EX-10.6 SUPPLEMENT TO SETTLEMENT AGREEMENT

EX-10.6 4 g98093exv10w6.txt EX-10.6 SUPPLEMENT TO SETTLEMENT AGREEMENT EXHIBIT 10.6 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION - ------------------------------------------ ) IN RE PROFIT RECOVERY ) CIVIL ACTION FILE GROUP INTERNATIONAL, INC. ) NO. 1:00-CV-1416- SECURITIES LITIGATION ) [FILED UNDER SEAL] ) - ------------------------------------------) SUPPLEMENTAL AGREEMENT REGARDING REQUESTS FOR EXCLUSION This Supplemental Agreement Regarding Requests for Exclusion (the "Supplemental Agreement") is intended to be incorporated into the Stipulation of Settlement dated February 8, 2005 (the "Stipulation"). The terms used herein shall have the same meaning as set forth in the Stipulation. IT IS HEREBY AGREED AS FOLLOWS: 1. Pursuant to and in accordance with the provisions of P. 7.4 of the Stipulation, in the unique circumstances of this case, it is agreed that Defendants, unless unanimously agreed to in writing by all Defendants and their Insurer, shall withdraw from the settlement set forth in the Stipulation and the Stipulation will be rendered null and void as to the Settling Parties if the number of shares of Profit Recovery common stock purchased by class members during the Class Period who would otherwise be entitled to participate as a member of the Class, but who validly and timely requests exclusion, is, in the aggregate, greater than or equal to 3.25% of the total shares of Profit Recovery common stock purchased or otherwise acquired during the Class Period. 2. To be valid for purposes of this Supplemental Agreement, a request for exclusion must contain the information requested in the Notice of Pendency and Proposed Settlement of Class Action. The Settling Parties shall request that the Notice Order provide that requests for exclusion must be postmarked at least fourteen (14) calendar days prior to the date of the Settlement Hearing. Upon receiving any requests for exclusion pursuant to the notice, the Claims Administrator shall provide Plaintiffs' Co-Lead Counsel and Defendants' Counsel with copies of any exclusion requests as soon as practicable. 3. If Defendants have elected to withdraw from the settlement pursuant to P. 1 of this Supplemental Agreement, Defendants must provide Plaintiffs' Co-Lead Counsel with written notice of their withdrawal from the settlement, and Defendants must file such notice with the Court at least seven (7) days prior to the Settlement Hearing. 4. In the event that Defendants provide a written notice of their termination of the Settlement pursuant to paragraph 3 of this Supplemental Agreement, the Defendants may withdraw their termination by providing written notice of such withdrawal of their termination to Plaintiffs' Co-Lead Counsel no later than 5:00 p.m. Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Plaintiffs' Co-Lead Counsel and counsel for the Defendants. 5. Plaintiffs' Co-Lead Counsel may attempt to cause retraction of any election of exclusion by putative Members of the Class. If Defendants have elected to withdraw from the settlement, Plaintiffs' Co-Lead Counsel shall have five (5) days from the receipt of Defendants' notice of withdrawal (or such longer period as shall be agreed upon in writing between Plaintiffs' Co-Lead Counsel and counsel for Defendants) to review the validity of any request for exclusion and may attempt to cause retraction of any election of exclusion by putative Members of the Class. If Plaintiffs' Co-Lead Counsel succeed in causing the retraction of sufficient requests for exclusion such that the remaining requests for exclusion do not exceed the numbers agreed upon in P. 1 above, then any withdrawal from the settlement by Defendants shall be deemed a nullity. To retract a prior request for exclusion, a class member must provide to the Settling Parties, a written notice stating his, her or its desire to retract the request for exclusion from the Class. 1 6. Any dispute among the Settling Parties concerning the interpretation or application of this Supplemental Agreement may be presented to the Court for resolution upon the application of any party hereto. 7. This Supplemental Agreement shall not be filed with the Court unless and until a dispute among the Settling Parties concerning its interpretation or application arises, and, in that event, it shall be filed and maintained with the Court under seal. The terms and conditions of this Supplemental Agreement may be disclosed to the Court but shall otherwise be kept confidential and shall not be disclosed to any person, unless otherwise ordered by the Court. IN WITNESS THEREOF, the parties hereto have caused this Supplemental Agreement to be executed, by their duly authorized attorneys, as of the 8th day of February, 2005. CHITWOOD & HARLEY, LLP Martin D. Chitwood Georgia State Bar No.124950 David J. Worley Georgia State Bar No.776665 Krissi T. Gore Georgia State Bar No. 687020 /s/ Martin D. Chitwood --------------------------------------- Martin D. Chitwood Promenade II, Suite 2300 1230 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 873-3900 Fax: (404) 876-4476 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Daniel W. Krasner Mark C. Rifkin Robert Abrams Matthew Guiney /s/ Mark C. Rifkin --------------------------------------- Mark C. Rifkin 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Fax: (212) 686-0114 MILBERG WEISS BERSHAD & SCHULMAN LLP David Brower /s/ David Brower --------------------------------------- David Brower One Pennsylvania Plaza 49th Floor New York, NY 10119 Telephone: (212) 594-5300 Fax: (212) 868-1229 2 R. Timothy Vannatta Tower One 5200 Town Center Circle Suite 600 Boca Raton, FL 33486 Telephone: (561) 361-5000 Fax: (561) 367-8400 Plaintiffs' Co-Lead Counsel ALSTON & BIRD LLP Todd R. David Georgia Bar No. 206526 Susan E. Hurd Georgia Bar No. 379628 Kelly C. Wilcove Georgia Bar No. 185682 /s/ Todd R. David --------------------------------------- Todd R. David 1201 West Peachtree Street Atlanta, Georgia 30309 Telephone: (404) 881-7000 Fax: (404) 881-7777 Counsel for Defendants 3