EX-10.1






Exhibit 10.1




EMPLOYMENT AGREEMENT




     EMPLOYMENT AGREEMENT (“Agreement”) effective as of October 21, 2008 (the “Effective
Date”) between HARRIS INTERACTIVE INC., a Delaware corporation (“Company”), and KIMBERLY TILL
(“Executive”).



1. CAPACITY AND DUTIES




     1.1 Employment; Acceptance of Employment. Company hereby employs Executive and Executive hereby accepts employment by Company for the
period and upon the terms and conditions hereinafter set forth.



     1.2 Capacity and Duties.



          (a) Executive shall serve as the President and Chief Executive Officer of Company, and shall have
the duties, authority, and responsibilities commensurate with such position and such other duties
and responsibilities appropriate for her position as may from time to time be specified by the
Board of Directors of Company (the “Board”). Executive will be based in New York City, New York;
provided, however, she acknowledges and agrees that she will spend such time as reasonably
necessary at the Company’s headquarters in Rochester, New York, which initially will be a
substantial portion of her time. In addition, the parties recognize that travel to Company’s and
its affiliates’ various offices, and to other locations in furtherance of Company’s business, will
be required in connection with the performance of Executive’s duties hereunder. The Company will
provide reasonable office and staff accommodations to support Executive’s work in an office
maintained by the Company in New York City, New York. Executive will report to the Board of
Directors of Company. All employees of the Company will report to the Executive or her designee,
and Executive shall have hiring and firing authority related to such employees, subject, however,
to the power and authority reserved to the Board pursuant to law, listing requirements, and the
Company’s current Bylaws with regard to appointment, removal, and compensation of senior officers,
which Board power and authority is not intended to be delegated hereby.



          (b) Executive shall devote substantially full time efforts to the performance of Executive’s
duties hereunder, making reasonable good faith attempts to further the business and interests of
Company.



          (c) Executive shall be appointed by the Board of Directors of the Company to serve as a
director of the Company as of the Effective Date. Prior to the Termination Date, the Board of
Directors shall nominate Executive for re-election as a director at each annual meeting of
stockholders coinciding with the expiration of her term as a director, and shall recommend her for
re-election, but the failure of the stockholders to elect Executive as a member of the Board of
Directors shall not constitute a breach of this Agreement provided that the Board has so nominated
her and if she is not elected provides Executive with observer rights for meetings of the Board
(not including meetings of the independent directors of the Company) and copies of documents and
information distributed to the directors (not including documents and information distributed
solely among the independent directors). Unless otherwise requested by the Board of Directors,
Executive will resign as a director on the Termination Date and upon her failure to do



 









 







so hereby authorizes and grants full authority to the Chairman of the Board of Directors to
deliver Executive’s resignation on her behalf.



          (d) Executive acknowledges that Company’s reputation is important in the continued success of
its business, and agrees, other than in the good faith performance of her duties with the Company,
that she will not directly or indirectly defame or disparage the Company or its officers,
employees, or directors in any manner; provided, however, that Executive may make such disclosures
as may be required by law, and may make factual competitive statements not in violation of Section
5. Company acknowledges that Executive’s reputation is important to her continued success.
Company agrees that neither it nor its executive officers and directors, will directly or
indirectly defame or disparage Executive in any manner; provided, however, that Company may make
such disclosures as may be required by law. The obligations under this Section 1.2(d) shall
survive for a period of four years after the Termination Date.



2. TERM OF EMPLOYMENT




     2.1 Term. The term of Executive’s employment hereunder, for all purposes of this Agreement, shall
commence on the Effective Date (the “Commencement Date”) and continue through and including the
earliest to occur of (i) the date on which Executive dies, and (ii) the date on which either
Company or Executive terminates Executive’s employment for any reason (collectively, the
“Termination Date”).



3. COMPENSATION




     3.1 Base Compensation. As compensation for Executive’s services, Company shall pay to Executive base compensation
in the form of salary (“Base Compensation”) in the amount of $600,000 per annum. The salary shall
be payable in periodic installments in accordance with Company’s regular payroll practices for its
executive personnel at the time of payment, but in no event less frequently than monthly. The
Compensation Committee of the Board shall review Base Compensation periodically for the purpose of
determining, in its sole discretion, whether Base Compensation should be increased but not
decreased; provided, however, in connection with a general decrease in base compensation for its
other executive officers Executive’s Base Compensation may be decreased in the same proportions as
contemporaneous decreases in base compensation for other executive officers provided that
Executive’s Base Compensation shall never be less than the amount that is 5% less than the highest
amount of annual Base Compensation paid to her during the term of this Agreement and shall never be
less than $600,000.



     3.2 Performance Bonus. As additional compensation for the services rendered by Executive to Company Executive
shall be paid a performance bonus (“Performance Bonus”) payable in full at the same time as payment
of other executive bonuses by the Company but no later than two and one-half (2.5) months after the
end of the applicable fiscal year. The Performance Bonus award criteria and amount shall be those
established on an annual basis by the Compensation Committee of the Board of Directors of the
Company based upon (i) Company achievement of financial targets established in good faith annually
by the Compensation Committee, and (ii) achievement of individual management objectives established



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annually by the Compensation Committee after consultation with Executive (failure to achieve
which may result in cutbacks); provided, however, Executive’s target Performance Bonus shall not be
less than her Base Compensation. No Performance Bonus will be due in the event that award criteria
(which may include criteria for partial payments) established by the Compensation Committee are not
met.



     For fiscal 2009 targets will be established by the Compensation Committee within approximately
30 days after the Effective Date, after consultation with Executive; provided, however, Executive
will receive a minimum bonus of $300,000 for fiscal 2009 pro rated for the portion of the year
between the Effective Date and June 30, 2009.



     3.3 Employee Benefits. Executive shall be entitled to participate in such of Company’s employee benefit plans and
benefit programs as may from time to time be provided by Company for its senior executives
generally. Company shall have no obligation, however, to maintain any particular program or level
of benefits referred to in this Section 3.3.



     3.4 Vacation. Executive shall be entitled to the normal and customary amount of paid vacation provided to
senior executive officers of the Company, but in no event less than 20 days during each calendar
year. Any vacation days that are not taken in a given calendar year shall accrue and carry over
from year to year, or be paid or lost, according to the Company’s standard vacation policies. The
Executive may be granted leaves of absence with or without pay for such valid and legitimate
reasons as the Board of Directors in its sole and absolute discretion may determine, and is
entitled to the same personal days and holidays provided to other senior executives the of Company.



