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EXHIBIT 10.23
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT ("Agreement") is entered into as
of this 30th day of January, 2000, by and between SHOPKO STORES, INC., a
Wisconsin corporation, having its principal place of business at 000 Xxxxxxx
Xxx, Xxxxx Xxx, Xxxxxxxxx 00000, (hereinafter "ShopKo") and Xxxx X. Xxxxxx,
(hereinafter "Contractor") for the Work described herein.
WHEREAS, ShopKo requires the performance of certain professional Work
as described on EXHIBIT A attached hereto and incorporated herein (the "Work").
The Work is within the particular knowledge, expertise and experience of
Contractor; and
WHEREAS, ShopKo wishes to retain Contractor for the performance of the
Work and Contractor agrees to undertake and provide all of the labor, materials,
tools, equipment and expertise necessary to fully perform the Work; and
WHEREAS, ShopKo desires to have Contractor supervise and control the
methods, means and sequences of performing the Work and ShopKo desires to retain
powers of supervision and approval only with regard to the final result to be
accomplished by Contractor pursuant to this Agreement, and not with regard to
the methods or means or sequences of achieving such result; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, IT IS HEREBY AGREED AS FOLLOWS:
1. APPOINTMENT AND ACCEPTANCE.
ShopKo hereby retains the services of Contractor for the purpose of
securing the performance of the Work. Contractor hereby accepts such appointment
and retention and agrees to complete the Work in accordance with the provisions
of this Agreement. The Contractor shall provide all labor, materials, tools,
equipment and supervision required to complete the Work in accordance with the
terms of this Agreement. In the event that ShopKo and Contractor agree at a
later time with regard to additional Work and duties which may become necessary,
ShopKo and Contractor shall supplement this Agreement by addendum in order to
describe the additional Work and duties to be performed and the method of
compensation therefor.
2. COMPENSATION.
ShopKo and Contractor agree that Contractor shall be compensated for
the performance of the Work as described in EXHIBIT A. Contractor shall also be
entitled to reimbursement of all reasonable and documented out-of-pocket
expenses, provided such expenses are pre-approved by ShopKo, and in accordance
with ShopKo's Travel Policy, a copy of which shall be provided to Contractor
upon request. All travel arrangements shall be made through ShopKo's Travel
Services Department.
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3. RELATIONSHIP OF THE PARTIES.
It is expressly agreed by and between ShopKo and Contractor that
Contractor shall perform the Work described herein as an independent contractor
and nothing contained herein shall be construed as creating any agency or other
relationship with ShopKo. It is understood that ShopKo does not agree to use
Contractor exclusively. It is further understood that Contractor is free to
contract for similar services to be performed for other owners while under
contract with ShopKo. Consistent with this relationship, it is agreed that:
A. Contractor is solely responsible for paying all tax obligations,
including, but not limited to, F.I.C.A., self-employment, sales or use
taxes and federal and state income tax, on monies received under this
Agreement. In the event that the Internal Revenue Service, Wisconsin
Department of Revenue or other governmental agency should question, or
challenge the independent contractor status of Contractor, the parties
hereto mutually agree that both Contractor and ShopKo shall have the
right to participate in any discussion or negotiation occurring with
such agency or agencies, irrespective of when or by whom such
discussions or negotiations initiated.
B. ShopKo shall have no right to control the methods or means by which the
result of this Agreement is accomplished, but shall have control and
approval merely with regard to the result to be accomplished pursuant
to this Agreement.
C. ShopKo recognizes and acknowledges the independence of the Contractor's
own business activities and this created relationship in no way
prohibits or inhibits the Contractor from advertising its services to
others or holding itself out to the public as such.
4. MEANS OF PERFORMANCE.
In undertaking to perform the Work, Contractor shall have absolute
control with regard to the provision of all labor, materials, and facilities
necessary for the performance of Contractor's duties pursuant to this Agreement.
It is expressly understood and agreed that Contractor shall be solely
responsible for the compensation of its Contractors, employees and agents. It is
further understood and agreed that the compensation to be paid to Contractor
pursuant to this Agreement is strictly limited to that compensation set forth in
Paragraph 2 above.
5. COOPERATION.
ShopKo and Contractor agree to cooperate and furnish additional data
relative to the Work and duties to be performed pursuant to this Agreement as
such data becomes available. Contractor agrees to furnish such information as
may be requested from time to time by ShopKo or ShopKo's employees, agents or
other Contractors.
6. QUALITY OF SERVICE.
Contractor shall perform the Work with care, skill, and diligence, in
accordance with the applicable professional standards currently recognized by
Contractor's profession.
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7. DOCUMENTS AND RECORDS.
Records of Contractor's reimbursable expenses pertaining to this
Agreement will be kept in accordance with generally accepted accounting
principles and made available to ShopKo for inspection, copying and audit upon
request by ShopKo.
