Joseph P McMahon Jr

DISPUTE RESOLUTION AGREEMENT PROVIDING FOR

THE USE OF A CONFIDENTIAL LISTENER

This Agreement ("Agreement") is made as of [date] by [Company A] whose address is [address] ("[A]"), and [Company B] whose address is [address] ("[B]"). The foregoing may be referred to individually as "Party" or collectively as "Parties".

Recitals

A. The Parties [describe original agreement between parties], and the Parties are now in a dispute over [explain; identify court case] [the "Dispute"].

B. The Parties want to use a confidential listener to determine whether the Parties can privately and confidentially exchange settlement figures to assist in the resolution of the Dispute, and they have asked Joseph P. McMahon Jr. of Joseph P. McMahon, Jr. LLC to serve as the confidential listener.

C. The Parties have agreed that they will enter into a final and global settlement agreement that resolves any and all claims that the Parties have or might seek to assert, if they can reach an agreement on a Settlement Payment regarding their Dispute. The Settlement Payment, as defined in Section 11, is a single payment from [Party B] to [Party A] which would be part of the total and final settlement of the Dispute. This Agreement explains how the Parties will confidentially exchange figures using a confidential listener in order to see if an agreement can be reached on a Settlement Payment.

D. To ensure that a final settlement of the Dispute is reached, the Parties have agreed to arbitrate any dispute over the terms of the final settlement if a Settlement Payment is determined in this process. The award in such arbitration will be based on the terms and principles set forth in this Agreement.

E. The Parties also understand that, if they cannot determine a Settlement Payment from this Agreement, then they are under no further obligation to negotiate settlement (but they remain free to seek to do so). In such event, they may pursue their claims as though this Agreement had never been executed.

Agreement

1. Confidential Listener. The Parties have agreed that Joseph P. McMahon, whose business address is 617 Steele St. , Denver , CO. , 80206-3941, will act as the confidential listener ("Listener") who will receive communications from the Parties and report the results to them. Mr. McMahon has reviewed this Agreement, and has agreed to serve as the neutral and impartial Listener. Neither the Listener nor any Party knows of any circumstances which would cause reasonable doubt regarding the neutrality or impartiality of the Listener.

2. Basis for Use of Settlement Submittals. The Parties agree that, if a Settlement Payment, as defined in Section 11, is determined under this Listener Process, then the Parties commit to enter into a final and global settlement of the Dispute (“Final Settlement Agreement”) as set forth in this Section 2. Any disputes concerning the detailed terms of such Final Settlement Agreement will be resolved in accordance with Section 11 below. The Parties further agree that the Final Settlement Agreement is based on all of the following assumptions:

2.1. [list assumptions and bases for the final settlement agreement]

3. Settlement Submittals and Listener’s Reports. The purpose of the Listener process is to permit the Parties to obtain the Listener's evaluation of the settlement Submittals and report to the Parties’ legal counsel in the following procedure (“Listener Process”):

3.1. Party Submittals. On or before a/p.m., Mountain Time, on [date], each Party, through its legal counsel, will call the Listener and tell the Listener the total amount of money which it would be willing to accept or pay, as applicable, as part of a Final Settlement Agreement in which [Party B] makes a settlement payment to [Party A] (such settlement amounts called to the Listener are collectively referred to as the “Submittals”).

3.2. Listener's Report. On or before a/p.m., Mountain Time, on [date], the Listener will individually call each Party’s legal counsel to report that one of the following has occurred:

3.2.1. That “the Submittals overlap,” the arithmetic mean of the Submittals, and that “the Listener Process is terminated”; or,

3.2.2. That “the Submittals do not overlap” and that “the monetary separation between the Submittals”, in the opinion of the Listener, is either (a) “Substantial,” (b) “Moderate,” or (c) “Small.”

3.2.3. Other than to ask the questions identified in Section 3.3 below, the Listener will not report anything concerning the Submittals or this Listener Process to the Parties or the Parties’ legal counsel other than what is set forth in Sections 3.2.1 or 3.2.2 above.

3.3. Listener’s Question. If the Submittals did not overlap, the Listener will ask each Party whether it wishes to make a revised and final Submittal (“Revised Submittal”). If both Parties indicated that they do wish to make a Revised Submittal, the Listener will advise each Party’s legal counsel of the date and time for making the Revised Submittal to the Listener.

