to time, this “Agreement”) among Gingko Corporation, a Delaware corporation (“Parent”), Gingko Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Purchaser”), and [Name of Stockholder] (the “Stockholder”), a beneficial owner of Company Common Stock of Information Resources, Inc., a Delaware corporation (the “Company”).

     WHEREAS, Parent and Purchaser have entered into the Agreement and Plan of Merger dated as of September 7, 2003 with the Company (as the same is to be amended in accordance with Section 1.4, the “Merger Agreement”), pursuant to which (a) Purchaser has commenced a tender offer for all of the outstanding Company Common Stock and (b) after successful completion of that tender offer, it is expected that Purchaser will be merged with and into the Company, in each case in accordance with the terms and conditions of the Merger Agreement;

     WHEREAS, in order to induce Parent and Purchaser to agree to the amendments to the CVR Agreement that have been made on and as of the date hereof increasing the Base CVR Percentage from 60% to 68%, Parent and Purchaser have requested that the Stockholder enter into, and the Stockholder has agreed to enter into, this Agreement;

     WHEREAS, the Stockholder, Parent and Purchaser desire to make certain representations, warranties, covenants and agreements in connection with this Agreement; and

     WHEREAS, capitalized terms used, but not defined, in this Agreement shall have the respective meanings assigned to those terms in the Merger Agreement.

     NOW, THEREFORE, in consideration of the premises and of the representations, warranties, covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

ARTICLE I
TENDER OF SHARES; VOTING; EXPIRATION

     Section 1.1      Tender of Shares. Subject to Section 1.4

          (a)      promptly, but in any event no later than two business days, after the date of this Agreement, the Stockholder shall tender (or cause the relevant record holder(s) to tender) in the Offer, and not withdraw or cause to be withdrawn, all shares of Company Common Stock currently beneficially owned by the Stockholder and any of its affiliates and any additional shares of Company Common Stock with respect to which the Stockholder or

any of its Affiliates becomes the beneficial owner after the date of this Agreement (collectively, the “Subject Shares”); and

          (b)      if the Stockholder or any of its affiliates acquires any additional Subject Shares after having previously tendered its Subject Shares pursuant to the preceding sentence, then the Stockholder shall also tender (or shall cause its affiliates to tender), and not withdraw or cause to be withdrawn, those Subject Shares promptly after the acquisition of those shares and in any event before the then scheduled Expiration Date.

     Section 1.2      Voting. If the Subject Shares of the Stockholder or any of its affiliates have not been previously accepted for payment and paid for by Purchaser pursuant to the Offer or, after the consummation of the Offer, the Stockholder or any of its affiliates acquires any additional (or at that otherwise beneficially owns) any Subject Shares, then the Stockholder hereby agrees that at any meeting of the stockholders of the Company, however called, or in any written consent in lieu thereof, it shall, or shall cause the record holder(s) of the Subject Shares then owned by the Stockholder or any of its affiliates to, vote all of those Subject Shares (i) in favor of the Merger and (ii) against any actual or proposed action, agreement or transaction that would impede, interfere with, delay, postpone, discourage or adversely affect the Merger, the Offer or any other transaction contemplated by or in connection with the Merger Agreement or the CVR Agreement.

     Section 1.3      Expiration. This Agreement and the rights and obligations of the respective parties hereto under this Agreement shall terminate, and be of no further force or effect, on the earliest to occur of (a) the Effective Time, (b) the termination of this Agreement by written notice from Purchaser to the Stockholder, (c) the termination of the Merger Agreement in accordance with its terms and (d) December 15, 2003 (if the Acceptance Date has not previously occurred) or February 29, 2003 (if the Acceptance Date has previously occurred). The parties hereto further agree that this Agreement shall remain in full force and effect even if the Merger Agreement, the CVR Agreement and/or the Declaration of Trust is amended, unless any such amendment is material to the Stockholder in which event this Agreement and the rights and obligations of the Stockholder under this Agreement shall terminate, and be of no further force or effect, on and as of the date of that amendment, unless Parent and Purchaser shall have obtained the prior written consent of the Stockholder for that amendment; provided that it is understood and agreed that any reduction in the Offer Price or the Merger Consideration shall be deemed to be material to the Stockholder for purposes of this sentence. Sections 5.1, 5.3, 5.6, 5.8, 5.10, 5.11, 5.12 and 5.13 of this Agreement shall survive any termination of this Agreement pursuant to this Section 1.3.

     Section 1.4      Condition to Agreements in this Article I. The rights and obligations of the parties under this Amendment shall be subject to the satisfaction of the condition precedent that Parent, Merger Sub and the Company shall have entered into an amendment to the Merger Agreement and the CVR Agreement that provides that the Base CVR Percentage shall be equal to 68%. Once the parties shall have entered into any such

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amendment, this Agreement, and all of the parties’ rights and obligations under this Agreement, shall have full force and effect.

ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER

     The Stockholder represents and warrants to Parent and Purchaser as follows:

     Section 2.1      Valid Title. The Stockholder and/or one or more of its affiliates is (are) the sole, true, lawful and beneficial owner of its Subject Shares with no restrictions on any rights of disposition, voting or transfer pertaining thereto.

