Exhibit 10.10
CONFIDENTIAL TREATMENT REQUESTED
Confidential Portions of This Agreement Which Have Been Redacted
Are Marked With Brackets ("[***]"). The Omitted Material Has Been Filed
Separately With The United States Securities and Exchange Commission.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
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IN RE PROFIT RECOVERY ) CIVIL ACTION FILE
GROUP INTERNATIONAL, INC. ) NO. 1:00-CV-1416-
SECURITIES LITIGATION ) [FILED UNDER SEAL]
)
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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 [****]% 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.
[***] - CONFIDENTIAL PORTIONS OF THIS AGREEMENT WHICH HAVE BEEN REDACTED ARE
MARKED WITH BRACKETS ("[***]"). THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
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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
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Settling Parties, a written notice stating his, her or its desire to retract the
request for exclusion from the Class.
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.
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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
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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
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Mark C. Rifkin
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
Fax: (212) 686-0114
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MILBERG WEISS BERSHAD & SCHULMAN LLP
David Brower
/s/ David Brower
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David Brower
One Pennsylvania Plaza
49th Floor
New York, NY 10119
Telephone: (212) 594-5300
Fax: (212) 868-1229
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
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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
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Todd R. David
1201 West Peachtree Street
Atlanta, Georgia 30309
Telephone: (404) 881-7000
Fax: (404) 881-7777
Counsel for Defendants
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