Employment Agreement - Cerner Corp. and Jack Newman Jr.
CERNER ASSOCIATE EMPLOYMENT AGREEMENT
This Cerner Associate Employment Agreement describes the
formal employment relationship between
Jack Newman Jr.
ASSOCIATE (Print Name)
and Cerner Corporation, a Delaware corporation
This Agreement is effective on the 2nd day of January,
1996.
1. CERNER'S LETTER OFFERING EMPLOYMENT TO YOU.
------------------------------------------
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.
-----------------------
A. Formation.
--------- By signing this Agreement, you
represent 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
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 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.
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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
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 Cerner terminates your employment (and
unless the termination was due to your dishonesty,
illegal conduct, or breach of Cerner's policy or
this Agreement), Cerner will pay you in conjunction
with such termination the equivalent of up to two
weeks base salary (exclusive of commissions,
advances against commissions, bonus and other non-
salary compensation and Associate benefits). This
provision also applies if you give proper notice as
outlined above and Cerner elects to accelerate your
effective termination date to a date less than two
weeks from the date of your notice.
In the event your 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.
Cerner may pay or reimburse you for certain
reasonable costs associated with any relocation
required by Cerner in conjunction with a position
with Cerner pursuant to the terms of Cerner's
published relocation policy, as may be amended from
time to time. In the event that Cerner pays or
reimburses you for any relocation costs, you agree
to repay such sums to Cerner in their entirety if
(i) you voluntarily resign from employment with
Cerner for any reason within two (2) years of the
date your relocation 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. You further agree that Cerner
may, at its discretion, deduct from your
paycheck(s), including your final paycheck, any
such sums required to be repaid under this
provision and that you will repay Cerner any
outstanding balance owed within 30 days of your
employment termination. Regardless of the duration
stated herein, nothing contained in this provision
shall create employment for a definite term or
otherwise modify the parties "at will" relationship
set forth in paragraph 2.B. of this Agreement.
Cerner may pay or reimburse you for certain
reasonable costs associated with Other Assistance
Programs in which Cerner provides assistance,
pursuant to the terms of such Other Assistance
Programs' policies, as may be amended from time to
time. In the event that Cerner pays or reimburses
you for any costs associated with such Other
Assistance Programs, you agree to repay such sums
to Cerner in their entirety if (i) you voluntarily
resign from employment with Cerner for any reason
within the time specified in the policy pertaining
to applicable program(s), or (ii) Cerner terminates
your employment due to your dishonesty, illegal
conduct, or breach of Cerner policy or this
Agreement within the time specified in the policy
pertaining to applicable program(s). You further
agree that Cerner may, at its discretion, deduct
from your paycheck(s), including your final
paycheck, any such sums required to be repaid under
this provision and that you will repay Cerner any
outstanding balance owed within 30 days of your
employment termination. Regardless of the duration
stated herein, nothing contained in this provision
shall create employment for a definite term or
otherwise modify the parties "at will" relationship
set forth in paragraph 2.B. of this Agreement.
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.
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D. SALES ASSOCIATE/CERNER CONSULTING PROVISIONS.
---------------------------------------------
If 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.
-----------
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,
including any Confidential Information on any laptop,
computer or other communication equipment used by you
during your employment with Cerner.
4. NON-CERNER EMPLOYMENT.
---------------------
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.
----------------------
With respect to New Products and Ideas that you
develop, author, or conceive in whole or in part 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 further agree to maintain all
information respecting any New Products and Ideas as
Confidential Information and shall not disclose such
information to any party outside of Cerner without the
express written approval of an officer of 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
including any patents, copyrights, trade secrets and
other proprietary rights in the same. 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.
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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.
----------------
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.
7. NON-COMPETITION AND NON-SOLICITATION
------------------------------------
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. If you have worked for Cerner in a sales
capacity, you will not provide services to any
Conflicting Organization in connection with the
marketing, sale or promotion of any Conflicting
Product:
(1) to any person or organization upon whom you
called or whose account you supervised on
behalf of Cerner any time during the last
three (3) years of your employment by Cerner,
and
(2) within any Cerner sales territory assigned to
you during the last three (3) years of your
employment by Cerner.
C. If you have not worked for Cerner in a sales
capacity during the last three years of your
employment by Cerner, 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.
However, you may accept employment with a large
Conflicting Organization whose business is
diversified, and with a portion of its business
that is not a Conflicting Organization, provided
that Cerner, prior to your acceptance of such
employment, shall receive separate written
assurances satisfactory to Cerner from such
Conflicting Organization and from you that you
will not render services directly or indirectly
in connection with any Conflicting Product.
D. 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.
E. 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. POST-TERMINATION PAYMENTS BY CERNER.
-----------------------------------
If you are unable to obtain employment within
three (3) months after termination of your
employment at Cerner due solely to the non-
competition restrictions imposed on you by
Paragraph 7 of this Agreement, the provision of
Paragraph 7 shall continue to bind you only so long
as Cerner shall make to you monthly payments
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equivalent, on an annualized basis, to your average
earnings during the last three years of your Cerner
employment (or of your average Cerner earnings, if
you were employed fewer than 3 years), for each
month of such unemployment.
You will, during each month of such
unemployment, make conscientious and aggressive
efforts to find employment. You will also, within
ten days after the end of each calendar month, give
Cerner a detailed written account of your efforts
to obtain employment. In your monthly written
account, you will identify each Conflicting
Organization with which you have sought employment.
Cerner shall, at Cerner's option, be relieved
of making a monthly payment to you for any month
during which you fail to seek employment
conscientiously and aggressively, and to account to
Cerner as described above.
Cerner is obligated to make such payments to
you upon your fulfillment of the conditions set
forth above beginning in the 4th month of your
unemployment and continuing for the following
twenty (20) consecutive months (for a total of 21
monthly payments), unless Cerner gives you:
A. Written permission to accept available
employment, or
B. A written release from the non-competition
obligations set forth in Paragraph 7 of this
Agreement.
9. PUBLICITY RELEASE.
-----------------
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.
---------------
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 (for any reason), you
will immediately return to Cerner all property and
equipment which you have been issued or which otherwise
belongs to Cerner, including any laptops, computer
equipment, wireless telephone, pagers and/or other
computer or communication devices provided to you by
Cerner. You further agree that Cerner may, at its
discretion, deduct from your paycheck(s), including
your final paycheck, the replacement cost of any such
equipment or devices provided to you that are not
immediately returned to Cerner upon your termination of
employment and you agree to repay Cerner any
outstanding balance owed within 30 days of your
employment termination.
11. SYSTEMS AND PHYSICAL SECURITY.
-----------------------------
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
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facilities. Further, you understand that willful
violation of such policies, practices, and procedures
may result in termination of your employment.
12. PRIOR EMPLOYMENT RELATIONSHIPS AND OBLIGATIONS.
----------------------------------------------
By accepting employment with Cerner, you represent to
Cerner that you are not subject to any non-competition
or confidentiality agreements that your employment and
activities at Cerner would violate. You also 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.
--------
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.
---------------
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.
------------
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.
-------
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.
----------------------
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.
---------------------------
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, Missouri 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.
------------
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.
-------------------------------------
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.
----------
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 29th day of
January, 2001.
/s/Jack A. Newman
-------------------------
Associate
Cerner Corporation
/s/Stanley M. Sword
--------------------------
Cerner Human Resources
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APPENDIX A
DEFINITION OF TERMS
-------------------
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 with 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, designs, 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.
OTHER ASSISTANCE PROGRAMS means programs that Cerner may pay
or reimburse you for certain reasonable costs incurred and
also provide for Cerner's recovery of such amounts as
specified in the policies of such Other Assistance Programs,
as may be amended from time to time. Other Assistance
Programs include, but are not limited to: tuition
assistance, specialty external training, and immigration
assistance. Cerner reserves the right to establish future
assistance programs and designate such programs as Other
Assistance Programs for purposes of inclusion under
paragraph 2.C. of this Agreement.
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
----------------------
The following documents, if noted, are incorporated as
attachments to this Employment Agreement.
Not
Included Included Attachment Description
X I Original Offer Letter
-------- --------
-------- -------- II Offer Letter Amendments
X III Termination Statement
-------- --------
X IV Sales Associate Provisions
-------- --------
-------- -------- V Inventory of Prior Inventions
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ATTACHMENT III
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TERMINATION STATEMENT
---------------------
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
______________________ day of _______________, __19____, 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, reproductions, sketches, notes,
reports, proposals, or other documents or
materials, or copies of them, or any equipment
(including any laptops, computer equipment,
wireless telephone, pagers and/or other computer
or communication devices provided to you by
Cerner), 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 or earlier if requested by
Cerner) 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 or earlie r if requested
by Cerner) all Confidential Information, as
specified by such Agreement, and all
correspondence and other writings. I have
returned (or will return within 10 calendar days
or earlier if requested by Cerner) 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 confidential 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
--------------------------
By
--------------------------
Title
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ATTACHMENT IV
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SALES ASSOCIATE AND CERNER CONSULTING PROVISIONS
------------------------------------------------
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.
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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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