     3.5 Expense Reimbursement



          (a) Company shall reimburse Executive for all reasonable and documented expenses incurred by
Executive in connection with the performance of Executive’s duties hereunder in accordance with its
regular reimbursement policies as in effect from time to time. Among others, the Company will
treat and reimburse Executive’s reasonable travel expenses to and from the Company’s headquarters
in Rochester, New York, as business travel, and will gross up payments to Executive for any taxes
paid related to any such reimbursement to the extent that such reimbursement is treated as taxable
income to Executive in a manner that the Executive will have no after tax cost for such amounts.



          (b) The Company shall reimburse the Executive for reasonable attorney’s fees incurred prior to
the Effective Date in the negotiation of this Employment Agreement, payable within 30 days after
receipt of Executive’s request therefor accompanied by a copy of the summary invoice for same, and
will gross up payments to Executive for any taxes paid related to any such reimbursement to the
extent that such reimbursement is treated as taxable income to Executive in a manner that the
Executive will have no after tax cost for such amounts.



     3.6 Term Life Insurance. In addition to the Company-paid life insurance made
available to senior executives of the Company generally, the Company shall provide Executive with
$600,000 face value of term life insurance, and shall pay the premiums for such policies promptly
as they become due. Upon the request of the Executive made in connection with a



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Termination Date, the Company shall take all reasonable steps to provide Executive the right
to continue such life insurance at her own expense after the Termination Date.



     3.7 Withholding. All payments under this Agreement shall be subject to any required
withholding of Federal, state and local taxes pursuant to any applicable law or regulation.



     3.8 Accounting Restatement.



          (a) In the event that the Company is required to prepare an accounting restatement due to
material non-compliance of the Company with any financial reporting requirement related to a period
during the term of this Agreement under the securities laws (Restatement”), for any reason
including without limitation as a result of fraud, negligence, or intentional misconduct, whether
by Executive or any other person(s), subject to Section 3.8(c) Executive shall reimburse the
Company for any Excess Payment received for the first annual accounting period covered by any
individual Restatement and related later Restatements due to non-compliance with the same financial
reporting requirement. Executive shall not be responsible for reimbursement for any Restatements
that result from or are a continuation of practices and policies prior to the date of this
Agreement unless (i) during the first year after the date of this Agreement Executive has actual
knowledge of the practices and policies including actual knowledge that such policies and practices
involve material non-compliance with any financial reporting requirement, and (ii) thereafter
Executive has actual knowledge of the practices and policies, and in the case of both (i) and (ii)
has not reported such matter to the Audit Committee of the Board within a reasonable period after
acquiring such knowledge. For purposes of this Section 3.8, “Excess Payment” shall mean the
positive difference, if any, between any Performance Bonus payment made to Executive and the
payment that would have been made had the Performance Bonus been calculated based upon the
Company’s financial statements as restated. The portion of any Excess Payment retained by
Executive net after taxes shall be repaid within ninety (90) days after Executive has been notified
in writing of a Board determination described below, and the remainder of such Excess Payment, if
any, shall be repaid within thirty (30) days of the date on which the Executive is entitled to
receive the benefit of a refund claim.



          (b) In addition and subject to Section 3.8(c), Executive shall reimburse the Company for the
amount of the proceeds of sale by Executive of any performance-based equity incentive award, the
vesting of which was determined in whole or in part upon meeting or exceeding specific performance
targets relating to the financial results of the Company (not including stock price targets) for
the period(s) covered by the Restatement, that would not have been met based upon the financial
results as restated, and any such award held by Executive that has vested but remains unsold shall
be forfeited. In the event that any Restatement related to the Company’s financial statements for
fiscal 2008 changes the EBITDA for such year, the EBITDA targets under the performance-based equity
incentive award made on even date with this Agreement shall be equitably adjusted to account for
the change in such base year. The portion of any Excess Payment retained by Executive net after
taxes shall be repaid within ninety (90) days after Executive has been notified in writing of a
Board determination described below, and the remainder of such Excess Payment, if any, shall be
repaid within thirty (30) days of the date on which the Executive is entitled to receive the
benefit of a refund claim.



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          (c) Executive shall have no reimbursement obligation under this Section 3.8 unless the Board
has considered the matter in a meeting (which may be telephonic) at which Executive (with counsel)
is given the opportunity to appear and discuss the matter, and in its good faith discretion has
made a determination that reimbursement is appropriate under the circumstances. The rights under
this Agreement are in addition to, and do not replace, the rights of the Company, if any, under
Section 304 of the Sarbanes-Oxley Act.



4. TERMINATION OF EMPLOYMENT




     4.1 Accrued Obligations. For purposes of this Agreement:



          (a) “Accrued Base Obligations” shall mean amounts for Base Compensation, expense
reimbursement, vacation, and employee benefits which have accrued, vested, and are unpaid as of the
Termination Date.



          (b) “Accrued Bonus Obligations” shall mean, for the year in which the Termination Date occurs,
a prorated Performance Bonus for the partial-year period ending on the Termination Date (the
“Partial Period”). The prorated Performance Bonus shall be based on achievement of the annual
financial metrics as then in effect for calculation of Executive’s bonus (for example, net
earnings, revenues, or other metrics as applicable, but not including individual management
objectives) multiplied by a fraction, the numerator of which is the number of days elapsed in the
fiscal year prior to the Termination Date and the denominator of which is 365. It shall mean for
the year prior to the year of termination, the earned Performance Bonus for such year to the extent
then unpaid.



          (c) Accrued Base Obligations other than employee benefits shall be paid within thirty (30)
days after the Termination Date. Employee benefits shall be paid as provided under the applicable
plan or program. Accrued Bonus Obligations shall be paid on the date on which they would have been
paid under this Agreement absent the occurrence of the Termination Date.



     4.2 Termination Procedures. Except as otherwise provided in this Agreement, any termination of Executive’s employment
by the Company or by Executive (other than termination pursuant to death) shall be communicated by
written Notice of Termination to the other party hereto. For purposes of this Agreement, a “Notice
of Termination” shall mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and, if applicable, shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’s employment under the
provision so indicated, as well as the Termination Date.



     No Notice of Termination of Executive for Cause shall be given by the Company unless and until
(i) adoption of a resolution, approved by at least 75% of the Board (not including Executive),
finding that in the good faith opinion of the Board of Directors Executive is guilty of the conduct
described in the definition of Cause, after at least five (5) business days notice is provided to
Executive, such notice to include in reasonable specificity the alleged conduct
justifying such termination for Cause, and (ii) an opportunity is given to Executive, together
with counsel, to be heard by the Board of Directors of Harris at a meeting (which may be held by



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telephonic conference call). This Section 4.2 shall not prevent Executive from challenging,
pursuant to Section 6.1, the Board’s determination that Cause exists, or that Executive has failed
to cure any act (or failure to act), to the extent permitted by this Agreement, that purportedly
formed the basis for the Board’s determination. The fact finder shall review whether or not Cause
existed or an act was cured on a de novo basis, with no presumption given to the Board’s
determination.



     4.3 Death of Executive. If Executive dies, Company shall not be obligated to make any further payments under this
Agreement except amounts for:



          (a) Accrued Base Obligations,



          (b) Accrued Bonus Obligations, and



          (c) rights to indemnification, advancement of legal fees, and officer’s liability insurance
coverage pursuant to Section 6.9 (collectively “Indemnification”).



     4.4 Disability of Executive. If Executive is permanently disabled (as defined in Company’s long-term disability
insurance policy then in effect) and has been so permanently disabled for the time period required
for eligibility for benefits under the Company’s long-term disability insurance policy then in
effect, then the Board shall have the right to terminate Executive’s employment upon 15 days’ prior
written notice to Executive (“Disability”) provided that the Executive’s employment shall
immediately terminate for disability if, as of an earlier date, she incurs a separation from
service (within the meaning of Internal Revenue Code Section 409A) as a result of physical or
mental incapacity In the event Executive’s employment is terminated for Disability in accordance
with this Section 4.4, Company shall not be obligated to make any further payments under this
Agreement except for:



          (a) Accrued Base Obligations,



          (b) Accrued Bonus Obligations, and



          (c) Indemnification.



     4.5 Termination for Cause.



          (a) Executive’s employment shall terminate immediately upon a Notice of Termination from the
Company that Executive is being terminated for Cause (as defined herein), in which event Company
shall not thereafter be obligated to make any further payments under this Agreement except for:



               (i) Accrued Base Obligations,



               (ii) Accrued Bonus Obligations, and



               (iii) Indemnification.



          (b) “Cause” shall be limited to the following:



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               (i) willful failure to make reasonable attempts in good faith to substantially perform
Executive’s duties as described in Section 1.2 (other than because of physical or mental
incapacity) after demand for substantial performance is delivered by Company in writing that
specifically identifies the manner in which Company believes Executive has not made reasonable
attempts in good faith to substantially perform Executive’s duties and Executive’s failure to cure
such failure within thirty (30) days after receipt of the Company’s written demand; provided,
however, that a failure to perform such duties during the remedy period set forth in subsection (i)
of the definition of Good Reason set forth in Section 4.7 hereof, following the issuance of a
Notice of Termination (as herein defined) by Executive for Good Reason, shall not be Cause unless
an arbitrator acting pursuant to Section 6.1 hereof finds Executive to have acted in bad faith in
issuing such Notice of Termination;



               (ii) willful misconduct with regard to the Company or Executive’s duties that is materially
and demonstrably injurious to Company or its subsidiaries; or



               (iii) conviction or plea of guilty or nolo contendere to a crime which involves serious moral
turpitude or, if not including serious moral turpitude, arises from an act that is materially and
demonstrably injurious to the Company or any of its subsidiaries, or conviction or plea of guilty
or nolo contendere to a felony;



               (iv) material violation of Section 5 of this Agreement,



               (v) material violation of Company polices set forth in Company manuals or written statements
of policy provided that such violation is materially and demonstrably injurious to Company (it
being understood that among others any violation of the Company’s Insider Trading Policy as
applicable to executive officers shall be deemed to be material) and, if curable, continues for
more then five (5) business days after written notice thereof is given to Executive by the Company;
and



               (vi) material breach of any material provision of this Agreement by Executive (not including
those covered by subclause (i) above), which breach continues for more than seven (7) business days
after written notice thereof is given by the Company to Executive.



     4.6 Termination Without Cause or by Executive for Good Reason.



          (a) The Company and the Executive each reserve the right to terminate Executive’s employment
at any time. If a Termination Date occurs due to Company terminating Executive without Cause or
Executive terminating for Good Reason, then Company shall have
no further obligations under this Agreement except that Company shall pay to Executive the
amounts shown in Section 4.6(c).



          (b) For the avoidance of doubt, Section 4.6(c) shall not apply to (i) termination for Cause
which circumstance is covered by Section 4.5, (ii) termination by Executive without Good Reason
which circumstance is covered by Section 4.7, (iii) termination by reason of death which
circumstance is covered by Section 4.3, or (iv) termination by reason of Disability which
circumstance is covered by Section 4.4.



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          (c) If Company terminates Executive without Cause or Executive terminates with Good Reason,
then the Company shall pay to Executive:



               (i) the Accrued Base Obligations,



               (ii) two times annual Base Compensation, payable in twelve (12) equal monthly installments
commencing in the month following the month in which the Termination Date occurs,



               (iii) Accrued Bonus Obligations,



               (iv) health and medical benefits as required by Section 3.3 of this Agreement during the
twelve-month period immediately following the Termination Date; provided, however, if Executive or
Executive’s dependents are ineligible to participate in the Company benefit programs under Section
3.3, the Company shall arrange to reimburse Executive for health and medical coverage reasonably
comparable to that previously provided under Section 3.3, and further provided that such benefits
shall become secondary to primary coverage upon the date or dates Executive receives coverage and
benefits which are substantially similar, taken as a whole, without waiting period or pre-existing
condition limitations, under the plans and programs of a subsequent employer, and



               (v) Indemnification.



     4.7 Termination by Executive without Good Reason.



          (a) Executive may terminate this Agreement without Good Reason upon notice given as provided
in Section 4.7(c). In the event Executive’s employment is voluntarily terminated by Executive
without Good Reason, Company shall not be obligated to make any further payments to Executive
hereunder other than:



               (i) Accrued Base Obligations,



               (ii) earned but unpaid Performance Bonus for fiscal years ended prior to the Termination Date,
payable on the date on which such Performance Bonus would be paid absent Executive’s termination,
and



               (iii) Indemnification.


In addition, the Board will consider, in its discretion, whether or not a prorated Performance
Bonus for the Partial Period should be paid.




          (b) “Good Reason” shall mean the following:



               (i) material breach of Company’s obligations hereunder, including any assignment of duties not
included within the Executive’s duties described in Section 1.2 unless previously agreed to in
writing by Executive;



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               (ii) any decrease in Executive’s salary except as expressly permitted by Section 3.1;



               (iii) any decrease of Executive’s target Performance Bonus below 100% of Base Compensation,



               (iv) the failure of any successor in interest of the Company to be bound by the terms of this
Agreement in accordance with Section 6.4 hereof, or



               (v) any diminution in Executive’s title or material diminution in Executive’s duties,
responsibilities, authority or reporting lines.



          (c) Executive must provide a Notice of Termination to the Company that she is intending to
terminate her employment for Good Reason within ninety (90) days after the occurrence of the event
she believes constitutes Good Reason, which termination notice shall specify that a Termination
Date will occur thirty (30) days after the date of such notice unless the circumstances
constituting Good Reason and identified by Executive in the Notice of Termination are remedied
prior to such Termination Date. Executive’s right to terminate Executive’s employment hereunder
for Good Reason shall not be affected by Executive’s subsequent Disability provided that the notice
of intention to terminate is given prior to the onset of such Disability. Subject to compliance by
Executive with the notice provisions of this Section (c), Executive’s continued employment prior to
terminating employment for Good Reason shall not constitute consent to, or a waiver of rights with
respect to, any act or failure to act constituting Good Reason. In the event Executive delivers to
the Company a Notice of Termination for Good Reason, upon request of the Board Executive agrees to
appear, accompanied by her legal counsel, before a meeting of the Board called and held for such
purpose (after at least three business days notice) and specify to the Board the particulars as to
why Executive believes adequate grounds for termination for Good Reason exist. No action by the
Board, other than the remedy of the circumstances within the thirty (30) day period after the date
of the Notice of Termination, shall be binding on Executive.



     4.8 Mitigation. Executive shall not be required to mitigate amounts payable under this Section 4 by seeking
other employment or otherwise, and there shall be no offset against amounts due Executive under
this Agreement on account of subsequent employment except as specifically provided herein.



     4.9 Change of Control.



          (a) If Executive is terminated without Cause or Executive terminates her employment for Good
Reason, in each such case in contemplation of, or during the eighteen-month period following, a
Change of Control (as defined below), then in lieu of the payments and benefits to which Executive
is entitled under Section 4.6 Executive shall receive:



               (i) the Accrued Base Obligations,



               (ii) any unpaid Performance Bonus earned for any fiscal year ended on or before the
Termination Date payable on the date on which such Performance Bonus would be paid absent
termination,



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               (iii) two times annual Base Compensation, payable in twelve (12) equal monthly installments
commencing in the month following the month in which the Termination Date occurs.



               (iv) $600,000 payable in a lump sum six months and one day after the Termination Date, and



               (v) health and medical benefits as required by Section 3.3 of this Agreement during the
twelve-month period immediately following the Termination Date; provided, however, if Executive or
Executive’s dependents are ineligible to participate in the Company benefit programs under Section
3.3, the Company shall arrange to reimburse Executive for health and medical coverage reasonably
comparable to that previously provided under Section 3.3, and further provided that such benefits
shall become secondary to primary coverage upon the date or dates Executive receives coverage and
benefits which are substantially similar, taken as a whole, without waiting period or pre-existing
condition limitations, under the plans and programs of a subsequent employer.


In addition, the Board will consider, in its discretion, whether or not a prorated Performance
Bonus for the Partial Period should be paid.




          (b) If a Change of Control shall have occurred:



               (i) after such Change of Control Executive’s entitlement to Performance Bonuses under Section
3.2 may be modified by the new controlling Person in a reasonable manner (not to afford Executive
with materially less opportunity to earn bonus than existed prior to the Change of Control) so that
such Performance Bonus is calculated with reference to a performance-based bonus plan provided by
the new controlling Person; and



               (ii) after such Change of Control Executive’s entitlement to payments and benefits under
Sections 3.3 and 3.4 may be modified by the new controlling Person to entitlement to those benefits
generally provided to senior executives of the new controlling Person.



          (c) A “Change of Control” shall be deemed to have occurred if:



               (i) a change in control has occurred of a nature that would be required to be reported in a
proxy statement with respect to the Company (even if the Company is not actually subject to said
reporting requirements) in response to Item 6(e) (or any comparable or successor Item) of Schedule
14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), except that any merger, consolidation or corporate reorganization in which the
owners of the Company’s capital stock entitled to vote in the election of directors (the “Voting
Stock”) prior to said combination receive 75% or more of the resulting entity’s Voting Stock shall
not be considered a change in control for the purposes of this Plan;



               (ii) any “person” (as that term is used in Sections 13(d) and 14(d)(2) of the Exchange Act,
excluding any stock purchase or employee stock ownership plan maintained by the Company or a
Related Company) becomes the “beneficial owner” (as that term is defined



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by the Securities and
Exchange Commission for purposes of Section 13(d) of the Exchange Act), directly or indirectly, of
more than 15% of the outstanding voting stock of the Company or its successors (not including a
person that acquired less than 15% of the then outstanding stock but became the holder of more than
15% of such stock by reason of acquisition by the Company of shares of its stock or forfeitures of
restricted stock previously granted to employees);



               (iii) the sale or other transfer of all or substantially all of the assets of the Company; or



               (iv) during any period of two consecutive years a majority of the Board of Directors no longer
consists of individuals who were members of the Board of Directors at the beginning of such period,
unless the election of each director who was not a director at the beginning of the period was
approved by a vote of at least 75% of the directors still in office who were directors at the
beginning of the period.



     4.10 Effect of Section 409A.



          (a) Section 409A. It is intended that the provisions of this Agreement comply with
Code Section 409A or be exempt therefrom, and this Agreement shall be administered, and all
provisions of this Agreement shall be construed, in a manner consistent with the requirements for
avoiding taxes or penalties under Code Section 409A.



          (b) Installments. If under this Agreement, an amount is to be paid in two or more
installments, for purposes of Code Section 409A, each installment shall be treated as a separate
payment.



          (c) Separation From Service. A termination of employment shall not be deemed to have
occurred for purposes of any provision of this Agreement providing for the payment of amounts or
benefits subject to Code Section 409A upon or following a termination of employment unless such
termination is also a “Separation from Service” within the meaning of Code Section 409A and, for
purposes of any such provision of this Agreement, references to a “resignation,” “termination,”
“termination of employment” or like terms shall mean Separation from Service.



          (d) Specified Employee. If Executive is deemed on the date of termination of his
employment to be a “specified employee”, within the meaning of that term under Section
409A(a)(2)(B) of the Code and using the identification methodology selected by the Company from
time to time, or if none, the default methodology, then:



               (i) With regard to any payment, the providing of any benefit or any distribution of equity
that constitutes “deferred compensation” subject to Code Section 409A, payable upon separation from
service, such payment, benefit or distribution shall not be made or provided prior to the earlier
of (i) the expiration of the six-month period measured from the date of Executive’s Separation from
Service or (ii) the date of Executive’s death; and



               (ii) On the first day of the seventh month following the date of Executive’s Separation from
Service or, if earlier, on the date of his death, (x) all payments delayed pursuant to this Section
4.10, with interest at the prime rate as published in the Wall



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Street Journal on the first business
day of the delay period (whether they would otherwise have been payable in a single sum or in
installments in the absence of such delay), shall be paid or reimbursed to Executive in a lump sum,
and any remaining payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal dates specified from them herein and (y) all distributions of equity
delayed pursuant to this Section 4.10(d) shall be made to Executive.



          (e) Reimbursement. With regard to any provision herein that provides for
reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A,
(i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange
for another benefit, (ii) the amount of expenses eligible for reimbursement, of in-kind benefits,
provided during any taxable year shall not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii)
shall not be violated without regard to expenses reimbursed under any arrangement covered by
Section 105(b) of the Code solely because such expenses are subject to a limit related to the
period the arrangement is in effect and (iii) such payments shall be made on or before the last day
of Executive’s taxable year following the taxable year in which the expense occurred.



          (f) Payment Period. Whenever a payment under this Agreement specifies a payment
period with reference to a number of days (e.g., “payment shall be made within forty (40) days
following the date of termination), the actual date of payment within the specified period shall be
within the sole discretion of the Company.



          (g) Compliance. If any provision of this Agreement (or of any award of compensation,
including equity compensation or benefits) would cause Executive to incur any additional tax or
interest under Code Section 409A, the Company shall, after consulting with Executive, reform such
provision to comply with Code Section 409A; provided that the Company agrees to maintain, to the
maximum extent practicable, the original intent and economic benefit to Executive of the applicable
provision without violating the provisions of Code Section 409A. The Company shall indemnify and
hold Executive harmless, on an after tax basis, for any additional tax or interest (including
interest and penalties with respect there to) that
may be imposed on Executive by Code Section 409A as a result of the application of Section
409A to any payment or benefits hereunder or otherwise from the Company.



          (h) Any payment or reimbursement for taxes made pursuant to Section 4.10(g) above, or any
other provision hereof (and any gross up thereon), shall be paid to the Executive promptly after
such obligation is incurred, but in no event later than the end of the calendar year following the
calendar year in which the tax is paid by the Executive.



     4.11 Precondition to Post-Termination Payments. As a condition for the payment of any
post-Termination Date benefits to be provided hereunder except for Accrued Base Obligations and
earned but unpaid Performance Bonus for fiscal years ended prior to the Termination Date, prior to
the date of any such payment Executive shall deliver to the Company a release in favor of the
Company in the form attached hereto as Exhibit A prior to the 52nd day after the
Termination Date. The amounts due prior to the sixtieth day after the Termination Date



12









 







conditioned
on the delivery of the release shall be paid on or commencing on the sixtieth day and any amounts
due prior thereto shall be paid in a lump sum on the sixtieth day.



     4.12 280G Gross-Up.



          (a) In the event that Executive shall become entitled to payments and/or benefits provided by
this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms
of this Agreement or any other plan, arrangement or agreement with the Company, or any arrangement
or agreement with any person whose actions result in a change of ownership or effective control
covered by Code Section 280G(b)(2) (a “280G Change in Control”) or any person affiliated with the
Company or such person) as a result of a 280G Change in Control (collectively the “Company
Payments”), and such Company Payments will be subject to the tax (the “Excise Tax”) imposed by Code
Section 4999 (and any similar tax that may hereafter be imposed by any taxing authority), subject
to Section 4.10 above, the Company shall pay to Executive at the time specified below (i) an
additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after
deduction of any Excise Tax on the Company Payments and any U.S. federal, state, and for local
income or payroll tax upon the Gross-up Payment provided for by this paragraph, but before
deduction for any U.S. federal, state, and local income or payroll tax on the Company Payments,
shall be equal to the Company Payments and (ii) an amount equal to the product of any deductions
disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up
Payment in Executive’s adjusted gross income multiplied by the highest applicable marginal rate of
federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up
Payment is to be made.



          (b) In the event that the Internal Revenue Service or court ultimately makes a determination
that the excess parachute payments plus the base amount is an amount other than as determined
initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment to reflect
the final determination.



          (c) For purposes of determining whether any of the Company Payments and Gross-Up Payments
(collectively the “Total Payments”) will be subject to the Excise Tax and the amount of such Excise
Tax, (i) the Total Payments shall be treated as “parachute payments”
within the meaning of Code Section 280G(b)(2), and all “parachute payments” in excess of the
“base amount” (as defined under Code Section 280G(b)(3)) shall be treated as subject to the Excise
Tax, unless and except to the extent that, in the opinion of the Company’s independent certified
public accountants appointed prior to any change in ownership (as defined under Code Section
280G(b)(2)) or tax counsel selected by such accountants or the Company (the “Accountants”) such
Total Payments (in whole or in part) either do not constitute “parachute payments,” including
giving effect to the recalculation of stock options in accordance with Treasury Regulation Section
1.280G-1, Q&A 33, represent reasonable compensation for services actually rendered within the
meaning of Code Section 280G(b)(4) in excess of the “base amount” or are otherwise not subject to
the Excise Tax, and (ii) the value of any non-cash benefits or any deferred payment or benefit
shall be determined by the Accountants in accordance with the principles of Code Section 280G. To
the extent permitted under Revenue Procedure 2003-68, the value determination shall be recalculated
to the extent it would be beneficial to Executive. In the event that the Accountants are serving
as accountant or auditor for the individual, entity or



13









 







group effecting the Change in Control,
Executive may appoint with the approval of the Company, which approval shall not be unreasonable or
unreasonably delayed, another nationally recognized accounting firm reasonably acceptable to the
Company to make the determinations hereunder (which accounting firm shall then be referred to as
the “Accountants” hereunder). All determinations hereunder shall be made by the Accountants which
shall provide detailed supporting calculations both to the Company and Executive at such time as it
is requested by the Company or Executive. If the Accountants determine that payments under this
Agreement must be reduced pursuant to this paragraph, they shall furnish Executive with a written
opinion to such effect. The determination of the Accountants shall be final and binding upon the
Company and Executive.



