Exhibit 10.2
ALTERNATIVE DISPUTE RESOLUTION AGREEMENT
ALTERNATIVE DISPUTE RESOLUTION AGREEMENT (the "Agree
ment") dated as of December 2, 1996, by and between
Consolidated Freightways Corporation, a Delaware corporation (the
"Company"), and Consolidated Freightways, Inc., a Delaware corpo
ration ("CFI").
Recitals
This Agreement is made pursuant to the Distribution
Agreement ("Distribution Agreement") dated as of November 25,
1996 between the Company and CFI. Each term used herein which is
defined in the Distribution Agreement shall have the same meaning
when used herein as it is given in the Distribution Agreement.
The Company and CFI have determined that it is neces
sary and desirable to agree on the procedures described in this
Agreement as the sole and exclusive method for them to resolve
any and all disputes which have arisen prior to the distribution
(the "Distribution") to the shareholders of CFI of the shares of
the Company or which may from time to time arise under the
Transaction Documents (as herein defined), and claims which
either party may have from time to time against the other as a
result of the Transaction Documents or in any way related to the
Distribution whether such disputes or claims are based on a
breach of one party or its obligations under the Transaction Docu
ments or disagreement between the parties as to the meaning or
application of the Transaction Documents or in any manner related
to or arising out of the Distribution (any such dispute or claim,
a "Dispute").
NOW, THEREFORE, in consideration of the mutual agree
ments, provisions and covenants contained in this Agreement, the
parties hereby agree as follows:
I
As used in this Agreement, the following terms shall
have the following meaning (such meanings to be equally applica
ble to both the singular and plural forms of the terms defined):
Amount in Controversy: the monetary value of any
Dispute plus the monetary value of any future Dispute which could
reasonably arise under the provision at issue.
CPR: the Center for Public Resources, Inc.
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CPR Regional Office: the office of the CPR located
closest to Palo Alto, California, or such other office of the CPR
as the parties hereto may agree.
Demand: a written demand for arbitration under Article
IV of this Agreement which shall contain a statement setting
forth the nature of the Dispute, the Amount in Controversy and
such other information as may be required under the CPR Rules for
Non-Administered Arbitration of Business Disputes as in effect
from time to time (the "Arbitration Rules").
Dispute: as defined in the recitals to this Agreement.
Request: a written request for mediation under Article
III of this Agreement which shall contain a brief statement of
the nature of the Dispute and such other information as may be
required under the then current CPR Model Procedure for Mediation
of Business Disputes (the "Mediation Rules").
Transaction Documents: the Distribution Agreement, the
Other Agreements and the other agreements referred to in Section
3.4 of the Distribution Agreement.
II
RESOLUTION OF DISPUTES
All Disputes which cannot be resolved by the parties
through good faith negotiation and consultation within sixty (60)
days after either party shall have notified the other of such
Dispute shall first be submitted to mediation pursuant to Article
III hereof and the Mediation Rules and such other rules of
procedure as the parties may agree; provided that, in the event
of a conflict between Article III and the Mediation Rules,
Article III shall govern. If a Dispute cannot be resolved
through mediation, then such Dispute shall be submitted to
binding arbitration pursuant to Article IV hereof and the Arbi
tration Rules and such other rules of procedure as the parties
may agree; provided that, in the event of a conflict between
Article IV and the Arbitration Rules, Article IV shall govern.
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III
MEDIATION
III. Request for Mediation. Either part to a Dispute may
initiate mediation by filing a Request (along with any copies
thereof that may be required under the Mediation Rules) and a
copy of this Agreement with the CPR Regional Office and by
delivering a copy of the Request to the other party.
III.2 Appointment of Mediator. Unless the parties
otherwise agree in writing, the CPR shall appoint a single
Appointment of Mediator. Unless the parties
otherwise agree in writing, the CPR shall appoint a single
mediator from the CPR Panel of Neutrals.
III.3 Date, Time and Place. Unless the parties otherwise
agree in writing, all mediation proceedings shall take place in
Palo Alto, California. The date, time and place of each media
tion session shall be determined by agreement of the parties or,
if the parties cannot agree within a reasonable period of time,
by the mediator; provided that the first such session shall be
held within fifteen (15) days of the date on which the mediator
is appointed.
III.4 Termination. The mediation proceedings shall be
terminated upon the happening of any of the following: (i) by
execution of a settlement agreement by the parties; (ii) by
written declaration of the mediator that further efforts at
mediation are no longer worthwhile; or (iii) by written declara
tion of one or both parties that the mediation proceedings are
terminated. A written declaration hereunder shall not terminate
the mediation proceedings until notice thereof has been given to
the parties, or to the other party, as appropriate, in accordance
with Section 5.4 hereof.