     Section 2.2      Authority; Non-Contravention. The Stockholder has the requisite organizational power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Stockholder and the consummation by it of the transactions contemplated by this Agreement have been duly authorized by all necessary action (including any consultation, approval or other action by or with any other person). This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable against it in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and similar laws relating to creditors’ rights and to general principles of equity. The execution and delivery of this Agreement by the Stockholder does not, and the consummation of the transactions contemplated of it by this Agreement and compliance by it with the provisions of this Agreement will not, conflict with or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under, or result in the creation of any lien upon any of its properties or assets under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order, decree or other instrument binding on the Stockholder. No consent, approval, order or authorization of, or registration, declaration or filing with or exemption by any Governmental Entity is required by or with respect to it in connection with its execution and delivery of this Agreement or the consummation by it of the transactions contemplated by this Agreement, except for applicable requirements, if any, under the Exchange Act and the rules and regulations thereunder.

     Section 2.3      Total Shares. Except to the extent of any Subject Shares acquired by the Stockholder or any of its affiliates after the date hereof (which shall become Subject Shares of the Stockholder upon that acquisition), the Stockholder and its affiliates beneficially own in the aggregate the number of shares of Company Common Stock that is set forth on the signature page hereto opposite its name, and those shares are the only shares of Company Common Stock beneficially owned by it or any such affiliates on the date of this Agreement.

     Section 2.4      Finder’s Fees. No investment banker, broker or finder is entitled to a commission or fee from Parent, Purchaser, the Company or any of their respective affiliates

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in respect of this Agreement based upon any arrangement or agreement made by or on behalf of the Stockholder.

     Section 2.5      Proxy. None of the Subject Shares of the Stockholder are subject to any voting agreement or proxy on the date of this Agreement, except as expressly contemplated by this Agreement.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER

     Parent and Purchaser represent and warrant to the Stockholder that:

     Section 3.1      Corporate Power and Authority; Non-Contravention. Parent and Purchaser each have all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Parent and Purchaser and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of each of Parent and Purchaser. This Agreement has been duly executed and delivered by each of Parent and Purchaser and constitutes a valid and binding obligation of each of Parent and Purchaser, respectively, enforceable against each of them in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and similar laws relating to creditors’ rights and to general principles of equity. The execution and delivery of this Agreement by Parent and Purchaser and the consummation by each of them of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action (including any consultation, approval or other action by or with any other person). This Agreement has been duly executed and delivered by each of Parent and Purchaser and constitutes a valid and binding obligation of Parent and Purchaser, enforceable against each such Person in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and similar laws relating to creditors’ rights and to general principles of equity. The execution and delivery of this Agreement by Parent and Purchaser does not, and the consummation of the transactions contemplated of it by this Agreement and compliance by it with the provisions of this Agreement will not, conflict with or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under, or result in the creation of any lien upon any of its properties or assets under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order, decree or other instrument binding on either of them. No consent, approval, order or authorization of, or registration, declaration or filing with or exemption by any Governmental Entity is required by or with respect to either Parent or Purchaser in connection with their execution and delivery of this Agreement or the consummation by either of them of the transactions contemplated by this Agreement, except for applicable requirements, if any, under the Exchange Act and the rules and regulations thereunder.

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ARTICLE IV
COVENANTS OF THE STOCKHOLDER AND PARENT AND PURCHASER

     Section 4.1      Covenants of the Stockholder.

         (a)      Except as expressly contemplated by the terms of this Agreement, the Stockholder shall not:

(i)	sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, assignment or other disposition of, any Subject Shares (or any interest therein) of the Stockholder or any of its affiliates to any person, other than Purchaser or Purchaser’s designee. Any attempted transfer or other disposition in violation of this Section 4.1(a)(i) shall be null and void;
(ii)	enter into, or otherwise subject any Subject Shares of the Stockholder or any of its affiliates to, any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney or otherwise, with respect to any Subject Shares; or
(iii)	take any other action that would in any way restrict, limit or interfere with the performance of its obligations hereunder or the transactions contemplated to be performed by it hereunder.

          (b)      The Stockholder hereby irrevocably and unconditionally waives, and agrees to prevent the exercise of, any rights of appraisal or rights to dissent in connection with the Merger that he may have with respect to any Subject Shares of the Stockholder or any of its affiliates.