          (d) For purposes of determining the amount of the Gross-Up Payment, Executive’s actual U.S.
federal income tax rate in the calendar year in which the Gross-Up Payment is to be made and state
and local income taxes at Executive’s actual rate of taxation in the state and locality of
Executive’s residence for the calendar year in which the Company Payment is to be made, net of the
maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state
and local taxes if paid in such year, shall be used. In the event that the Excise Tax is
subsequently determined by the Accountants to be less than the amount taken into account hereunder
at the time the Gross-Up Payment is made, Executive shall repay to the Company, at the time that
the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up
Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to
the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-up
Payment being repaid by Executive if such repayment results in a reduction in Excise Tax or a U.S.
federal, state and local income tax deduction), plus interest on the amount of such repayment at
the rate provided in Code Section 1274(b)(2)(B). Notwithstanding the foregoing, in the event any
portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal,
state and local tax authority, repayment thereof (and related amounts) shall not be required until
actual refund or credit of such portion has been made to Executive, and interest payable to the
Company shall not exceed the interest received or credited to Executive by such tax authority for
the period it held such portion. Executive and the Company shall mutually agree upon the course of
action to be pursued (and the method of allocating the expense thereof) if Executive’s claim for
refund or credit is denied.



          (e) In the event that the Excise Tax is later determined by the Accountant or the Internal
Revenue Service to exceed the amount taken into account hereunder at the time the Gross-Up Payment
is made (including by reason of any payment the existence or amount of which cannot be determined
at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess (plus any interest or penalties payable with respect to such excess) at the
time that the amount of such excess is finally determined.



          (f) Subject to Section 4.10 above, the Gross-up Payment or portion thereof provided for above
shall be paid within 30 days following a 280G Change in Control which subjects Executive to the
Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof
cannot be finally determined on or before such day, the Company shall pay to Executive on such day
an estimate, as determined in good faith by the Accountant, of the minimum amount of such payments
and shall pay the remainder of such payments, subject



14









 







to further payments pursuant to Section
4.12(b) hereof, as soon as the amount thereof can reasonably be determined, but in no event later
than the ninetieth (90th) day after the occurrence of the event subjecting Executive to the Excise
Tax. Notwithstanding any other provision of this Agreement, all Gross-up payments under this
Section 4.12 shall be made to the Executive no later than by the end of the Executive’s taxable
year following the Executive’s taxable year in which Executive remits the applicable taxes. In the
event that the amount of the estimated payments exceeds the amount subsequently determined to have
been due, the Executive shall reimburse the Company for such amount, such reimbursement to be
payable on the fifth (5th) day after demand by the Company (together with interest at the rate
provided in Code Section 1274(b)(2)(B)).



          (g) In the event of any controversy with the Internal Revenue Service (or other taxing
authority) with regard to the Excise Tax, Executive shall permit the Company to control issues
related to the Excise Tax (at its expense), but Executive shall control any other issues unrelated
to the Excise Tax. In the event that the issues are interrelated, Executive and the Company shall
in good faith cooperate. In the event of any conference with any taxing authority as to the Excise
Tax or associated income taxes, Executive shall permit the representative of the Company to
accompany Executive, and Executive and his representative shall cooperate with the Company and its
representative.



          (h) The Company shall be responsible for all charges of the Accountant.



          (i) The Company and Executive shall promptly deliver to each other copies of any written
communications, and summaries of any verbal communications, with any taxing authority regarding the
Excise Tax covered by this provision.



          (j) Nothing in this Section 4.12 is intended to violate the Sarbanes-Oxley Act and to the
extent that any advance or repayment obligation hereunder would do so, such obligation shall be
modified so as to make the advance a nonrefundable payment to Executive and the repayment
obligation null and void.



5. NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY




     5.1 Non-Competition.



          (a) Consideration for this Section. Executive acknowledges and agrees that:



               (i) the advance commitment of the Company to provide the benefits, including in particular and
without limitation those obligations under Sections 4.4(b), 4.5(a)(ii), 4.6(c)(ii), 4.6(c)(iii),
4.6(c)(iv), 4.9(a)(iii), 4.9(a)(iv), 4.9(a)(v), and 4.12 afforded by this Agreement are over and
above those otherwise afforded by Company policy, and in making its decision to offer Executive the
benefits afforded by this agreement and bind itself in advance to the obligations hereunder the
Company relied upon and was induced by the covenants made by Executive in this Section 5,



               (ii) in accepting the benefits evidenced by this Agreement Executive is receiving an asset of
significant value, and Company’s entry into this Agreement and its



15









 







incurrence of the related
payment and other obligations hereunder are fair and adequate consideration for the Executive’s
obligations under this Section 5,



               (iii) Executive’s position with the Company places Executive in a position of confidence and
trust with the clients and employees of the Company,



               (iv) the Company’s business (including its acquisitive activity) is carried on throughout the
world and accordingly, it is reasonable that the restrictive covenants set forth below are not
limited by specific geographic area,



               (v) the course of Executive’s employment with the Company necessarily requires the disclosure
of confidential information and trade secrets related to the Company’s relationships with clients
(such as, without limitation, pricing information, marketing plans, budgets, designs,
methodologies, products, client preferences and policies, and identity of appropriate personnel of
clients with sufficient authority to influence a shift in suppliers) as well as other confidential
and proprietary information, (such as databases, methodologies, and technologies),



               (vi) Executive’s employment affords Executive the opportunity to develop a personal
acquaintanceship and relationship with the Company’s employees and clients, which in some cases may
constitute the Company’s primary or only contact with such employees and clients, and to develop a
knowledge of those client’s and employee’s affairs and requirements,



               (vii) the Company’s relationships with its established clientele and employees are placed in
Executive’s hands in confidence and trust,



               (viii) it is reasonable and necessary for the protection of the goodwill and business of the
Company that Executive make the covenants contained in this agreement, and



               (ix) the Executive understands that the provisions of this Section 5 may limit Executive’s
ability to earn a livelihood in a business similar or related to the business of Company, but
nevertheless agrees and acknowledges that (A) the provisions of Section 5 are reasonable and
necessary for the protection of Company, and do not impose a greater restraint than necessary to
protect the goodwill or other business interest of Company, and (B) such provisions contain
reasonable limitations as to the time and the scope of activity to be restrained.


In consideration of the foregoing, Executive agrees to strict enforcement of the provisions hereof.




     5.2 Restricted Activity.



          (a) During the period that Executive is employed by the Company, and for the period twelve
months after the Termination Date (the “Non-Competition Period”), Executive shall not, directly or
indirectly, own, manage, operate, join, control, participate in, invest in or otherwise be
connected or associated with, in any manner (collectively, “Be Involved With”), including, without
limitation, as an officer, director, employee, distributor, independent



16









 







contractor, independent
representative, partner, consultant, advisor, agent, proprietor, trustee or investor, any Competing
Business (defined below); provided, however, that ownership of 4.9% or less of the stock or other
securities of a corporation, the stock of which is listed on a national securities exchange or
otherwise publicly traded shall not constitute a breach of this Section 5, so long as the Executive
does not in fact have the power to control, or direct the management of, or is not otherwise
engaged in prohibited activities with, such corporation. Notwithstanding the foregoing, Executive
may Be Involved With an entity (including its Affiliates), twenty percent (20%) or more of the
business of which is not in material competition with the Company but that engages in some business
“Limited Business”) substantially similar to the whole, or at least twenty percent (20%) of the
business conducted by the Company, provided, however, that Executive in not personally involved in
the day to day operations of the Limited Business, and the Limited Business either does not report
to Executive or, if it does, it is less than twenty percent (20%) of the business that reports to
Executive, and the Executive complies with Sections 5.2(c) and 5.3. The foregoing is not intended
to limit Executive’s ability as an outside vendor to provide goods or services of a non-competitive
nature to any entity or person.



          (b) For purposes of this Section 5.2, the term “Competing Business” shall mean any business or
venture which is substantially similar to the whole, or any part of the business that is at least
twenty percent (20%) of, the business conducted by Company (prior to any Change in Control of the
Company), and which is in material competition with the Company, and the term “Affiliate” of any
person or entity shall mean any other person or entity directly or indirectly controlling,
controlled by or under common control with such particular person or entity, where “control” means
the possession, directly or indirectly, of the power to direct the management and policies of a
person or entity whether through the ownership of voting securities, contract, or otherwise.



          (c) During the Non-Competition Period, Executive shall not (including without limitation on
behalf of, for the benefit of, or in conjunction with, any other person or entity) directly or
indirectly, except in the good faith performance of her duties for the Company:



               (i) solicit, induce or otherwise encourage in any way, any employee of Company to terminate
such employee’s relationship with Company for any reason, or assist any person or entity in doing
so,



               (ii) employ, engage or otherwise contract for services or create any similar relationship with
any employee or former employee of Company in any business or venture of any kind or nature, in the
case of a former employee unless such person shall not have been employed by Company for a period
of at least six months and no solicitation prohibited by this Section 5.2(c) shall have occurred
during the period such person was employed by the Company, or



               (iii) interfere in any manner with the relationship between any employee and Company.


Notwithstanding the foregoing, general advertising not specifically targeted at the Company
employees shall not violate the foregoing, nor shall serving as a reference upon request with
regard to an entity with which she is not affiliated.



17









 







     5.3 Confidential Information.



          (a) “Confidential Information” shall mean all proprietary or confidential records and
information, including, but not limited to, information related to the Company’s relationships with
clients (such as, without limitation, pricing information, marketing plans, budgets, designs,
methodologies, products, client preferences and policies, and identity of appropriate personnel of
clients with sufficient authority to influence a shift in suppliers), information related to
development, marketing, purchasing, acquisitions, organizational matters, strategic matters,
financial matters, managerial and administrative matters, production, distribution and sales,
distribution methods, data, specifications, technologies, methods and methodologies, and processes
(including the Transferred Property as hereinafter defined) presently owned or at any time
hereafter developed by Company, or its agents, consultants, or otherwise on its behalf, or used
presently or at any time hereafter in the course of the business of Company, that are not otherwise
part of the public domain.



          (b) Executive hereby sells, transfers and assigns to Company, or to any person or entity
designated by Company, all of Executive’s entire right, title and interest in and to all
inventions, ideas, methods, developments, disclosures and improvements (the “Inventions”), whether
patented or unpatented, and copyrightable material, and all trademarks, trade names, all goodwill
associated therewith and all federal and state registrations or applications thereof, made, adopted
or conceived by solely or jointly, in whole or in part while an employee of the Company which (i)
relate to methods, apparatus, designs, products, processes or devices sold, leased, used or under
construction or development by Company or (ii) otherwise relate to or pertain to the business,
products, services, functions or operations of the Company (collectively, the “Transferred
Property”). Executive shall make adequate written records of all Inventions, which records shall
be Company’s property and shall communicate promptly and disclose to Company, in such forms Company
requests, all information, details and data pertaining to the aforementioned Inventions. Whether
during the term of this Agreement or thereafter, Executive shall execute and deliver to Company (at
Company expense) such formal transfers and
assignments and such other papers and documents as may be reasonably required of Executive to
permit Company, or any person or entity designated by Company, to file and prosecute patent
applications (including, but not limited to, records, memoranda or instruments deemed necessary by
Company for the prosecution of the patent application or the acquisition of letters patent in the
United states, foreign counties or otherwise) and, as to copyrightable material, to obtain
copyrights thereon, and as to trademarks, to record the transfer of ownership of any federal or
state registrations or applications.



          (c) All Confidential Information is considered secret and will be disclosed to the Executive
in confidence, and Executive acknowledges that, as a consequence of Executive’s employment and
position with Company, Executive may have access to and become acquainted with Confidential
Information. Except in the performance of Executive’s duties as an employee of Company, Executive
shall not, during the term and at all times thereafter, directly or indirectly for any reason
whatsoever, disclose or use any such Confidential Information. All records, files, drawings,
documents, equipment and other tangible items (whether in electronic form or otherwise), wherever
located, relating in any way to or containing Confidential Information, which Executive has
prepared, used or encountered or shall in the future prepare, use or encounter, shall be and remain
Company’s sole and exclusive property and shall be included in



18









 







the Confidential Information. Upon
termination of this Agreement, or whenever requested by Company, Executive shall promptly deliver
to Company any and all of the Confidential Information and copies thereof, not previously delivered
to Company, that may be in the possession or under the control of the Executive. The foregoing
restrictions shall not apply to the use, divulgence, disclosure or grant of access to Confidential
Information to the extent, but only to the extent, (i) expressly permitted or required pursuant to
any other written agreement between Executive and Company, (ii) such Confidential Information has
been publicly disclosed (not due to a breach by the Executive of Executive’s obligations
hereunder),or is otherwise generally known in the industry, or (iii) the Executive is required to
disclose Confidential Information by or to any court of competent jurisdiction or any governmental
or quasi-governmental agency, authority or instrumentality of competent jurisdiction, provided,
however, in the case of (iv) that the Executive shall, prior to any such disclosure, immediately
notify Company of such requirements and provided further, however, that the Company shall have the
right, at its expense, to object to such disclosures and to seek confidential treatment of any
Confidential Information to be so disclosed on such terms as it shall determine. The Company
acknowledges that the Executive has worked in the industry or related industries and information
already known by her shall not be treated as Confidential Information hereunder.