3.4. Listener's Final Report. If both Parties have elected to submit a Revised Submittal to the Listener, then within __ hours of receiving the Revised Submittals, the Listener will individually call each Party’s legal counsel to report the following:

3.4.1. That the Revised Submittals overlap, the arithmetic mean of the Submittals, and that “the Listener Process is terminated;” or,

3.4.2. That “the Submittals do not overlap” and that, subject to the provisions of Section 3.5, the Listener Process is terminated.

3.5. In the Listener’s Final Report, the Listener will not report anything concerning the Submittals or the Revised Submittals to the Parties or the Parties’ legal counsel other than what is set forth in 3.4.1 or 3.4.2 above.

4. Party Representatives. Each Party agrees that its legal counsel is authorized to submit its Submittal and, if necessary, its Revised Submittal, and to receive the reports from the Listener.

5. Listener Authority. The Listener does not have any authority other than as set forth in Sections 3 above.

6. Listener Confidentiality. Other than as expressly permitted in Sections 3.2 and 3.4 above, the Listener will not disclose any information about the Listener Process, including but not limited to the Submittals or Revised Submittals, to any Party or third party, other than the limited facts that the Listener took part in the Listener Process and that it involved a confidential exchange of settlement proposals.

7. Party Confidentiality. Unless permitted in a subsequent settlement agreement between the Parties concerning the Dispute, the Parties will not disclose to third parties any information concerning the Listener Process, including but not limited to the Submittals or Revised Submittals, other than the limited facts that the Listener Process took place and that it involved a confidential exchange of settlement proposals.

8. Listener's Fees. The Parties have agreed that the Listener will be compensated by the payment of $ /hr to the Listener for time spent on the Listener Process; such compensation will be shared equally by the Parties, and submitted to the Listener promptly after it has been billed.

9. Listener Liability. Other than for willful or wanton conduct or a breach of confidentiality, the Listener shall not be liable for any act or omission in connection with the Listener Process.

10. Failure to Determine a Settlement Payment. If the Listener Process, as described in Section 3 does not result in the determination of a Settlement Payment, then:

10.1. The Parties have no further obligations under this Agreement other than as set forth in Sections 7, 8, 10 and 12. Each Party will be solely responsible for its costs and fees incurred by it in participating in the Listener Process.

10.2. The Parties have no further obligation to try to negotiate or arbitrate the terms of a Final Settlement Agreement.

10.3. No Party is later bound by or limited to the Submittals or Revised Submittals made in the Listener Process.

10.4. The Parties expressly reserve their respective rights to pursue their claims and defenses in other proceedings.

10.5. Each Party agrees that this Agreement, and the negotiation or performance thereunder, will not be used, referred to or introduced as evidence in any subsequent legal proceeding for any purpose, including impeachment.

11. Final Settlement Agreement in the Event a Settlement Payment is Determined. The Parties agree that, if the Listener Process yields a Settlement Payment pursuant to Section 3 above because of an overlap in the Submittals or Revised Submittals (“Settlement Payment”), the Parties will thereafter, in good faith and with expedition, negotiate a detailed Final Settlement Agreement concerning the Dispute that utilizes the Settlement Payment as the sole monetary transfer from [Party B] to [Party A] (together with the [Mutual General Releases] between the Parties), in accordance with the principles of Section 2. The terms of the Final Settlement Agreement will be based upon the principles set forth in this Agreement generally and more specifically set forth in Section 2. If any dispute arises concerning the terms of the Final Settlement Agreement that prevents the Parties from reaching agreement on the terms of the Final Settlement Agreement (all such being referred to as “Settlement Terms Dispute”), then the Parties agree the Settlement Terms Dispute will be finally determined by arbitration expeditiously conducted in Denver before the American Arbitration Association (“AAA”) under the provisions set forth in this Section 11, and with the scope of such arbitration limited as set forth in this Section 11.

11.1. [The Parties have selected [name, address] as the sole arbitrator (“Arbitrator”) for the resolution of any Settlement Terms Dispute][An arbitrator will be selected under the CAR]. [Arbitrator] has reviewed this Agreement and has agreed to serve. The Arbitrator will be compensated at the rate of $______ for time spent preparing for and serving in this arbitration. If the Arbitrator becomes unable to serve for any reason, a replacement arbitrator will be promptly selected under the AAA Commercial Arbitration Rules (“CAR”).

