EXHIBIT 3.1
DECLARATION OF TRUST
OF
INFORMATION RESOURCES, INC. LITIGATION
CONTINGENT PAYMENT RIGHTS TRUST
THIS DECLARATION OF TRUST is made as of August 27, 2003 (this
"Declaration"), by and among Information Resources, Inc., a Delaware
corporation, as sponsor (the "Sponsor"), and Wachovia Bank of Delaware,
National Association, a national banking association, as trustee (the
"Delaware Trustee"). The Sponsor and the Delaware Trustee hereby agree as
follows:
1. The trust created hereby shall be known as Information Resources,
Inc. Litigation Contingent Payment Rights Trust (the "Trust"), in which name the
Delaware Trustee or the Sponsor, to the extent provided herein, may conduct the
business of the Trust, make and execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust estate.
It is the intention of the parties hereto that the Trust created hereby
constitute a statutory trust under Chapter 38 of Title 12 of the Delaware Code,
12 DEL. C. Section 3801, et. seq. (the "Statutory Trust Act"), and that this
document constitute the governing instrument of the Trust. The Delaware Trustee
is hereby authorized and directed on even date herewith to execute and file a
certificate of trust with the Office of the Secretary of State of the State of
Delaware in the form attached hereto as Exhibit A.
3. The Sponsor, the Delaware Trustee and certain other trustees will
enter into an Amended and Restated Declaration of Trust satisfactory to each
such party to provide for the contemplated operation of the Trust created hereby
and the issuance of the Contingent Payment Right Certificates to be referred to
therein. Prior to the execution and delivery of such Amended and Restated
Declaration of Trust, the Delaware Trustee shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law. Notwithstanding the foregoing, the Delaware Trustee shall take
all reasonable actions as directed by the Sponsor in order to effect the
transactions contemplated herein.
4. The Sponsor is hereby authorized, in its sole discretion, as an
agent of the Trust (i) to file with the Securities and Exchange Commission (the
"Commission") and to execute, (a) a Registration Statement on behalf of the
Trust (including pre-effective or post-effective amendments to such Registration
Statement) relating to the registration under the Securities Act of 1993, as
amended (the "1993 Act"), of the Contingent Payment Right Certificates of the
Trust, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the Contingent Payment Right Certificates required to be filed under
the 1933 Act, and (c) if required, a Tender Offer Statement on appropriate form
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Contingent Payment Right Certificates of the Trust
under the Securities Exchange Act of 1934 (the "1934 Act"), as amended; (ii) to
file with any desirable exchange or quotation system (collectively, the
"Exchanges") and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or desirable to cause the Contingent Payment Right
Certificates to be listed or eligible for quotation on the Exchanges; (iii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Contingent Payment Right Certificates under the securities or "Blue Sky" laws of
such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute, deliver and perform a depository agreement with the
initial clearing agency, relating to the Contingent Payment Right Certificates,
(v) to apply for and obtain a tax identification number for the Trust; and (vi)
to take such actions as may be necessary or advisable as to give effect to the
transactions contemplated in the Agreement and Plan of Merger to be entered into
by and among Gingko Corporation, Gingko Acquisition Corp. and the Sponsor or
to comply with the obligations of the Trust under the 1933 Act, the 1934 Act or
other applicable law in connection therewith.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Delaware Trustee, the
Delaware Trustee, in its capacity as trustee of the Trust shall hereby, upon
instruction by the Sponsor, be authorized and directed to join in such filing
and to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Delaware Trustee in its capacity as the Delaware Trustee of
the Trust, shall not be required to join in any such filing or execute on behalf
of the Trust any such document unless required by the rules and regulations of
the Commission, PORTAL or state securities or Blue Sky laws.
5. The number of trustees of the Trust initially shall be one (1)
and thereafter the number of trustees of the Trust shall be such number as shall
be fixed from time to time by a written instrument signed by the Sponsor which
may increase or decrease the number of trustees of the Trust; PROVIDED, however,
that the number of trustees shall in no event be less than one (1); PROVIDED,
FURTHER, that to the extent required by the Statutory trust Act, one trustee of
the Trust shall either be 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. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause the Delaware Trustee at any time.
The Delaware Trustee of the Trust may resign upon thirty (30) days' prior notice
to the Sponsor. Following the Delaware Trustee's resignation or removal, the
Delaware Trustee shall have no further duties hereunder.
6. Compensation for acting as Delaware Trustee shall be set forth in
one or more separate fee agreement between the Delaware Trustee and the Sponsor.
Notwithstanding anything herein to the contrary, the Delaware Trustee shall have
no duties hereunder except to (i) execute and file a certificate of trust with
the Office of the Secretary of State of the State of Delaware, (ii) fulfill the
requirements of Section 3807 of the Statutory trust Act, and (iii) take such
other action as directed in writing by the Sponsor.
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7. The Sponsor agrees, to the fullest extent permitted by applicable
law, to indemnify and hold harmless (i) the Delaware Trustee, (ii) any affiliate
of the Delaware Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of the Delaware Trustee and any affiliate of the
Delaware Trustee, and (iv) any employee or agent of the Trust or its affiliates
(each an "Indemnified Person") from and against any loss, damage, liability,
tax, penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination of the
Trust or any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence or willful misconduct
with respect to such acts or omissions.
8. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware, PROVIDED, HOWEVER, THAT
THERE SHALL NOT BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS DECLARATION ANY
PROVISION OF THE LAWS (COMMON OR STATUTORY) OF THE STATE OF DELAWARE PERTAINING
TO TRUSTS OTHER THAN THE 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 AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR
REFERENCED IN THIS DECLARATION. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE TRUST.
9. Each party hereto (i) irrevocably submits to the non-exclusive
jurisdiction and venue of any Delaware State court or Federal court sitting in
Wilmington, Delaware in any action arising out of this Declaration, and (ii)
consents to the service of process by mail. Nothing herein shall affect the
right of any party to serve legal process in any manner permitted by law or
affect its right to bring any action in any other court.
10. This Declaration may be executed in several counterparts, each of
which will be deemed an original, and the counterparts will together constitute
one and the same agreement, notwithstanding that all the parties are not
signatory to the original or the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as the Delaware Trustee of the Trust
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
INFORMATION RESOURCES, INC.,
as Sponsor
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chairman, Chief Executive Officer
and President
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EXHIBIT A
CERTIFICATE OF TRUST
OF
INFORMATION RESOURCES, INC. LITIGATION
CONTINGENT PAYMENT RIGHTS TRUST
This Certificate of Trust is being duly executed and filed on behalf
of the statutory trust formed hereby by the undersigned, being the trustees of
the Trust, to form a statutory trust pursuant to the Delaware Statutory Trust
Act (12 DEL. C. Sections 3801 et seq.).
ARTICLE I
The name of the statutory trust formed hereby is Information
Resources, Inc. Litigation Contingent Payment Rights Trust (the "Trust").
ARTICLE II
The name and address of the Trustee of the Trust having its principal
place of business in the State of Delaware is:
Wachovia Bank of Delaware, National Association
Xxx Xxxxxx Xxxxxx, Xxxxx 000
000 Xxxx Xxxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
ARTICLE III
This Certificate of Trust may be executed in counterparts and shall
become effective upon filing in the Office of the Secretary of State of the
State of Delaware.
IN WITNESS WHEREOF, the undersigned trustee has caused this
Certificate of Trust to be duly executed as of the day and year first above
written.
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as the Delaware Trustee of the Trust
By:
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Name:
Title:
A-1