     Section 4.2      Further Assurances; Certain Confidentiality Obligations of Parent. The Stockholder will take all further actions that Parent or Purchaser may from time to time reasonably request for the purpose of giving effect to the transactions contemplated by this Agreement. Parent and Purchaser acknowledge that the identity of the Stockholder is confidential information. [Accordingly, Parent and Purchaser shall keep that confidential information in confidence and not disclose it to any third party without the prior written consent of the Stockholder, except that Parent and Purchaser may: (i) disclose the information to its officers, directors, attorneys, accountants or financial advisors who need to know it for the purpose of completing the Merger Agreement and who agree to keep it confidential; (ii) make any disclosures that may be required under the Securities Act of 1933, the Securities Exchange Act of 1934, the rules or regulations promulgated under either such Act or otherwise by the Securities and Exchange Commission; and (iii) note in press releases and public statements that certain stockholders, in addition to Abrams Capital LLC, have agreed to tender their shares of Company Common Stock, so long as no such press release or public statement identifies the Stockholder by name as being one of such stockholders. If Parent or Purchaser is required to make a disclosure under (ii) above,

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Parent and Purchaser will notify Stockholder in advance of such disclosure.] [This restriction only appears in one of the agreements.]

ARTICLE V
MISCELLANEOUS

     Section 5.1      Expenses. All costs and expenses incurred by any party in connection with this Agreement shall be paid by the party incurring that cost or expense.

     Section 5.2      Specific Performance. The parties hereto agree that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that the parties will be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

     Section 5.3      Notices. All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which is confirmed) or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other address for a party as is specified by like notice):

(a)	if to Purchaser or Parent to:
		Gingko Acquisition Corp. c/o Symphony Technology Group. 4015 Miranda Avenue 2nd Floor Palo Alto, California 94304 Attention: Managing Partner Facsimile: (650) 935-9501
		with copies to:
		Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Attention: John D. Amorosi Facsimile: (212) 450 3010

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(b)  if to the Stockholder, to it at the address or facsimile number found under the Stockholder’s name on the signature pages hereof, with copies to:

or to any other address or facsimile number as that party may hereafter specify for this purpose by notice to the other parties. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received before 5 p.m. on a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt.

     Section 5.4      Amendments and Waivers. This Agreement (or any right, remedy or obligation hereunder) may not be modified, amended, altered or supplemented or waived, except (a) in the case of a modification, amendment, alteration or supplement, upon the execution and delivery of a written agreement executed by each of the parties hereto or (b) in the case of a waiver, by delivery of a written instrument executed by the party(ies) against which the waiver is to be effective.

     Section 5.5      Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of each of the other parties and any such purported assignment without such prior written consent shall be null and void; provided, however, that Purchaser and Parent may assign this Agreement and any of their respective rights, interests and obligations hereunder to any of their respective direct or indirect Subsidiaries without such prior written consent, but no such assignment shall relieve either such party of its obligations under this Agreement. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns. The Stockholder agrees that this Agreement and its obligations hereunder shall attach to the Subject Shares of the Stockholder and its affiliates and shall be binding upon any person or entity to which legal or beneficial ownership of those Subject Shares shall pass, whether by operation of law or otherwise, including, but not limited to, the Stockholder’s heirs, guardians, administrators, successors or investors.

     Section 5.6      GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE, EXECUTED, DELIVERED AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ANY APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.

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     Section 5.7      Counterparts. This Agreement may be executed in two or more counterparts, all of which will be considered one and the same agreement and will become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.

     Section 5.8      Interpretation. When a reference is made in this Agreement to a Section, such reference will be to a Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement they will be deemed to be followed by the words “but not limited to”. As used in this Agreement, the term “affiliate” shall have the meaning set forth in Rule 12b-2 of the Exchange Act.

     Section 5.9      Stop Transfer Restriction. In furtherance of this Agreement, the Stockholder shall and hereby does authorize Purchaser’s counsel to notify the Company’s transfer agent that there is a stop transfer restriction with respect to all of the Subject Shares of the Stockholder and its affiliates (and that this Agreement places limits on the voting and transfer of those shares).

     Section 5.10      Entire Agreement; No Third Party Beneficiaries. This Agreement (i) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and (ii) is not intended to confer upon any person, other than the parties hereto, any rights or remedies hereunder.

     Section 5.11      Validity. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provisions hereof, which will remain in full force and effect. Upon any determination that any term or other provision is invalid or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in order that the transactions contemplated by this Agreement may be consummated as originally contemplated to the fullest extent possible under applicable law.

     Section 5.12      Nonsurvival of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement will survive the Effective Time or any termination of this Agreement. This Section 5.13 shall not limit any covenant or agreement of a party that by its terms expressly contemplates performance after the Effective Time.

     Section 5.13      Jurisdiction; WAIVER OF JURY TRIAL. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the United States District Court for the Southern District of New York or any New York State court sitting in New York City, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any

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cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of New York, and each of the parties hereby irrevocably consents to the jurisdiction of those courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on that party as provided in Section 5.3 shall be deemed effective service of process on such party. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

[Remainder of page intentionally left blank.]

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     IN WITNESS WHEREOF, Parent, Purchaser and the Stockholder have caused this Agreement to be signed, in the case of Parent and Purchaser, by their respective officers thereunto duly authorized, as of the date first written above.

	GINGKO CORPORATION
	By:__________________________ Name: Title:
	GINGKO ACQUISITION CORP.
	By:__________________________ Name: Title:
Number of Shares Owned	[NAME OF STOCKHOLDER]
	By:__________________________ Name: Title: Address: Facsimile No.

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