-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NNOS2xt9eqY2xtnByjaojdYOHNT7f2ZQxRx360k1tFfeD1gILV7eZMeEjyq/21Jf xboKN5PEm2kg1I7ZvNocpA== 0001047469-03-030277.txt : 20030910 0001047469-03-030277.hdr.sgml : 20030910 20030910133806 ACCESSION NUMBER: 0001047469-03-030277 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20030908 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits ITEM INFORMATION: Regulation FD Disclosure FILED AS OF DATE: 20030910 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INFORMATION RESOURCES INC CENTRAL INDEX KEY: 0000714278 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ENGINEERING, ACCOUNTING, RESEARCH, MANAGEMENT [8700] IRS NUMBER: 521287752 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-11428 FILM NUMBER: 03889632 BUSINESS ADDRESS: STREET 1: 150 N CLINTON ST CITY: CHICAGO STATE: IL ZIP: 60661-1416 BUSINESS PHONE: 3127261221 MAIL ADDRESS: STREET 1: 150 N CLINTON ST CITY: CHICAGO STATE: IL ZIP: 60661-1416 8-K 1 a2118430z8-k.txt 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): SEPTEMBER 8, 2003 INFORMATION RESOURCES, INC. (Exact name of Registrant as specified in its charter) DELAWARE (State or other jurisdiction of incorporation) 0-11428 36-2947987 (Commission File Number) (IRS Employer Identification Number) 150 NORTH CLINTON STREET, CHICAGO, ILLINOIS 60661-1416 (Address of principal executive offices) (Zip Code) (312) 726-1221 (Registrant's telephone number, including area code) N/A (Former name or former address, if changed since last report) ITEM 5. OTHER EVENTS On September 8, 2003, Information Resources, Inc. (the "Company"), announced that it entered into an Agreement and Plan of Merger, dated as of September 7, 2003 (the "Merger Agreement"), with Gingko Corporation, a Delaware corporation ("Parent"), and Gingko Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent ("Merger Sub"). The Merger Agreement provides for the commencement by Parent and Merger Sub of a tender offer (the "Offer") to purchase all of the outstanding shares of common stock, par value $0.01 per share, of the Company, together with the associated Preferred Share Purchase Rights (the "Common Stock") at a purchase price per share of Common Stock of one registered and transferable Contingent Value Right Certificate ("CVR Certificate") and $3.30 per share (the CVR Certificate and such price per share or any greater amount paid per share of Common Stock pursuant to the Offer (the "Offer Price")), net to the seller in cash, without interest, on the terms and subject to the satisfaction of the conditions set forth in the Merger Agreement. Following the purchase of Common Stock pursuant to the Offer and on the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will be merged (the "Merger") with and into the Company with the Company surviving the Merger. Pursuant to the Merger Agreement, at the effective time of the Merger, each outstanding share of Common Stock, other than shares as to which dissenters' rights have been duly asserted and perfected under Delaware law and shares held by the Company, Parent, Merger Sub or any other subsidiary of Parent, will be converted into the right to receive one CVR Certificate and $3.30 per share in cash, without interest (the "Merger Consideration"). The Merger Agreement contemplates that the Company will cause the formation of a Delaware statutory trust (the "Trust") and will enter into a Contingent Value Rights Agreement (the "CVR Agreement") with the Trust, Parent, Merger Sub and the Rights Agents (as defined in the CVR Agreement). The Trust will issue the CVR Certificates as part of the Offer Price pursuant to the Offer and as a part of the Merger Consideration pursuant to the Merger. The CVR Certificates represent an undivided beneficial interest in the assets of the Trust which consists primarily of the contingent right under the CVR Agreement to receive an amount of cash equal to the CVR Payment Amount (as defined in the CVR Agreement). The terms of the Merger Agreement require the parties to the CVR Agreement (and the Rights Agents to be appointed thereunder) to execute that agreement immediately prior to the issuance of the first CVR Certificate by the Trust as part of the Offer Price upon consummation of the Offer. The Merger Agreement and the CVR Agreement also contain a number of representations, warranties, covenants and agreements by the parties including the agreement of Parent, Merger Sub and the Company to terminate the Agreement and Plan of Merger dated as of June 29, 2003 by and among Parent, Merger Sub and the Company. The Offer and the Merger are subject to a number of conditions, and the Merger Agreement and the CVR Agreement may be terminated under certain circumstances, all as set forth in such agreements. The Company has also entered into an Amendment No. 2 (the "Rights Amendment") dated as of September 7, 2003 with Harris Trust and Savings Bank, as Rights Agent. The Rights Amendment amends the Company's Rights Agreement, as amended and restated on October 27, 1997, and as further amended June 29, 2003, between the Company and Harris Trust and Savings Bank, as Rights Agent, and provides that the provisions of the Rights Agreement will not be triggered by, 2 among other things, the execution and delivery of the Merger Agreement, the CVR Agreement, the Offer, the Merger or the issuance of the CVR Certificates or the consummation of the Merger. The Company's September 8, 2003 press release, the Merger Agreement and the form of the CVR Agreement are filed herewith and are incorporated herein. The description of the Merger Agreement and the CVR Agreement set forth above does not purport to be complete and is qualified in its entirety by reference to the provisions of such agreements. The description of the Rights Amendment set forth above does not purport to be complete and is qualified in its entirety by reference to the provisions of the Rights Amendment which will be filed by the Company with the Securities and Exchange Commission on a Registration Statement on Form 8-A/A. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (a) Not applicable. (b) Not applicable (c) The following exhibits are filed as part of this report. Exhibit 99.1 Text of press release issued by Gingko Acquisition Corp. and Information Resources, Inc., dated September 8, 2003, announcing the execution of the Agreement and Plan of Merger, dated as of September 7, 2003, by and among Information Resources, Inc., Gingko Corporation and Gingko Acquisition Corp. Exhibit 99.2 Agreement and Plan of Merger, dated as of September 7, 2003, by and among Information Resources, Inc., Gingko Corporation and Gingko Acquisition Corp. Exhibit 99.3 Form of Contingent Value Rights Agreement by and among Information Resources, Inc., Gingko Corporation, Gingko Acquisition Corp. and the Rights Agents (as defined therein). Exhibit 99.4 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. ITEM 9. REGULATION FD DISCLOSURE. On September 8, 2003, the Company and Merger Sub issued a joint press release announcing that the Company, Parent and Merger Sub have signed an Agreement and Plan of Merger, dated as of September 7, 2003. The Company is furnishing the press release herewith as Exhibit 99.1. 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized. INFORMATION RESOURCES, INC. (Registrant) Date: September 8, 2003 By: /s/ Joseph P. Durrett --------------------------------------- Name: Joseph P. Durrett Title: Chairman, Chief Executive Officer and President 4 EXHIBIT INDEX

5 EX-99.1 3 a2118430zex-99_1.htm EX-99.1
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The following is a joint press release issued on September 8, 2003 by Gingko Acquisition Corp., a wholly-owned subsidiary of Gingko Corporation, and Information Resources, Inc. announcing a new Agreement and Plan of Merger dated as of September 7, 2003 by and among Information Resources, Inc., Gingko Corporation, and Gingko Acquisition Corp. and the commencement of a new tender offer by Gingko Acquisition Corp.

GINGKO COMMENCES NEW TENDER OFFER TO ACQUIRE
INFORMATION RESOURCES

New Merger Agreement Provides IRI Shareholders With Enhanced Value

CVRs Will Now Be Registered and Tradable

IRI Shareholders to Receive 75% of Lawsuit Proceeds Above $200 Million And 60% Below $200 Million

PALO ALTO, Calif. and CHICAGO, Ill.—September 8, 2003—Gingko Acquisition Corp. (Gingko) and Information Resources, Inc. (IRI) (Nasdaq: IRIC) announced today that Gingko has commenced a new tender offer for all the outstanding shares of IRI for $3.30 in cash for each IRI share plus a registered and tradable Contingent Value Right (CVR), pursuant to a new definitive merger agreement. The transaction is fully financed and the tender offer has no financing conditions. This new offer was unanimously approved by IRI's Board of Directors. Gingko and IRI have also terminated their previous merger agreement, and Gingko has terminated its prior tender offer.

Terms of the New Tender Offer and Merger Agreement

In documents filed today with the U.S. Securities and Exchange Commission (SEC), Gingko has commenced a tender offer for all outstanding shares of IRI common stock. The tender offer will expire at midnight, New York City time, on Friday, October 10, 2003, unless extended.

Under terms of the new tender offer and merger agreement, IRI shareholders will receive $3.30 in cash for each IRI share plus a registered and tradable CVR entitling them to share in the proceeds, if any, from the antitrust suit pending against ACNielsen (now owned by VNU NV), The Dun & Bradstreet Corp., and IMS International, Inc. Terms of the new tender offer and merger agreement include the following:

•: CVRs To Be Registered and Tradable. Upon completion of the transaction, the registered CVRs will be freely tradable by all unaffiliated holders and are expected to be listed on the NASDAQ National Market System trading under the ticker symbol "IRICVR";
•: IRI Shareholders Entitled to Increased Percentage of Lawsuit Proceeds Above $200 Million. Under the new agreement, subject to adjustments for taxes, contingencies and certain other items, the CVRs will entitle tendering IRI shareholders to 60% of any potential ACNielsen antitrust lawsuit proceeds up to $200 million, and 75% of proceeds above $200 million; and
•: Reduced Minimum Tender Condition. Gingko has reduced the condition to its obligation to consummate its new offer regarding the number of shares required to be validly tendered and not withdrawn before the expiration date to 16,000,000 (or approximately 53%) of the outstanding shares of IRI common stock.

Romesh Wadhwani, Managing Partner of Symphony Technology Group, which formed Gingko for purposes of making the tender offer, said "Over the past few weeks, we listened to IRI shareholders and found that the issue of registered and freely tradable CVRs was very important, particularly to

institutional holders. In addition, many IRI shareholders saw significant upside potential value in the lawsuit. With that feedback, we agreed to register the CVRs and make them freely tradable and give IRI shareholders greater participation in any potential lawsuit proceeds above $200 million. The cash portion alone of our offer represents a significant premium to the value of IRI's business on a stand-alone basis. Further, it allows IRI shareholders to protect the recent gains in the stock price tied to the ACNielsen lawsuit, while also giving CVR holders substantial participation in any favorable outcome of the litigation. To be clear, however, we are a disciplined buyer and firmly believe that this a fair offer for IRI shareholders."

Joe Durrett, Chairman and CEO of IRI, said "We are very pleased that Gingko has agreed to improve its offer to our shareholders. We believe that given the facts and favorable developments for IRI associated with the lawsuit against ACNielsen, these concessions could create significant upside for our shareholders. In light of the challenges facing our industry and our company, we firmly believe that this transaction is in the best interest of our shareholders and is preferable to operating our company on a stand-alone basis and all other options that the IRI Board considered."

Reasons For The IRI Board Recommendation

IRI's Board of Directors reached its unanimous decision that the Gingko offer is in the best interest of IRI shareholders for a number of reasons, including the following:

•

The IRI Board of Directors evaluated a wide range of strategic alternatives in a publicly announced process. In January 2003, IRI's Board of Directors retained William Blair & Co., L.L.C., as its financial advisor, to assist IRI in exploring means by which the company could maximize shareholder value. The extensive review of strategic alternatives included remaining independent and engaging in further restructuring activities, seeking additional funds in the capital markets or through private investment, joint ventures, partnerships, selling some of the assets or businesses of the company, or selling the entire enterprise. Additionally, the company's financial advisor contacted, or was contacted by, 85 parties, including 40 strategic parties, 42 financial parties and three former industry executives.

•

IRI has not received an offer superior to Gingko's. IRI's Board of Directors had the customary fiduciary duties and flexibilities in accepting any offer superior to Gingko's. None have been received.

•

IRI faces a number of challenges on a stand-alone basis. IRI's U.S. Retail Tracking business has been declining since the end of 2001 at an annual rate of 3% to 5%. Additionally, beginning this fiscal quarter, IRI will no longer have the benefit of being the principal U.S. data supplier to Procter & Gamble (P&G), a business that IRI has publicly stated accounted for somewhat less than 10% of its overall revenue.

IRI's U.S. Retail Tracking business comprises about 75% of the company's total U.S. revenue. Industry factors, including the consolidation of customer bases as well as the growing number of retailers that do not share data, such as Wal-Mart and specialty channels, have had an unfavorable effect on the company's performance. This has been exacerbated by antitrust violations committed by ACNielsen (as alleged by IRI's lawsuit), which have undermined IRI's ability to compete in the market.

These factors and the company's evolving business mix also have adversely affected the overall profitability of the business. While the U.S. Retail Tracking business, with about $300 million in revenue, has been declining 3% to 5% annually in recent periods, the company's Analytics, Panel and Testing businesses have been growing at 7% to 10% in recent periods. Although this growth in Analytics, Panel and Testing makes up for some (but not all) of the lost revenue from the shrinking Retail Tracking business, the negative impact of this business shift on profitability

is more significant. Because the Analytics, Panel and Testing businesses earn a lower incremental margin than the Retail Tracking business, every dollar of revenue in the Retail Tracking business that is replaced by a dollar of revenue in the Analytics, Panel and Testing businesses results in lost profit to IRI. While IRI decreased overall costs to offset this reduced operating margin by lowering U.S. headcount by more than 25% over the past four years, the company's ability on a stand-alone basis to further reduce its expense structure, while still providing meaningful shareholder returns, is limited.

•: IRI will need to continue to make significant capital expenditures to satisfy clients and remain competitive. Over the last three years, IRI has invested approximately $54 million in capital expenditures. In addition to this historical level of investment, IRI believes that it will need to continue making further incremental investment in its technology infrastructure and in the development of additional data sources in order to meet growing customer demands for faster delivery cycles and coverage of additional retail channels. IRI expects that it will have sufficient funds to address its client needs, but that there may be little left over to improve shareholder returns.
•: IRI's stand-alone outlook. Reflecting the challenges faced by the business, IRI has updated its projections for 2003 and 2004.
•: The improved terms of Gingko's offer and the fact that it reflects a substantial premium. The cash consideration of $3.30 per share represents a 112% premium to IRI's closing stock price on April 29, 2003 of $1.56, the day before positive developments in the antitrust litigation were announced. Gingko's offer also represents an attractive multiple on IRI's EBIT.
•: The opinion of its independent financial advisor. On September 6, 2003, William Blair & Co., L.L.C., IRI's independent financial advisor, delivered an opinion to IRI's Board of Directors that Gingko's offer is fair to the company's common shareholders from a financial point of view.

Outlook

As part of a customary due diligence M&A process and subject to confidentiality agreements, in April 2003, the company provided Gingko and other interested parties with internal projections for 2003 and 2004. Gingko subsequently disclosed these projections in its previous tender offer filings, as required by law. In conjunction with the new tender offer announced today, the company has also provided Gingko with updated projections, which are also required to be disclosed by Gingko in its new filings.

These projections are not intended as guidance. Investors should not rely on projections as indications of what the company can or will achieve in any period. Such information is inherently unreliable because it is based on assumptions and estimates that are not necessarily derived from actual results or known facts.

2003 Projections

The revised projections that IRI has provided to Gingko in conjunction with its new tender offer reflect EBIT that is $6 million to $9 million lower than the projections that were prepared in April and that Gingko was required to disclose as part of its previous tender offer. There are three principal reasons for this change. First, IRI will incur legal, banking and accounting expenses related to this transaction that were not included in the initial projections. These expenses are expected to be in excess of $2 million, excluding a portion of the fee payable to the IRI's financial advisor upon completion of the transaction. Second, the revised projections reflect non-cash charges related to the write-down of certain data and software that the company has either already taken or may take that were not contemplated when the initial projections were prepared. IRI has taken $1.2 million of data

related charges through the second quarter and expects to take up to $2 million of data and software related charges in the second half of 2003. Third, as announced on its second quarter earnings call, the company is taking a more conservative view toward U.S. revenue, particularly as it relates to new products.

2004 Projections

The revised 2004 projections are based on a top down look at 2004 taking into consideration, among other things, the recently revised 2003 projections. However, these projections do not reflect the detailed annual budgeting process that the company historically completes in the fourth quarter.

The current projections for 2004 indicate a range of EBIT of $4 million to $14 million. This wide range is indicative of the potential variability of certain aspects of the business. These projections differ from the projections required to be disclosed by Gingko in the initial tender offer due to a variety of factors, including: the potentially lower level of business with P&G as IRI works through its transition, more conservative estimates around the success and timing of new products, potentially lower growth rates of the U.S. Analytics, Panel and Testing businesses and expected increases in legal expenses due to the recent developments in the litigation and the upcoming trial against ACNielsen.

Gingko View of Projections

Gingko noted that it relied on its own estimates when making both its previous offer and the new offer announced today, and that it did not rely on either IRI's initial April projections or the updated IRI projections described in this release when making its offers.

Termination of Previous Offer

Gingko has terminated its previous offer and will return all shares tendered into the previous offer to the tendering IRI shareholders.

The Merger

Following successful completion of the tender offer, the new merger agreement also contemplates a second-step merger. In that merger, remaining IRI shareholders who did not tender their shares into the offer will receive $3.30 per share in cash and one CVR per share.

Advisors

Davis Polk & Wardwell acted as legal counsel to Gingko. William Blair & Company, L.L.C. acted as financial advisor, and Winston & Strawn acted as legal counsel to IRI.

For More Information

For more information, please contact the Information Agent for the offer, MacKenzie Partners, Inc. at 800-322-2885 or 212-929-5500, attn: Dan Burch, Bob Marese or Charles Koons.

Conference Call Notice

Gingko and IRI will host a conference call today, Monday, September 8, 2003 at 10:30 a.m. EDT to discuss the new tender offer and new merger agreement. To access the conference call, please dial (877) 244-8007 (within the North America) or (706) 634-1503 (outside North America). Participants should call in at least 15 minutes prior to the 10:30 a.m. start time to be connected to the call.

About Gingko Acquisition Corp.

Gingko Acquisition Corp. is a company formed by Symphony Technology II-A, L.P. and affiliates of Tennenbaum & Co., LLC.

About Symphony Technology Group, LLC

Symphony is a leading investor in enterprise software and services companies. Led by entrepreneurs and executives with strong track records and deep experience in strategy and operations, Symphony invests in companies that are or can become market leaders. Symphony applies its strategic and operational expertise and capital to enable the business transformation of its portfolio companies.

Through its portfolio company, SymphonyRPM, Symphony also provides proprietary performance management solutions and software for the real-time enterprise: solutions that can help CPG manufacturers and retailers deliver the business outcomes they most care about such as revenue, margins and customer satisfaction by enabling and automating the analysis, and integration of enormous quantities of data from retailers and from internal ERP and legacy systems, by making it easier to expand the use of marketing data throughout the company, and by linking marketing decisions to sales, operations and overall financial performance. More information is available at www.symphonytg.com.

About Tennenbaum Capital Partners, LLC

Tennenbaum Capital Partners, LLC is a private investment company based in Los Angeles that invests across the capital structure in both debt and equity of publicly traded and private companies. The firm currently has approximately $1.7 billion in long-term capital under management and primarily invests in companies in transition where traditional sources of capital are not readily available. More information is available at www.tennenco.com.

About IRI

IRI is a leading provider of UPC scanner- and panel-based business solutions to the consumer packaged goods and healthcare industries, offering services in the U.S., Europe and other international markets. The Company supplies CPG and pharmaceutical manufacturers, retailers, and brokers with information and analysis critical to their sales, marketing, and supply chain operations. IRI provides services designed to deliver value through an enhanced understanding of the consumer to a majority of the Fortune 500 companies in the CPG industry. More information is available at www.infores.com.

Important Information for Investors and Shareholders

This press release is neither an offer to purchase nor a solicitation of an offer to sell shares of IRI. With the commencement of the tender offer today, a newly formed corporation that is owned by Symphony and Tennenbaum has filed a Tender Offer Statement with the Securities and Exchange Commission, Information Resources, Inc. Litigation Contingent Payment Rights Trust, a newly formed Delaware statutory trust has filed a Registration Statement on Form S-4 (including the preliminary prospectus contained therein) with respect to the CVRs and IRI has filed a Solicitation/Recommendation Statement with respect to the tender offer.

The Tender Offer Statement (including an offer to purchase, a related letter of transmittal and other offer documents), the Registration Statement on Form S-4 (including the preliminary prospectus contained therein) and the Solicitation/Recommendation Statement contain important information that should be read carefully before any decision is made with respect to the offer.

The offer to purchase, the related letter of transmittal, the Registration Statement on Form S-4 (including the preliminary prospectus contained therein) and certain other documents, as well as the

Solicitation/Recommendation Statement, are available to all shareholders of IRI, at no expense to them. The Tender Offer Statement (including the offer to purchase, the related letter of transmittal, the Registration Statement on Form S-4 (including the preliminary prospectus contained therein) and all other offer documents filed with the SEC) and the Solicitation/Recommendation Statement are also available at no charge at the Securities and Exchange Commission's website at www.sec.gov or from MacKenzie Partners, Inc., the information agent for the tender offer, by directing such request to: MacKenzie Partners, Inc., 105 Madison Avenue, New York, New York, 10016, telephone (212) 929-5500 collect or (800) 322-2885 toll-free or by email at proxy@mackenziepartners.com.

Forward-Looking Statements

This document contains certain forward-looking statements about IRI, Gingko and/or the ACNielsen lawsuit and the CVRs. When used in this document, the words "anticipates," "may", "can", "believes," "expects," "projects," "intends" "likely", and similar expressions as they relate to the Company, Gingko, the management of either such company, the transaction, the ACNielsen lawsuit or the CVRs are intended to identify those assertions as forward-looking statements. In making any such statements, the person making them believes that its expectations are based on reasonable assumptions. However, any such statement may be influenced by factors that could cause actual outcomes and results to be materially different from those projected or anticipated. These forward-looking statements are subject to numerous risks and uncertainties. There are various important factors that could cause actual results to differ materially from those in any such forward-looking statements, many of which are beyond the control of IRI, Gingko, and Symphony including: the impact of general economic conditions in regions in which the Company currently does business, industry conditions, including competition, data availability and cost and the ability to renew existing customer contracts and relationships; fluctuations in exchange rates and currency values; capital expenditure requirements; legislative or regulatory requirements, interest rates; access to capital markets; and the timing of and any value to be received in connection with the ACNielsen lawsuit and the CVRs. The actual results or performance by IRI or Gingko, and the actual proceeds (if any) to be received by the Company in respect of the ACNielsen lawsuit or the CVRs, could differ materially from those expressed in, or implied by, these forward-looking statements. Accordingly, no assurances can be given that any of the events anticipated by the forward-looking statements will transpire or occur, or if any of them do so, what impact they will have on the results of operations and financial condition of IRI or Gingko or the outcome of the ACNielsen lawsuit or the proceeds to be received in respect of the CVRs. Any forward looking statements that are made by Gingko or Symphony, on the one hand, or IRI, on the other hand, in this press release should not be attributed to the other such party.

Media Contact Information

Gingko or Symphony Bill Chisholm 650-935-9500 bill@symphonytg.com		IRI Kristin Van 312-474-3384 kristin.van@infores.com
Additional Contacts Joele Frank, Wilkinson Brimmer Katcher Barrett Godsey Joele Frank 212-355-4449

Important Information for Investors and Stockholders

The tender offer for the outstanding shares of Information Resources, Inc. referred to in this press release has not yet commenced, and this press release is neither an offer to purchase nor a solicitation of an offer to sell shares of Information Resources, Inc. At the time the tender offer is commenced, a newly formed corporation that is owned by Symphony Technology II-A, L.P. and Tennenbaum Capital Partners, LLC will file a Tender Offer Statement with the Securities and Exchange Commission and Information Resources, Inc. will file a Solicitation/Recommendation Statement with respect to the tender offer.

The Tender Offer Statement (including an offer to purchase, a related letter of transmittal and other offer documents) and the Solicitation/Recommendation Statement will contain important information that should be read carefully before any decision is made with respect to the offer.

The offer to purchase, the related letter of transmittal and certain other documents, as well as the Solicitation/Recommendation Statement, will be made available to all stockholders of Information Resources, Inc., at no expense to them. The Tender Offer Statement (including the offer to purchase, the related letter of transmittal and all other offer documents filed with the SEC) and the Solicitation/Recommendation Statement will also be available at no charge at the Securities and Exchange Commission's website at www.sec.gov.

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GINGKO COMMENCES NEW TENDER OFFER TO ACQUIRE INFORMATION RESOURCES
EX-99.2 4 a2118430zex-99_2.htm EX-99.2
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AGREEMENT AND PLAN OF MERGER

dated as of

September 7, 2003

by and

among

INFORMATION RESOURCES, INC.,

GINGKO CORPORATION

and

GINGKO ACQUISITION CORP.

TABLE OF CONTENTS

		Page
ARTICLE I THE OFFER
Section 1.01.	The Offer	2
Section 1.02.	Company Actions	3
Section 1.03.	Directors of the Company	4
Section 1.04.	Top-Up Option	5
ARTICLE II THE MERGER
Section 2.01.	The Merger	7
Section 2.02.	Closing	7
Section 2.03.	Effective Time	7
Section 2.04.	Effects of the Merger	8
Section 2.05.	Certificate of Incorporation and By-Laws	8
Section 2.06.	Directors	8
Section 2.07.	Officers	8
Section 2.08.	Effect on Capital Stock	8
Section 2.09.	Exchange of Certificates	9
Section 2.10.	Options	11
Section 2.11.	Restricted Stock	11
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Section 3.01.	Organization and Qualification	11
Section 3.02.	Authority; Non-Contravention; Approvals	11
Section 3.03.	Interim Operations of Merger Sub	12
Section 3.04.	Capital Resources	12
Section 3.05.	Offer Documents; Proxy Statement	13
Section 3.06.	Interest in the Company	13
Section 3.07.	Brokers and Finders	13
Section 3.08.	Settlement Negotiations	14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4.01.	Organization and Qualification	14
Section 4.02.	Capitalization	14
Section 4.03.	Subsidiaries	17
Section 4.04.	Authority; Non-Contravention; Approvals	17
Section 4.05.	Reports and Financial Statements	19
Section 4.06.	Absence of Undisclosed Liabilities	19
Section 4.07.	Absence of Certain Changes or Events	19
Section 4.08.	Litigation	20
Section 4.09.	Offer Documents; Proxy Statement	20
Section 4.10.	No Violation of Law	20
Section 4.11.	Material Contracts; Compliance With Agreements	21
Section 4.12.	Taxes	22
Section 4.13.	Employee Benefit Plans; ERISA	22
Section 4.14.	Labor Controversies	24

Section 4.15.	Environmental Matters	25
Section 4.16.	Intellectual Property	25
Section 4.17.	Opinion of Financial Advisor	27
Section 4.18.	Brokers and Finders	27
Section 4.19.	Insurance	27
Section 4.20.	Takeover Statutes	27
Section 4.21.	Receivables and Customers	27
ARTICLE V COVENANTS
Section 5.01.	Conduct of Business Pending the Merger	27
Section 5.02.	Restrictions on Parent and the Company	29
Section 5.03.	No Solicitation	30
Section 5.04.	Access to Information; Confidentiality	31
Section 5.05.	Merger Sub	32
Section 5.06.	Employee Benefits	32
Section 5.07.	Proxy Statement	33
Section 5.08.	Company Meeting	34
Section 5.09.	Public Announcements	34
Section 5.10.	Expenses and Fees	34
Section 5.11.	Agreement to Cooperate	35
Section 5.12.	Directors' and Officers' Indemnification	35
Section 5.13.	Section 16 Matters	37
Section 5.14.	Further Assurances	37
Section 5.15.	Notices of Certain Events	37
Section 5.16.	CVR Trust; CVR Agreement	38
ARTICLE VI CONDITIONS TO THE MERGER
Section 6.01.	Conditions to the Obligations to Consummate the Merger	39
ARTICLE VII TERMINATION
Section 7.01.	Termination	39
ARTICLE VIII MISCELLANEOUS
Section 8.01.	Effect of Termination	41
Section 8.02.	Non-Survival of Representations and Warranties	42
Section 8.03.	Notices	42
Section 8.04.	Interpretation	43
Section 8.05.	Miscellaneous	43
Section 8.06.	Counterparts	43
Section 8.07.	Amendments; Extensions	43
Section 8.08.	Entire Agreement	44
Section 8.09.	Severability	44
Section 8.10.	Specific Performance; Limitation on Damages	44
Section 8.11.	No Admission	45
Section 8.12.	Jurisdiction	45
Section 8.13.	WAIVER OF JURY TRIAL	45
Section 8.14.	Termination of June 29 Merger Agreement and Original Offer	45

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER, dated as of September 7, 2003 (as the same may be amended from time to time and together with the schedules, exhibits and annexes attached hereto, this "Agreement"), by and among Gingko Corporation, a Delaware corporation (together with its successors and permitted assigns, "Parent"), Gingko Acquisition Corp., a Delaware corporation and wholly-owned Subsidiary (as defined in Section 3.02 of this Agreement) of Parent (together with its successors and permitted assigns, "Merger Sub"), and Information Resources, Inc., a Delaware corporation (the "Company").

RECITALS

WHEREAS, Parent, Merger Sub and the Company are parties to an Agreement and Plan of Merger dated as of June 29, 2003 (as amended or modified from time to time, the "June 29 Merger Agreement"), pursuant to which, among other things, Merger Sub commenced on July 14, 2003 a tender offer (as amended or extended from time to time, the "Original Offer") to purchase all of the outstanding shares of common stock, par value $0.01 per share, of the Company, together with the associated Company Rights (as defined herein) (the "Company Common Stock") on the terms and subject to the satisfaction of the conditions set forth in the June 29 Merger Agreement;

WHEREAS, Parent and the Company desire to terminate the June 29 Merger Agreement by mutual consent pursuant to Section 7.01(a) thereof;

WHEREAS, in accordance with the terms and conditions of the Original Offer, Merger Sub desires to terminate the Original Offer pursuant to the provisions of clause (f) set forth in Exhibit A to the June 29 Merger Agreement;

WHEREAS, the respective boards of directors of each of Parent, Merger Sub and the Company have determined that it is in the best interests of their respective stockholders for Merger Sub to acquire the Company on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, in furtherance thereof, Parent and Merger Sub shall make a tender offer (as it may be amended from time to time as permitted under this Agreement, and together with the tender offer made during any "subsequent offering period" (as provided by Rule 14d-11 under the Securities Exchange Act of 1934, as amended, together with the rules and regulations thereunder (collectively, the "Exchange Act")), the "Offer") to purchase all of the outstanding shares of Company Common Stock at a purchase price per share of the Company Common Stock of one CVR (as defined below) and $3.30 per share (the CVR and such price per share or any greater amount paid per share of Company Common Stock pursuant to the Offer is herein referred to as the "Offer Price"), net to each seller in cash, without interest, on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, the respective boards of directors of each of Parent, Merger Sub and the Company have approved and declared advisable the Offer, this Agreement and the merger of Merger Sub with and into the Company (the "Merger") following the consummation of the Offer, on the terms and subject to the conditions set forth in this Agreement, whereby each issued share of the Company Common Stock not owned by Parent, Merger Sub or the Company, other than the Appraisal Shares (as defined herein), shall be converted pursuant to the Merger into the right to receive the Merger Consideration (as defined herein);

WHEREAS, the Company, Parent and Merger Sub propose to enter into a Contingent Value Rights Agreement (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

WHEREAS, the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements pursuant to this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

THE OFFER

Section 1.01. The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.

(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause

to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.

(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.

Section 1.02. Company Actions. (a) The Company hereby approves of and consents to the Offer, the Merger and the other transactions contemplated by this Agreement. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company's board of directors described in Section 4.04(d).

(b) Subject to Section 5.03, on the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended or supplemented from time to time, and together with the information required to be provided by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, the "Schedule 14D-9") containing the recommendations referred to in Section 4.04(d) and shall mail the Schedule 14D-9 to the holders of Company Common Stock. Each of the Company, Parent and Merger Sub shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have originally been or shall have become false or misleading in any material respect, (whether by virtue of a material misstatement, material omission or otherwise), and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Parent and its counsel shall be given reasonable opportunity to review and comment upon the Schedule 14D-9 prior to its filing with the SEC or dissemination to stockholders of the Company. The Company shall provide Parent and its counsel in writing with any written comments (and orally, any oral comments) the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments and shall consult with Parent and its counsel prior to responding to such comments and shall give due regard to any comments made by such parties.

(c) In connection with the Offer and the Merger, the Company shall cause its transfer agent to furnish Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Company Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Company Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Merger and the other transactions contemplated by this Agreement, Parent and Merger Sub shall hold in confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated, shall, upon request, deliver to the Company all copies of such information then in their possession.

Section 1.03. Directors of the Company. (a) Upon the Acceptance Date, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product obtained by multiplying the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this sentence) by the percentage that the number of shares of Company Common Stock purchased and paid for by Parent or Merger Sub pursuant to the Offer, plus any shares beneficially owned by Parent or its affiliates on the date of such purchase and payment, bears to the total number of shares of Company Common Stock then outstanding. On the expiration of any subsequent offering period (as provided by Rule 14d-11 under the Exchange Act), Parent shall be entitled to designate such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product obtained by multiplying the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this and the immediately preceding sentence) by the percentage that the number of shares of Company Common Stock purchased and paid for by Parent or Merger Sub pursuant to the Offer (including, but not limited to, the number of shares purchased in any subsequent offering period), plus any shares beneficially owned by Parent or its Affiliates on the date

of such purchase and payment in the subsequent offering period, bears to the total number of shares of Company Common Stock then outstanding. In furtherance of the rights and obligations set forth in the immediately foregoing two sentences, the Company shall, upon request of Parent, promptly increase the size of its Board of Directors, or it shall secure the resignations of such number of directors, or both, as is necessary to enable Parent's designees to be so elected to the Company's Board and, subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, shall cause Parent's designees to be so elected. At such time, the Company shall, if requested by Parent, also cause directors designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, if shares of Company Common Stock are purchased pursuant to the Offer, there shall be until the Effective Time at least two members of the Company's Board of Directors who are directors on the date hereof and are not employees of the Company.

(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 1.03(a), including mailing to stockholders together with the Schedule 14D-9 the information required by such Section 14(f) and Rule 14f-1 as is necessary to enable Parent's designees to be elected to the Company's Board of Directors. Parent and Merger Sub will supply the Company and be solely responsible for any information with respect to them and their nominees, officers, directors and affiliates required by such Section 14(f) and Rule 14f-1.

(c) Following the election of Parent's designees to the Company's Board of Directors pursuant to this Section 1.03, prior to the Effective Time (i) any amendment or termination of this Agreement by the Company, (ii) any extension or waiver by the Company of the time for the performance of any of the obligations or other acts of Parent or Merger Sub under this Agreement, or (iii) any waiver of any of the Company's rights hereunder shall, in any such case, require the concurrence of a majority of the directors of the Company then in office who neither were designated by Parent nor are employees of the Company (the "Independent Director Approval").

Section 1.04. Top-Up Option. (a) Subject to the terms and conditions herein, the Company hereby grants to Parent an irrevocable option (the "Top-Up Option") to purchase up to that number of shares of Company Common Stock (the "Top-Up Option Shares") equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock collectively owned by Parent, Merger Sub and any of their respective Affiliates immediately following consummation of the Offer, shall constitute at least 90 percent of the shares of Company Common Stock then outstanding on a fully diluted basis (assuming the issuance of the Top-Up Option Shares and the exercise of all Company Options (as defined herein) and any other rights to acquire Company Common Stock on the date of the Top-Up Exercise Event (as defined below)) at a purchase price per Top-Up Option Share equal to the Offer Price.

(b) Parent may, at its election, exercise the Top-Up Option, whether in whole or in part, at any one time after the occurrence of a Top-Up Exercise Event and prior to the occurrence of a Top-Up Termination Event (as defined below).

A "Top-Up Exercise Event" shall occur upon Parent's or Merger Sub's acceptance for payment pursuant to the Offer (which shall include, for sake of clarity, any subsequent offering period that Parent or Merger Sub may elect to extend pursuant to the terms and conditions of this Agreement) of shares of Company Common Stock constituting, together with Company Common Stock owned directly or indirectly by any other Affiliates of Parent, less than 90 percent of the shares of the Company Common Stock then outstanding on a fully diluted basis (assuming the exercise of all Company Options (as defined herein) and any other rights to acquire Company Common Stock on the date of the Top-Up Exercise Event), but only if (i) the issuance of the

Top-Up Option Shares pursuant thereto would not require the approval of the stockholders of the Company under applicable law or regulation (including, but not limited to, NASDAQ rules and regulations, including Section 4350(i)1(D) of the NASD Manual) or (ii) NASDAQ has granted a waiver from any such rule or regulation that is reasonably acceptable to the parties hereto, and there is no other applicable law, rule or regulation that would require the approval of the Company's stockholders for the issuance of the Top-Up Shares. Upon and after the request of Parent, the Company will use its reasonable best efforts (but without the payment of any money) to obtain such a waiver from NASDAQ as promptly as possible after any such request.

The "Top-Up Termination Date" shall occur upon the earliest to occur of (i) the Effective Time, (ii) the termination of this Agreement, (iii) the date that is ten business days after the occurrence of a Top-Up Exercise Event, unless the Top-Up Option has been previously exercised in accordance with the terms and conditions hereof and (iv) the date that is ten business days after the Top-Up Notice Date unless the Top-Up Closing shall have previously occurred.

(c) If Parent wishes to exercise the Top-Up Option, Parent shall send to the Company a written notice (a "Top-Up Exercise Notice", and the date of receipt of which notice is referred to herein as the "Top-Up Notice Date") specifying the place for the closing of the purchase and sale of shares of Company Common Stock pursuant to the Top-Up Option (the "Top-Up Closing") and a date not earlier than one business day nor later than ten business days after the Top-Up Notice Date for the Top-Up Closing. The Company shall, promptly after receipt of the Top-Up Exercise Notice, deliver a written notice to Parent confirming the number of Top-Up Option Shares and the aggregate purchase price therefor.

(d) At the Top-Up Closing, subject to the terms and conditions of this Agreement, (i) the Company shall deliver to Parent a certificate or certificates evidencing the applicable number of Top-Up Option Shares; provided that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the condition that no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of any such exercise and (ii) Parent shall purchase each Top-Up Option Share from the Company at the Offer Price. Payment by Parent of the purchase price for the Top-Up Option Shares may be made, at Parent's option, by delivery of (i) immediately available funds by wire transfer to an account designated by the Company or (ii) a demand note issued by Parent in customary form that is reasonably acceptable to the parties and in a principal face amount equal to the aggregate amount of the cash portion of the purchase price for the Top-Up Option Shares, together with, in case of both clauses (i) and (ii) above, that number of CVRs equal to the number of Top-Up Option Shares to be issued pursuant to the exercise of the Top Up Option. Any demand note issued pursuant to the preceding sentence shall be accompanied by a credit support arrangement reasonably acceptable to the parties hereto.

(e) Upon the delivery by Parent to the Company of the Top-Up Exercise Notice, and the tender of the consideration described in Section 1.04(d), Parent shall be deemed to be the holder of record of the Top-Up Option Shares issuable upon that exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing those Top-Up Option Shares shall not then be actually delivered to Parent or the Company shall have failed or refused to designate the bank account described in Section 1.04(d).

(f) Parent shall pay all expenses, and any and all federal, state and local taxes and other charges, that may be payable in connection with the preparation, issuance and delivery of stock certificates under this Section 1.04.

(g) Certificates evidencing Top-Up Option Shares delivered hereunder may include legends legally required including a legend in substantially the following form:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.

ARTICLE II

THE MERGER

Section 2.01. The Merger. After the Expiration Date, upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Delaware General Corporation Law (the "DGCL"), Merger Sub shall be merged with and into the Company at the Effective Time (as defined in Section 2.03). At the Effective Time, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation (the "Surviving Corporation") and shall succeed to and assume all of the rights and obligations of Merger Sub in accordance with the DGCL.

Section 2.02. Closing. Upon the terms and subject to the conditions set forth in this Agreement, the closing of the Merger (the "Closing") shall take place at 10:00 a.m., New York time, on the second business day after the satisfaction or (to the extent permitted by applicable law and this Agreement) waiver of the conditions set forth in Article VII (other than those conditions to be satisfied or waived at the Closing), at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017, or at such other time, date or place agreed to in writing by Parent and the Company. The date on which the Closing occurs is referred to in this Agreement as the "Closing Date".

Section 2.03. Effective Time. Upon the terms and subject to the conditions set forth in this Agreement, as soon as practicable on or after the Closing Date, a certificate of merger or other appropriate documents (in any such case, the "Certificate of Merger") shall be duly prepared, executed, acknowledged and delivered by Merger Sub and the Company in accordance with the relevant provisions of the DGCL and filed with the Secretary of State of the State of Delaware. The Merger shall become effective upon the filing of the Certificate of Merger with the Secretary of State of the State of Delaware or at such subsequent time or date (not later than 90 days after the date of filing) as Parent and the Company shall agree and specify in the Certificate of Merger. The time at which the Merger becomes effective is referred to in this Agreement as the "Effective Time".

Section 2.04. Effects of the Merger. The Merger shall have the effects set forth in Section 259 of the DGCL.

Section 2.05. Certificate of Incorporation and By-Laws. (a) At the Effective Time, the Certificate of Incorporation of the Surviving Corporation shall be amended in its entirety to read as the Certificate of Incorporation of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter changed or amended as provided therein or by applicable law; provided, however, that the Certificate of Incorporation of the Surviving Corporation shall provide that the Surviving Corporation shall be named "Information Resources, Inc." and shall contain indemnification provisions consistent with the obligations set forth in Section 5.12(a).

(b) The By-laws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the By-laws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law; provided that the By-Laws of the Surviving Corporation shall contain indemnification provisions consistent with the obligations set forth in Section 5.12(a).

Section 2.06. Directors. The directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be.

Section 2.07. Officers. The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are appointed and qualified, as the case may be.

Section 2.08. Effect on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of capital stock of the Company, Parent or Merger Sub:

(a) Capital Stock of Sub. Each issued and outstanding share of common stock of Merger Sub, par value $0.01 per share, that is issued and outstanding immediately prior to the Effective Time shall be converted into and become one fully paid and nonassessable share of common stock of the Surviving Corporation.

(b) Cancellation of Treasury Stock and Stock Owned by Parent. Each share of Company Common Stock that is owned by the Company (as treasury stock), Parent, Merger Sub or any of their respective Subsidiaries immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor.

(c) Conversion of Company Common Stock. Each share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time (other than shares to be cancelled in accordance with Section 2.08(b)) and the Appraisal Shares (as defined in Section 2.08(d)) shall be converted into the right to receive from the Surviving Corporation (i) in cash, without interest, $3.30 per share (the "Cash Consideration") and (ii) one contingent value right (a "CVR") which shall represent the contingent right to receive an amount of cash equal to the holder's pro rata portion of the CVR Payment Amount (as defined in the CVR Agreement). The Cash Consideration and the CVR to be received in respect of each such share of Company Common Stock pursuant to this Section 2.08(c) are together defined herein as the "Merger Consideration". At the Effective Time all such shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate that immediately prior to the Effective Time represented any such shares (a "Certificate") shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration (without any interest being payable thereon).

(d) Appraisal Rights. Notwithstanding anything in this Agreement to the contrary, shares (the "Appraisal Shares") of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and are held by any holder who is entitled to demand and properly demands appraisal of such shares pursuant to, and who complies in all respects with, the provisions of Section 262 of the DGCL ("Section 262"), if Section 262 provides for appraisal rights for such shares, shall not be converted into the right to receive the Merger Consideration as provided in Section 2.08(c), but instead such holder shall be entitled to payment of the fair value of such shares in accordance with the provisions of Section 262. At the Effective Time, all Appraisal Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of Appraisal Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such shares in accordance with the provisions of Section 262. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262 or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262, then the right of such holder to be paid the fair value of such holder's Appraisal Shares under Section 262 shall cease, and each such Appraisal Share shall be deemed to have been converted into, and shall have become, in each case at the Effective Time, the right to receive the Merger Consideration only (without any interest being payable thereon) as provided in Section 2.08(c). The Company shall serve prompt notice to Parent of any demands for appraisal of any shares of Company Common Stock, and Parent shall have the opportunity to participate in and direct all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

Section 2.09. Exchange of Certificates. (a) Paying Agent. Prior to the Effective Time, Parent shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to the Company to act as agent for the payment of the Merger Consideration upon surrender of Certificates (the "Paying Agent"), and, from time to time after the Effective Time, Parent shall provide, or cause the Surviving Corporation or the CVR Trust, as applicable, to provide, to the Paying Agent (i) funds in amounts and at the times necessary for the payment of the Cash Consideration pursuant to Section 2.08(c) promptly after the surrender of Certificates, it being understood that any and all interest or income earned on funds made available to the Paying Agent pursuant to this Agreement shall be turned over to, and shall be deemed to be the property of, Parent and (ii) CVR Certificates representing the appropriate number of CVRs issuable pursuant to Section 2.08(c).

(b) Exchange Procedure. As soon as reasonably practicable after the Effective Time, the Paying Agent shall mail to each holder of record of a Certificate (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such person shall pass, only upon proper delivery of the Certificates to the Paying Agent and shall be in customary form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly completed and validly executed, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor the amount of the Cash Consideration and CVR Certificates representing the number of CVRs into which the shares formerly represented by such Certificate shall have been converted pursuant to Section 2.08(c), and the Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Company Common Stock that is not registered in the stock transfer books of the Company, the proper Merger Consideration may be paid in exchange therefor to a person, other than the person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the person

requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of such Certificate or establish to the satisfaction of Parent that such tax has been paid or is not applicable. No interest shall be paid or shall accrue on the Cash Consideration or the CVR(s) payable upon surrender of any Certificate.

(c) No Further Ownership Rights in Company Common Stock. All Merger Consideration paid or issued upon the surrender of a Certificate in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificate. Upon and after the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer or any other reason, they shall be cancelled and exchanged as provided in this Article II.

(d) No Liability. None of Parent, Merger Sub, the Company or the Paying Agent shall be liable to any person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. All funds held by the Paying Agent for payment to the holders of unsurrendered Certificates and unclaimed at the end of one year after the Effective Time shall be returned to the Surviving Corporation, after which time any holder of unsurrendered Certificates shall look as a general creditor only to Parent for payment and issuance of the Merger Consideration (without any interest being payable thereon) to which such holder may be due, subject to applicable law. Any amounts remaining unclaimed by holders of shares of Company Common Stock seven years after the Effective Time (or such earlier date immediately before that time when the amounts would otherwise escheat to or become property of any governmental authority) shall become, to the extent permitted by applicable law, the property of Parent free and clear of any claims or interest of any person previously (or subsequently claiming to be) entitled thereto. Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.09(a) to pay for Appraisal Shares shall be returned to Parent, upon demand.

(e) Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the holder claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall pay and issue the Merger Consideration in respect of each share of Company Common Stock represented by such lost, stolen or destroyed Certificate.

(f) Withholding Rights. Parent, the Surviving Corporation or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement or the CVR Agreement to any holder of shares of Company Common Stock (or of CVRs, a Company Option (as defined in Section 2.10) or Restricted Shares (as defined in Section 2.11)) such amounts as Parent, the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of any such payment under the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), or any provision of state, local or foreign tax law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Parent, the Surviving Corporation or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock (or of CVRs, a Company Option or Restricted Shares) in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Paying Agent.

Section 2.10. Options. At the Effective Time, all outstanding and unexercised options to purchase shares of Company Common Stock granted under any of the Company Option Plans (each, a "Company Option"), whether or not exercisable or vested, shall be cancelled, and each holder of a Company Option shall be entitled to receive, in full satisfaction of such Company Option, (i) cash in an amount equal to the product of (A) the excess, if any, of the Cash Consideration over the exercise price per share thereof and (B) the number of shares of Company Common Stock subject to such Company Option and (ii) if cash is paid pursuant to clause (i) hereof, one CVR per share of Company Common Stock subject to such Company Option.

Section 2.11. Restricted Stock. At the Effective Time, any restricted shares of Company Common Stock held by current or former employees and awarded pursuant to the Company's Nonqualified Defined Contribution Plan or any individual employment agreement (collectively, the "Restricted Shares") which are outstanding immediately prior to the Effective Time shall be converted into the right to receive the Merger Consideration in accordance with Section 2.08(c) hereof.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB

Parent and Merger Sub jointly and severally represent and warrant to the Company that:

Section 3.01. Organization and Qualification. Each of Parent and Merger Sub is a corporation duly organized and validly existing under the laws of the state of its incorporation and has the requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted or as contemplated herein. Merger Sub is a wholly-owned Subsidiary of Parent.

Section 3.02. Authority; Non-Contravention; Approvals. (a) Each of Parent and Merger Sub has full corporate power and authority to enter into this Agreement and the CVR Agreement and to consummate the transactions contemplated hereby and thereby. This Agreement and the CVR Agreement have been unanimously approved by the Board of Directors of each of Parent and Merger Sub, and by Parent as sole stockholder in Merger Sub, and no other corporate proceedings on the part of either Parent or Merger Sub are necessary to authorize the execution and delivery of this Agreement or the CVR Agreement or the consummation by each of Parent and Merger Sub of the transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by each of Parent and Merger Sub, and, assuming the due authorization, execution and delivery hereof and thereof by the Company, constitutes a valid and legally binding agreement of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, except that such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (ii) general equitable principles. Upon execution and delivery of the CVR Agreement by Parent, Merger Sub, and assuming the due authorization, execution and delivery thereof by each of the other parties thereto, the CVR Agreement will constitute a valid and legally binding agreement of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, except that such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (ii) general equitable principles.

(b) The execution, delivery and performance of this Agreement and the CVR Agreement by each of Parent and Merger Sub and the consummation of the transactions contemplated hereby and thereby do not and will not violate, conflict with or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result

in a right of termination or acceleration under, or require any offer to purchase or any prepayment of any debt or result in the creation of any lien, security interest or encumbrance upon any of the properties or assets of Parent or any of its Subsidiaries under any of the terms, conditions or provisions of (i) the respective certificates of incorporation or by-laws or similar organizational documents of Parent, Merger Sub or any Subsidiary of Parent, (ii) any statute, law, ordinance, rule, regulation, judgment, decree, order, injunction, writ, permit or license of any court or governmental authority applicable to Parent, Merger Sub or any Subsidiary of Parent or any of their respective properties or assets, subject in the case of consummation, to obtaining the Parent Required Statutory Approvals (as defined in Section 3.02(c)) prior to the Acceptance Date, or (iii) any loan or credit agreement, bond, debenture, note, mortgage, indenture, guarantee, lease or other agreement, contract, commitment, obligation, undertaking, permit, concession, franchise or license or other binding instrument, whether oral or written (each, including all amendments thereto, a "Contract") to which Parent, Merger Sub or any Subsidiary of Parent is a party or by which Parent, Merger Sub or any Subsidiary of Parent or any of their respective properties or assets may be bound or affected, other than, in the case of (ii) and (iii) above, such violations, conflicts, breaches, defaults, terminations, accelerations, offers, prepayments or creations of liens, security interests or encumbrances that are not reasonably likely to prevent or materially impede or delay the consummation of the Offer, the Merger or the other transactions contemplated hereby and thereby. For purposes of this Agreement the term "Subsidiary" means, with respect to any Person (as defined in Section 3.06), any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by that Person.

(c) Except for (i) any filings by Parent and Merger Sub that may be required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) any filings by Parent and Merger Sub required by, and approvals under, foreign antitrust and competition laws ("Foreign Antitrust Laws"), (iii) the applicable requirements of the Exchange Act and the Securities Act, if any, (iv) the filing and recordation of appropriate merger documents as required by the DGCL, (v) any filings with or approvals from authorities required solely by virtue of the jurisdictions in which the Company or its Subsidiaries conduct any business or own any assets and (vi) any required filings with or approvals from applicable domestic or foreign environmental authorities (the filings and approvals referred to in clauses (i) through (vi) collectively referred to as the "Parent Required Statutory Approvals"), no declaration, filing or registration with, or notice to, or authorization, consent or approval of, any governmental or regulatory body or authority is necessary for the execution and delivery of this Agreement or the CVR Agreement by Parent or Merger Sub or the consummation by Parent and Merger Sub of the transactions contemplated hereby and thereby, other than such declarations, filings, registrations, notices, authorizations, consents or approvals which, if not made or obtained, as the case may be, whether individually and in the aggregate, would not prevent or materially impair or delay the ability of Parent or Merger Sub to perform its obligations under this Agreement or the CVR Agreement (including, but not limited to the consummation of the Offer, the Merger and the other transactions contemplated hereby and thereby) or subject Parent or any of its Subsidiaries or any of its or their officers, directors or employees to any criminal liability.

Section 3.03. Interim Operations of Merger Sub. Parent and Merger Sub were formed solely for the purpose of engaging in the transactions contemplated hereby and by the CVR Agreement, and neither such entity has engaged in any business or incurred any liabilities other than in connection with the transactions contemplated by this Agreement and the CVR Agreement.

Section 3.04. Capital Resources. On or prior to the expiration of the Offer Parent and Merger Sub will have sufficient cash resources to pay for all shares of Company Common Stock validly tendered into and not withdrawn from the Offer and all associated costs and expenses. On or prior to

the consummation of the Merger, Parent and Merger Sub will have sufficient cash resources to pay the Merger Consideration for all remaining shares of Company Common Stock and all associated costs and expenses. Parent has received and provided accurate and complete copies to the Company of commitment letters (collectively, the "Commitment Letters") from each of entities managed by Tennenbaum Capital Partners, LLC (collectively, "Tennenbaum") and Symphony Technology II-A, L.P. ("Symphony") dated as of the date of this Agreement pursuant to which Tennenbaum and Symphony have, severally and not jointly, committed, pursuant to the terms and subject to the conditions stated in the Commitment Letter of such Person, to provide the respective equity and debt capital amounts described in the Commitment Letter of such Person to Parent to be used by Parent to pay the cash portion of the Merger Consideration and the Offer Price. The Commitment Letters and other assets and rights of Parent are sufficient to provide the funds that are necessary to consummate the Offer, the Merger and the transactions contemplated hereby, and have been duly accepted by Parent and are in full force and effect. All fees required to be paid by Parent or Merger Sub on or prior to the date hereof in respect of the Commitment Letters have been paid by Parent or Merger Sub.

Section 3.05. Offer Documents; Proxy Statement. Neither the Offer Documents nor any information supplied by Parent or Merger Sub for inclusion in the Offer Documents or the Schedule 14D-9 will, at the time that the Offer Documents, the Schedule 14D-9, or any amendments or supplements thereto, are filed with the SEC or are first published, sent or given to stockholders of the Company, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The information supplied by Parent for inclusion in any proxy or information statement to be sent to stockholders of the Company in connection with a meeting of the Company's stockholders to consider and vote on the Merger (the "Company Meeting") (such proxy or information statement, as amended or supplemented, the "Proxy Statement"), on the date that the Proxy Statement (or any amendment or supplement thereto) is first mailed to stockholders of the Company and at the time of the Company Meeting, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, Parent and Merger Sub make no representation or warranty with respect to any information supplied by or on behalf of the Company which is contained in any of the Offer Documents, the Proxy Statement or any amendment or supplement thereto. The Offer Documents shall comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, if applicable.

Section 3.06. Interest in the Company. Immediately prior to the execution and delivery of this Agreement, neither Parent nor any of its Subsidiaries beneficially owned any shares of Company Common Stock. As of the date hereof, neither Parent nor any of its Affiliates is an "Interested Stockholder" as such term is defined in Section 203 of the DGCL, or an "Acquiring Person" as such term is defined in the Company Rights Agreement. For purposes of this Agreement, the term "Affiliate" means, with respect to any Person, any other Person directly or indirectly, controlling, controlled by, or under common control with, the first such Person. As used in the preceding sentence, (A) "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise and (B) "Person" means any natural person, corporation, partnership, limited liability company, joint venture, trust, association, unincorporated entity of any kind or governmental authority.

Section 3.07. Brokers and Finders. Neither Parent nor Merger Sub has entered into any contract, arrangement or understanding with any person or firm which may result in the obligation of Parent or Merger Sub to pay any investment banking fees, finder's fees, brokerage or agent commissions or other

like payments in connection with the transactions contemplated hereby, for which, or with respect to which, the Company is or might be liable.

Section 3.08. Settlement Negotiations. None of Parent nor any of its Affiliates (including Merger Sub) have had any settlement negotiations or other discussions with the parties to the Litigation (as defined in the CVR Agreement) other than the Company.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

As of June 29, 2003 and as of the time immediately before the acceptance for payment of shares of Company Common Stock pursuant to the Offer (except for the representations and warranties set forth in Section 4.02, which are made and given as of the date hereof except as otherwise expressly stated therein), the Company represents and warrants to Parent and Merger Sub that, except as set forth in the disclosure schedule dated as of June 29, 2003 and attached to the June 29 Merger Agreement (the "Company Disclosure Schedule"):

Section 4.01. Organization and Qualification. The Company is a corporation duly organized and validly existing under the laws of the State of Delaware and has the requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted or as contemplated hereby or by the CVR Agreement. The Company is qualified to transact business and, where applicable, is in good standing in each jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. True, accurate and complete copies of the Company's Amended and Restated Certificate of Incorporation and Bylaws, in each case as in effect on the date hereof, including all amendments thereto, have heretofore been filed with the SEC or delivered to Parent.

For purposes of this Agreement, the term "Company Material Adverse Effect" shall mean any effect or change that is materially adverse to (i) the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, or (ii) the ability of the Company to perform its obligations hereunder or under the CVR Agreement or to consummate the transactions contemplated hereby or thereby, except, in each case, for any such effect or change resulting from or arising out of (x) any loss of customers or revenue resulting from the fact that Parent will become the owner of the Company upon consummation of the transactions contemplated by this Agreement, (y) the condition of the United States economy or financial markets generally or (z) a condition generally affecting participants in the industry in which the Company competes, unless in the case of clauses (y) and (z) such condition has a disproportionate effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, in which case such condition shall be taken into account in determining whether or not there has been, or there would reasonably be expected to be a Company Material Adverse Effect.

Section 4.02. Capitalization. (a) The authorized capital stock of the Company consists of 60,000,000 shares of Company Common Stock and 1,000,000 shares of preferred stock, par value $0.01 (the "Company Preferred Shares"). As of September 4, 2003, (i) 30,280,639 shares of Company Common Stock, including in each case the associated Company Rights (as defined in Section 4.02(b)), no stock appreciation rights (the "SAR's") and no Company Preferred Shares, were issued and outstanding, all of which shares of Company Common Stock were validly issued and are fully paid, nonassessable and free of preemptive rights, (ii) no shares of Company Common Stock were held in the treasury of the Company, (iii) 9,740,008 shares of Company Common Stock were reserved for issuance upon exercise of Company Options issued and outstanding, (iv) 1,031,500 Restricted Shares were outstanding and (v) 249,227 shares of Company Common Stock that were reserved for issuance under the Directors' Plan (as defined below). Since July 31, 2003 except after the date hereof as permitted by this

Agreement, (i) no shares of Company Common Stock or Company Preferred Shares have been issued, except for shares of Company Common Stock issued pursuant to the exercise of Company Options outstanding on July 31, 2003 and except for shares of Company Common Stock required to be issued in connection with the Company's Amended and Restated 401(k) Retirement Savings Plan (the "401(k) Plan"), the Company's 2000 Employee Stock Purchase Plan (the "ESPP"), the Company's Nonqualified Defined Contribution Plan (the "DCP") and the Company's 1996 Directors' Plan (the "Directors' Plan") and (ii) no options, warrants, securities convertible into, or exchangeable for, or commitments with respect to the issuance of, shares of capital stock of the Company have been issued, granted or made, except the Company Rights in accordance with the terms of the Company Rights Agreement that are issued in connection with the Company Common Stock pursuant to the exercise of Company Options outstanding on July 31, 2003.

(b) As of the date hereof, except for (i) the Preferred Share Purchase Rights (the "Company Rights") issued pursuant to the Rights Agreement, as amended and restated (the "Company Rights Agreement"), dated as of March 2, 1989, by and between the Company and Harris Trust and Savings Bank (the "Company Rights Agent"), (ii) the 8,386,409 Company Options that were issued and outstanding on September 4, 2003, (iii) rights that were outstanding on July 31, 2003 under the 401(k) Plan, the ESPP, and the Directors' Plan and (iv) the 1,031,500 Restricted Shares, there were no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and also including any rights plan or other anti-takeover agreement, obligating the Company or any Subsidiary of the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of Company Common Stock or Company Preferred Shares (or any securities, directly or indirectly, convertible into, or exchangeable or exercisable for, any other shares of the capital stock or other equity interests of the Company) or obligating the Company or any Subsidiary of the Company to grant, extend, perform or enter into any such agreement or commitment. As of the date hereof, there are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to (i) repurchase, redeem or otherwise acquire any shares of Company Common Stock, any Company Preferred Shares or the capital stock or other equity interests of the Company or any of its Subsidiaries (or any securities, directly or indirectly, convertible into, or exchangeable or exercisable for, any other shares of the capital stock or other equity interests of the Company), except in connection with the issuance of shares of Company Common Stock and the associated Company Rights upon the exercise of Company Options issued and outstanding on July 31, 2003 or (ii) other than as set forth in Section 4.02(b) of the Company Disclosure Schedule, provide material funds to, or make any material investment in (in the form of a loan, capital contribution or otherwise), or provide any guarantee with respect to or security for the obligations of, any Subsidiary of the Company or any other Person. There are no outstanding stock appreciation rights or similar derivative securities or rights of the Company or any of its Subsidiaries. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote. Except as otherwise expressly contemplated by this Agreement, there are no voting trusts, irrevocable proxies or other agreements or understandings to which the Company or any Subsidiary of the Company is a party or is bound with respect to the voting of any shares of Company Common Stock. The Board of Directors of the Company has taken all action (subject only to execution of such amendment by the Company Rights Agent which the Company has obtained or will obtain as soon as practicable after the date hereof) to amend the Company Rights Agreement to provide that, for so long as this Agreement is in full force and effect, (i) none of the Parent and its Affiliates (including, but not limited to, Merger Sub) shall become an "Acquiring Person" and no "Stock Acquisition Date" shall occur as a result of the announcement, execution, delivery or performance of this Agreement or the CVR Agreement or the consummation of the

Offer, the Top-Up Closing or the Merger or any other action or transaction contemplated hereby or thereby or in connection herewith or therewith, (ii) no "Distribution Date" shall occur as a result of the announcement, execution, delivery or performance of this Agreement or the CVR Agreement or the consummation of the Offer, the Top-Up Closing or the Merger or any other action or transaction contemplated hereby or thereby or in connection herewith or therewith.

(c) The Company has filed with the SEC or previously made available to Parent complete and correct copies of the Amended and Restated 1992 Stock Option Plan, the Amended and Restated 1992 Executive Stock Option Plan, the 1984 Non-Qualified Stock Option Plan and the Amended and Restated 1994 Employee Nonqualified Stock Option Plan (the "Company Option Plans") and the Directors' Plan, including all amendments thereto. Section 4.02(c) of the Company Disclosure Schedule contains a correct and complete list as of July 31, 2003 of each outstanding Company Option and Restricted Share, including the holder, date of grant, expiration date, exercise price, vesting schedule and aggregate number of Company Common Shares subject thereto (vested and unvested) and setting forth the weighted average exercise price for all outstanding Company Options.

(d) Since December 31, 2002, there has not been (i) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company, (ii) any repurchase, redemption or other acquisition by the Company of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or (iii) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries.

Section 4.03. Subsidiaries. Each Subsidiary of the Company is duly organized, validly existing and, where applicable, in good standing under the laws of its jurisdiction of organization and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted and each Subsidiary of the Company is qualified to transact business, and is in good standing, in each jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary; except in all cases as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (i) All of the outstanding shares of capital stock of each Subsidiary of the Company are validly issued, fully paid, nonassessable and free of preemptive rights, liens and any other limitation or restriction, (ii) all such shares are owned directly or indirectly by the Company, and (iii) there are no outstanding (A) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock of or other voting securities or ownership interests in any such Subsidiary or (B) options or other rights to acquire from the Company or any of its Subsidiaries, or other obligation of the Company or any such Subsidiary to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in, any such Subsidiary (the outstanding shares of the capital stock of each Subsidiary of the Company, together with the items in clauses (A) and (B) being referred to collectively as the "Company Subsidiary Securities"). There are no subscriptions, options, warrants, voting trusts, proxies or other commitments, understandings, restrictions or arrangements relating to the issuance, sale, voting or transfer of any Company Subsidiary Securities, and there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Subsidiary Securities. The Company has no material investment in any entity, other than its Subsidiaries, and no other entity in which the Company has an investment is material to the Company or any of its business segments. Since December 31, 2002, there has not been any making of any loan, advance or capital contributions by the Company or any of its Subsidiaries to or any other investment in any Person, other than loans, advances or capital contributions to or investments in its wholly owned Subsidiaries made in the ordinary course of business consistent with past practices.

Section 4.04. Authority; Non-Contravention; Approvals. (a) The Company has full corporate power and authority to enter into this Agreement, the CVR Agreement, the Initial Declaration of Trust (as defined below) and the Declaration of Trust and, subject to the approval of the stockholders of the Company if required by the DGCL (the "Company Stockholder Approval"), to consummate the transactions contemplated hereby and thereby. This Agreement, the CVR Agreement, the Initial Declaration of Trust and the Declaration of Trust have been approved by the Board of Directors of the Company, and no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of any such agreement or, except for the Company Stockholder Approval (if required by the DGCL), the consummation by the Company of the transactions contemplated hereby and thereby. Each of this Agreement and the Initial Declaration of Trust has been duly executed and delivered by the Company, and, assuming the due authorization, execution and delivery hereof and thereof by Parent and Merger Sub (to the extent party thereto), constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (ii) general equitable principles. Upon execution and delivery of the CVR Agreement and the Declaration of Trust by the Company, and assuming the due authorization, execution and delivery thereof by each of the other parties thereto, each of the CVR Agreement and the Declaration of Trust will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (ii) general equitable principles.

(b) The execution, delivery and performance of this Agreement, the CVR Agreement, the Initial Declaration of Trust and the Declaration of Trust by the Company and the consummation of the transactions contemplated hereby and thereby do not and will not violate, conflict with or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, or require any offer to purchase or any prepayment of any debt or result in the creation of any lien, security interest or encumbrance upon any of the properties or assets of the Company or any of its Subsidiaries, or the loss of any asset, right or benefit of the Company or any of its Subsidiaries under any of the terms, conditions or provisions of (i) the respective certificates of incorporation or bylaws or similar organizational documents of the Company or any of its Subsidiaries, (ii) any statute, law, ordinance, rule, regulation, judgment, decree, order, injunction, writ, permit or license of any court or governmental authority applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, subject in the case of consummation, to obtaining (prior to the Acceptance Date) the Company Required Statutory Approvals and prior to the Effective Time, the Company Stockholder Approval, or (iii) any Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets may be bound or affected, other than, in the case of (ii) and (iii) above, such violations, conflicts, breaches, defaults, terminations, accelerations or creations of liens, security interests or encumbrances that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or prevent or materially impede or delay the consummation of the Offer, the Merger or the other transactions contemplated hereby and thereby.

(c) Except for (i) any filings by the Company that may be required by the HSR Act, (ii) any filings by the Company required by, and approvals under, Foreign Antitrust Laws, (iii) the applicable requirements of the Exchange Act and the Securities Act, if any, (iv) the filing and recordation of appropriate merger documents as required by the DGCL, (v) any filings with or approvals from authorities required solely by virtue of the jurisdictions in which Parent or its Subsidiaries conduct any business or own any assets and (vi) any required filings with or approvals from applicable domestic or foreign environmental authorities (the filings and approvals referred to in clauses (i) through (vi) are collectively referred to herein as the "Company Required Statutory Approvals"), no declaration, filing or registration with, or notice to, or authorization, consent or approval of, any governmental or regulatory body or authority is necessary for the execution and delivery of this Agreement, the CVR Agreement, the Initial Declaration of Trust or the Declaration of Trust by the Company or the consummation by the Company of the transactions contemplated hereby or thereby, other than such declarations, filings, registrations, notices, authorizations, consents or approvals which, if not made or obtained, as the case may be, (x) individually and in the aggregate, would not prevent or materially impede or delay the ability of the Company to perform its obligations under this Agreement, the CVR Agreement, the Initial Declaration of Trust or the Declaration of Trust or prevent or materially impede or delay the consummation of the Offer, the Merger and the other transactions contemplated hereby or thereby, (y) would not reasonably be expected to have a Company Material Adverse Effect or (z) subject the Company or any of its Subsidiaries or any its or their officers, directors or employees to any criminal liability.

(d) The Board of Directors of the Company, at a meeting duly called and held, duly and unanimously adopted resolutions that are still in full force and effect as of the date hereof and, subject to Section 5.03 of this Agreement, will remain in full force and effect, (i) approving and declaring advisable the Offer, the Merger, this Agreement, the CVR Agreement, the Initial Declaration of Trust and the Declaration of Trust and the transactions contemplated hereby and thereby, (ii) declaring that it is in the best interests of the Company's stockholders that the

Company enter into this Agreement, the CVR Agreement, the Initial Declaration of Trust and the Declaration of Trust and consummate the Offer, the Merger and the other transactions contemplated hereby and thereby, on the terms and subject to the conditions set forth in each such agreement, (iii) recommending that the Company's stockholders accept the Offer, tender their shares pursuant to the Offer and approve and adopt this Agreement (if required by applicable law), (iv) approving the acquisition of the shares of the Company Common Stock by Parent or Merger Sub pursuant to the Offer, the Top-Up Option and the Merger and the other transactions contemplated by this Agreement and by the CVR Agreement and (v) exempting this Agreement and the transactions contemplated hereby from the restrictions of Section 203 of the DGCL.

Section 4.05. Reports and Financial Statements. Since January 1, 2000, the Company has filed with the SEC all material forms, statements, reports and documents (including all exhibits, post-effective amendments and supplements thereto) (the "Company SEC Reports") required to be filed by it under each of the Securities Act and the Exchange Act, all of which, as amended if applicable, complied in all material respects with all applicable requirements of the appropriate act. As of their respective filing dates except as amended or supplemented prior to the date hereof, in which case as of the filing date of that amendment or supplement, the Company SEC Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The audited consolidated financial statements of the Company included in the Company's Annual Report on Form 10-K for the twelve months ended December 31, 2002 and the unaudited financial statements of the Company included in the Company's Quarterly Report on Form 10-Q (the "Company 10-Q") for the quarterly period ended March 31, 2003 (collectively, the "Company Financial Statements") have been prepared in accordance with United States generally accepted accounting principles ("GAAP") applied on a consistent basis (except as may be indicated therein or in the notes thereto) and fairly present in all material respects the financial position of the Company and its Subsidiaries as of the dates thereof and the results of their operations and changes in financial position for the periods then ended (subject, in the case of the unaudited financial statements, to normal year-end adjustments). The Company's Annual Report on Form 10-K for the twelve months ended December 31, 2002, the Company 10-Q and the Current Report on Form 8-K filed by the Company on April 24, 2003 are collectively referred to as the "Company Recent SEC Reports". Since December 31, 2002, there has not been any change in any method of accounting or accounting principles or practice by the Company or any of its Subsidiaries, except for any such change required by reason of a concurrent change in GAAP or Regulation S-X under the Exchange Act.

Section 4.06. Absence of Undisclosed Liabilities. Except as disclosed in the unaudited financial statements included in the Company 10-Q or in the Company Recent SEC Reports, neither the Company nor any of its Subsidiaries had at March 31, 2003, or has incurred since that date, any liabilities or obligations (whether absolute, accrued, contingent or otherwise) of any nature, except (a) liabilities, obligations or contingencies which are accrued or reserved against in the balance sheet of the Company 10-Q or reflected in the notes thereto, (b) account or trade payables that were incurred in the ordinary course of business and consistent with past practices or (c) liabilities, obligations or contingencies which (i) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, or (ii) have been discharged or paid in full prior to the date hereof.

Section 4.07. Absence of Certain Changes or Events. Since December 31, 2002, (a) the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practices, (b) there has not been any event, occurrence or development, and there has not arisen any state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (c) any incurrence, assumption or guarantee by the Company or any of its Subsidiaries of any indebtedness for borrowed money, other than in the ordinary course of business and in amounts and on terms that are consistent with past practices; (d) any creation

or other incurrence by the Company or any of its Subsidiaries of any lien on any asset other than in the ordinary course of business consistent with past practices, (e) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the Company or any of its Subsidiaries that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or (f) any transaction or commitment made, or any Contract entered into, by the Company or any of its Subsidiaries relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by the Company or any of its Subsidiaries of any contract or other right, in either case, that would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practices and those contemplated by this Agreement or the CVR Agreement.

Section 4.08. Litigation. Except as disclosed in the Company Recent SEC Reports, as of the date hereof, there are no claims, suits, actions or proceedings pending, or, to the Company's Knowledge, threatened against, relating to or affecting the Company or any of its Subsidiaries, before any court, governmental department, commission, agency, instrumentality or regulatory or other authority, or any arbitrator that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or that are reasonably likely to prevent or materially impede or delay the consummation of the Offer, the Merger or any of the other transactions contemplated by this Agreement or the CVR Agreement. Neither the Company nor any of its Subsidiaries is subject to any judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, instrumentality or regulatory or other authority, or any arbitrator which prohibits or could materially impair or delay the consummation of the transactions contemplated hereby or by the CVR Agreement or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 4.09. Offer Documents; Proxy Statement. Neither the Schedule 14D-9 nor any information supplied by the Company for inclusion in the Offer Documents (including, for the sake of clarity, information supplied by the Company with respect to the Litigation for inclusion therein) will, at the respective times that the Schedule 14D-9, the Offer Documents or any amendments or supplements thereto are filed with the SEC or are published, sent or given to stockholders of the Company, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading. The Proxy Statement will not, on the date the Proxy Statement (or any amendment or supplement thereto) is first mailed to stockholders of the Company, and at the time of the Company Meeting, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading. The Schedule 14D-9 and the Proxy Statement will, when filed by the Company with the SEC, comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to information supplied by or on behalf of Parent or Merger Sub which is contained in any of the foregoing documents.

Section 4.10. No Violation of Law. Neither the Company nor any of its Subsidiaries is in violation of, or since June 30, 2000 has violated any law, statute, order, rule, regulation, ordinance or judgment (including, without limitation, any applicable environmental law, ordinance or regulation) of any governmental or regulatory body or authority, except for violations that would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, or to result in a material liability to the Company or any of its Subsidiaries. No investigation or review by any governmental or regulatory body or authority is pending or, to the Company's Knowledge, threatened, nor has any governmental or regulatory body or authority indicated an intention to conduct the same,

other than, in each case, those the outcome of which, as far as reasonably can be foreseen, would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, or to result in a material liability to the Company or any of its Subsidiaries. The Company and its Subsidiaries have all permits, licenses, franchises, variances, exemptions, orders and other governmental authorizations, consents and approvals necessary to conduct their businesses as presently conducted (collectively, the "Company Permits"), except for permits, licenses, franchises, variances, exemptions, orders, authorizations, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and its Subsidiaries are not in violation of the terms of any Company Permit, except for violations which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 4.11. Material Contracts; Compliance With Agreements. (a) Neither the Company nor any of its Subsidiaries is a party to or bound by:

(i) (A) any real property lease providing for annual base rentals of $1,000,000 or more and (B) any operating and capital leases providing for annual rentals of $750,000 or more;

(ii) any agreement for the purchase of materials, supplies, goods, services, equipment or other assets providing for annual payments by the Company and/or its Subsidiaries of $1,500,000 or more;

(iii) any sales, distribution or other similar agreement providing for the sale by the Company and/or its Subsidiaries of materials, supplies, goods, services, equipment or other assets that provides for annual revenue to the Company and/or its Subsidiaries of $3,000,000 or more;

(iv) any material shareholder, partnership, joint venture, joint operating or development agreement or any other similar agreement or arrangement;

(v) any agreement entered into within the three-year period prior to the date of this Agreement relating to the acquisition or disposition of any material amount of assets outside the ordinary course of business or the stock of any Subsidiary or business (whether by merger, purchase or sale of stock, purchase or sale of assets or otherwise);

(vi) any agreement relating to the indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by an asset), except any such agreement (A) with an aggregate outstanding principal amount not exceeding $1,000,000 and which may be prepaid on not more than 30 days' notice without the payment of any penalty, (B) entered into after the date of this Agreement as permitted by Section 5.01, or (C) constituting inter-company receivables in its entirety.

(vii) any material intellectual property license or other similar agreement;

(viii) any material agency, dealer, sales representative, marketing or other similar agreement;

(ix) any agreement that limits in any material respect the freedom of the Company and/or any of its Subsidiaries to compete in any line of business or with any Person or in any area or which would so limit in any material respect the freedom of the Company and/or any of its Subsidiaries after the Closing Date; or

(x) any material agreement with any director or executive officer of the Company or any Subsidiary or with any "associate" or any member of the "immediate family" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any such director or executive officer.

(b) The Company and each of its Subsidiaries (and, to the Company's Knowledge, each other party to any such Contract) are not in breach or violation of or in default in the performance or observance of any term or provision of, and no event has occurred which, with lapse of time or action by a third party, would result in a default under, (i) the respective articles or certificates of incorporation, bylaws or similar organizational instruments of the Company or any of its Subsidiaries or (ii) any Contract to which the Company or any of its Subsidiaries is a party or by which any of them is bound or to which any of their property is subject, other than as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Contract disclosed in any portion of the Company Disclosure Schedule or required to be disclosed pursuant to this Section is a valid and binding agreement of the Company or one of its Subsidiaries, as the case may be, and is in full force and effect, other than as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For the purposes of this Agreement, the "Company's Knowledge" means, with respect to any given action, event, occurrence, fact, information or circumstance, that any of Joseph Durrett, Andy Balbirer, Monica Weed, Mike Samuels, Mary K. Sinclair, Gary Newman, Marshall Gibbs, Edward Kuehnle, Neil Canter, Mark Tims, Kevin Crawford, Jeremy McNamara or Ken Johns had actual knowledge of that action, event, occurrence, fact, information or circumstance.

Section 4.12. Taxes. (a) The Company and its Subsidiaries have (i) duly filed with the appropriate governmental authorities all Tax Returns required to be filed by them, and such Tax Returns are true, correct and complete, and (ii) duly paid in full all Taxes shown as due on such Tax Returns, except in each case where the failure to file such Tax Returns or pay such Tax or the failure of such Tax Returns to be true, correct and complete would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There are no material liens for Taxes upon any property or asset of the Company or any Subsidiary thereof, except for liens for Taxes not yet due or Taxes contested in good faith and reserved against in accordance with GAAP. There are no unresolved issues of law or fact arising out of a notice of deficiency, proposed deficiency or assessment from the Internal Revenue Service (the "IRS") or any other governmental taxing authority with respect to Taxes of the Company or any of its Subsidiaries which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(b) For purposes of this Agreement, "Tax" (including, with correlative meaning, the term "Taxes") includes all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty, capital stock, communications services, severance, stamp, sales, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts, and "Tax Return" means any return, report or similar statement (including attached schedules) required to be filed with respect to any Tax, including without limitation, any information return, claim for refund, amended return or declaration of estimated Tax.

(c) Since December 31, 2002, there has not been any material Tax election made or changed, any annual tax accounting period changed, any method of tax accounting adopted or changed, any material amended Tax Returns or claims for material Tax refunds filed, any material closing agreement entered into, any material Tax claim, audit or assessment settled, or any right to claim a material Tax refund, offset or other reduction in Tax liability surrendered.

Section 4.13. Employee Benefit Plans; ERISA. (a) Section 4.13(a) of the Company Disclosure Schedule includes a complete list of each employee benefit plan, program or policy (written or oral) providing benefits to any current or former employee, consultant, officer or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored, maintained, or administered by the Company or any of its ERISA Affiliates or to which the Company or any of its ERISA Affiliates contribute or is obligated to contribute (other than those programs or policies that do

not provide material benefits), or with respect to which the Company or any of its ERISA Affiliates has any liability, including without limitation any employee welfare benefit plan within the meaning of Section 3(1) of ERISA, any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA, and including any "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Plan")), any employee benefit plan within the meaning of Section 3(3) of ERISA, and any material compensation, bonus, profit sharing incentive, deferred compensation, vacation, insurance (including any self-insured arrangements), health or medical benefits, employee assistance, disability or sick leave benefits, workers' compensation, supplemental unemployment benefits, post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits), stock purchase, stock option, stock based, severance, employment, change of control or fringe benefit agreement, plan, program or policy in each case, whether or not written (collectively, the "Company Employee Benefit Plans"). For purposes of this Agreement, "ERISA Affiliate" of any entity means any other entity which, together with such entity, would be treated as a single employer under Section 414 of the Code.

(b) With respect to each Company Employee Benefit Plan, the Company has delivered or made available to Parent a true, correct and complete copy of: (i) all plan documents and related trust or funding agreements or insurance policies; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description, if any; (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any. Except as specifically provided in the foregoing documents, or in other documents, delivered or made available to Parent, there are no amendments to any Company Employee Benefit Plan that have been adopted or approved.

(c) The IRS has issued a favorable determination letter with respect to each Company Employee Benefit Plan that is intended to be a "qualified plan" within the meaning of Section 401(a) of the Code and its related trust that has not been revoked, and the Company is not aware of any circumstances or events that have occurred that would reasonably be expected to result in a revocation of such letter.

(d) The Company and its ERISA Affiliates have materially complied, and are now in material compliance, with all provisions of ERISA, the Code and all laws, rules and regulations applicable to each Company Employee Benefit Plan and each Company Employee Benefit Plan has been administered in all material respects in accordance with its terms. None of the Company and its ERISA Affiliates nor any other person, including any fiduciary, has engaged in any "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Company Employee Benefit Plans or their related trusts, the Company, any of its ERISA Affiliates or any person that the Company or any of its ERISA Affiliates has an obligation to indemnify, to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA. There are no pending or, to the Company's Knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits, audits, actions or arbitrations which have been asserted or instituted against the Company Employee Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Employee Benefit Plans or the assets of any of the trusts under any of the Company Employee Benefit Plans which could reasonably be expected to result in any liability of the Company or any of its ERISA Affiliates to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor or any Company Employee Benefit Plan.

(e) Neither the execution and delivery of this Agreement or the CVR Agreement nor the consummation of the transactions contemplated hereby or thereby will entitle any employee to severance pay or result in, cause the accelerated vesting, funding or delivery of, or increase or enhance any benefit or the amount or value of, any material payment or benefit to any current or former employee, officer or director of the Company or any of its Subsidiaries, or result in any

limitation on the right of the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Employee Benefit Plan or related trust.

(f) No Company Employee Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, and none of the Company and its ERISA Affiliates, has, at any time during the last six years sponsored, maintained or contributed to or been obligated to contribute to any plan subject to Title IV of ERISA. No employees of the Company or any of its Subsidiaries located outside of the United States participate in or are eligible to participate in any Company Employee Benefit Plans providing pension or retirement benefits, and neither the Company nor any of its Subsidiaries has any liability with respect to or arising under any such plans, whether or not currently in existence or effective.

(g) No Company Employee Benefit Plan is a Multiemployer Plan, none of the Company and its ERISA Affiliates has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan, and none of the Company and its ERISA Affiliates has incurred any withdrawal liability to a Multiemployer Plan that has not been satisfied in full.

(h) Neither the Company nor any of its Subsidiaries has any obligations for or any current or projected liability in respect of post-employment or post-retirement health, medical or life benefits under any Company Employee Benefit Plan or otherwise, except for obligations under Section 601 et. seq. of ERISA and Section 4980B of the Code ("COBRA").

(i) Since December 31, 2002, other than in the ordinary course of business consistent with past practice, with respect to any director, executive officer (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) or key employee (meaning an employee with the title Executive Vice President or above) of the Company or any of its Subsidiaries, there has not been any (i) grant of any severance or termination pay to (or amendment to any existing arrangement with), (ii) increase in benefits payable under any existing severance or termination pay policies or employment agreements, (iii) any entering into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement), (iv) establishment, adoption or amendment (except as required by applicable law) of any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement, or (v) increase in compensation, bonus or other benefits payable.

(j) There is no contract, plan or arrangement (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code.

(k) Neither the Company nor any of its ERISA Affiliates has any commitment or obligation to establish or adopt any new or additional employee benefit plans or to increase the benefits under any existing Company Employee Benefit Plan.

Section 4.14. Labor Controversies. (a) The Company and its Subsidiaries are in compliance with all currently applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, and are not engaged in any unfair labor practice, failure to comply with which or engagement in which, as the case may be, would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (i) There is not pending or, to the Company's Knowledge, threatened, any labor strike, material dispute, walk-out, work stoppage, slow-down or lockout involving the Company or any of its Subsidiaries, (ii) there are no controversies pending or, to the Company's Knowledge, threatened between the Company or its Subsidiaries and any representatives (including unions) of any of their employees, and (iii) to the Company's Knowledge, there are no organizational efforts being made involving any of the presently unorganized employees of

the Company or its Subsidiaries. Neither the Company nor any of its Subsidiaries is a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other contract or understanding with a labor union or organization.

(b) Since December 31, 2002, there has not occurred and there has not been any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any of its Subsidiaries, which employees were not subject to a collective bargaining agreement at December 31, 2002, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees.

Section 4.15. Environmental Matters. (a) (i) The Company and its Subsidiaries have conducted their respective businesses in compliance with all applicable Environmental Laws, including, without limitation, having all permits, licenses and other approvals and authorizations necessary for the operation of their respective businesses as presently conducted, (ii) none of the properties owned by the Company or any of its Subsidiaries contain any Hazardous Substance as a result of any activity of the Company or any of its Subsidiaries or, to the Company's Knowledge or the knowledge of any of its Subsidiaries, as a result of any other activity, in any case in amounts requiring any investigation or remediation or which may lead to any liability to the Company or any of its Subsidiaries under any applicable Environmental Laws, (iii) neither the Company nor any of its Subsidiaries has received any notices, demand letters or requests for information from any federal, state, local or foreign governmental entity or from any third party indicating that the Company or any of its Subsidiaries may be in violation of, or liable under, any Environmental Law in connection with the ownership or operation of their businesses or of any real property, (iv) there are no civil, criminal or administrative actions, suits, demands, claims, hearings, investigations or proceedings pending or threatened, against the Company or any of its Subsidiaries relating to any violation, or alleged violation, of any Environmental Law, (v) no Hazardous Substance has been disposed of, released or transported in violation of any applicable Environmental Law, or in a manner giving rise to any liability under Environmental Law, from or on any properties owned or operated by the Company or any of its Subsidiaries at any time and (vi) neither the Company, its Subsidiaries nor any of their respective properties are subject to any liabilities or expenditures (fixed or contingent) relating to any suit, settlement, court order, administrative order, regulatory requirement, judgment or claim asserted or arising under any Environmental Law, except for violations of the foregoing clauses (i) through (vi) that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(b) As used herein, "Environmental Law" means any federal, state, local or foreign law, statute, ordinance, rule, regulation, code, license, permit, authorization, approval, consent, order, judgment, decree, injunction, requirement or agreement with any governmental entity relating to (x) the protection, preservation or restoration of the environment (including, without limitation, air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource) or to human health or safety, or (y) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Substances, in each case as amended and as in effect at the date hereof.

(c) As used herein, "Hazardous Substance" means any hazardous, toxic or radioactive substance or waste including, without limitation, any pollutant, contaminant, special waste, industrial substance or petroleum or any derivative or byproduct thereof, radon, asbestos, or asbestos-containing material, urea formaldehyde foam insulation or polychlorinated biphenyls.

Section 4.16. Intellectual Property. The Company and its Subsidiaries own, or are licensed to use, all Intellectual Property used in and material to the conduct of the Company's business as it is

currently conducted, and the consummation of the transactions herein will not materially alter, materially impair or extinguish any of the Company's or its Subsidiaries' rights in any such Intellectual Property. To the Company's Knowledge, all material patents and patent applications, material registered trademarks, material registered trade names, material registered service marks and material registered copyrights (the "Company IP") are valid and subsisting. A true and complete list of the Company IP is provided in Section 4.16 of the Company Disclosure Schedule. To the Company's Knowledge, the Company and its Subsidiaries own or are licensed to use all Intellectual Property necessary to exploit the Company's or its Subsidiaries' projects in development that have been disclosed in the Company SEC Reports or otherwise publicly announced. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) to the Company's Knowledge, the use of the Intellectual Property by the Company and its Subsidiaries does not infringe on or other otherwise violate the rights of any third party, and is in accordance in all material respects with the applicable license pursuant to which the Company acquired the right to use such Intellectual Property, (ii) to the Company's Knowledge, no third party is challenging, infringing on or otherwise violating any right of the Company in the Intellectual Property, and (iii) neither the Company nor any of its Subsidiaries has received any written notice of any offer to license, assertion of infringement, pending claim, order or proceeding with respect to any unlicensed third party Intellectual Property used in and material to the conduct of the Company's business as it is currently conducted, and to the Company's Knowledge, no Intellectual Property is being used or enforced by the Company in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of any Intellectual Property used in and material to the conduct of the Company's business as it is currently conducted. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company has taken reasonable and customary steps to protect its rights in its own confidential information and trade secrets, protect any confidential information provided to it by any other Person, and obtain ownership of works of authorship and inventions made by its employees, consultants and contractors and which are material to the Company's business. With respect to all computer software programs owned by the Company and material to the conduct of its business as it is currently conducted ("Company Software"), except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and except as disclosed in Section 4.16 of the Company Disclosure Schedule: (i) no parties, other than the Company and its Subsidiaries, possess any current or contingent rights to license, sell, or otherwise distribute products or services utilizing the Company IP or the Company Software, and (ii) no parties, other than the Company and its Subsidiaries, possess any current or contingent rights to any source code that is part of the Company Software. The Company has taken commercially reasonable steps to protect the Company Software from becoming infected by any computer code designed to disrupt, disable, harm, distort or otherwise impede in any material manner the normal operation of such software by or for the Company or its authorized users, or any other of the Company's associated software, firmware, hardware, computer system or network (including without limitation what are sometimes referred to as "viruses," "worms," unauthorized "time bombs," and/or unauthorized "back doors") and, to the Company's Knowledge (but without representing that any inspection has been made other than by normal use of the Company's virus detection software), the Company Software contains no such computer code, except as would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this Agreement, the term "Intellectual Property" means all patents, trademarks, trade names, service marks, copyrights, and any applications therefor, technology, know-how, computer software programs or applications, and tangible or intangible proprietary information or materials.

