Tolling Agreement

TOLLING AGREEMENT

This Tolling Agreement (“this Agreement”) is made effective as of the __ day of _____, 200_ (the “Effective Date”) by and between _________________, __________________, and ___________________, and any other related and affiliated corporations and businesses (referred to jointly and/or severally as the “Claimants”) on the one hand, and the accounting and/or auditing firm of _______________________., and ______________ and ____________, (referred to jointly and/or severally as the “Accountants”) on the other hand. The Claimants and the Accountants are collectively referred to as the “Parties.”

WHEREAS, the Parties deem it to be in their mutual benefit that Claimants’ alleged Claims (“Claims”) against Accountants not be asserted in litigation at the present time;

WHEREAS, the Claimants and the Accountants desire to encourage resolution and/or such further review or disposition of Claimants’ Claims as may result in no lawsuit or claim being filed and, in any case, wish to avoid the expense and uncertainty of litigation of the Claims if at all possible, and are willing to make the stipulations, covenants and agreements hereinafter set forth in order to defer and postpone the commencement of litigation;

WHEREAS, the Parties desire that for the period of this Agreement, they should be able to consider issues relating to the possibility of settling disputes without regard to the time constraints that exist because of any future expiration of any applicable statute of limitations;

NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby covenant and agree as follows:

1. As used in this Agreement, the following terms shall have the following meanings:

(a) “Claims” shall mean any and all claims and/or causes of action, if any, known or unknown, of the Claimants against the Accountants that Claimants may have in connection with the services provided by Accountants to Claimants.

(b) “Tolling Period” shall mean the period from and including the Effective Date of this Agreement until and including the Expiration Date (as defined below) of this Agreement.

(c) “Expiration Date” shall mean the earlier of ______ __, 200_, or 30 days from the date that written notice of termination of this Agreement has been served by either of the Parties on the other in accordance with paragraph 10 of this Agreement.

(d) “Timing Defenses” shall mean and include, and shall be limited to, any affirmative defenses to Claimants’ Claims that Accountants may have to the extent based upon (1) any statute of limitations, (2) laches, and/or (3) any failure of the Claimants to institute or commence litigation or other legal proceedings within some specified period, before a specified date, or before the happening of a specified event.

2. The Claimants and the Accountants stipulate, covenant and agree that Timing Defenses applicable to the Claims shall be tolled during the Tolling Period.

3. The Claimants and the Accountants stipulate, covenant, and agree that this Agreement shall have no effect on any Timing Defenses that may be available to the Accountants prior to the Effective Date, and that all time periods prior to the Effective Date and after the Expiration Date (and prior to the filing of any lawsuit or other legal proceeding by Claimants subject to paragraph 5 of this Agreement) shall be included in the calculation of and running of any applicable Timing Defenses. Nothing contained herein shall preclude Accountants from asserting any Timing Defenses to the extent that such defenses already exist as of the Effective Date, and nothing herein shall be deemed to revive any Claims barred as of the Effective Date.

4. The Claimants and the Accountants stipulate, covenant, and agree that the Accountants, by executing and entering into this Agreement, are not waiving or otherwise impairing by estoppel or any other means Accountants’ right and ability to raise any Timing Defenses available to them for the periods prior to the Effective Date and after the Expiration Date (and prior to the filing of any lawsuit or other legal proceeding by Claimants subject to paragraph 5 of this Agreement).

5. The Claimants agree to forebear filing a petition or complaint or initiating any lawsuit or other legal proceeding against the Accountants until on or after the last day of the Tolling Period that is not a Saturday, Sunday, or legal holiday.

6. The provisions of this Agreement comprise all of the terms, conditions, agreements and representations of the Parties respecting the tolling of the Timing Defenses. This Agreement may not be altered or amended except by written agreement executed by both the Claimants and the Accountants. Both the Claimants and the Accountants hereby agree that terms of this Agreement have not been changed, modified, or expanded by any oral agreements or representations entered into or made by the Claimants or the Accountants prior to or at the execution of this Agreement.

7. The Parties hereto acknowledge that each of them has had the benefit of counsel of their choice and has been offered an opportunity to review this Agreement with chosen counsel. The Parties hereto further acknowledge that they have, individually or through their respective counsel, participated in the preparation of this Agreement, and it is understood that no provision hereof shall be construed against any party hereto by reason of either party having drafted or prepared this Agreement.

8. This Agreement may be executed in one or more original or facsimile counterparts, each of which shall be deemed an original, but also which together will constitute one and the same instrument.

9. This Agreement shall terminate on the Expiration Date as provided in paragraph 1(c) above, unless extended in writing by the parties to be bound.

10. Either the Claimants or the Accountants may terminate this Agreement, effective 30 days after the date of serving a written notice of termination, by serving notice of termination by letter to the other party. Such notice letter shall be served by facsimile transmission, followed by the delivery of an original of the notice letter by United States certified mail, return receipt requested, to the following persons at the following addresses and facsimile numbers:

If to the Claimants:

_____________________________

If to the Accountants:

_____________________________

11. On or after the Expiration Date of this Agreement, the Claimants shall have the right to file and pursue any and all Claims and to seek any and all legal remedies against the Accountants that may be available to Claimants, if any, and Accountants shall be entitled to assert any Timing Defenses or other defenses, if any, subject to the terms of this Agreement.

12. Nothing in this Agreement shall be construed as an admission or denial by any of the Parties as to the merits of any of the Claimants’ Claims against Accountants or the merits of any of the Accountants’ defenses to any of Claimants’ Claims.

13. Neither Claimants nor Accountants nor any of their agents, witnesses, or attorneys will mention or allude to this Agreement, its terms, its execution, or the existence of any Tolling Period in any way, directly or indirectly, before a jury or any factfinder in any proceeding for any purpose. The terms of this paragraph will survive termination of this Agreement.

14. Claimants represent and warrant that each of the individuals signing this Agreement on behalf of any of the Claimants has authority to sign on behalf of the individual or entity for which they have acted as signatory. Accountants represent and warrant that each of the individuals signing this Agreement on behalf of any of the Accountants has authority to sign on behalf of the individual or entity for which they have acted as signatory.

SO AGREED: CLAIMANTS: