EXHIBIT 10.2.5
CALPINE CORPORATION
Employment Agreement
This Employment Agreement (this 'Agreement') has been entered into,
effective as of August 1, 1999, between CALPINE CORPORATION, a Delaware
corporation (the 'Company'), and Xxx X. Xxxxxx ('Executive') to provide for the
employment of Executive on the terms and conditions set forth herein.
WHEREAS, Executive has served as Executive Vice President and Chief
Financial Officer of the Company since August 1998; and
WHEREAS, the Company wishes to assure itself of the continued employment
efforts of Executive for the period provided in this Agreement, and Executive is
willing to continue to serve in the employ of the Company on a full-time basis
for said period upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
intending to be legally bound, the Company and Executive agree as follows:
1. Definitions. The capitalized terms in this Agreement shall have the
meanings set forth in this Agreement or in Appendix A hereto.
2. Employment. The Company hereby employs Executive, and Executive hereby
accepts such employment by the Company, upon the terms and conditions herein
provided.
3. Term of Employment. Executive's employment with the Company pursuant to
this Agreement shall commence on August 1, 1999 and shall continue through July
31, 2004, unless such employment is sooner terminated or subsequently extended
as hereinafter provided. The Company and Executive may agree to extend the
Employment Period beyond the initial term upon the terms and conditions of this
Agreement or upon other terms, but neither the Company nor Executive is under
any obligation to do so. The period during which this Agreement continues in
effect shall constitute the 'Employment Period'.
4. Positions and Responsibilities.
(a) Position. During the Employment Period, Executive shall serve as
the Company's Executive Vice President and Chief Financial Officer and
shall be responsible for leading the Company's business management and
regional affairs, reporting to the President and Chief Executive Officer of
the Company (CEO).
(b) Duties. During the Employment Period, and subject to the control
of the CEO, Executive shall have general executive powers and active
management and supervision over all business management and regional
affairs of the Company and shall perform such other executive and/or
administrative duties consistent with the office of Executive Vice
President and Chief Financial Officer as from time to time may be assigned
to Executive by the CEO, but subject to the conditions in this Agreement.
Executive shall devote substantially Executive's full business time and
attention to, and exert Executive's best efforts in, the performance of
Executive's duties hereunder, so as to promote the business of the Company.
Executive agrees that, during Executive's employment with the Company,
Executive will not provide consulting services to or become an employee of,
any other firm or person engaged in a business in any way competitive with
the Company.
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5. Compensation. For all services rendered by Executive pursuant to this
Agreement, the Company shall pay Executive, and Executive agrees to accept, the
salary, bonuses and other benefits described below in this Section 5.
(a) Salary. The Company shall pay Executive an annual base salary
('Base Salary') as determined by the CEO in accordance with this Section 5,
payable at periodic intervals in accordance with the Company's payroll
practices for salaried employees. Executive's Base Salary as of the
effective date hereof is three hundred thousand dollars ($300,000.00) per
annum. In accordance with Section 5(c) hereof, the amount of the Base
Salary shall be reviewed by the CEO and approved by the Board of Directors,
if required, on at least an annual basis, and any increases will be
effective as of the date determined appropriate by the CEO. Executive's
Base Salary may be increased for any reason, including to reflect inflation
or such other adjustments as the CEO may deem appropriate; provided,
however, that Executive's Base Salary, as currently in effect as stated
above or as so increased, may not be subsequently decreased, except with
the prior written consent of Executive.
(b) Bonuses. In addition to Base Salary, Executive shall be entitled
to receive, for each fiscal year of the Company ending with or within the
Employment Period, an annual bonus ('Bonus'), whether pursuant to a formal
bonus or incentive plan or program of the Company. or otherwise. Subject to
this Section 5(b) and Section 5(c) hereof, such Bonus shall be based on
such criteria as are in good faith deemed appropriate by the CEO. Any Bonus
earned by Executive for service or performance rendered in any fiscal year
within the Employment Period shall be paid to Executive in accordance with
the applicable plan or program and the Company's policies governing such
matters. For the year ending December 31, 1999 and for all future years
hereunder, Executive shall be entitled to participate in and receive a
Bonus in accordance with the terms and conditions set forth in the
Company's Annual Management Incentive Plan provided, however, that the
target bonus for Executive as set forth in the current Annual Management
Incentive Plan shall be sixty percent (60%). In the event of Executive's
death or Disability during the Employment Period, the Company shall pay to
Executive or Executive's estate the pro rata portion of the Bonus that
Executive would have earned in respect of the portion of the year prior to
Executive's death or Disability.
