Employment Agreement - Cerner Corp. and Stanley M. Sword
CERNER
CORPORATION
CERNER ASSOCIATE EMPLOYMENT AGREEMENT
This Cerner Associate Employment Agreement describes the formal
employment relationship between
Stanley M. Sword
----------------
ASSOCIATE
and
and Cerner Corporation, a Delaware corporation
This Agreement is effective on the 10th day of August, 1998.
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 any time the conditions of
your employment at Cerner.
2. EMPLOYMENT RELATIONSHIP.
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A. Formation. By signing this Agreement, you represent that
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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
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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 permission of Cerner, then you agree that (to the extent
permitted by law) no vacation pay, salary or other compensation
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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.
If Cerner terminates your employment prior to the date you
move your family to the Kansas City area (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 three (3) 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. If Cerner terminates your employment
after the date you move your family to the Kansas City area
(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, the severance period will increase beyond the
minimum six (6) month period at the rate of one (1) additional
month for each six (6) months that you are employed by Cerner,
up to a maximum duration (the original six (6) month period
plus any extension) of one (1) year. You understand and agree
that 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 with a
new employer, but your obligations of non-competition under
Paragraph 7 shall continue pursuant to such terms.
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.
If Cerner has reimbursed 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
reimbursements shall be made according to Cerner's published
relocation expense reimbursement policy. Such reimbursements
will be made in consideration for your agreement to serve in
the position for which you were relocated for at least two (2)
years. Therefore, in the event Cerner has reimbursed you for
any relocation expenses or otherwise paid to you any sums of
money pursuant to Cerner's relocation policy, you agree that
you shall repay such sums to Cerner on a prorated basis if (i)
you voluntarily resign from employment with Cerner 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.
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. SALES ASSOCIATE PROVISIONS. If you are employed by Cerner
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in a sales capacity, additional provisions incorporated as
Attachment IV to this Agreement are applicable to your
employment relationship.
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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 (1) 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.
7. NON-COMPETITION AND NON-SOLICITATION
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A. For a period of two (2) years after the voluntary or
involuntary termination of your employment with Cerner, 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 by you 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 severance pursuant to
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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. 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.
C. For a period of two (2) years after the voluntary or
involuntary termination of your employment with Cerner for any
reason or for no reason, 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. INTENTIONALLY DELETED.
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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.
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 RELATIONSHIPS AND OBLIGATIONS.
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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.
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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
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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.
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.
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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 10th day of August, 1998.
Associate
/s/Stanley M. Sword
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Stanley M. Sword
Cerner Corporation
/s/Clifford W. Illig
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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 ______________________ day of _______________, ____, 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, 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 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
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By
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Title
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