IV
ARBITRATION
IV.1 Initiating Arbitration. Either party to a Dispute that
has not been settled or resolved through mediation may initiate
arbitration by filing a Demand and a copy of this Agreement
(along with any copies thereof that may be required under the
Arbitration Rules) with the CPR Regional Office within sixty (60)
business days following the termination of the mediation
proceedings and by delivering a copy of the Demand to the other
party. Failure to file a Demand within such period shall
constitute an absolute bar to the institution of any proceedings
with respect to such Dispute and a waiver of all claims related
thereto.
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IV.2 Appointment of Arbitrators. Unless the parties otherwise
agree in writing, a Dispute subject to this Article IV shall be
heard by a panel of three (3) arbitrators who shall be appointed
according to the procedure contemplated by Rule 6 of the
Arbitration Rules.
IV.3 Absence of Conflicts. No person shall serve as an
arbitrator in any Dispute in which the person has any financial
or personal interest, except by the written consent of both
parties.
IV.4 Date, Time and Place. Unless the parties otherwise agree
in writing, all arbitration proceedings shall take place in Palo
Alto, California. The date, time and place of each hearing shall
be determined by agreement of the parties or, if the parties
cannot agree within a reasonable period of time, by the arbitra
tion panel or sole arbitrator (each an "Arbitrator"), as appro
priate. The first such hearing shall be held as soon as practi
cable following appointment of the Arbitrator(s), but in no event
more than one (1) year after such appointment. Each arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C.
1-16, and judgment upon the award rendered by the Arbitrator(s)
may be entered by any court having jurisdiction thereof.
IV.5 Award. The Arbitrator(s) may grant any remedy or relief
that the Arbitrator(s) deem just and equitable including, but not
limited to, injunctive relief, judgment interest, attorneys' fees
and specific performance; provided, however, that the
Arbitrator(s) shall not be authorized to award punitive damages.
V
MISCELLANEOUS
V.1 Complete Agreement; Construction. This Agreement and the
Transaction Documents and other agreements and documents referred
to therein shall constitute the entire agreement between the
parties with respect to the subject matter hereof and shall
supersede all previous negotiations, commitments and writings
with respect to such subject matter.
V.2 Survival of Agreements. All covenants and agreements of
the parties contained in this Agreement shall survive the
Distribution Date.
V.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California
without regard to the principles of conflicts of law thereof.
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V.4 Notice. All notices and other communications required or
permitted to be given or made under this Agreement shall, unless
otherwise provided herein or in the applicable CPR rules, be in
writing and shall be deemed to have been given (i) on the date of
personal delivery, or (ii) provided such notice or communication
is actually received by the party to which it is addressed in the
ordinary course of delivery, on the date of (A) deposit in the
United States mail, postage prepaid, by registered or certified
mail, return receipt requested, (B) transmission by telegram,
cable, telex or facsimile transmission, or (C) delivery to a
nationally recognized overnight courier service, in each case
addressed as set forth below, or to such other person, entity or
address as either party shall designate by notice to the other in
accordance herewith:
To the Company: Consolidated Freightways Corporation
175 Linfield Drive
Menlo Park, California 94025
Attention: General Counsel
To CFI: Consolidated Freightways,Inc.
3240 Hillview Avenue
Palo Alto, CA 94204
Attention: General Counsel
V.5 Waiver. No waiver by any party of any of the provisions
of this Agreement will be deemed, or will constitute, a waiver of
any other provision, whether similar, nor will any waiver
constitute a continuing waiver. No waiver will be binding unless
executed in writing by the party making the waiver.
V.6 Assignment. Neither party may assign, by operation of
law, merger or otherwise, license, sublicense or otherwise
transfer any or all of its rights or obligations under this
Agreement to any other person or entity without obtaining the
prior written consent of the other party.
V.7 Amendments. This Agreement may not be modified or amended
except by an agreement in writing signed by the parties.
V.8 Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit
of the parties and their respective successors and permitted
assigns.
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V.9 Subsidiaries. Each of the parties hereto shall cause to
be performed, and hereby guarantees the performance of, all
actions, agreements, and obligations set forth herein or arising
hereunder to be performed by any Subsidiary of such party on and
after the Distribution Date.
V.10 No Third Party Beneficiaries. This Agreement is solely
for the benefit of the parties hereto and their respective
Subsidiaries and Affiliates and should not be deemed to confer
upon third parties any remedy, claim, right or reimbursement or
other right.
V.11 Titles and Headings. Titles and headings to articles and
sections herein are inserted for the convenience of reference
only and are not intended to be a part of or to affect the
meaning or interpretation of this Agreement.
V.12 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. Without prejudice to any
rights or remedies otherwise available to any party hereto, each
party acknowledges that damages would be an inadequate remedy for
any breach of the provisions of this Agreement and agrees that
the obligations of the parties hereunder shall be specifically
enforceable.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
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IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed as of the day and year first above
written.
CONSOLIDATED FREIGHTWAYS CORPORATION
By:/s/ S. D. Richards
Title: Senior Vice Presdient and
General Counsel
CONSOLIDATED FREIGHTWAYS, INC.
By:/s/ D. E. Moffitt
Title: President and Chief
Executive Officer
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