(c) Annual Compensation Review. Notwithstanding anything herein to the
contrary, Executive's compensation, consisting of salary, bonus and stock
option grants, shall be reviewed annually by the CEO.
(d) Life Insurance. During the Employment Period, the Company shall
provide to Executive a life insurance policy in accordance with the terms
of the current policy maintained by the Company for Executive, as further
described in Section 8(b).
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(e) Health Care. During the Employment Period, Executive shall be
eligible to participate in any health insurance programs and medical plans
available to officers or employees of the Company.
(f) Participation in Benefit and Equity Compensation Plans. During the
Employment Period, Executive shall be eligible to receive all benefits,
including those under equity participation and bonus programs, to which key
employees are or become eligible under such plans or programs as may be
established by the Company. In addition to any other plans or programs
established by the Company, Executive shall be entitled to participate in
the Company's 1996 Stock Incentive Plan and any similar or replacement plan
or program (the 'Stock Option Program').
(g) 401(k) Plan Benefits. In addition to the other benefits to which
Executive shall be entitled to under this Agreement, Executive shall be
entitled to participate in the Company's 401(k) Plan and shall be entitled
to receive the full benefit of contributions to be made by the Company for
the benefit of Executive under the terms of the 401(k) Plan.
6. Vacation. During the Employment Period, Executive shall be entitled to
vacation in accordance with the Company's Vacation Policy in effect for
executives. In no event shall such entitlement be less than twenty (20) business
days in each year, with full salary. Furthermore, Executive shall accrue paid
vacation benefits during the Employment Period in accordance with the Company's
Vacation Policy in effect for executives.
7. Indemnification. The Company shall indemnify Executive pursuant to the
provisions of the Company's Articles of Incorporation and Bylaws to the fullest
extent of California law and all other applicable law, and shall provide
Executive with indemnification pursuant to the Company's standard
indemnification agreement and any director's and officer's liability insurance
policy maintained by the Company.
8. Benefits Payable Upon Disability or Death.
(a) Disability Benefits. In the event of the Disability of Executive,
the Company shall continue to pay Executive the salary payable to Executive
in accordance with Section 5 hereof during the period of Executive's
Disability; provided, however, that, in the event that Executive is
disabled for a continuous period exceeding six (6) calendar months, the
Company may elect at the expiration of this six (6) month period to
terminate this Agreement and pay Executive the greater of (i) Executive's
available monthly benefits from any existing Company-sponsored long-term
disability plan; or (ii) sixty seven percent (67%) of the salary provided
in Section 5(a) for the duration of the Employment Period.
(b) Death Benefits. In the event of Executive's death during
Executive's Disability or otherwise during the Employment Period, the
Company shall cause payment to be made to Executive's most recently
designated beneficiary (which, absent specific designation of a beneficiary
for purposes of this provision, shall be Executive's most recently
designated beneficiary under the Company's group life insurance program) a
sum equal to three (3) times Executive's Base Salary. This obligation of
the Company shall be discharged to the extent benefits are actually paid
pursuant to the Company's group life insurance program, with the balance of
said obligation to be discharged either by a cash payment from the Company,
or, if the Company so elects, by supplementary life insurance policies to
be obtained and maintained by the Company.
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9. Severance Benefits.