Section 4.17. Opinion of Financial Advisor. The Company's financial advisor, William Blair & Company (the "Company Financial Advisor"), has delivered to the Board of Directors of the Company an oral opinion, to be confirmed in writing, to the effect that, as of the date of this Agreement, the consideration to be received by the Company's stockholders in the Offer and the Merger is fair to such holders from a financial point of view.

Section 4.18. Brokers and Finders. There is no obligation on the part of the Company or any of its Subsidiaries to pay any investment banking fees, finder's fees, brokerage or agent commissions or other like payments in connection with the transactions contemplated hereby, other than fees payable to the Company Financial Advisor pursuant to a fee agreement. The calculation of such fee is set forth on Section 4.18 of the Company Disclosure Schedule.

Section 4.19. Insurance. All material fire and casualty, general liability, business interruption, directors' and officers', product liability, and sprinkler and water damage insurance policies maintained by the Company or any of its Subsidiaries are with reputable insurance carriers, provide full and adequate coverage for all normal risks incident to the business of the Company and its Subsidiaries and their respective properties, businesses and assets.

Section 4.20. Takeover Statutes. The Board of Directors of the Company has taken all actions necessary to exempt the Offer, the Top-Up Option, the Merger, this Agreement and the other transactions contemplated hereby under Section 203 of the DGCL. No other state takeover or similar statute or regulation is applicable to this Agreement, the CVR Agreement, the Offer, the Top-Up Option, the Merger or the other transactions contemplated hereby or thereby.

Section 4.21. Receivables and Customers. Except as would not reasonably be expected to have, whether individually or in the aggregate, a Company Material Adverse Effect:

(a) All accounts, notes receivable and other receivables (other than receivables collected since March 31, 2003) reflected on the consolidated balance sheet of the Company as of that date that is contained in the Company 10-Q are, and all accounts, notes and other receivables arising from or otherwise relating to the business of the Company and its Subsidiaries since that date will be, valid, genuine and fully collectible in the aggregate amount thereof, subject to normal and customary trade discounts, less any reserves for doubtful accounts recorded on that balance sheet.

(b) All accounts, notes receivable and other receivables arising out of or relating to the business of the Company and its Subsidiaries as of March 31, 2003 have been included in the consolidated balance sheet of the Company as of that date that is contained in the Company 10-Q in accordance with generally accepted accounting principles applied on a consistent basis.

(c) Since December 31, 2002, there has not been any termination, cancellation or curtailment of the business relationship of the Company or any of its Subsidiaries with any customer or group of affiliated customers (nor has any such customer or group been subject to any voluntary or involuntary bankruptcy or similar filing under applicable law since that date), and neither the Company nor any of its Subsidiaries has received any written notice of an intent to so terminate, cancel or curtail.

ARTICLE V

COVENANTS

Section 5.01. Conduct of Business Pending the Merger. Except as otherwise expressly contemplated by this Agreement, required by law or disclosed in Section 5.01 of the Company Disclosure Schedule,

after the date hereof and prior to the Effective Time, without Parent's consent (which consent shall not be unreasonably withheld), the Company shall, and shall cause its Subsidiaries to:

(a) conduct their respective businesses in the ordinary and usual course of business and consistent with past practice;

(b) not (i) amend or propose to amend their respective certificates of incorporation or bylaws or equivalent constitutional documents (or the CVR Trust's certificate of formation or declaration of trust), (ii) split, combine or reclassify their outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or a Subsidiary of the Company by another Subsidiary of the Company;

(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except that the Company may issue shares of capital stock of the Company (A) upon exercise of Company Options outstanding on May 31, 2003 and (B) as required by the 401(k) Plan, the ESPP, the Directors' Plan, the DCP and the Company Rights Agreement as in effect on the date hereof;

(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money (including, for the sake of clarity, any letters of credit), other than borrowings in the ordinary course of business or borrowings to fund working capital needs in the ordinary course of business under the existing credit facilities of the Company or any of its Subsidiaries on the terms of those facilities as they exist on the date of this Agreement (the "Existing Credit Facilities") in an aggregate amount for all such permitted borrowings not to exceed $20,000,000 for any consecutive four business day period, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Company Options pursuant to the terms of the Company Option Plans and the relevant written agreements evidencing the grant of Company Options, or to use for the 401(k) Plan, the ESPP or the Directors' Plan, (iii) make any material acquisition of any assets or businesses other than expenditures for current assets in the ordinary course of business and expenditures for fixed or capital assets in the ordinary course of business with a value that is less than (A) $2,500,000 in the aggregate during the forty-five (45) day period commencing on the date of this Agreement and (B) $5,000,000 in the aggregate during the ninety (90) day period commencing on the date of this Agreement or (iv) sell, pledge, lease, license dispose of or encumber any material assets or businesses other than (A) any such transactions disclosed in Section 5.01 of the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to Existing Credit Facilities or (C) sales of inventory and other current assets in the ordinary course of business consistent with past practices.

(e) use reasonable best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees (other than terminations of services for cause), and preserve the goodwill and business relationships with customers and others having business relationships with them;

(f) not enter into or amend or modify any employment, consulting, severance, retirement or special pay arrangement with respect to termination of employment or other similar arrangements or agreements with any directors, officers or key employees or with any other persons, except (i) as required by previously existing contractual arrangements or applicable law or (ii) other employment agreements entered into with a person who is hired or promoted by the Company or

one of its Subsidiaries after the date hereof in the ordinary course of business whose annual base salary does not exceed $175,000;

(g) not increase the salary, bonus, benefits or other compensation of any person except for increases in the ordinary course of business consistent with past practice or except pursuant to contractual arrangements existing on the date of this Agreement;

(h) not adopt, enter into or amend or modify, in each of the latter two cases to materially increase benefits or obligations of any Company Employee Benefit Plan, except as required pursuant to existing contractual arrangements, this Agreement or applicable law;

(i) (A) not enter into any new contract or commitment providing for the purchase of goods or services by the Company or any of its Subsidiaries that is inconsistent with the Company's April 2003 forecast (a true, accurate, complete and current copy of which has been provided to Parent prior to the date of this Agreement) or has a term of more than one year and which is reasonably expected to involve payments to retailers of more than $3,000,000 per annum or payments to other third parties of more than $750,000 in the aggregate for such contract or commitment, (B) not amend, modify or change in any material respect, or waive any material rights of the Company or any of its Subsidiaries or any material obligation of any third party under, any contract listed in Section 4.11 of the Company Disclosure Schedule;

(j) not make, change or revoke any material Tax election unless required by law or make any agreement or settlement with any taxing authority regarding any material amount of Taxes or which is reasonably likely to materially increase the obligations of the Company or the Surviving Corporation to pay Taxes in the future;

(k) not defer the payment of accounts or trade payables, or seek to accelerate the payment of, or factor or otherwise similarly monetize, accounts or trade receivables, of the Company or any of its Subsidiaries, in either such case beyond or in advance (as the case may be) of the customary payment periods of the Company, such Subsidiary(ies) or such third parties for those payables or receivables;

(l) not enter into any interest rate, currency or other swap or derivative transaction, other than in the ordinary course of business consistent with past practices and for bona fide hedging purposes;

(m) not take any action that would make any representation or warranty of the Company inaccurate in any material respect at any time before the Effective Time;

(n) not (i) propose or make, or engage in any discussions or negotiations with respect to, any Settlement Decision (as defined in the CVR Agreement) or (ii) enter into any confidentiality agreement with any third party to the Litigation (as defined in the CVR Agreement) with respect thereto; or

(o) not enter into an agreement, commitment or arrangement with respect to any of the foregoing.

Without limiting the foregoing, after the date hereof and prior to the Effective Time, without Parent's consent the Company shall not, and shall not permit its Subsidiaries to, enter into any new contract or commitment providing for the outsourcing to third parties of software development, data processing, information technology operations or services or analytical services and which is reasonably expected to involve payments to third parties of more than $750,000 in the aggregate for such contract or commitment.

Section 5.02. Restrictions on Parent and the Company. (a) Parent agrees that, from and after the date hereof and prior to the Acceptance Date, and except as may be agreed in writing by the Company

or as may be expressly permitted pursuant to this Agreement (including the exercise of termination rights under this Agreement), Parent shall not, and shall not permit any of its Subsidiaries to agree, in writing or otherwise, to take any action which would materially delay the consummation of the Offer, including by application of Rule 14e-5 under the Exchange Act.

(b) The Company agrees that, from and after the date hereof and prior to the Acceptance Date, and except as may be agreed in writing by Parent or as may be expressly permitted pursuant to this Agreement (including any actions pursuant to Section 5.03 and including the exercise of termination rights under this Agreement), the Company shall not, and shall not permit any of its Subsidiaries to agree, in writing or otherwise, to take any action which would materially delay the consummation of the Offer.

Section 5.03. No Solicitation. (a) The Company shall not and shall not permit its Subsidiaries or any officer, director, employee, attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party that is seeking to make or has made an Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (iv) enter into any agreement with respect to an Acquisition Proposal, unless the Company shall have terminated this Agreement in compliance with Section 7.01(d). For purposes of this Agreement, the term, "Acquisition Proposal" means any proposal or offer (other than any proposal or offer by Parent or any of its Subsidiaries) to acquire all or 15% or more of the business, properties or capital stock of the Company or any of its Subsidiaries, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof, other than any transaction involving Parent or any of its Subsidiaries.

(b) Notwithstanding the provisions of paragraph (a) above or any other provision of this Agreement, subject to compliance with Section 5.03(c), the Company may, in response to an unsolicited bona fide written Acquisition Proposal from any Person or group (a "Potential Acquiror") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor and legal counsel, could reasonably be expected to lead to a Superior Proposal, furnish confidential or nonpublic information pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement to, and engage in discussions and negotiate with, such Potential Acquiror, provided that the Company Board of Directors determines in good faith after consultation with outside legal counsel, that such action is necessary in order for its directors to comply with their fiduciary duties under applicable law. For purposes of this Agreement, "Superior Proposal" means an unsolicited bona fide written Acquisition Proposal for at least a majority of the voting power of the shares of the Company Common Stock then outstanding or all or substantially all of the assets of the Company and its Subsidiaries which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor and outside legal counsel, would be more favorable to and provide consideration to the holders of Company Common Stock with greater financial value than the consideration payable in the Offer and the Merger, taking into account all the terms and conditions of the Acquisition Proposal, including any break-up fees, expense reimbursement provisions and conditions to consummation and for which financing is then fully committed; provided that, for the sake of clarity, an Acquisition Proposal shall only be deemed to have been solicited for purposes of this definition as a result of actions taken on or after the date of this Agreement, and not as a result of any actions taken before the date of this Agreement (for example, and by way of illustration, in connection with the auction of

the Company to other prospective bidders before the date hereof). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company shall also use its reasonable best efforts to cause any such party (or its agents or advisors) in possession of confidential information about the Company or any of its Subsidiaries that was furnished by or on behalf of the Company to return or destroy all of that information. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in Section 5.03(a) that have been engaged in connection with the evaluation of a possible Acquisition Transaction of the obligations undertaken in this Section 5.03.

(c) The Company shall promptly (but in no event later than 24 hours) notify Parent after receipt by it, any of its Subsidiaries or any of their respective advisors of any Acquisition Proposal, any communication (whether written or oral) from any Potential Acquiror or its advisor that such Potential Acquiror is considering making an Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Potential Acquiror that may be considering making or has made an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the material terms and conditions of such proposal, to the extent known. The Company shall thereafter keep Parent informed, on a reasonably current basis, on the status and terms of any such Acquisition Proposal and the status of any discussion or negotiations with any Potential Acquiror related thereto.

(d) Notwithstanding Section 5.03(a), following receipt of a Superior Proposal and after providing written notice to Parent at least three business days before doing so, the Board of Directors of the Company may withdraw or modify (or alter or modify in a manner adverse to Parent) the recommendation by the Board of Directors of the Company of this Agreement, the Offer or the Merger, if the Board of Directors of the Company determines in good faith (after consultation with its outside counsel) that its fiduciary obligations require it to do so.

(e) Nothing contained in this Section 5.03 or any other provision of this Agreement shall prohibit the Company or the Board of Directors of the Company from taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Exchange Act.

Section 5.04. Access to Information; Confidentiality. Subject to applicable law, the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that,

with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.

Section 5.05. Merger Sub. Parent will take all action necessary (a) to cause Merger Sub to perform its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement and (b) to ensure that, prior to the Effective Time, Merger Sub shall not conduct any business or make any investments other than as specifically contemplated by or in furtherance of this Agreement, or incur or guarantee any indebtedness other than as necessary for the consummation of the transaction contemplated hereby.

Section 5.06. Employee Benefits. (a) Until December 31, 2004, Parent shall provide, or shall cause to be provided, to each employee of the Company and its Subsidiaries, who is an employee thereof as of the Acceptance Date (the "Company Employees") cash compensation and employee benefits that are substantially comparable, in the aggregate, to those provided to Company Employees immediately before the Acceptance Date (excluding benefits provided under any plan, program or policy providing severance or termination benefits and benefits provided under any stock option or other stock-based plan, program or policy). The foregoing shall not be construed to prevent the termination of employment of any Company Employee or the amendment or termination of any particular Company Employee Benefit Plan to the extent permitted by its terms and under any applicable law.

(b) For purposes of eligibility and vesting and levels of benefits under the employee benefit plans of Parent and its Affiliates providing benefits to any Company Employees after the Acceptance Date (the "New Plans"), each Company Employee shall be credited with his or her years of service with the Company and its Affiliates before the Acceptance Date, to the same extent as such Company Employee was entitled, before the Acceptance Date, to credit for such service under any corresponding Company Employee Benefit Plans in which such employee participated, except to the extent such credit would result in a duplication of benefits. In addition, and without limiting the generality of the foregoing: (i) each Company Employee shall be immediately eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a comparable Company Employee

Benefit Plan in which such Company Employee participated immediately before the Acceptance Date; and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Company Employee, Parent shall cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such employee and his or her covered dependents to the extent such exclusions or requirements were not applicable under the corresponding Company Employee Benefit Plan in which such employee participated, and Parent shall cause any eligible expenses incurred by such employee and his or her covered dependents during the portion of the plan year of the Company Employee Benefit Plan ending on the date such employee's participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year to the extent that those expenses were incurred during a period in which the employee or covered dependent was covered under a corresponding Company Employee Benefit Plan.

(c) Prior to and as of the Acceptance Date, the Company shall terminate each Company Option Plan, the DCP, the Directors' Plan, the ESPP, the 1999 Restricted Stock Plan and each other Company Employee Benefit Plan providing for the grant of stock-based awards or under which grants of stock-based awards have been made. The Company shall freeze the ESPP effective July 1, 2003 so that a new Accumulation Period under the ESPP does not begin on July 1, 2003. The Company shall not take any action to set or otherwise commence a new Accumulation Period or Exercise Date (each as defined in the ESPP) unless this Agreement shall have been terminated in accordance with Article VII hereof.

(d) Prior to the Acceptance Date, the Company shall cause all shares of Company Common Stock that are then held in the Unallocated Stock Account (as such term is defined in the DCP) under the DCP to be allocated, or reallocated, as the case may be, to Stock Accounts (as such term is defined in the DCP) under the DCP.

(e) With respect to the Directors' Plan, the Company shall distribute shares of Company Common Stock payable for services rendered in second quarter 2003 and that portion of the third quarter 2003 ending on the Payment Date (as defined below) by participants in such plan on the date (the "Payment Date") that is the earlier of (i) August 1, 2003 and (ii) the day that is immediately prior to the Acceptance Date.

(f) No provision of this Section 5.06 shall create any third party beneficiary or other rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company or any of its Affiliates in respect of continued employment with, or any benefits which may be provided by, either Parent or any of its Affiliates.

Section 5.07. Proxy Statement. As promptly as practicable after the consummation of the Offer and if required by the Exchange Act, the Company shall prepare and file with the SEC, and shall use all reasonable efforts to have cleared by the SEC, and promptly thereafter shall mail to stockholders, the Proxy Statement. Parent and Merger Sub agree to cooperate with the Company in the preparation of the Proxy Statement and other proxy solicitation materials of the Company. The Company shall provide Parent and its counsel with a reasonable opportunity to review the draft Proxy Statement each time before it is filed with the SEC and shall give reasonable and good faith consideration to any comments from Parent and its counsel on such draft(s). The Proxy Statement shall contain the recommendation of the Company's Board of Directors that the Company's stockholders approve and adopt this Agreement and the Merger, unless the fiduciary duties of the Company's Board of Directors require that the Board withdraw or adversely alter or modify that recommendation or that the Board recommend against approval and adoption. Unless this Agreement is previously terminated in accordance with Section 7.01, the Company shall, if required, submit this Agreement to its stockholders

at the Company Meeting, even if the Board of Directors of the Company determines at any time after the date of this Agreement that it is no longer advisable, adversely alters its recommendation or recommends that the Company stockholders reject it. The Company shall promptly provide Parent and its counsel in writing with any written comments (and orally, any oral comments) that the Company or its counsel may receive from the SEC or its staff with respect to the Proxy Statement promptly after the receipt of those comments and shall consult with (and shall duly consider in good faith any comments of) Parent and its counsel before responding to those comments. The Company and its counsel will provide Parent and its counsel with a reasonable opportunity to participate in all communications, if any, with the SEC and its staff, including any meetings and telephone conferences relating to the Proxy Statement, this Agreement, the CVR Agreement or the matters or transactions contemplated hereby or thereby.

Section 5.08. Company Meeting. Following the consummation of the Offer, the Company shall promptly take all action necessary in accordance with the DGCL and its Certificate of Incorporation and By-Laws to convene the Company Meeting, if such meeting is required, as soon as reasonably practicable. The stockholder vote required for approval of the Merger will be no greater than that set forth in the DGCL. The Company shall use its reasonable efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other action necessary or, in the reasonable opinion of Parent, advisable to secure any vote of stockholders required by the DGCL to effect the Merger. Notwithstanding the foregoing, if Parent, Merger Sub or any other subsidiary of Parent shall acquire at least 90 percent of the outstanding shares of Company Common Stock, and provided that the conditions set forth in Article VI shall have been satisfied or waived, the Company shall, at the request of Parent, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 253 of the DGCL. Parent shall vote, or shall cause to be voted, all of the shares of Company Common Stock acquired in the Offer or otherwise owned by it or any of its Subsidiaries (including Merger Sub) in favor of the approval and adoption of this Agreement and the Merger.

Section 5.09. Public Announcements. Parent and the Company will consult with each other before issuing any press release or making any public statement with respect to this Agreement, the CVR Agreement or the transactions contemplated hereby or thereby and, except as may be required by applicable law or any listing agreement with NASDAQ, will not issue any such press release or make any such public statement prior to such consultation; provided that, if the Company, any Subsidiary or any of their respective directors, officers, employees or advisors receives an offer or proposal from any third party to the Litigation (as defined in the CVR Agreement) with respect to any Settlement Decision (whether or not conditional), then Parent shall have the right, in its discretion, to publicize the terms and conditions of that offer or proposal.

Section 5.10. Expenses and Fees. All costs and expenses incurred in connection with this Agreement and the CVR Agreement and the transactions contemplated hereby and thereby shall be paid by the party incurring such expenses, except that those expenses incurred in connection with printing and filing the Offer Documents, the Schedule 14D-9 and the Proxy Statement shall be equally borne by Parent and the Company.

Section 5.11. Agreement to Cooperate. (a) Subject to the terms and conditions of this Agreement and applicable law, Parent and the Company shall use their respective best efforts (but without the obligation on the part of any party to pay any money, to divest, sell or hold separate any assets or agree to any behavioral modifications with any Governmental Agency) to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including to obtain all necessary or appropriate waivers, consents or approvals of third parties required in order to preserve contractual relationships of Parent and the Company and their respective Subsidiaries, all necessary or appropriate waivers, consents and approvals to effect all necessary registrations, filings and submissions and to lift any injunction or other legal bar to consummation of the Offer or the Merger (and, in such case, to proceed with the consummation of the Offer and the Merger as expeditiously as possible), including through all possible appeals. Further, the parties hereto agree to use their respective best efforts (but without the obligation on the part of any party to pay any money) to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to enable the SEC to declare the Registration Statement effective with a level of disclosure therein that is substantially similar in all material respects with the registration statements on Form S-4 of Coast Federal Litigation Contingent Payment Rights Trust dated January 13, 1998 and Bank United Corp. Litigation Contingent Payment Rights Trust dated November 3, 2000, in each case as amended.

(b) In addition to and without limitation of the foregoing, each of Parent and the Company undertakes and agrees to file (and Parent agrees to cause any Person that may be deemed to be the ultimate parent entity or otherwise to control Parent to file, if such filing is required by law) as soon as practicable, (x) if required by the HSR Act, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice (and shall file as soon as practicable any form or report required by any other Governmental Agency relating to antitrust matters) and (y) any and all filings that may be required to be made under Foreign Antitrust Laws in respect of this Agreement, the CVR Agreement or any transaction contemplated hereby or thereby. Each of Parent and the Company shall (and Parent shall cause any such parent entity to) (i) respond as promptly as practicable to any inquiries or requests received from any domestic or foreign government or governmental agency or authority (each, a "Governmental Agency") for additional information or documentation, and (ii) not extend any waiting period under the HSR Act (if deemed to apply to the transactions contemplated hereby) or enter into any agreement with any Governmental Agency not to consummate the transactions contemplated by this Agreement, except with the prior consent of the other parties hereto (which shall not be unreasonably withheld or delayed). Each party shall (i) promptly notify the other party of any written communication to that party or its Affiliates from any Governmental Agency and, subject to applicable law, permit the other party to review in advance any proposed written communication to any of the foregoing; (ii) not participate, or permit its Affiliates to participate, in any substantive meeting or discussion with any Governmental Agency in respect of any filings, investigation or inquiry concerning this Agreement, the CVR Agreement, the Offer or the Merger unless it consults with the other party in advance and, to the extent permitted by such Governmental Agency, gives the other party the opportunity to attend and participate thereat; and (iii) to the extent permitted under applicable law, furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between them and their Affiliates and their respective representatives on the one hand, and any government or regulatory authority or members or their respective staffs on the other hand, with respect to this Agreement, the CVR Agreement, the Offer and the Merger.

Section 5.12. Directors' and Officers' Indemnification. (a) The indemnification provisions of the Company's Certificate of Incorporation or Bylaws as in effect at the Acceptance Date shall not be

amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at or prior to the Effective Time were directors, officers, employees or agents of the Company with respect to matters arising or events occurring before the Effective Time. From and after the Acceptance Date, Parent shall assume, be jointly and severally liable for, and honor, guaranty and stand surety for, and shall cause the Company to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.12.

(b) From and after the Acceptance Date, each of Parent and the Company and, from and after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless each present and former individual who serves or served as a director, officer, employee and agent of the Company or any of its Subsidiaries at any time at or before the Effective Time (each, together with such person's heirs, executors or administrators, an "Indemnified Party" and collectively, the "Indemnified Parties") against any costs or expenses (including advancing attorneys' fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by law), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of, relating to or in connection with any action or omission occurring or alleged to occur prior to the Effective Time (including, without limitation, acts or omissions in connection with such persons serving as an officer, director or other fiduciary in any entity if such service was at the request or for the benefit of the Company) or the Merger or the other transactions contemplated by this Agreement or arising out of or pertaining to the transactions contemplated by this Agreement to the fullest extent that the Company would have been permitted under Delaware law and the Company's Certificate of Incorporation and By-laws in effect on the date of this Agreement.

(c) For a period of six years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors' and officers' liability insurance maintained by the Company and its Subsidiaries (provided that Parent may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the Indemnified Parties, and which coverages and amounts shall be no less than the coverages and amounts provided at that time for Parent's directors and officers) with respect to matters arising on or before the Effective Time; provided, however, that if the existing current policies expire, are terminated or cancelled during such six-year period, Parent will use its reasonable efforts to obtain as much coverage as can be obtained for the remainder of such period for a premium not in excess of the amount set forth in Section 5.12 of the Company Disclosure Schedules. Without limiting the foregoing, Parent and the Company shall each use their respective best good faith efforts to cause to be maintained in effect to and including the Effective Time (without any cancellation or lapse or denial of coverage caused by or relating to the occurrence of the Acceptance Date) the current policies of directors' and officers' liability insurance maintained by the Company and its Subsidiaries (or substitute policies of at least the same coverage and amounts containing terms and conditions that are no less advantageous to the Indemnified Parties, and which coverages and amounts shall be no less than the coverages and amounts in such current policies, in each case subject to reasonable availability); provided, that (i) the failure of the Company to keep and observe the covenants contained in this sentence shall not create any right or remedy in Parent or Merger Sub and shall not be deemed to result in a failure of a condition to the obligations of Parent and Merger Sub to consummate the Offer and the Merger and (ii) if any payments are required to be made in order to maintain such current policies of directors' and officers' liability insurance of the Company and its Subsidiaries (or such substitute policies), those payments shall be made by the Company, and not Parent, Merger Sub or any of their respective Affiliates.

(d) Parent shall pay all reasonable expenses, including reasonable attorneys' fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.12.

(e) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the Certificate of Incorporation or Bylaws of the Company, any other indemnification arrangement, the DGCL or otherwise. The provisions of this Section 5.12 shall survive the consummation of the Merger and expressly are intended to benefit each of the Indemnified Parties.

Section 5.13. Section 16 Matters. Prior to the Acceptance Date, Parent and the Company shall take all such steps as may be required and permitted to cause the transactions contemplated by this Agreement, including any dispositions of shares of Company Common Stock (including derivative securities with respect to shares of Company Common Stock) by each individual who is or will be subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.

Section 5.14. Further Assurances. (a) Each party hereby agrees to perform any further acts and to execute and deliver any documents which may be reasonably necessary to carry out the provisions of this Agreement. At and after the Effective Time, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the Company or Merger Subsidiary, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Merger Subsidiary, any other actions and things to vest, perfect or confirm of records or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.

(b) Upon Parent's request, the Company shall, and shall cause its Subsidiaries and its and their respective officers and employees to provide all customary assistance, cooperation and support that Parent may reasonably request in order to assist in raising private bank or mezzanine debt financing for the Company, Parent or Merger Sub (which financing shall, for the sake of clarity, be conditioned upon the Closing); provided that (i) such assistance, cooperation and support shall not unreasonably disrupt the Company's operations, (ii) any such assistance, cooperation and support shall be at Parent's expense and (iii) in no event shall the receipt or consummation of the financing described in this Section 5.14(b) be deemed to be a condition to the consummation of the Offer, the Merger or any other transaction contemplated by this Agreement or by the CVR Agreement.

Section 5.15. Notices of Certain Events. Each of Parent and the Company shall promptly notify the other of:

(a) any notice or other communication received by that party from (i) any Person alleging that the consent of that Person is or may be required in connection with the transactions contemplated by this Agreement or by the CVR Agreement or (ii) subject to applicable law, court order and applicable privilege considerations, any party to the Litigation (as defined in the CVR Agreement) relating to the Litigation;

(b) any notice or other communication received by that party from any governmental or regulatory agency or authority in connection with the transactions contemplated by this Agreement or by the CVR Agreement;

(c) any actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries that, if pending on the date of this Agreement, would have been required to have

been disclosed pursuant to any of Sections 4.08, 4.10, 4.12, 4.13, 4.14, 4.15 or 4.16, as the case may be, or that relate to the consummation of the transactions contemplated by this Agreement.

(d) the occurrence or non-occurrence of any event or the discovery of any fact that would be reasonably expected to cause any representation or warranty of that party that is contained in this Agreement to be untrue or inaccurate such that the condition set forth in clause (c) of Exhibit A hereto would at any time be unsatisfied on and as of any date after the date of this Agreement; and

(e) any failure of such party to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement or the CVR Agreement.

Section 5.16. CVR Trust; CVR Agreement. (a) The Company hereby covenants and agrees (i) to establish a statutory trust (the "CVR Trust") under the Delaware Statutory Trust Act (as defined in the Declaration of Trust (as defined herein)), pursuant to a declaration in a form reasonably acceptable to the parties hereto (the "Initial Declaration of Trust"), as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement and prior to the initial filing of the Registration Statement, (ii) to cause the Initial Declaration of Trust to be amended and restated on or prior to the Acceptance Date pursuant to an amended and restated declaration of trust in the form of Exhibit B hereto (the "Declaration of Trust") and (iii) to cause the CVR Trust to issue CVR Certificates at the times and in the amounts contemplated by this Agreement and the Declaration of Trust.

(b) The parties hereto covenant and agree that immediately prior to the issuance of the first CVR Certificates to be issued under the CVR Agreement, they will, and will cause their respective Rights Agents (which Parent and the Company will appoint prior to such execution and delivery) to, execute and deliver the CVR Agreement substantially in the form attached hereto as Exhibit C.

(c) Within 15 days after the execution and delivery of the CVR Agreement, Parent and the Company shall use all commercially reasonable efforts to cause the Rights Agents to (i) agree on the Independent Rights Agent (as defined in the CVR Agreement) and the compensation of such person, (ii) decide which Rights Agent will preside over the meetings of the Rights Agents and (iii) agree on all other provisions of the CVR Agreement that require prompt concurrence (including, without limitation, addresses for notice and the name of the tie-breaking accounting firm).

(d) Parent and Merger Sub covenant and agree that, during the period from the date hereof to the Acceptance Date, neither they nor any of their respective Affiliates shall entertain or initiate any settlement discussions regarding the Litigation.

Section 5.17 Commitment Letters; No Distributions by Parent. Neither Parent nor Merger Sub shall take any action to terminate either Commitment Letter or to amend or modify either Commitment Letter in any manner adverse to Parent, Merger Sub or the Company, without the prior written consent of each such Person. Furthermore, without limiting Parent's ability in any way to effect the Recapitalization (as defined in the Commitment Letter of Tennenbaum) on or after the Effective Time (except as expressly limited by the terms of the Commitment Letter of Tennenbaum) Parent shall not (i) declare, set aside or pay any dividend or distribution in respect of any shares of its capital stock or (ii) repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, Parent.

ARTICLE VI

CONDITIONS TO THE MERGER

Section 6.01. Conditions to the Obligations to Consummate the Merger. The respective obligations of the Company, Parent and Merger Sub to consummate the Merger are subject to the satisfaction on or prior to the Closing Date of the following conditions:

(a) Merger Sub shall have purchased shares of Company Common Stock pursuant to the Offer, except that this condition shall not be a condition to Parent's and Merger Sub's obligation to effect the Merger if Merger Sub shall have failed to purchase shares of Company Common Stock pursuant to the Offer in breach of (or as a result of Parent's breach of) this Agreement;

(b) this Agreement and the Merger shall have been approved and adopted by the requisite vote of the stockholders of the Company, if required by the DGCL;

(c) no law, rule or regulation or judgment, injunction, order or decree of a court or governmental agency or authority of competent jurisdiction shall be in effect which has the effect of making the Merger illegal or otherwise restraining or prohibiting the consummation of the Merger;

(d) (A) any waiting period applicable to consummation of the Merger under the HSR Act or any Foreign Antitrust Laws shall have expired or been terminated and (B) any approvals required under Foreign Antitrust Laws before consummation of the Merger shall have been obtained; and

(e) the Registration Statement shall have been declared effective under the Securities Act and shall not be the subject of any stop order nor shall proceedings seeking a stop order be pending before or threatened by the SEC.

ARTICLE VII

TERMINATION

Section 7.01. Termination. This Agreement may be terminated and the Offer and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time (notwithstanding any approval of this Agreement by the stockholders of the Company):

(a) by mutual written consent of the Company and Parent (including, from and after the Acceptance Date, the Independent Director Approval contemplated by Section 1.03(c));

(b) prior to the Acceptance Date by Parent if the Company shall have breached in any material respect any of its obligations contained in this Agreement or if its representations and warranties shall not be true and correct, except for such failures to be true and correct that, individually and in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, and which breach has not been or is incapable of being cured by the Company within thirty (30) days after the giving of written notice of such breach by Parent;

(c) prior to the Acceptance Date by the Company if Parent or Merger Sub shall have breached in any material respect any of its obligations to be performed by either of them under this Agreement, or if the representations and warranties of Parent and Merger Sub contained in this Agreement shall not be true and correct, except for such failures to be true and correct that, individually and in the aggregate, are not reasonably likely to have a material adverse effect on Parent, and which breach has not been or is incapable of being cured by Parent or Merger Sub, as applicable, within thirty (30) days after the giving of written notice of such breach by the Company;

(d) prior to the Acceptance Date by the Company if (i) the Board of Directors of the Company authorizes the Company, subject to complying with the terms of this Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and the Company gives Parent notice (which may be revoked by the Company by a subsequent notice to that effect) in writing that it intends to enter into such an agreement, specifying the material terms and conditions of such Superior Proposal and the identity of the Potential Acquiror, provided that the Board of Directors may only take those actions if it has determined, in good faith after consultation with its financial advisor and based on the advice of its outside counsel, that doing so is necessary in order for the directors to comply with their fiduciary duties under applicable law, (ii) Parent does not make, within three business days of receipt of the Company's written notification of its intention to enter into a binding agreement providing for the Superior Proposal, an offer that is at least as favorable from a financial point of view, to the stockholders of the Company as the Superior Proposal and (iii) the Company prior to or concurrently with such termination pays to Parent in immediately available funds the Termination Fee (as defined in Section 8.01(b));

(e) prior to the Acceptance Date by Parent, if (i) the Board of Directors of the Company shall have failed to recommend, or shall have withdrawn, adversely modified or adversely amended in any material respect its approval or recommendation of the Offer, the Merger or this Agreement to the Company's stockholders, it being understood that disclosure of the existence of and the material terms and conditions of any Acquisition Proposal that is not being recommended by the Board of Directors of the Company, shall not be considered to be a withdrawal, adverse modification or adverse amendment in any material respects of such approval or recommendation, or (ii) there shall have been a material breach of Section 5.03;

(f) by either Parent or the Company if (i) the Acceptance Date shall not have occurred on or before February 29, 2004; provided that the right to terminate this Agreement under this Section 7.01(f) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Acceptance Date to occur on or before such date or (ii) if there shall be any law or regulation or any governmental entity shall have issued an order, injunction or other decree or ruling or taken any other action permanently enjoining, restraining, making illegal or otherwise prohibiting the payment for the Company Common Stock pursuant to the Offer and/or Merger and that order, injunction, decree or ruling or other action shall have become final and nonappealable; or

(g) by the Company if Parent or Merger Sub shall have failed to commence the Offer in accordance with the Section 1.01; provided, however, that the Company may not terminate this Agreement pursuant to this Section 7.01(g) if such failure to have commenced the Offer shall have been caused by (i) the Company's failure to perform any of its obligations under this Agreement, (ii) facts or circumstances that constitute a breach of any representation or warranty of the Company under this Agreement or (iii) the occurrence of any of the events specified in any of paragraphs (a) through (h) of Exhibit A.

The party desiring to terminate this Agreement pursuant to any clause of this Section 7.01 (other than pursuant to Section 7.01(a)) shall give notice of that termination to the other party.

ARTICLE VIII

MISCELLANEOUS

Section 8.01. Effect of Termination. (a) In the event of termination of this Agreement by either Parent and/or the Company prior to the Acceptance Date pursuant to the provisions of Section 7.01, this Agreement shall forthwith become void, and there shall be no liability or further obligation on the part of the Company, Parent, Merger Sub, their respective Affiliates or their respective officers or directors (except as set forth in any of this Article VIII, in the second sentence of Section 5.04 and in Section 5.10, all of which shall survive the termination). Nothing in this Section 8.01 shall relieve any party from liability for any (i) willful or material breach of any covenant or agreement of such party contained in this Agreement or (ii) willful failure of that party to fulfill a condition to the performance of the obligations of the other party.

(b) In the event that this Agreement is terminated by Parent pursuant to Section 7.01(e)(ii) prior to the Company Meeting, and within 12 months after any such termination the Company enters into a definitive agreement with respect to or consummates a transaction that constitutes an Acquisition Proposal (whether or not with the same Potential Acquiror) with respect to which the Company committed a material breach of Section 5.03, then the Company shall promptly, but in no event later than two days after the date of entering into (or, if earlier, consummating) such agreement or transaction, as applicable, pay Parent a termination fee of $4,000,000 the ("Termination Fee") by wire transfer of same day funds.

(c) In the event that this Agreement is terminated by the Company pursuant to Section 7.01(d) or by Parent pursuant to Section 7.01(e)(i), the Company shall, in the case of termination by the Company, prior to or concurrently with such termination, and in the case of termination by Parent, promptly but in no event later than two days after the date of such termination, pay Parent the Termination Fee by wire transfer of same day funds.

(d) If this Agreement is terminated pursuant to Section 7.01(f)(i) and prior to any such termination:

(i) any Potential Acquiror shall have publicly announced an intention to make or actually makes (or shall have made) an Acquisition Proposal (whether or not conditional) on or after June 29, 2003 and, within 12 months after any such termination, the Company or any of its Subsidiaries enters into a definitive agreement with respect to or consummates a transaction constituting an Acquisition Proposal (whether or not with the same Potential Acquiror), then the Company shall promptly, but in no event later than two days after the date of entering into (or, if earlier, consummating) that agreement or transaction, as applicable, pay Parent the Termination Fee by wire transfer of same day funds; or

(ii) any third party to the Litigation shall have publicly announced an intention to make or actually makes any proposal or offer with respect to any Settlement Decision (whether or not conditional) and, within 12 months after any such termination, the Company or any of its Subsidiaries enters into a definitive agreement with respect to any Settlement Decision, then the Company shall, by wire transfer of same day funds, pay Parent the Termination Fee and also reimburse Parent for all reasonable and documented out-of-pocket expenses incurred by or on behalf of Parent in connection with the due diligence investigation of the Company and its subsidiaries and the negotiation and performance of this Agreement and the CVR Agreement and the taking of all actions contemplated by or in connection with any such agreement up to a maximum possible amount of such expenses of $2,000,000. The Company shall pay that Termination Fee promptly, but any event within two days after the date of entering into any such agreement, and it shall so reimburse Parent promptly (but in any event within three business days) after being invoiced therefor.

(e) The Company acknowledges that the agreements contained in this Section 8.01 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Merger Sub would not enter into this Agreement or the CVR Agreement. Accordingly, if the Company fails promptly to pay any Termination Fee (or reimburse any expenses) due to Parent pursuant to this Section 8.01, it shall also pay any costs and expenses incurred by or on behalf of Parent or Merger Sub in connection with any legal action(s) to enforce this Section 8.01.

Section 8.02. Non-Survival of Representations and Warranties. No representations or warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Acceptance Date, with respect to representations and warranties of the Company, or the Effective Time with respect to representations and warranties of Parent and Merger Sub. This Section 8.02 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after such time.

Section 8.03. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, mailed by registered or certified mail (return receipt requested) or sent via facsimile to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

If to Parent or Merger Sub, to:

Gingko Corporation
c/o Symphony Technology Group
4015 Miranda Avenue
2nd Floor
Palo Alto, California 94304
Attention: Managing Partner
Facsimile: (650) 935-9501

with copies to:

Symphony Technology Group
4015 Miranda Avenue
2nd Floor
Palo Alto, California 94304
Attention: Managing Partner
Facsimile: (650) 935-9501

Tennenbaum Capital Partners, LLC
11100 Santa Monica Boulevard, Suite 210
Los Angeles, California 90025
Attention: Michael Tennenbaum
Facsimile: (310) 566-1010

Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention:    Jeff Berman
                        John D. Amorosi
Facsimile:    (212) 450-3800

Gibson Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Attention: Dhiya El-Saden

Brian D. Kilb
Facsimile: (213) 229-7520

If to the Company, to:

Information Resources, Inc.
150 North Clinton Street
Chicago, Illinois 60661
Attention: General Counsel
Facsimile: (312) 726-1091

with a copy to:

Winston & Strawn
35 W. Wacker Drive
Chicago, Illinois 60601
Attention: Terrence R. Brady
Facsimile: (312) 558-5700

or such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is 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 8.04. Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In this Agreement, unless a contrary intention appears, (i) 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 (ii) reference to any Article or Section means such Article or Section hereof. No provision of this Agreement 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 Agreement, they shall be deemed to be followed by the words "without limitation."

Section 8.05. Miscellaneous. This Agreement (including the documents and instruments referred to herein) shall not be assigned by operation of law or otherwise except that (a) Merger Sub may assign its rights and obligations under this 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 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 have consented in writing to such assignment. THIS 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 8.06. Counterparts. This Agreement 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 8.07. Amendments; Extensions. (a) This 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 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 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), 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), any party(ies) hereto may waive (A) any inaccuracies in the representations and warranties of any other party(ies) contained herein or in any document delivered pursuant hereto 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 Agreement (including, for the sake of clarity, Exhibit A hereto) 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 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 Agreement to assert any of its rights under this 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 Agreement shall be cumulative and not exclusive of any rights or remedies provided by law.

Section 8.08. Entire Agreement. This Agreement, the CVR Agreement, the Initial Declaration of Trust, the Declaration of Trust 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, and including, without limitation, the June 29 Merger Agreement, between the parties with respect to the subject matter hereof and thereof. No representation, inducement, promise, understanding, condition or warranty not set forth herein has been made or relied upon by either party hereto. Neither this Agreement nor any provision hereof is intended to confer upon any Person (other than the parties hereto) any rights or remedies hereunder except for the provisions of Section 5.12, which are intended for the benefit of the Indemnified Parties.

Section 8.09. Severability. If any term or other provision of this Agreement is held by a court or other Governmental Agency of competent jurisdiction to be invalid, illegal or unenforceable, all other provisions of this Agreement 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 Agreement 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 8.10. Specific Performance; Limitation on Damages. The parties hereto agree that irreparable damage would occur in the event any of the provisions of this Agreement were not to be

performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof in addition to any other remedies at law or in equity. IN NO EVENT SHALL ANY PARTY BE LIABLE IN RESPECT OF THIS AGREEMENT FOR ANY PUNITIVE OR EXEMPLARY DAMAGES OR ANY CONSEQUENTIAL DAMAGES, OTHER THAN THOSE CONSEQUENTIAL DAMAGES THAT WERE REASONABLY FORESEEABLE AS OF THE DATE OF THIS AGREEMENT (BUT EXCLUDING, IN ALL CASES, DAMAGES IN THE FORM OF GOODWILL, LOST FUTURE PROFITS AND LOST CUSTOMERS).

Section 8.11. No Admission. Nothing herein, including Section 4.11, shall be deemed an admission by the Company, in any action or proceeding by or on behalf of a third-party, that such third-party is not in breach or violation of, or in default in, the performance or observance of any term or provision of any contract.

Section 8.12. 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 Agreement, the Confidentiality Agreement or the CVR Agreement or the transactions contemplated hereby or thereby 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 that service of process on such party as provided in Section 8.03 shall be deemed effective service of process on such party.

Section 8.13. 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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 8.14. Termination of June 29 Merger Agreement and Original Offer. The parties hereto hereby agree pursuant to Section 7.01(a) of the June 29 Merger Agreement to terminate the June 29 Merger Agreement, effective immediately upon the execution and delivery of this Agreement by such parties. Parent and Merger Sub agree to take all such action as is necessary or appropriate to terminate the Original Offer as promptly as practicable following the date hereof.

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

		INFORMATION RESOURCES, INC.
		By:	/s/ JOSEPH P. DURRETT
		Name:	Joseph P. Durrett
		Title:	Chairman, Chief Executive Officer 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

EXHIBIT A

CONDITIONS OF THE OFFER

Notwithstanding any other term of the Offer or the Agreement, Merger Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Merger Sub's obligation to pay for or return tendered shares of Company Common Stock promptly after the termination or withdrawal of the Offer), to pay for any shares of Company Common Stock tendered pursuant to the Offer, unless (i) there shall have been validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of Company Common Stock which, when added together with all other shares of Company Common Stock owned by Parent or its subsidiaries, would equal 16,000,000 shares of Company Common Stock (the "Minimum Tender Condition"), (ii) any requisite waiting period under the HSR Act applicable to the purchase of shares of Company Common Stock pursuant to the Offer or to the Merger shall have been terminated or shall have expired, and (iii) the applicable waiting periods under the Foreign Antitrust Laws shall have been terminated or shall have expired. Furthermore, notwithstanding any other term of the Offer or this Agreement, Merger Sub shall not be required to accept for payment or, subject as aforesaid, to pay for any shares of Company Common Stock not theretofore accepted for payment or paid for, if, immediately prior to the acceptance for payment of shares of Company Common Stock pursuant to the Offer, any of the following conditions exists:

(a) there shall have been entered, enforced or issued by any Governmental Agency of competent jurisdiction any judgment, order, injunction or decree that (i) makes illegal, restrains or prohibits, or imposes any material limitation on, the making of the Offer, the acceptance for payment of, or payment for, any shares of Company Common Stock by Parent or Merger Sub, or the consummation of the Merger, (ii) prohibits, or imposes any material limitation on, the ownership, control or operation by Parent or any of its Subsidiaries of the Company or any of its material Subsidiaries or assets; or (iii) renders the CVR Agreement or the Declaration of Trust unenforceable in any material respect;

(b) there shall have been any statute, rule, regulation, legislation or interpretation enacted, enforced, promulgated, amended or issued by any Governmental Agency or deemed by any Governmental Agency applicable to (i) Parent, the Company or any subsidiary or Affiliate of Parent or the Company or (ii) any transaction contemplated by this Agreement, the CVR Agreement or the Declaration of Trust, other than the HSR Act and any Foreign Antitrust Laws which would reasonably be expected to result, directly or indirectly, in any of the consequences referred to in any of clauses (i), (ii) or (iii) of paragraph (a) above;

(c) the representations and warranties of the Company contained in this Agreement (excluding, for the purpose of this condition only, any qualifications contained therein with respect to materiality or Company Material Adverse Effect) shall not be true and correct as of such time (as if made at and as of such time), except for such failures to be true and correct that, whether individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect;

(d) the Company shall have failed to perform in any material respect any material obligation required to be performed by it at or prior to such time under this Agreement;

(e) no change or development shall have occurred in the business, financial condition or results of operations of the Company or any of its Subsidiaries, and no fact or circumstance that occurred or arose after December 31, 2002 shall become known to Parent for the first time after the date of this Agreement, that, whether individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect;

(f) the Registration Statement shall not have been declared effective under the Securities Act or shall be the subject of any stop order or proceedings seeking a stop order shall be pending before or threatened by the SEC;

(g) the CVR Certificates to be issued pursuant to the Offer shall not have been approved for listing on the Nasdaq National Market (or any comparable national securities exchange), subject to official notice of issuance; or

(h) this Agreement shall have been terminated in accordance with its terms.

The foregoing conditions are for the sole benefit of Merger Sub and Parent and may be asserted by Merger Sub or Parent regardless of the circumstances giving rise to such condition or may be waived by Merger Sub and Parent in whole or in part at any time and from time to time in their reasonable discretion. The failure by Parent, Merger Sub or any other affiliate of Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right; the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.

Any capitalized term that is used, but not defined, in this Exhibit A has the meaning that is assigned to that term in the Agreement to which this Exhibit is attached.

EXHIBIT B

FORM OF DECLARATION OF TRUST

EXHIBIT C

FORM OF CONTINGENT VALUE RIGHTS AGREEMENT

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AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
AGREEMENT AND PLAN OF MERGER
ARTICLE II THE MERGER
EXHIBIT A CONDITIONS OF THE OFFER
EXHIBIT B FORM OF DECLARATION OF TRUST
EXHIBIT C FORM OF CONTINGENT VALUE RIGHTS AGREEMENT
EX-99.3 5 a2118430zex-99_3.htm EX-99.3
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Exhibit 99.3

FORM OF
CONTINGENT VALUE RIGHTS AGREEMENT

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	7
	Section 1.3	Effect of Headings	7
	Section 1.4	Successors and Assigns	7
	Section 1.5	Benefits of Agreement	7
	Section 1.6	Governing Law	7
	Section 1.7	Legal Holidays	8
	Section 1.8	Severability Clause	8
	Section 1.9	Counterparts	8
	Section 1.10	Effectiveness	8
	Section 1.11	Entire Agreement	8
ARTICLE II
CONTINGENT VALUE RIGHTS			8
	Section 2.1	[Reserved]	8
	Section 2.2	Payment Procedures	8
	Section 2.3	Payments to CVR Trust	10
ARTICLE III
THE RIGHTS AGENTS			11
	Section 3.1	Certain Duties and Responsibilities	11
	Section 3.2	Certain Rights of Rights Agents; Actions of the Rights Agents	13
	Section 3.3	Not Responsible for Recitals or Issuance of CVRs	14
	Section 3.4	Compensation, Reimbursement and Indemnification of the Rights Agents	14
	Section 3.5	Resignation and Removal; Appointment of Successor	15
	Section 3.6	Acceptance of Appointment by Successor	16
	Section 3.7	Final Resolution	16
ARTICLE IV
	[Reserved]		16
ARTICLE V
COVENANTS			16
	Section 5.1	Prosecution of Litigation by Parent; Settlement; Periodic Reports; Claims Expenses	16
	Section 5.2	Payment of CVR Payment Amount	20
	Section 5.3	Federal Income Tax Treatment	20
	Section 5.4	Expenses of the CVR Trust	20
	Section 5.5	Liability Insurance	20
	Section 5.6	Third Party Beneficiaries	21
ARTICLE VI
AMENDMENTS			21
	Section 6.1	Amendments	21
	Section 6.2	Execution of Amendments	21
	Section 6.3	Effect of Amendments	21
ARTICLE VII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE; JOINT AND SEVERAL RESPONSIBILITY			22
	Section 7.1	Parent and the Company May Consolidate, Etc	22
	Section 7.2	Successor Substituted	22
	Section 7.3	Joint and Several Responsibility	22

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 (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 60%; provided that if the Merger Agreement is terminated after the Acceptance Date but prior to the Effective Time, the Base CVR Percentage shall be 60% 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) 60% times (y) one minus the quotient of (i) the number of Appraisal Shares divided by (ii) the sum of (A) the number of shares of Company Common Stock outstanding immediately prior to commencement of the Offer (including any shares of Restricted Stock) plus (B) the number of shares of Company Common Stock that would be acquired upon exercise of all of the Company Options which would have been paid amounts under Section 2.10 of the Merger Agreement if the Merger had been completed.

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

"Board of Directors" means the board of directors of Parent.

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

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

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

"Cash Proceeds" means all compensation, damages, penalties, interest and other payments in the form of cash or Cash Equivalents, if any, recovered or received by the Company and the Company Subsidiaries or any of their Affiliates as a result of the Litigation, whether such compensation, damages, penalties, interest or other payments are recovered or received pursuant to court order at trial or upon appeal or pursuant to the terms of any settlement agreement.

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

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

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

"CVR Payment Amount" for any CVR Payment Date means the sum of the (i) Base Preliminary CVR Payment Amount for such date plus(ii) the Excess Preliminary CVR Payment Amount for such date; provided, however, the CVR Payment Amount for any date shall be reduced by (A) one minus the Assumed Tax Rate multiplied by(B) the sum of (i) the aggregate amount of expenses as of the CVR Payment Date (and not previously included in the computation of the CVR Payment Amount) that the Company has incurred (whether directly or reimbursed) under Section 5.4 to comply with Securities Law Requirements or in connection with the registration of the CVRs under the Securities Act plus

(ii) the amount of Excess Insurance Expenses incurred (whether directly or reimbursed) as of the CVR Payment Date (and not previously included in the computation of the CVR Payment Amount). To the extent the adjustment amount referred to in the proviso to the prior sentence exceeds the CVR Payment Amount otherwise payable on the CVR Payment Date, the CVR Payment Amount for such CVR Payment Date shall be reduced to zero and the amount of the excess adjustment shall be carried over and reduce (but not below zero) any future CVR Payment Amounts until the aggregate amount of such adjustment amounts has been utilized to reduce CVR Payment Amounts.

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

"CVR Rights Agents" means 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 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.

"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 such person who is selected within 15 days following the first issuance of the CVR by a majority of the Rights Agents (other than the Independent Rights Agent). 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), Company, Parent, and the Independent Rights Agent.

"Last CVR Payment Date" shall mean the date determined by a majority of the Rights Agents as the date on which the last CVR Payment Amount is to made under this Agreement (or the date on which it is determined by a majority of the Rights Agents that no payment of CVR Payment Amount shall be made pursuant to this Agreement).

"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.

"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:

(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.

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

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

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

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

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

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

ARTICLE II

CONTINGENT VALUE RIGHTS

Section 2.1 [Reserved.]

Section 2.2 Payment Procedures.

(a) As promptly as practicable but in no event later than 30 days after each receipt by the Company or the Company Subsidiaries or any of their Affiliates of any Litigation Proceeds (other than Litigation Proceeds received as a result of a Settlement Decision) or after a determination that no Litigation Proceeds shall be received, Parent shall deliver to the Rights Agents a certificate (the "Litigation Proceeds Certificate") setting forth, in each case, in reasonable detail (i) the amount of any Cash Proceeds received by the Company or the Company Subsidiaries or their Affiliates, if any, (ii) a detailed description of Non-Cash Proceeds received by the Company or the Company Subsidiaries or their Affiliates, if any, (iii) the fair market value of any Non-Cash Proceeds and the methodology used, and calculations made, to determine such fair market value (it being understood that fair market value shall be determined on an arm's-length basis and without regard to any liens or other encumbrances on the Non-Cash Proceeds granted or created by Parent, the Company, the Company Subsidiaries, or their Affiliates and that Compliance Commitments shall have a fair market value of zero), (iv) an itemized list of the Claims Expenses incurred to date and any Claim Expenses reasonably expected to be incurred before the Last CVR

Payment Date, (v) an itemized list of the expenses as of the CVR Payment Date (and not previously included in the computation of the CVR Payment Amount) that the Company has incurred (whether directly or reimbursed) under Section 5.4 to comply with Securities Law Requirements or in connection with the registration of the CVRs under the Securities Act, (vi) the calculation of the CVR Payment Amount, if any, through the date of the Litigation Proceeds Certificate, (vii) any assumptions underlying the determination of any item used in making the necessary calculations for such calculations, and (viii) any financial or other documentation reasonably necessary to sufficiently support such calculations.

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

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

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

(e) As promptly as practicable following delivery of such Notice of Objection, the applicable CVR Rights Agent shall deliver to Parent and each other Rights Agent a certificate (an "Objection Certificate") setting forth in reasonable detail each of the objections to the calculations, valuations, methodologies, lists, computations, assumptions and other information, including, without limitation, the fair market value of any Non-Cash Proceeds (collectively, the "Determinations") that the CVR Rights Agent has to the applicable Litigation Proceeds Certificate. If the other CVR Rights Agent does not agree with the Objection Certificate (or any objections within such Objection Certificate), then the CVR Payment Amount shall be as set forth in the Litigation Proceeds Certificate and Parent shall pay such amounts in accordance with Section 2.3(a). If within ten days of the delivery of the Objection Certificate, the other CVR Rights Agent agrees, in whole or in part, with the Objection Certificate, Parent and the Rights Agents shall subject the Determinations set forth in the Litigation Proceeds Certificate that are in dispute to or any other mutually agreed upon independent public accounting firm of national standing that shall have expertise in the valuation of assets and properties (the "Firm"). The Firm shall be instructed to determine whether the Determinations set forth in the Litigation Proceeds Certificate that are in dispute are correct in all material respects. If the Firm determines that such Determinations are correct, the CVR Payment Amount shall be as set forth in the Litigation Proceeds Certificate, and each CVR Rights Agent shall be deemed to have delivered a Notice of Agreement with respect to such Litigation Proceeds Certificate and Parent shall pay such amounts in accordance with Section 2.3(a). If the Firm determines that any of the Determinations set forth in the Litigation Proceeds Certificate are incorrect in any respect (whether or not material), the Firm's resulting calculation of the CVR Payment Amount shall be binding on all parties hereto (the "Resolution") and Parent, upon notice of such Resolution, shall pay such amounts in accordance with Section 2.3(a). If the Resolution results in the CVR Payment Amount determined by Parent to be less than the CVR Payment Amount determined by the Firm, the

CVR Payment Amount payable to the CVR Trust shall be increased by the interest on such differential calculated from the date 45 days after delivery of the Litigation Proceeds Certificate at an interest rate equal to the average rate actually earned on Cash Equivalents pursuant to Section 2.2(d). All costs and expenses billed by the Firm in connection with the performance of its duties described herein ("Firm Expenses") shall be paid by Parent; provided, however, that if Parent's determination of the CVR Payment Amount is:

(i): greater than or equal to 95% of the CVR Payment Amount determined by the Firm, then 100% of the Firm Expenses shall be deducted from the CVR Payment Amount;
(ii): greater than or equal to 85% of the CVR Payment Amount determined by the Firm, but less than 95% of the CVR Payment Amount determined by the Firm, then 50% of the Firm Expenses shall be deducted from the CVR Payment Amount; or
(iii): less than 85% of the CVR Payment Amount determined by the Firm, then Parent shall not be reimbursed for any portion of the Firm Expenses.

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

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

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

Section 2.3 Payments to CVR Trust.

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

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

to Parent or any of its Affiliates any portion of any CVR Payment Amount previously paid to the CVR Trust).

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

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

ARTICLE III

THE RIGHTS AGENTS

Section 3.1 Certain Duties and Responsibilities.

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

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

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

(d) In making any decision or determination with respect to the Litigation (including, without limitation, any Settlement Decision or Strategic Decision) the Rights Agents shall act in good faith with a view to maximizing the present value of the Litigation Proceeds to the Company, the

Company Subsidiaries and the CVR Trust. Without limiting the generality of the foregoing, in connection with any Settlement Decision, the Rights Agents shall consider:

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

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

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

(f) The Rights Agents shall confer in person or by telephone at least once per month, but in any event as frequently as necessary to keep all Rights Agents and the Independent Rights Agent informed about material developments in the Litigation, on at least three days' prior notice. At least one such conference per month shall include a briefing by the CVR Rights Agents that describes the progress of the Litigation and summarizes any material decisions or determinations that were made without seeking the approval of the Independent Rights Agent or either of Parent Rights Agents.

(g) 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.

¹: Insert name of a CVR Rights Agent.

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

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

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

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

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

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

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

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

(e) the Rights Agents may direct employees of Parent, the Company, and Company Subsidiaries, and their Affiliates to respond to discovery requests, attend and prepare for depositions, prepare for and testify at trial, or take any other action that the Rights Agents believe is necessary or prudent in prosecuting the Litigation. If an employee of Parent, the Company, the Company Subsidiaries, or their Affiliates takes any action in accordance with this Section 3.2(e), Parent shall be entitled to be paid an amount equal to (I) (i) the hours that the employees are required to work in connection with such engagement times (ii) the hourly rate of such employee (determined by dividing (A) the sum (without duplication) of (1) the employee's annual salary payable in cash at the time of the engagement plus (2) the employee's annual bonus for the prior fiscal year plus (3) the employment taxes that the employer is required to pay with respect to such amounts plus (4) the out-of-pocket costs of Parent, the Company, the Company Subsidiaries, or their Affiliates, as the case may be, of all other employee benefits, including employer-paid health care, employer-paid life insurance premiums, and employer contributions to savings and pension plans, in respect of the employee, by (B) the product of (x) 52 weeks less the number of weeks of vacation to which the employee is entitled to during the current calendar year times (y) if such employee is a full-time employee, 40, or if such employee is not a full time employee, the number of hours that such employee is expected to work each week) plus (II) the out-of-pocket expenses incurred by Parent, the Company, the Company Subsidiaries, or their Affiliates, as the case may be, in connection with such engagement. Prior to commencing any engagement, Parent shall provide to the engaging Rights Agents an estimate of the number of hours that Parent expects that

its or its Affiliates employees will expend in connection with the engagement, the position of the employees that it expects to work on the engagement, an estimate of the hourly rate of such employees, and an estimate of any material out-of-pocket expenses Parent expects to be incurred in connection with such engagement. During the course of the engagement, Parent shall submit to the engaging Rights Agents an update of the estimate (including a statement of actual hours worked by each employee and the hourly rate of such employee and actual out-of-pocket expenses incurred) not less than monthly (or any shorter period as reasonably requested by the engaging Rights Agents at the time of the engagement) or at anytime that Parent knows that the actual amount of work will materially exceed the initial estimate. Parent shall submit separate bills for each engagement at the end of each fiscal quarter setting forth the name of the employee that worked on the engagement, the hours such employee spent for such fiscal quarter on such engagement (accompanied by appropriate billing sheets prepared by such employee), the hourly rate for such employee (accompanied by any reasonable evidence of such rate that the engaging Rights Agent requests), and the out-of-pocket expenses incurred (accompanied by receipts for any material item). The Rights Agents shall direct that the bill be paid out of the Escrowed Funds. Notwithstanding the foregoing, the Rights Agents shall not be required to pay for (and shall not treat as Claims Expenses any amounts allocable to) the following: (A) the first $100,000 billed and approved by the Rights Agents pursuant to this Section 3.2(e), (B) any employee time spent personally preparing for or testifying at a trial, (C) any employee time spent attending or preparing for his or her depositions; (D) any employee time spent exercising the rights and duties of a Rights Agent; (E) any employee time spent defending a claim against the Company, the Company Subsidiaries, Parent, or its Affiliates in the Litigation; or (F) other than matters specified in Section 3.2(e), any employee time spent or out-of-pocket expenses incurred in the performance of the Company's or Parent's obligations pursuant to this Agreement.

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

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

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

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

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

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

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

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

Section 3.5 Resignation and Removal; Appointment of Successor.

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

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

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

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

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

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

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

ARTICLE IV

[Reserved.]

ARTICLE V

COVENANTS

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

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

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

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

(d) All Cash Proceeds shall be held in a separate bank account invested in Cash Equivalents, free of any liens or encumbrances of any kind, until the CVR Payment Amount has been

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

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

(f)

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

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

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

(h)

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

(ii) 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); 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)(ii) shall relieve Parent, the Company or the Company Subsidiaries of their obligations under this Agreement.

(iii) As a condition to granting a lien or security interests under Section 5.1(h)(ii), 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.

(iv) 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 CVR Trust as provided in Section 5.1(h)(i) or (II) to TCP Collateral Agent or the Working Capital Lenders as provided in Section 5.1(h)(ii); 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 Holders' rights to be paid amounts under this Agreement or the CVR Trust Agreement.

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

(j) If Parent, the Company, the Company Subsidiaries, their Affiliates, or any Rights Agent receives any communication from any other party to the Litigation regarding possible settlement

negotiations, the party receiving the communication shall be entitled to review such other party's proposals, provided that such receiving party (i) shall inform each of the Rights Agents regarding the fact (and content) of such communication and proposals as promptly as possible (and under no circumstances more than three days) thereafter and (ii) shall not engage in settlement negotiations or expand settlement negotiations without the required permission of the Rights Agents as set forth in Section 5.1(i).

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

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

Section 5.4 Expenses of the CVR Trust. Subject to the following sentences of this Section 5.4, Merger Sub 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 a majority of the Rights Agents; provided, that if the Rights Agents fail to authorize expenses as are reasonably necessary for the CVR Trust to satisfy its Securities Law Requirements, the Litigation Trustees shall be entitled to incur such expenses and the Company shall pay all such incurred expenses that are reasonably necessary and documented. The Company further agrees to pay all expenses of the CVR Trust incurred with respect to the indemnification obligations of the CVR Trust under Section 10.04 of the CVR Trust Agreement; provided, that the Company's obligations with respect to the purchase and maintenance of liability insurance to cover such indemnification obligations shall be limited to those obligations provided in Section 5.5(a)(ii). The Company shall have no obligation with respect to indebtedness for borrowed money incurred at any time by the CVR Trust. Any expenses of the CVR Trust not imposed on the Company pursuant to this Section 5.4, and all expenses with respect to indebtedness for borrowed money incurred at any time by the CVR Trust, shall be general obligations of the CVR Trust, payable out of the assets of the CVR Trust (including out of amounts paid to the CVR Trust pursuant to this Agreement).

Section 5.5 Liability Insurance.

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

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

Section 5.6 Third Party Beneficiaries. The Indemnified Persons (as defined in the CVR Trust Agreement) are specifically acknowledged as third party beneficiaries of the obligations of the Company pursuant to Section 5.4 to fund the indemnification obligations of the CVR Trust under Section 10.04 of the CVR Trust Agreement and pursuant to Section 5.5(a)(ii) to acquire and maintain insurance policies with respect to such indemnification obligations. The Delaware Trustees and Institutional 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.

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;
(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]

		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

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Exhibit 99.3

TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
ARTICLE II CONTINGENT VALUE RIGHTS
ARTICLE III THE RIGHTS AGENTS
ARTICLE IV
ARTICLE V COVENANTS
ARTICLE VI AMENDMENTS
ARTICLE VII CONSOLIDATION, MERGER, SALE OR CONVEYANCE JOINT AND SEVERAL RESPONSIBILITY
EX-99.4 6 a2118430zex-99_4.htm EX-99.4
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Exhibit 99.4

FORM OF
AMENDED AND RESTATED
DECLARATION OF TRUST

OF

INFORMATION RESOURCES, INC. LITIGATION

CONTINGENT PAYMENT RIGHTS TRUST

Table of Contents

		Page
ARTICLE I.
INTERPRETATION AND DEFINITIONS		1
Section 1.01	Definitions	1
ARTICLE II.
ORGANIZATION		5
Section 2.01	Name	5
Section 2.02	Office	5
Section 2.03	Purposes and Powers of the Litigation Trust	5
Section 2.04	Title to Property of the Litigation Trust	6
Section 2.05	Mergers	6
ARTICLE III.
TRUSTEES		7
Section 3.01	Authority	7
Section 3.02	Number of Trustees	8
Section 3.03	Delaware Trustee	8
Section 3.04	Institutional Trustee; Eligibility	8
Section 3.05	Appointment, Removal and Resignation of the Institutional and Delaware Trustees	9
Section 3.06	Vacancies Among Relevant Trustees; Effect of Vacancies	10
Section 3.07	The Litigation Trustees	10
Section 3.08	Resignation of a Litigation Trustee	11
Section 3.09	Appointment of Successor Litigation Trustees	11
Section 3.10	Meetings of the Trustees	11
Section 3.11	Powers and Duties of Sponsor, Litigation Trustees and Institutional Trustee	12
Section 3.12	Certain Duties and Responsibilities of the Trustees	15
Section 3.13	Certain Rights of the Institutional Trustee	16
Section 3.14	Execution of Documents	18
Section 3.15	Not Responsible for Recitals or Issuance of CVR Certificates	18
Section 3.16	Filings With the Commission	18
Section 3.17	Default; Notice	18
ARTICLE IV.
PAYMENTS TO HOLDERS		18
Section 4.01	Payment to Holders	18
Section 4.02	Timing of Payments	19
ARTICLE V.
[RESERVED]		19
ARTICLE VI.
ISSUANCE AND DISTRIBUTION OF CVR CERTIFICATES		19
Section 6.01	General Provisions Regarding CVR Certificates	19
Section 6.02	Paying Agent, Transfer Agent and Registrar	19
Section 6.03	Form and Dating	20
Section 6.04	Mutilated, Destroyed, Lost or Stolen Certificates	21
Section 6.05	Temporary CVR Certificates	21
Section 6.06	Issuance of CVR Certificates	21
Section 6.07	Cancellation	21
ARTICLE VII.
DISSOLUTION AND TERMINATION OF LITIGATION TRUST		22
Section 7.01	Dissolution and Termination of Litigation Trust	22

ARTICLE VIII.
TRANSFER OF INTERESTS		22
Section 8.01	General	22
Section 8.02	Transfer Procedures	23
Section 8.03	Deemed CVR Certificate Holders	24
Section 8.04	Restrictions on Transfer	25
Section 8.05	Appointment of Successor Clearing Agency	25
ARTICLE IX.
HOLDERS OF CVR CERTIFICATES		25
Section 9.01	Limitations on Rights of Holders	25
Section 9.02	Limitations on Suits by Holders	26
ARTICLE X.
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS		27
Section 10.01	Liability	27
Section 10.02	Exculpation	27
Section 10.03	Fiduciary Duty	28
Section 10.04	Indemnification	29
Section 10.05	Outside Businesses	30
Section 10.06	Compensation; Fee	30
ARTICLE XI.
ACCOUNTING		30
Section 11.01	Fiscal Year	30
Section 11.02	Certain Accounting Matters	30
Section 11.03	Banking	31
Section 11.04	Withholding	31
ARTICLE XII.
AMENDMENTS AND MEETINGS		31
Section 12.01	Amendments	31
Section 12.02	Meetings of Holders of CVR Certificates; Action by Written Consent	33
ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE		34
Section 13.01	Representations and Warranties of the Institutional Trustee	34
Section 13.02	Representations and Warranties of the Delaware Trustee	34
ARTICLE XIV.
MISCELLANEOUS		35
Section 14.01	Notices	35
Section 14.02	Governing Law	36
Section 14.03	Intention of Parties	37
Section 14.04	Headings	37
Section 14.05	Successors and Assigns	37
Section 14.06	Partial Enforceability	37
Section 14.07	Specific Performance	37
Section 14.08	Counterparts	37
Section 14.09	Consent to Jurisdiction	37
Section 14.10	Default Rules	37

AMENDED AND RESTATED DECLARATION OF TRUST

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

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

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

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

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

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

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

ARTICLE I.
INTERPRETATION AND DEFINITIONS

Section 1.01 Definitions. Unless the context otherwise requires:

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

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

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

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

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

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

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

"Acceptance Date" means the date of this Agreement.

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

"Agreement" has the meaning set forth in the preamble hereof.

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

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

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

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

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

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

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

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

"Commission" means the Securities and Exchange Commission.

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

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

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

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

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

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

"CVR Rights Agents" has the meaning set forth in the CVR Agreement.

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

"Declaration" has the meaning set forth in the preamble hereto.

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

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

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

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

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

"Effective Time" has the meaning set forth in the Merger Agreement.

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

"Fiscal Year" has the meaning set forth in Section 11.01.

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

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

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

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

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

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

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

"Litigation" has the meaning set forth in the CVR Agreement.

"Litigation Proceeds" has the meaning set forth in the CVR Agreement.

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

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

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

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

"Merger" has the meaning set forth in the Merger Agreement.

"Merger Agreement" has the meaning set forth in the recitals hereof.

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

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

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

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

"Parent" has the meaning set forth in the recitals hereof.

"Paying Agent" has the meaning specified in Section 6.02.

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

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

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

"Registrar" has the meaning set forth in Section 6.02.

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

"Responsible Officer" means, with respect to the Institutional Trustee, any officer within the Corporate Trust Office of the Institutional Trustee, including any managing director, vice-president, any assistant vice-president, any assistant secretary, the treasurer, any assistant treasurer or other officer of the Corporate Trust Office of the Institutional Trustee, in each case with direct responsibility for carrying out the responsibilities of the Institutional Trustee hereunder and also means, with respect to a particular Litigation Trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject.

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

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

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

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

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

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

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

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

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

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

"Transfer Agent" has the meaning set forth in Section 6.02.

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

ARTICLE II.
ORGANIZATION

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

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

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

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

Section 2.03 Purposes and Powers of the Litigation Trust.

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

(b) Notwithstanding anything in this Declaration or in any Default Rule of the Statutory Trust Act to the contrary, no Trustee shall have any power to (i) modify the terms of the CVR Agreement, (ii) invest money held by the Litigation Trust except amounts held pursuant to Sections 3.11(d)(ii)(B)

hereof pending their use to pay expenses or make distributions, or (iii) after the Acceptance Date, issue any CVR Certificates except as provided herein.

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

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

(ii) issue additional CVR Certificates.

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

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

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

(ii) issue additional CVR Certificates.

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

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

Section 2.05 Mergers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ARTICLE III.
TRUSTEES

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

with the Litigation Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration.

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

Section 3.03 Delaware Trustee.

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

(i) a natural person who is a resident of the State of Delaware; or

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

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

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

Section 3.04 Institutional Trustee; Eligibility.

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

(i) not be an Affiliate of the Sponsor;

(ii) not offer or provide credit or credit enhancement to the Litigation Trust; and

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

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

(c): The initial Institutional Trustee shall be Wachovia Bank of Delaware, National Association.

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

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

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

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

(a) No resignation or removal of the Institutional or Delaware Trustee (each, a "Relevant Trustee") and no appointment of a successor Relevant Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Relevant Trustee in accordance with the applicable requirements of this Section 3.05.

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

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

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

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

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

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

Section 3.06 Vacancies Among Relevant Trustees; Effect of Vacancies.

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

Section 3.07 The Litigation Trustees.

(a) There shall be at all times no fewer than two Trustees (the "Litigation Trustees") who shall be natural persons over the age of 21 years and who shall have the powers, duties and responsibilities of the Litigation Trustees hereunder. The initial Litigation Trustees shall be [CVR Rights Agent 1] and [CVR Rights Agent 2].

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

Section 3.09 Appointment of Successor Litigation Trustees.

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

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

Section 3.10 Meetings of the Trustees.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(d) in accordance with subparagraphs (i) and (ii) of this Section 3.11(d), the Litigation Trustees shall have the authority to enter into all transactions and agreements determined by the Litigation Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Litigation Trustees under this Declaration and to perform all acts in furtherance thereof (and all such

transactions or agreements entered into or acts performed prior to the date hereof are hereby ratified and approved), including, without limitation, the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(e) The Trustees are authorized and directed to conduct the affairs of the Litigation Trust and to operate the Litigation Trust so that the Litigation Trust will not fail to be classified as a grantor trust for United States federal income tax purposes (or in any other manner that would

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

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

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

Section 3.12 Certain Duties and Responsibilities of the Trustees.

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

(b) The duties and responsibilities of the Trustees shall be as provided by this Declaration and the Statutory Trust Act. Notwithstanding the foregoing, no provision of this Declaration shall require any Trustee to expend or risk such Trustee's own funds or otherwise incur any financial liability in the performance of any of such Trustee's duties hereunder, or in the exercise of any of such Trustee's rights or powers. Whether or not therein expressly so provided, every provision of this Declaration relating to the conduct or affecting the liability of or affording protection to the Trustees shall be subject to the provisions of this Article.

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

(d) In performing its duties hereunder:

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

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

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

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

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

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

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

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

(d) the Institutional Trustee may consult with counsel (which counsel may be counsel to the Litigation Trustees or appointed by the Sponsor or Parent (or any successor to such Persons) at the direction of the Litigation Trustees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in

good faith and in reliance thereon and in accordance with such advice; the Institutional Trustee shall have the right at any time to seek instructions concerning the administration of this Declaration from any court of competent jurisdiction

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

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

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

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

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

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

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

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

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

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

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

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

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

ARTICLE IV.

PAYMENTS TO HOLDERS

Section 4.01 Payment to Holders. The Litigation Trust will make payments from time to time to the Holders of the CVR Certificates upon the receipt of the applicable payments of any CVR Payment

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

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

ARTICLE V.

[RESERVED]

ARTICLE VI.

ISSUANCE AND DISTRIBUTION OF CVR CERTIFICATES

Section 6.01 General Provisions Regarding CVR Certificates.

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

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

(c) CVR Certificates shall be executed by the Sponsor or by at least one Litigation Trustee after the Acceptance Date. Upon written order of the Litigation Trust signed by one Litigation Trustee, or upon the written order of an Authorized Officer of the Sponsor with respect to CVR Certificates to be issued upon the Acceptance Date, the Institutional Trustee shall authenticate the CVR Certificates for original issue. The Institutional Trustee may appoint an authenticating agent (an "Authenticating Agent") acceptable to the Litigation Trustees or the Sponsor, if such appointment occurs prior to the Acceptance Date, to authenticate the CVR Certificates.

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

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

Section 6.02 Paying Agent, Transfer Agent and Registrar. The Litigation Trust shall maintain in Charlotte, North Carolina, an office or agency where the CVR Certificates may be presented for

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

Section 6.03 Form and Dating.

(a) The CVR Certificates and the Institutional Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A, which is hereby incorporated in and expressly made a part of this Declaration. CVR Certificates may be typed, printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Sponsor prior to the Acceptance Date, and the Litigation Trustees after the Acceptance Date, as conclusively evidenced by such party's execution thereof. The CVR Certificates may have letters, numbers, notations or other marks of identification or designation and such legends or endorsements required by law, stock exchange rule, agreements to which the Litigation Trust is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Sponsor upon the Acceptance Date, and the Litigation Trustees after the Acceptance Date). The Litigation Trustees shall furnish any such legend not contained in Exhibit A to the Institutional Trustee in writing. Each CVR Certificate shall be dated the date of its authentication. The form of CVR Certificate set forth in Exhibit A is part of the terms of this Declaration and to the extent applicable, the Institutional Trustee, the Delaware Trustee, the Litigation Trustees and the Sponsor, by their execution and delivery of this Declaration, expressly agree to such terms and provisions and to be bound thereby. The Litigation Trust, in issuing the CVR Certificates may use "CUSIP" numbers (if then generally in use), and, if so, the Institutional Trustee shall indicate the "CUSIP" numbers of the CVR Certificates in notices of redemption and related materials as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the CVR Certificates or as contained in any notice of redemption and related materials.

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

(c) This Section 6.03(c) shall apply only to the Global CVR Certificates. If Global CVR Certificates are issued as provided in Section 6.03(b), the Litigation Trust shall execute and the Institutional Trustee shall, in accordance with this Section 6.03, authenticate and deliver initially

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

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

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

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

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

Section 6.07 Cancellation. The Sponsor and the Litigation Trustees at any time may deliver CVR Certificates to the Institutional Trustee for cancellation. The Registrar shall forward to the Institutional Trustee any CVR Certificates surrendered to it for registration of transfer. The Institutional Trustee shall promptly cancel all CVR Certificates surrendered for registration of transfer, payment, replacement or cancellation and shall destroy such canceled CVR Certificates in accordance

with its customary practices and procedures. The Institutional Trustee may not issue new CVR Certificates that have been delivered to the Institutional Trustee for cancellation.

ARTICLE VII.

DISSOLUTION AND TERMINATION OF LITIGATION TRUST

Section 7.01 Dissolution and Termination of Litigation Trust.

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

(b) As soon as is practicable after the occurrence of an event referred to in Section 7.01(a), and after completion of winding up of the Litigation Trust, satisfaction of liabilities of the Litigation Trust in accordance with the Statutory Trust Act by the Litigation Trustees and distribution of all amounts due and owing to the Holders, the Litigation Trustees shall terminate the Litigation Trust by filing a certificate of cancellation executed by the Litigation Trustees and the Institutional Trustee with the Secretary of State of the State of Delaware.

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

ARTICLE VIII.

TRANSFER OF INTERESTS

Section 8.01 General.

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

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

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

as provided herein. By acceptance of a CVR Certificate, each transferee shall be deemed to have agreed to be bound by this Declaration.

Section 8.02 Transfer Procedures.

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

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

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

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

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

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

(e) Definitive CVR Certificates If No Depositary.

If at any time:

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

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

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

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

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

(ii) Registrations of transfers or exchanges will be effected without charge, but only upon payment (with such indemnity as the Institutional Trustee or the Registrar may require) in respect of any tax or other governmental charge that may be imposed in relation to it.

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

Section 8.03 Deemed CVR Certificate Holders. The Litigation Trust, the Litigation Trustees, the Trustees, the Paying Agent, the Transfer Agent or the Registrar may treat the Person in whose name any CVR Certificate shall be registered on the books and records of the Litigation Trust as of the applicable record date as the sole holder of such CVR Certificate (and of the undivided beneficial interest in the assets of the Litigation Trust represented by such CVR Certificate) for purposes of receiving payment of the Payment Amount and for all other purposes whatsoever and, accordingly,

shall not be bound to recognize any equitable or other claim to or interest in such CVR Certificate or in the rights represented by such Certificate on the part of any other Person, whether or not the Litigation Trust, the Litigation Trustees, the Trustees, the Paying Agent, the Transfer Agent or the Registrar shall have actual or other notice thereof.

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

Section 8.04 Restrictions on Transfer.

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

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

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

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

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

ARTICLE IX.
HOLDERS OF CVR CERTIFICATES

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

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

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

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

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

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

Section 9.02 Limitations on Suits by Holders.

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

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

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

(ii) The Institutional Trustee shall promptly notify the prospective plaintiff(s) of the number of copies needed for distribution to Holders and the postage, printing and administrative costs for preparing and mailing the statement of the prospective plaintiff(s), a response by the Litigation Trustees, as applicable, which shall not exceed 10 pages in length, a consent form described below and a return envelope. Upon receipt of a certified check or wire transfer of immediately available

funds for such postage, printing and administrative costs, the Institutional Trustee shall promptly mail these materials to the Holders. Sixty days after mailing, the responses received shall be open to inspection by the prospective plaintiff(s) or any Holder at reasonable times during business hours at the office of the Litigation Trust designated for such purposes.

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

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

I HEREBY CONSENT TO SUCH SUIT.

I DO NOT CONSENT TO SUCH SUIT.

Signature

Printed or Typed Name of Holder

Date:

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

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

Section 10.01 Liability.

(a) Except as expressly set forth in this Declaration, the Trustees shall not be:

(i) personally liable for the payment of any amounts, including, without limitation, the amounts to be received with respect to their CVR Certificates, which payment shall be made solely from the CVR Payment Amount, if any, and other assets of the Litigation Trust, if any; or

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

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

Section 10.02 Exculpation.

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

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

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

Section 10.03 Fiduciary Duty.

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

(b) Unless otherwise provided herein:

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

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

such Indemnified Person or member of the Sponsor Group shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by such Indemnified Person or member of the Sponsor Group, the resolution, action or terms so made, taken or provided by such Indemnified Person or member of the Sponsor Group shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of such Indemnified Person or member of the Sponsor Group at law or in equity or otherwise.

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

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

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

Section 10.04 Indemnification.

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

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

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

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

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

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

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

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

Section 10.06 Compensation; Fee. The Litigation Trust shall:

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

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

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

ARTICLE XI.
ACCOUNTING

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

Section 11.02 Certain Accounting Matters.

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

(b) The Litigation Trustees, with the cooperation of the Institutional Trustees, shall cause to be duly prepared and delivered to each of the Holders any annual United States federal income tax information statement required by the Code, containing such information with regard to the CVR

Certificates held by each Holder as is required by the Code and the regulations promulgated thereunder. Notwithstanding any right under the Code to deliver any such statement at a later date, the Litigation Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Litigation Trust.

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

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

Section 11.04 Withholding. The Litigation Trustees or any Paying Agent shall comply with all withholding requirements under United States federal, state and local law. The Litigation Trustees or any Paying Agent shall request, and the Holders shall provide to the Litigation Trustees or any Paying Agent, as applicable, such forms or certificates as are necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Litigation Trustees or any Paying Agent to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Litigation Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Litigation Trustees or any Paying Agent is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Holder. In the event of any claimed overwithholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual distributions made, the Litigation Trustees or any Paying Agent may reduce subsequent distributions by the amount of such withholding. The Litigation Trustees and any Paying Agent may retain counsel (which may be counsel to the Litigation Trust or counsel to any member of the Gingko Group) and/or outside advisors that it reasonably believes to be experts with respect to tax matters, and the Institutional Trustee and any Paying Agent shall be deemed to have satisfied the requirements of the first sentence by retaining such expert(s) for such purpose and acting in accordance with the instructions of such expert(s), and they shall not be liable for any actions taken or not taken at the direction of such expert(s).

ARTICLE XII.
AMENDMENTS AND MEETINGS

Section 12.01 Amendments.

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

(i) the Sponsor;

(ii) the Institutional Trustee;

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

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

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

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

(B) an opinion of counsel (who may be counsel to the Litigation Trust or the Litigation Trustees) that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the CVR Certificates).

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

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

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

(F) Section 2.03(a) and this Section 12.01 shall not be amended without the consent of the Holders of 66²/3 percent of the CVR Certificates then outstanding.

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

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

(i) to cure any ambiguity;

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

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

(iv) to modify, eliminate or add to any provision of this Declaration to such extent as may be necessary to ensure that the Litigation Trust (a) will be classified for United States federal income tax purposes at all times as a grantor trust, (b) will not be required to register as an Investment Company under the Investment Company Act (including without limitation to conform to any change in any applicable Rule under the Investment Company Act or written change in interpretation or application thereof by any legislative body, court, government agency or regulatory authority) or (c) is able to issue additional CVR Certificates;

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

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

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

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

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

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

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

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

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

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

ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE

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

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

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

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

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

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

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

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

ARTICLE XIV.

MISCELLANEOUS

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

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

[Name of First CVR Rights Agent], Litigation Trustee
Information Resources, Inc. Litigation Contingent Payment Rights Trust
[Address]
Facsimile: [ ]

with a copy to:

[Name of Second CVR Rights Agent], Litigation Trustee
Information Resources, Inc. Litigation Contingent Payment Rights Trust
[Address]
Facsimile: [ ]

and to:

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

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

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

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

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

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

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

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

[Name], Litigation Trustee
Information Resources, Inc.Litigation Contingent Payment Rights Trust
[Address]
Facsimile: [ ]

[Name], Litigation Trustee
Information Resources, Inc. Litigation Contingent Payment Rights Trust
[Address]
Facsimile: [ ]

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

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

Section 14.02 Governing Law. This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to the principles of conflict of laws of the State of Delaware or any other jurisdiction that would call for the application of the law of any jurisdiction other than the State of Delaware; provided, however, that, to the fullest extent permitted by law, there shall not be applicable to the Litigation Trust, the Trustees or this Declaration any provision of the laws (statutory or common) of the State of Delaware pertaining to trusts, other than the Delaware Statutory Trust Act, that relate to or regulate, in a manner inconsistent with the terms hereof (a) the filing with any court or governmental body or agency of Trustee accounts or schedules of Trustee fees and charges, (b) affirmative requirements to post bonds for Trustees, officers, agents or employees of a trust, (c) the necessity for obtaining court or other governmental approval concerning the acquisition, holding or disposition of real or personal property, (d) fees or other sums payable to trustees, officers, agents or employees of a trust, (e) the allocation of receipts and expenditures to income or principal, (f) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding or investing trust assets or (g) the establishment of fiduciary or other standards of responsibility or limitations on the acts or powers of trustees that are inconsistent with the limitations or liabilities or authorities and powers of the trustees as set forth or referenced in this Declaration. Section 3540 and, to the fullest extent permitted by applicable law, Section 3561, of Title 12 of the Delaware Code shall not apply to the Litigation Trust.

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

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

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

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

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

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

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

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

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

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

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

[Signature Pages Follow]

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

INFORMATION RESOURCES, INC.
By:	Name: Title:
WACHOVIA BANK OF DELAWARE, NATIONAL ASSOCIATION, as Delaware Trustee
By:	Name: Title:
WACHOVIA BANK OF DELAWARE, NATIONAL ASSOCIATION, as Institutional Trustee
By:	Name: Title:
By:	as Litigation Trustee
By:	as Litigation Trustee

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

[FORM OF FACE OF CERTIFICATE]

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

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

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

CERTIFICATE NUMBER		NUMBER OF CONTINGENT VALUE RIGHTS CERTIFICATES
CUSIP NO: [ ]

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

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

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

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

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

INFORMATION RESOURCES, INC. LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
By:	INFORMATION RESOURCES, INC., as Sponsor
By:	Name Title:
[OR]
By:	Name Title: Litigation Trustee

CERTIFICATE OF AUTHENTICATION

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

WACHOVIA BANK OF DELAWARE, NATIONAL ASSOCIATION, as Institutional Trustee
By:	Name: Title:

QuickLinks

Exhibit 99.4

FORM OF AMENDED AND RESTATED DECLARATION OF TRUST OF INFORMATION RESOURCES, INC. LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
Table of Contents
AMENDED AND RESTATED DECLARATION OF TRUST
ARTICLE I. INTERPRETATION AND DEFINITIONS
ARTICLE II. ORGANIZATION
ARTICLE III. TRUSTEES
ARTICLE IV. PAYMENTS TO HOLDERS
ARTICLE V. [RESERVED]
ARTICLE VI. ISSUANCE AND DISTRIBUTION OF CVR CERTIFICATES
ARTICLE VII. DISSOLUTION AND TERMINATION OF LITIGATION TRUST
ARTICLE VIII. TRANSFER OF INTERESTS
ARTICLE IX. HOLDERS OF CVR CERTIFICATES
ARTICLE X. LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
ARTICLE XI. ACCOUNTING
ARTICLE XII. AMENDMENTS AND MEETINGS
ARTICLE XIII. REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
ARTICLE XIV. MISCELLANEOUS
EXHIBIT A TO DECLARATION OF TRUST FORM OF CONTINGENT VALUE RIGHTS CERTIFICATE
[FORM OF FACE OF CERTIFICATE]
CERTIFICATE EVIDENCING UNDIVIDED BENEFICIAL INTERESTS IN THE ASSETS OF INFORMATION RESOURCES, INC. LITIGATION CONTINGENT PAYMENT RIGHTS TRUST CONTINGENT VALUE RIGHTS CERTIFICATES
CERTIFICATE OF AUTHENTICATION
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