ShopKo shall have complete and unrestricted right to use all software,
documents, reports, and other Work product prepared by Contractor in connection
with its performance of the Work. Such software, documents, reports and other
Work product are "work for hire" and are the exclusive property of ShopKo and
are not to be used by Contractor on other projects without ShopKo's express
written consent.
8. FINAL APPROVAL.
ShopKo shall retain the right to exercise final approval with regard to
the result to be achieved pursuant to this Agreement. Such approval shall not
extend to the methods and means employed to achieve such result, but merely to
the adequacy and sufficiency of such result once achieved.
9. TERMINATION.
This Agreement may not be terminated by Contractor except in the case
where ShopKo has materially breached its obligations hereunder. ShopKo may
terminate this Agreement at any time upon seven (7) days written notice, but
such termination shall only be effective upon payment in full by ShopKo to
Contractor for Work rendered prior to the effective time of termination. Upon
Contractor's receipt of notice of cancellation or termination from ShopKo,
Contractor shall immediately discontinue all Work unless the notice directs
otherwise, and shall deliver immediately to ShopKo all reports, plans, drawings,
specifications, data, estimates, summaries or other material and information,
whether completed or in process, accumulated by Contractor in performance of the
Work.
10. ASSIGNABILITY.
Contractor shall not assign or subcontract any of its obligations
pursuant to this Agreement nor its responsibility for performance of the Work
without the prior written consent of ShopKo, which consent shall not be
unreasonably withheld.
11. CONFIDENTIAL INFORMATION.
Any confidential information concerning ShopKo, its products, data,
documentation, software, computer systems, services or operation processes which
are disclosed to Contractor incident to the performance of this Agreement shall
remain the property of ShopKo and are disclosed in strict confidence. No rights
are granted to Contractor to use, review, disclose or publish any such data and
documentation. Upon request, Contractor shall promptly return all written
confidential information to ShopKo, without retaining any copies thereof.
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12. MISCELLANEOUS.
Authority. ShopKo and the Contractor warrant and represent to each
other that the execution of this Agreement by their respective
officers or agents have been duly authorized and that this
Agreement, when fully executed, constitutes a valid, binding
and legally enforceable obligation of itself.
Execution by All Parties in Counterparts. This Agreement shall not
become effective and binding until executed by all parties.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and
all of which shall constitute a single instrument, and the
signature of any party to any counterpart shall be deemed a
signature to and may be appended to any other counterpart.
Notice. All notices, demands and/or consents provided for in this
Agreement shall be in writing and shall be deemed given when
delivered to the parties hereto by hand or by United States
registered or certified mail, return receipt requested, with
postage prepaid. All such notices and communications shall be
deemed to have been duly given upon the first to occur of the
intended recipient's actual receipt or three (3) days after
mailing. All notices and communications shall be addressed to
the parties hereto at the respective addresses set forth
below:
If to ShopKo: ShopKo Stores, Inc.
000 Xxxxxxx Xxx
Xxxxx Xxx, XX 00000
Attn: General Counsel
If to Contractor: Xxxx X. Xxxxxx
(Intentionally Deleted)
or at such other address as may be designated in writing by
either party from time to time.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin.
Nonwaiver. Any delay by ShopKo in instituting or prosecuting any action
or proceeding or otherwise asserting its rights under this
Agreement, shall not operate as a waiver of such rights or to
deprive it of or limit such rights in any way because of the
concepts of waiver, laches, or otherwise. Any waiver, in fact,
made by ShopKo with respect to any specific default by
Contractor under this Agreement shall not be considered or
treated as a waiver of the rights of ShopKo with respect to
any other defaults by ShopKo under this Agreement.
Successors and Assigns. This Agreement shall apply to, inure to the
benefit of, and be binding upon and enforceable against the
parties hereto and their respective successors and assigns.
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Paragraph Headings. The headings inserted at the beginning of each
paragraph of this Agreement are for convenience of reference
only and shall not limit or otherwise affect or be used in the
construction of any of the terms or provisions hereof.
Modification. This Agreement may not be modified or amended unless such
modification or amendment is set forth in writing and executed
by all parties hereto.
This Agreement is entered into as of the day and year first written
above.
SHOPKO STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: President and CEO
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Attest: /s/ Xxxxxxx X. Xxxxxx
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Its: Senior Vice President, General Counsel
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CONTRACTOR
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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EXHIBIT A
DESCRIPTION OF WORK: General consulting and administrative services related to
the business and operations of ShopKo Stores, Inc. and its subsidiaries,
including ProVantage Health Services, Inc. The compensation set forth below
includes any amounts otherwise payable to Xx. Xxxxxx as retainer or meeting fees
related to his services as a director of ShopKo Stores, Inc.
Commencement Date: January 30, 2000
Completion Date: February 2, 2002
Compensation: Compensation for the performance of the Work shall be
for the sum of Two Hundred Sixty Thousand Dollars and
00/100 Dollars ($260,000) payable in advance in
twenty four (24) equal monthly installments.
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