(a) Termination of Employment. In the event Executive's employment
terminates for any reason, except as provided in Section 9(b) in connection
with a Change of Control, then Executive shall be entitled to receive
severance benefits as follows:
(i) Voluntary Resignation. If Executive's employment terminates
by reason of Executive's voluntary resignation (and such termination
is not an Involuntary Termination or a termination for Cause), then
Executive shall not be entitled to receive severance or other benefits
except for those (if any) to which Executive may be entitled under
this Agreement or any separate agreement with the Company or as may
then be established under the Company's then existing severance and
benefit plans and policies at the time of such termination.
(ii) Involuntary Termination Other Than For Cause. If Executive's
employment is terminated as a result of an Involuntary Termination
other than for Cause, then the following severance benefits shall be
paid or otherwise provided to Executive: (A) the Company shall pay to
Executive in the form of a lump sum payment, in cash, a severance
payment equal to the lesser of (I) three (3) times Executive's Base
Salary or (II) Executive's Base Salary multiplied by the sum of
(x) the number of years (or any portion thereof, calculated on a daily
basis) remaining under this Agreement had Executive's employment not
been terminated, plus (y) an additional one-half year, however, in no
event shall such payment equal less than 100% of Executive's Base
Salary, which shall be paid to Executive within ten (10) days after
the date of termination; (B) until the earlier of (I) the date this
Agreement would otherwise have terminated had Executive's employment
not been terminated (the 'Remaining Term') or (II) the expiration of
the three (3) year period measured from the date of Executive's
termination of employment. The Company shall at its sole cost and
expense provide Executive (and Executive's eligible dependents, if
any) with life, disability, and medical insurance benefits
substantially similar to those benefits that Executive (and
Executive's dependents) were receiving immediately prior to
Executive's termination of employment; provided, however, that the
benefits otherwise receivable by Executive pursuant to this Section
9(a)(ii)(B) shall be reduced to the extent comparable benefits are
concurrently received by Executive (or Executive's dependents)
pursuant to a similar plan or program of another employer, and any
such other benefits actually received by Executive (or Executive's
dependents) must be reported to the Company; and provided further,
however, that the insurance coverage provided by the Company pursuant
to this Section 9(a)(ii)(B) shall be in lieu of any other continued
coverage to which Executive or Executive's dependents would otherwise,
at Executive's own expense, be entitled in accordance with the
requirements of Internal Revenue Code of 1986, as amended ('Code'),
Section 4980B ('COBRA'), by reason of Executive's termination of
employment; (C) all stock options, warrants, rights and other Company
stock-related awards granted to Executive by the Company that would
otherwise have vested or become exercisable at any time in the future
shall become fully vested and nonforfeitable upon the date of
Executive's termination of employment, the Company's repurchase
rights, if any, with respect to those vested shares shall immediately
lapse, and each such stock option, to the extent vested, shall remain
exercisable for the vested option shares until the expiration or
sooner termination of the option term in accordance with the
provisions of the agreement evidencing such option; and (D) the
Company shall pay or reimburse Executive for any and all expenses
incurred by Executive for outplacement services selected by the
Executive and approved by the Company, which approval will not be
unreasonably withheld, until the earlier of (I) the first anniversary
of the date of termination of employment or (II) the date on which
Executive commences employment with another employer.
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(iii) Termination for Cause. If Executive's employment is
terminated for Cause, then Executive shall not be entitled to receive
any severance payments or other severance benefits under this
Section 9. Executive's benefits will be continued under the Company's
then existing benefit plans and policies in accordance with such plans
and policies in effect on the date of termination and in accordance
with the requirements of COBRA.
(b) Termination As a Result of a Change of Control. If Executive's
employment with the Company is terminated as a result of a Change of
Control then Executive shall be entitled to receive severance benefits as
follows:
(i) Voluntary Resignation. If as a result of a Change of Control,
Executive's Base Salary is reduced within twelve (12) months of the
Change of Control and, or, Executive's position is relocated to a
place more than one hundred (100) miles from the Executive's current
place of employment within six (6) months of the Change of Control,
and as a result of these changes Executive's employment terminates by
reason of voluntary resignation (and such termination is not an
Involuntary Termination or a Termination for Cause), then the
following severance benefits shall be paid or otherwise provided to
Executive: (A) the Company shall pay to Executive in the form of a
lump sum payment, in cash, a severance payment equal to the lesser of
(I) two (2) times Executive's Base Salary or (II) Executive's Base
Salary multiplied by the sum of (x) the number of years (or any
portion thereof, calculated on a daily basis) remaining under this
Agreement had Executive's employment not been terminated, plus (y) an
additional one-half year, however, in no event shall such payment
equal less than 100% of Executive's Base Salary, which shall be paid
to Executive within ten (10) days after the date of termination; (B)
until the earlier of (I) the date this Agreement would otherwise have
terminated had Executive's employment not been terminated (the
'Remaining Term') or (II) the expiration of the three (3) year period
measured from the date of Executive's termination of employment. The
Company shall at its sole cost and expense provide Executive (and
Executive's eligible dependents, if any) with life, disability and
medical insurance benefits substantially similar to those benefits
that Executive (and Executive's dependents) were receiving immediately
prior to Executive's termination of employment; provided, however,
that the benefits otherwise receivable by Executive pursuant to this
subsection 9(b)(i)(B) shall be reduced to the extent comparable
benefits are concurrently received by Executive (or Executive's
dependents) pursuant to a similar plan or program of another employer,
and any such other benefits actually received by Executive (or
Executive's dependents) must be reported to the Company; and provided
further, however, that the insurance coverage provided by the Company
pursuant to this Section 9(b)(i)(B) shall be in lieu of any other
continued coverage to which Executive or Executive's dependents would
otherwise, at Executive's own expense, be entitled accordance with the
requirements of COBRA by reason of Executive's termination of
employment; and (C) all stock options, warrants, rights and other
Company stock-related awards granted to Executive by the Company that
would otherwise have vested or become exercisable at any time in the
future shall become fully vested and nonforfeitable upon the date of
Executive's termination of employment, the Company's repurchase
rights, if any, with respect to those vested shares shall immediately
lapse, and each such stock option, to the extent vested, shall remain
exercisable for the vested option shares until the expiration or
sooner termination of the option term in accordance with the
provisions of the agreement evidencing such option.
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(ii) Involuntary Termination Other Than For Cause. If as a result
of a Change of Control and within twelve (12) months of a Change of
Control Executive's employment is terminated as a result of an
Involuntary Termination other than for Cause, then the Company shall
pay or otherwise provide to Executive the severance benefits described
in Section 9(a)(ii) hereof.
(iii) Termination for Cause. If Executive's employment is
terminated for Cause, then Executive shall not be entitled to receive
any severance payments or other severance benefits under this
Section 9. Executive's benefits will be continued under the Company's
then existing benefit plans and policies in accordance with such plans
and policies in effect on the date of termination.
(iv) Involuntary Termination Other Than For Cause. If as a result
of a Change of Control and within twelve (12) months of a Change of
Control Executive's employment is terminated as a result of an
Involuntary Termination other than for Cause, then the Company shall
pay or otherwise provide to Executive the severance benefits described
in Section 9(a)(ii) hereof.
(c) Parachute Payments. If all or any portion of the amounts payable
to Executive under this Agreement or otherwise are subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code (the 'Code') (or
similar state tax and/or assessment), Company shall pay to Executive an
amount necessary to place Executive in the same after tax position as
Executive would have been in had no such excise tax been imposed. The
amount payable pursuant to the preceding sentence shall be increased to the
extent necessary to pay income and excise taxes due on such amount. The
determination of the amount of any such additional amount shall be made by
the independent accounting firm then employed by the Company.
10. Nondisclosure of Proprietary Information and Company Documents and
Materials.
(a) Executive understands that the Company possesses and will possess
Proprietary Information which is important to its business. All Proprietary
Information is and shall be the sole property of the Company. Executive
understands that Executive's employment creates a relationship of
confidence and trust between the Company and Executive with respect to
Proprietary Information. At all times, both during Executive's employment
by the Company and after its termination, Executive shall keep in
confidence and trust and will not use or disclose any Proprietary
Information or anything relating to it without the prior written consent of
the President, except as may be necessary in the ordinary course of
performing Executive's duties to the Company.
(b) Executive understands that the Company possesses or will possess
Company Documents and Materials which are important to its business. All
Company Documents and Materials are and shall be the sole property of the
Company. Executive agrees that during Executive's employment by the
Company, Executive will not remove any Company Documents and Materials from
the business premises of the Company or deliver any Company Documents and
Materials to any person or entity outside the Company, except as Executive
is required to do in connection with performing the duties of Executive's
employment. Executive agrees that, immediately upon the termination of
Executive's employment by Executive or by the Company for any reason, or
during Executive's employment if so requested by the Company, Executive
will return all Company Documents and Materials, apparatus, equipment and
other physical property, or any reproduction of such property, excepting
only (i) Executive's personal copies of records relating to Executive's
compensation; (ii) Executive's personal copies of any materials previously
distributed generally to stockholders of the Company; and (iii) Executive's
copy of this Agreement.
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11. Non-Solicitation of Company Employees. During the term of this
Agreement and for a period of twelve (12) months thereafter, the Executive
agrees to not encourage or solicit any employee of the Company to leave the
Company for any reason or to accept employment with any other company. As part
of this restriction, the Executive agrees to not interview or provide any input
to any third party regarding any such person during the period in question.
However, this obligation shall not affect any responsibility the Executive has
with respect to the bona fide hiring and firing of Calpine personnel.
12. Consulting. Executive and the Company may, but are not required to,
enter into an agreement pursuant to which Executive will provide consulting
services to the Company after the date of Executive's retirement or termination.
Any consulting fees paid to Executive will be in addition to any retirement or
severance payments.
13. Failure to Comply. If, for any reason other than Executive's death,
Disability or Involuntary Termination, Executive shall cease to render services
as required by this Agreement without the written consent of the Company, or if
Executive shall breach the provisions of Sections 10 or 11 hereof, then,
Executive will thereby relinquish all rights to any benefits hereunder,
including future salary payments and death benefits, and the Company shall
reserve whatever rights, if any, it may have against Executive under this
Agreement or otherwise.
14. Successors. Any successor to the Company (whether direct or indirect
and whether by purchase, lease, merger, consolidation, liquidation or otherwise)
or to all or substantially all of the Company's business and/or assets shall
assume the obligations under this Agreement and shall perform the obligations
under this Agreement in the same manner and to the same extent as the Company
would be required to perform such obligations in the absence of a succession.
The terms of this Agreement and all of Executive's rights hereunder shall inure
to the benefit of, and be enforceable by, Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
15. Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. Mailed notices to Executive shall be
addressed to Executive at the home address from which Executive most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notice shall
be directed to the attention of its Secretary.
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16. Miscellaneous Provisions.
(a) No Duty to Mitigate. Executive shall not be required to mitigate
the amount of any payment contemplated by this Agreement (whether by
seeking new employment or in any other manner), nor shall any such payment
be reduced by earnings that Executive may receive from any other source.
(b) Waiver. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by Executive and by an authorized officer or
representative of the Company (other than Executive). No waiver by either
party of any breach of, or of compliance with, any condition or provision
of this Agreement by the other party shall be considered a waiver of any
other condition or provision or of the same condition or provision of
another time.
(c) Whole Agreement. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not
expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(e) Severability. If any term or provision of this Agreement or the
application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity of
unenforceability without invalidating or rendering unenforceable the
remaining terms and provisions of this Agreement or the application of such
terms and provisions to circumstances other than those as to which it is
held invalid or unenforceable, and a suitable and equitable term or
provision shall be substituted therefor to carry out, insofar as may be
valid and enforceable, the intent and purpose of the invalid or
unenforceable term or provision.
(f) Arbitration. Any dispute or controversy arising under or in
connection with this Agreement may be settled by arbitration in the County
of San Francisco, California, in accordance with the rules of the American
Arbitration Association then in effect. Such arbitration proceedings shall
be nonbinding and any claim with respect to this Agreement, whether or not
previously the subject of an arbitration proceeding, may be brought in any
court of competent jurisdiction.