11.2. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. 1-16, to the exclusion of any provision of state law inconsistent therewith and which would produce a different result. Judgment on the award rendered by the Arbitrator may be entered by any court having jurisdiction thereof. The Arbitrator shall determine the Settlement Terms Dispute in accordance with the substantive law of the State of Colorado , exclusive of its conflict of law rules. The arbitration shall be conducted in accordance with the CAR. In the event of a conflict between this Section 11 and the CAR, this Section 11 shall govern. The attorney-client and work product privileges will be honored in the arbitration as though the case was being determined in a Colorado court.

11.3. The arbitration may be initiated by either Party delivering to the other Party (with a copy to the AAA and the Arbitrator) a Notice of Intention to Arbitrate (“Notice”) as provided for in Section 6 of the CAR. The Notice shall contain the Party’s identification of the Settlement Terms Dispute, including copies of the provisions on which the Parties have agreed and the disputed provisions. The other Party may file an Answering Statement under Rule 6 containing that Party’s identification of the Settlement Terms Dispute.

11.4. Because the Final Settlement Agreement will include the [Mutual General Releases], the Arbitrator has no authority to make any award of damages of any kind between the Parties (except to assess fees and costs in accordance with Section 11.8 below), or to amend the Settlement Payment. Rather, the Arbitrators sole authority is the final resolution of the Settlement Terms Dispute.

11.5. The Arbitrator, in the course of the proceedings, may order any provisional or equitable remedy, including preliminary or mandatory injunction, which the Arbitrator deems just and equitable. The failure of a Party to comply with such an interim order, after due notice and an opportunity to cure the noncompliance, may be deemed by the Arbitrator as default. If such a default occurs, the Arbitrator may strike some or all claims or defenses, or may enter a final award or such other sanctions as the Arbitrator deems appropriate.

11.6. The Arbitrator shall manage the proceedings as he deems appropriate so as to make the arbitration expeditious, economical and less burdensome than litigation. The Arbitrator shall endeavor to schedule the proceedings so that, if practicable, an award regarding the Settlement Terms Dispute is rendered within 45 days after the Notice is delivered.

12. No Admissions. Each Party understands, acknowledges and agrees that the negotiation, execution and performance of this Agreement or participation in the Listener Process shall not constitute, or be construed as, an admission of any liability or wrongdoing on the part of any Party.

13. Termination, Survival. At any time prior to the Listener’s receipt of the Parties’ submittals under Sections 3.2 or 3.4 which would lead to the calculation of a Settlement Payment, any Party may terminate the Listener Process by giving oral notice to the Listener. In such event, the Listener will notify the other Party that the Listener Process has been terminated by the other Party. Prior to the determination of a Settlement Payment, the Listener may declare the Listener Process terminated if either or both Parties indicated by statements or inaction that they do no intend to proceed with the Listener Process. Upon termination of the Listener Process, a Party has no further obligation to participate in the Listener Process; provided, however, that the covenants and agreements made by the Parties in Sections 7, 8, 10 and 12 shall survive the termination of the Listener Process. The Listener’s obligations under Section 6 survive the termination of the Listener Process.

14. Amendment and Waiver. The Parties also agree that no modification, amendment, waiver or alteration of the terms of this Agreement shall be effective unless in writing and executed subsequent to the date hereof by all Parties hereto.

15. Interpretation; Construction. If any provision of this Agreement requires interpretation or construction, the Parties agree that this Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be strictly construed against the Party which itself or through its agents prepared this Agreement. Rather, it is agreed that the Parties and their respective counsel and other agents have fully and equally participated in the preparation, negotiation, review and approval of all provisions of this Agreement.

16. Effect of Agreement on Third Parties. The covenants the Parties have made in this Agreement do not create any rights for the benefit of any person who is not a Party.

17. Severability. If any provision in this Agreement is held to be invalid or unenforceable on any occasion or in any circumstance, such holding shall not be deemed to render this Agreement invalid or unenforceable, and to that extent the provisions of this Agreement are severable; provided, however, that this provision shall not preclude a court from refusing to sever any provision if severance would be inequitable to one or more of the Parties.

18. Governing Law. The Parties agree that this Agreement will be construed and enforced in accordance with the law of the State of Colorado , exclusive of its conflict of law rules.

19. Execution in Counterparts. This Agreement may be executed in two or more counterparts, all of which shall, upon execution and delivery of identical counterparts by all Parties, comprise a single agreement. Counterpart signatures may be exchanged by facsimile and shall be deemed delivered when received by the Party.

Dated:__________ [Party A]

Dated:__________

Dated:__________ [Party B]

CONCUR: