Employment Agreement - Cerner Corp. and E. H. Devanny III
Cerner
Corporation
CERNER ASSOCIATE EMPLOYMENT AGREEMENT
This Cerner Associate Employment Agreement describes the formal
employment relationship between
E. H. Devanny, III
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ASSOCIATE (Print Name)
and Cerner Corporation, a Delaware corporation
This Agreement is effective on the 13th day of August, 1999.
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1. CERNER'S LETTER OFFERING EMPLOYMENT TO YOU.
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At the time you accepted employment with Cerner, you
received an offer letter outlining or confirming the
specifics of Cerner's offer of employment to you. The
position, terms, compensation, benefits and other provisions
of that offer letter represent the initial conditions of
your Cerner employment. The offer letter is incorporated
into this Agreement as Attachment I. Any amendments or
changes to the offer letter are included as part of
Attachment II to this Agreement, and supersede the terms in
the offer letter. Cerner reserves the right to modify at
anytime the conditions of your employment by Cerner.
2. EMPLOYMENT RELATIONSHIP.
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A. Formation. By signing this Agreement, you represent
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that every material fact contained in your resume and
application for employment with Cerner is true and
accurate to the best of your knowledge and belief. You
also agree that falsification of your resume or
application is grounds for immediate discharge.
B. Type. To the extent permitted by law, your
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employment relationship with Cerner is "at will", which
means that you may resign from Cerner at any time, for
any reason, or for no reason at all, and without advance
notice (except as described below). It also means that
Cerner may terminate your employment at any time, for
any legally permitted reason, or for no reason at all,
and without advance notice.
C. Resignation and Termination. You agree to cooperate
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with Cerner by participating fully in an exit interview
in the event you leave the employ of Cerner. You agree
to give Cerner written notice of your intention to
resign from employment at least ten (10) business days
prior to the last day you intend to work at Cerner. To
facilitate the provisions of paragraphs 7 and 8 of this
agreement, you also agree to report to Cerner, in
conjunction with your written notice of intent, the
identity of your new employer (if any) and the nature of
your proposed duties for that employer. Cerner,
however, reserves the right either to accelerate your
intended effective termination date to an earlier actual
date or to allow your intended effective termination
date to stand. If you resign, however, with fewer
than ten (10) business days notice, or if you actually
leave Cerner's employ prior to expiration of the ten
business days notice period and without the
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permission of Cerner, then you agree that (to the extent
permitted by law) no vacation pay, salary or other
compensation otherwise due, from the date of your
resignation notice until the time of your approved
effective termination date, will be owed or paid to you
by Cerner. Failure to provide a two-week notice period
may affect your future rehire ability with Cerner.
If you voluntarily resign and give proper notice as
outlined above and Cerner elects to accelerate your
effective termination date to a date less than two (2)
weeks from the date of your notice, Cerner will continue
to pay your base salary through the remainder of such
two (2) week period.
In the event your voluntary or involuntary
termination occurs during a performance period
associated with a documented bonus or incentive
compensation plan, any final payments to you as a result
of your participation in such plan will be determined by
the documented procedures of the plan.
In the event Cerner terminates your employment, Cerner
reserves the right to set the effective date of such
termination. Upon your resignation or the termination
of your employment, you agree to promptly execute a
Termination Statement in the form of Attachment III.
D. Severance Payments. If Cerner terminates your employ
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ment (and unless the termination was due to your
dishonesty, illegal conduct, or breach of Cerner's
policy or this Agreement), Cerner will pay you a minimum
of six (6) months severance pay (based on your
annualized base salary amount at the time of your
involuntary termination), less appropriate payroll
deductions, payable on Cerner's regular paydays. In
addition, Cerner will increase the severance period
beyond the minimum six (6) month period at the rate of
two (2) additional months for each one (1) month that
you are employed by Cerner, up to a maximum duration
(the original six (6) month period plus any extension)
of two (2) years. Additionally, at Cerner's sole
discretion and option, Cerner may increase the severance
period beyond that set forth in the preceding sentence
up to a maximum aggregate duration of two (2) years (the
original six (6) month period, plus any extension, plus
any election by Cerner to extend). You understand and
agree that the extension by Cerner of the period of your
severance compensation will also extend the period of
time of your non-competition obligations under Paragraph
7. You also understand and agree that, at Cerner's sole
discretion and option, Cerner may elect to make any
severance payment, or any part thereof, in a lump sum
payment as opposed to making such payment on Cerner's
regular paydays. Any such lump sum payment shall have
no effect upon your obligations to comply with your non-
competition obligations under Paragraph 7.
Notwithstanding the foregoing, it is not the intent of
either of us that you continue to receive any severance
payments (if applicable) after you have accepted other
employment after leaving Cerner. You agree to
immediately notify Cerner if you accept other employment
during the severance and non-competition period provided
for by this Paragraph 2 and Paragraph 7. Cerner's
obligations to make any further severance payments
hereunder shall immediately cease upon your commencement
of employment of a new employer, but your obligations of
non-competition under Paragraph 7 shall continue
pursuant to such terms.
E. Relocation Costs and Other Payments. If Cerner has
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compensated you for certain costs associated with any
relocation which may be required as a prerequisite to
your being hired into a position with Cerner, all such
compensation shall be made according to Cerner's published
relocation policy. Such compensation, along with any
signing bonus and grant of stock options will be made in
consideration for your agreement to serve in the position
for which you were relocated for at least two years. If
(i) you voluntarily resign from employment with Cerner
(for reasons other than a Change in Control, as defined
in your stock option grant letter) within two (2) years
of the date your move is complete or (ii) Cerner
terminates your employment due to your dishonesty,
illegal conduct, or breach of Cerner policy or this
Agreement within two (2) years of the date your move is
complete and (A) you received a
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signing bonus from Cerner, and/or (B) you have realized
any profit from the exercise of stock options granted
to you by Cerner and/or (C) Cerner has compensated you
for any relocation expenses or otherwise reimbursed to
you any sums of money pursuant to Cerner's relocation
policy, then you agree that you shall repay such sums to
Cerner in their entirety.
F. SALES ASSOCIATE/CERNER CONSULTING PROVISIONS. If
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you are employed by Cerner in a sales capacity or in
certain Cerner Consulting roles, additional provisions
incorporated as Attachment IV to this Agreement are
applicable to your employment relationship.
3. AGREEMENT NOT TO DISCLOSE OR TO USE CONFIDENTIAL INFORMATION.
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You agree that you will forever maintain the confidentiality
of Confidential Information. You will never disclose
Confidential Information except to persons who have both the
right and need to know it, and then only for the purpose and
in the course of performing Cerner duties, or of permitting
or assisting in the authorized use of Cerner products and
services. In the event your employment with Cerner
terminates (voluntarily or involuntarily), you will promptly
deliver to Cerner all Confidential Information.
4. NON-CERNER EMPLOYMENT.
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Except for those part-time associates, hired to work less
than 40 hours per week, employment at Cerner is a full-time
responsibility. As a full-time associate, it is Cerner's
expectation that you devote your full time and attention to
meet your Cerner responsibilities and that you will not
engage in any other employment activities which would
detract from or conflict with your ability to carry out your
duties at Cerner. If you are a part-time associate, it is
Cerner's expectation that you will not engage in other
employment activities that would detract from or conflict
with your ability to carry out your part-time duties at
Cerner.
5. NEW PRODUCTS AND IDEAS.
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With respect to New Products and Ideas that you develop,
author, or conceive while employed at Cerner, plus for one
year thereafter, you agree to keep accurate, complete and
timely records of such New Products and Ideas, and will
promptly disclose and fully describe such New Products and
Ideas in writing to Cerner.
You agree to assign and transfer to Cerner, without further
consideration, your entire right, title and interest in and
to all such New Products and Ideas. You waive any and all
moral rights which you otherwise would have in any New
Products and Ideas.
You agree to execute promptly at Cerner's expense, a written
assignment of title to Cerner, and all letters (and
applications for letters) of patent and copyright, in all
countries, for any New Products or Ideas required to be
assigned by this Agreement. You also agree to assist Cerner
or its nominee in every reasonable way (at Cerner's request
and expense, but at no charge to Cerner), both during and
after your time of employment at Cerner, in vesting and
defending title to the New Products and Ideas in and for
Cerner, in any and all countries, including the obtainment
and preservation of patents, copyrights, trade secrets and
other proprietary rights.
This Section does not apply to your new products and ideas
which do not relate directly to the business of Cerner, and
which are developed entirely on your own time.
6. PRIOR INVENTIONS.
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Any and all patented and unpatented inventions, new products
and ideas which you made prior to your employment by Cerner
are excluded from the scope of this Agreement and are
documented on Attachment V, Inventory of Prior Inventions.
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7. NON-COMPETITION AND NON-SOLICITATION
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For a period of two (2) years after the voluntary or
involuntary termination of your employment with Cerner:
A. You will tell any prospective new employer, prior to
accepting employment, that this Employment Agreement
exists.
B. (i) For a period of two (2) years after the voluntary
termination of your employment with Cerner or your
termination for dishonesty, illegal conduct or breach
of Cerner's policy or this Agreement or, (ii) in the
event Cerner terminates your employment (unless the
termination was due to your dishonesty, illegal conduct
or breach of Cerner's policy or this Agreement), for the
period you are paid severance pursuant to Paragraph 2
(including any time that you would have been paid sever-
ance pursuant to Paragraph 2 but for the fact you
commenced employment with a new employer), you will not
provide services directly or indirectly related to your
employment at Cerner to any Conflicting Organization in
the United States or in any country in which Cerner has
a business interest.
C. Notwithstanding the foregoing, nothing contained in this
Paragraph 7 shall prohibit you (after your termination
of employment with Cerner) from taking a position with a
general consulting organization whose only Conflicting
Product is the provision of consulting services to the
healthcare industry, so long as you personally do not
thereby provide or assist in providing consulting
services to a Client with respect to any Cerner product,
process or service or any Conflicting Product.
D. You agree not, on behalf of yourself or on behalf of any
other person, entity, or organization, to employ, solicit
for employment, or otherwise seek to employ or retain
any Cerner associate or employee, or any employee of a
Cerner client company, or in any way assist or facilitate
any such employment, solicitation, or retention effort.
8. [Omitted].
9. PUBLICITY RELEASE.
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You consent and agree to the use of your name, voice and
picture (including but not limited to use in still
photographs, videotape and film formats, and both during and
after your period of employment at Cerner) for advertising,
promotional, public relations, and other business purposes
(including its and their use in newspapers, brochures,
magazines, journals and films or videotapes) by Cerner.
10. CERNER PROPERTY.
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You understand that you may be assigned various items of
Cerner property and equipment to help you carry out your
Cerner responsibilities. When such property or equipment is
issued, you will formally acknowledge receipt of it and will
take all reasonable precautions and actions necessary to
safeguard and maintain it in normal operating condition.
You further agree to accept financial responsibility for
damage or wear to the property and equipment you are issued
beyond that associated with normal business use. You will
notify Cerner immediately of any such damage or
loss. If your employment with Cerner terminates, you will
immediately return to Cerner all property and equipment
which you have been issued or which otherwise belongs to
Cerner.
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11. SYSTEMS AND PHYSICAL SECURITY.
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You understand the importance of both systems and physical
security to the daily operations of Cerner and to the
protection of business information. You will, therefore,
comply with and assist in the vigorous enforcement of all
policies, practices, and procedures which may be developed
to ensure the integrity of Cerner systems and facilities.
Further, you understand that willful violation of such
policies, practices, and procedures may result in
termination of your employment.
12. PRIOR EMPLOYMENT OBLIGATIONS.
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You represent and agree that you will not disclose to
Cerner, or induce Cerner to use, any proprietary or
confidential information belonging to any previous employer
or to others.
13. REMEDIES.
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By signing this Agreement, you agree that the promises you
have made in it are of a special nature, and that any
breach, violation or evasion by you of the terms of this
Agreement will result in immediate and irreparable harm to
Cerner. It will also cause damage to Cerner in amounts
difficult to ascertain. Accordingly, Cerner shall be
entitled to the remedies of injunction and specific
performance, as well as to all other legal and equitable
remedies which may be available to Cerner.
14. INDEMNIFICATION.
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You agree to indemnify and hold Cerner harmless from and
against any damages, liability, actions, suits or other
claims arising out of your breach of this Agreement.
15. MODIFICATION.
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This Agreement may not be modified in any respect, except by
a written agreement executed by you and Cerner. However,
Cerner may from time to time publish and adopt supplementary
policies with respect to the subject matter of this
Agreement, and you agree that such supplementary policies
shall be binding upon you.
16. NOTICES.
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Any notice required or permitted to be given pursuant to the
terms of the Agreement shall be sufficient if given in
writing and if personally delivered by receipted hand
delivery to you or to Cerner, or if deposited in the United
States Mail, postage prepaid, first class or certified mail,
to you at your residence address or to Cerner's Corporate
headquarters address or to such other addresses as each
party may give the other party notice in accordance with
this Agreement.
17. TERM OF THIS AGREEMENT.
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This Agreement begins as noted above and will continue in
perpetuity, even though your employment can be terminated by
you or by Cerner as described elsewhere herein.
18. GOVERNING LAW; JURISDICTION.
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This Agreement will be governed by, construed, interpreted,
and its validity determined, under the laws of the State of
Missouri. You and Cerner each hereby irrevocably and
unconditionally submits to the nonexclusive jurisdiction of
any Missouri state court or federal court of the United
States of America sitting in Kansas City, and any appellate
court from any thereof, in any action or proceeding arising
out of or relating to this Agreement.
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19. SEVERABILITY.
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If any provision of this Agreement is held to be
unenforceable, then this Agreement will be deemed amended to
the extent necessary to render the otherwise unenforceable
provision, and the rest of this Agreement, valid and
enforceable.
20. ENTIRE AGREEMENT AND PRIOR AGREEMENTS.
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You hereby acknowledge receipt of a signed counterpart of
this Agreement and acknowledge that it is your entire
agreement with Cerner concerning the subject matter. This
Agreement cancels, terminates, and supersedes any of your
previous oral or written understandings or agreements with
Cerner or with any officer or representative of Cerner with
respect to your employment with Cerner.
21. SUCCESSORS.
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This Agreement shall be binding upon Cerner's successors and
assigns. This Agreement shall also be binding upon your
heirs, spouse, assigns and legal representatives.
***********************************************
This Employment Agreement is executed this 13th day of August, 1999.
/s/Earl H. Devanny, III
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E. H. Devanny, III
Cerner Corporation
/s/V. Holmes
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Cerner Human Resources
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APPENDIX A
DEFINITION OF TERMS
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CERNER CORPORATION and CERNER mean Cerner Corporation, the
Delaware corporation. The terms also cover all of Cerner
Corporation's parent, subsidiary and affiliate corporations and
business enterprises, both presently existing and subsequently
created or acquired. Such affiliate corporation may be directly
or indirectly controlled by Cerner or related to Cerner by equity
ownership.
CLIENT means any actual or potential customer or licensee of
Cerner.
CONFIDENTIAL INFORMATION means Cerner, Client and Vendor trade
secrets. It also means other Cerner, Cerner Associate, Client,
and Vendor information which is not generally known, and is
proprietary to Cerner Corporation or to Cerner Associates,
Clients, and Vendors. It includes, but is not limited to,
research, design, development, installation, purchasing,
accounting, marketing, selling, servicing, finance, business
systems, business practices, documentation, methodology,
procedures, manuals (both internal and user), program listings,
source codes, working papers, Client and Vendor lists, marketing
and sales materials not otherwise available to the general
public, sales activity information, computer programs and
software, compensation plans, your personal compensation,
performance evaluations, patient information and other client-
related data, and all other non-public information of Cerner and
its Associates, Clients, and Vendors.
CONFLICTING ORGANIZATION means any person or organization engaged
(or about to become engaged) in research, development,
installation, marketing, selling, or servicing with respect to a
Conflicting Product.
CONFLICTING PRODUCT means any product, process or service which
is the same as, similar to, or competes with any Cerner product,
process or service upon which you worked during the last three
years of your employment by Cerner, or about which you have
acquired Confidential Information.
NEW PRODUCTS AND IDEAS means discoveries, computer programs,
improvements, works of authorship, methods, ideas and products
(whether or not they are described in writing, reduced to
practice, patentable or copyrightable) which results from any
work performed by you for Cerner, or involve the use of any
Cerner equipment, supplies, facilities or Confidential
Information, or relate directly to the business of Cerner, or
relate to Cerner's actual or demonstrably anticipated research or
development.
VENDOR means any actual or potential licensor, supplier,
contractor, agent, consultant or other purveyor of products or
services to Cerner.
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APPENDIX B
SUMMARY OF ATTACHMENTS
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The following documents, if noted, are incorporated as attachments
to this Employment Agreement.
Not
Included Included Attachment Description
X I Original Offer Letter
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-------- -------- II Offer Letter Amendments
X III Termination Statement
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-------- -------- IV Sales Associate Provisions
-------- -------- V Inventory of Prior Inventions
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ATTACHMENT III
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TERMINATION STATEMENT
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I represent that I have complied with all the provisions of the
Cerner Associate Employment Agreement entered into between Cerner
Corporation and me on the 13th day of August, 199919, in that:
1. I have not improperly disclosed or otherwise misused
any of the Confidential Information covered by such
Agreement. I shall continue to comply with all the
continuing terms of the Agreement, including but not
limited to the non-disclosure and (for the required
term) non-compete provisions, and also including but
not limited to the reporting of any New Products and
Ideas conceived or made by me as covered by the
Agreement.
2. I do not have in my possession, nor have I taken
with me or failed to return, any records, plans,
information, drawings, designs, documents, manuals,
formulae, statistics, correspondence, client and
vendor lists, specifications, blueprints, reproduc-
tions, sketches, notes, reports, proposals, or other
documents or materials, or copies of them, or any
equipment, credit cards or other property belonging
to Cerner or its Clients or Vendors. I have returned
to Cerner (or will return within 10 calendar days)
all material and information compiled or received by
me during the term of such employment. I have
returned (or will return within 10 calendar days)
all Confidential Information, as specified by such
Agreement, and all correspondence and other writings.
I have returned (or will return within 10 calendar
days) all keys and other means of access to Cerner's
premises.
3. I understand and agree that, with regard to all
provisions of this Agreement relating to non-
disclosure, non-solicitation, and confidentiality of
information, such provisions shall not cease as of
this termination but shall continue in full force
and effect in perpetuity or as otherwise indicated
within this Agreement. In compliance with the
Agreement, I shall continue to preserve as confiden-
tial all Confidential Information as defined in the
Agreement.
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Associate
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Date
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Termination Date
Cerner Corporation
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By
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Title
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ATTACHMENT IV
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SALES ASSOCIATE AND CERNER CONSULTING PROVISIONS
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The following provisions are incorporated into this Employment
Agreement for all associates who are responsible for sales
activities related to Cerner products and certain associates in
the Cerner Consulting group.
Should my employment by Cerner Corporation terminate for any
reason, I understand and agree that:
1. Cerner reserves the right to offset any advances made to
me against commissions or other amounts which I owe to
Cerner, against available but unpaid salary, commissions
payable, accrued vacation, expense reimbursement, or any
other forms of compensation or reimbursement which may be
owed to me. Any such offsets will be clearly documented
by Cerner before they are processed. In addition, I
agree that I will pay to Cerner the amount of any
remaining balance owed to Cerner Corporation after the
foregoing deductions, within 30 days of the end of my
employment.
2. Any commissions to which I might otherwise be entitled
will be payable to me only if the associated contract for
products or services has been completed and fully
executed by both parties, and if all deposit monies
related to such contract have been paid in full by the
client and received by Cerner prior to my last date of
employment, in accordance with the terms of my Cerner
Performance Plan. Cerner will not unreasonably delay or
withhold execution of such contracts for the purpose of
avoiding a commission payment to me, if it would otherwise
be due.
3. Commissions, bonuses or other incentive-based compensation
which may have accrued but are not payable as of my
termination date because of the payment schedule defined
for such compensation in the related Cerner Performance
Plan will be paid to me according to the provisions of
such Plan. Such payment will be subject to the offsets
described in item 1 above and will apply only to items
otherwise payable within one year following my termination
date.
/s/Earl H. Devanny III
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Associate
August 13, 1999
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Date
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Termination Date
Cerner Corporation
/s/V. Holmes
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By
Associate Relations
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Title
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