(g) Employment Taxes. All payments made pursuant to this Agreement
will be subject to withholding of applicable income and employment taxes.
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(h) Assignment by Company. The Company may assign its rights under
this Agreement to an affiliate, and an affiliate may assign its rights
under this Agreement to another affiliate of the Company; provided,
however, that if there is any such assignment, the Company will guarantee
all payments and the performance of all obligations under this Agreement.
In the case of any such assignment, the term 'Company' when used in a
section of this Agreement shall mean the corporation or other entity that
actually employs Executive.
(i) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as of the date hereof and supersedes
any prior understandings, agreements, or representations by or between the
Company and the Executive, written or oral, to the extent that they have
related in any way to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this day and year first above written.
CALPINE CORPORATION: EXECUTIVE:
By: /s/ Xxxxx Xxxxxxxxxx /s/ Xxx X. Xxxxxx
----------------------------- -----------------------------
Xxxxx Xxxxxxxxxx, President, Xxx X. Xxxxxx
Chief Executive Officer and Executive Vice President and
Chairman of the Board Chief Financial Officer
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APPENDIX A
Definitions
Cause. 'Cause' shall mean (i) material breach of any material terms of this
Agreement, (ii) conviction of a felony, (iii) repeated unexplained or
unjustified absence, (iv) willful breach of fiduciary duty under this Agreement,
or (v) failure to meet the Company's standards of competence and job
performance.
Change of Control. 'Change of Control' shall mean the occurrence of any of
the following events:
(i) a change in ownership or control of the Company effected through
either of the following transactions:
(A) any 'person' (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
'Exchange Act')), other than the Company's current stockholder or a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any corporation owned, directly or
indirectly, by the Company's stockholders in substantially the same
proportions as their ownership of the Company's stock, becomes the
'beneficial owner' (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total combined voting power of the
Company's then outstanding securities pursuant to a tender or exchange
offer made directly to the Company's stockholders which the Board does
not recommend such stockholders to accept; or
(B) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that the majority of
the members of the Board ceases to be comprised of individuals who are
Continuing Members; for such purpose, a 'Continuing Member' shall mean
an individual who is a member of the Board on the date of this
Agreement and any successor of a Continuing Member who is elected to
the Board or nominated for such election by action of a majority of
Continuing Members then serving on the Board; or
(ii) either of the following stockholder-approved transactions to
which the Company is a party:
(A) a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at
least fifty percent (50%) of the total voting power represented by the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; or
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(B) the sale, transfer or complete liquidation or dissolution of
the Company of all or substantially all of the Company's assets.
Company Documents and Materials. 'Company Documents and Materials' shall
mean documents or other media or tangible items that contain or embody
Proprietary Information or any other information concerning the business,
operations or plans of the Company, whether such documents, media or items have
been prepared by Executive or others.
Disability. 'Disability' shall mean the inability of Executive to perform
all the material duties of Executive's position as determined by an independent
physician selected with the approval of the Company and Executive.
Involuntary Termination. 'Involuntary Termination' shall mean termination
by the Company of Executive's employment for any reason other than for Cause,
and shall include Executive's voluntary resignation following (i) the material
breach by the Company of one or more of its obligations under this Agreement
which are not otherwise corrected within ten (10) days following Executive's
written notice to the Company of such breach, or the Executive's annual base
salary is materially reduced.
Proprietary Information. 'Proprietary Information' shall mean information
that was developed, created, or discovered by or on behalf of the Company, or
which became or will become known by, or was or is conveyed to the Company,
which has commercial value in the Company's business; including, but not limited
to, trade secrets, designs, technology, know-how, processes, data, ideas,
techniques, inventions (whether patentable or not), works of authorship,
formulas, business and development plans, customer lists, software programs and
subroutines, source and object code, algorithms, terms of compensation and
performance levels of Company employees, and other information concerning the
Company's actual or anticipated business, research or development, or which is
received in confidence by or for the Company from any other person.
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