     5.4 Acknowledgement; Remedies; Survival of this Agreement.



          (a) Executive acknowledges that violation of any of the covenants and provisions set forth in
Section 5 of this Agreement may cause Company irreparable damage and agrees that Company’s remedies
at law for a breach or threatened breach of any of the provisions of this Section 5 would be
inadequate and, in recognition of this fact, in the event of a breach or threatened breach by
Executive of any of the provisions of this Agreement, it is agreed that, in addition to the
remedies at law or in equity, Company shall be entitled, without the posting of a bond, to
equitable relief in the form of specific performance, a temporary restraining order, temporary or
permanent injunction, or any other equitable remedy which may then be available for the purposes of
restraining Executive from any actual or threatened breach of such covenants.
Without limiting the generality of the foregoing, if Executive breaches Section 5.2 in any
material respect, such breach will entitle Company (i) to terminate its obligations to make further
payments otherwise required under this Agreement, provided, however, that such termination shall
occur only after the Company has provided the Executive at least ten (10) business days notice of
the circumstances of such breach and, only if such breach is curable, Executive has failed to cure
such breach within such ten (10) business day period, (ii) to enjoin Executive from disclosing any
Confidential Information to any Competing Business, in the case of a breach of Section 5.2(a) to
enjoin any Competing Business from retaining Executive or using any such Confidential Information,
and to enjoin Executive from rendering personal services to or in connection with any Competing
Business in violation of the terms of this Agreement, and (iii) and to seek to recover damages.
The rights and remedies hereunder are cumulative and shall not be exclusive, and the Company shall
be entitled to pursue all legal and equitable rights and remedies and to secure performance of the
obligations and duties of the Executive under this Agreement, and the enforcement of one or more of
such rights and remedies by the Company shall in no way preclude the Company from pursuing, at the
same time or subsequently, any and all other rights and remedies available to it.



19









 





     (b) The provisions of this Section 5 shall survive the termination of Executive’s employment
with Company.



6. MISCELLANEOUS




     6.1 Arbitration. Any dispute or controversy arising under or in connection with this Agreement shall be
settled exclusively by arbitration in Rochester, New York, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect. Judgment may be entered
on the arbitrator’s award in any court having jurisdiction. The parties consent to the authority
of the arbitrator, if the arbitrator so determines, to award fees and expenses (including legal
fees) to the prevailing party in the arbitration, subject to the limitations contained in Section
6.8. Notwithstanding the foregoing, Company shall be entitled to enforce the provisions of Section
5 hereof through proceedings brought in a court of competent jurisdiction as contemplated by
Section 6.7 hereof. Any award of fees and expenses (including legal fees) shall be paid within
sixty (60) days of the award.



     6.2 Severability; Reasonableness of Agreement. If any term, provision or covenant of this Agreement or part thereof, or the application
thereof to any person, place or circumstance shall be held to be invalid, unenforceable or void by
an arbitrator or court of competent jurisdiction, the remainder of this Agreement and such term,
provision or covenant shall remain in full force and effect, and any such invalid, unenforceable or
void term, provision or covenant shall be deemed, without further action on the part of the parties
hereto, modified, amended and limited, and the arbitrator or court shall have the power to modify,
amend and limit any such term, provision or covenant, to the extent necessary to render the same
and the remainder of the Agreement valid, enforceable and lawful.



     6.3 Key Employee Insurance. Company in its sole discretion shall have the right at its expense to purchase insurance on
the life of Executive, in such amounts as it shall from time to time determine, of which Company
shall be the beneficiary. Executive shall submit to such physical examinations as may reasonably
be required and shall otherwise cooperate with Company in obtaining such insurance.



     6.4 Assignment; Benefit. This Agreement shall not be assignable by Executive, other than Executive’s rights to
payments or benefits hereunder, which may be transferred only by will or the laws of descent and
distribution. Upon Executive’s death, this Agreement and all rights of Executive hereunder shall
inure to the benefit of and be enforceable by Executive’s beneficiary or beneficiaries, personal or
legal representatives, or estate, to the extent any such person succeeds to Executive’s interests
under this Agreement. No rights or obligations of Company under this Agreement may be assigned or
transferred except to any successor to the Company’s business and/or assets (by merger, purchase of
stock or assets, or otherwise) which, to the extent not otherwise automatically provided by
operation of law, expressly assumes and agrees to perform this Agreement in the same manner and to
the same extent that Company would be required to perform if no such succession had taken place.



     6.5 Notices. All notices hereunder shall be in writing and shall be deemed sufficiently given (i) if
hand-delivered, on the date of delivery, (ii) if sent by documented overnight delivery service, on
the first business day after deposit with such service for overnight



20









 







delivery, and (iii) if sent by
registered or certified mail, postage prepaid, return receipt requested, on the third business day
after deposit in the U.S. mail, in each case addressed as set forth below or at such other address
for either party as may be specified in a notice given as provided herein by such party to the
other. Any and all service of process and any other notice in any such action, suit or proceeding
shall be effective against any party if given as provided in this Agreement; provided that nothing
herein shall be deemed to affect the right of any party to serve process in any other manner
permitted by law.


If to Company:



Harris Interactive Inc.

135 Corporate Woods

Rochester, New York 14623

Attention: Chief Legal Officer



With A Copy To:



Beth Ela Wilkens, Esq.

Harris Beach PLLC

99 Garnsey Road

Pittsford, New York 14534



If to Executive:



Kimberly Till at her residence address as shown in the records of the Company



With A Copy To:



Michael Sirkin

Proskauer Rose LLP

1585 Broadway

New York, New York 10036-8299




     6.6 Entire Agreement; Modification. This Agreement constitutes the entire agreement between the parties hereto with respect to
the matters contemplated herein and supersedes all prior agreements and understandings with respect
thereto. No amendment, modification, or waiver of this Agreement shall be effective unless in
writing. Neither the failure nor any delay on the part of any party to exercise any right, remedy,
power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power, or privilege with respect to such occurrence or with
respect to any other occurrence.



     6.7 Governing Law. This Agreement is made pursuant to, and shall be construed and enforced in accordance with,
the laws of the State of Delaware and the federal laws of the United States of America, to the
extent applicable, without giving effect to otherwise applicable principles of conflicts of law.
Subject to Section 6.1 of this Agreement, the parties hereto



21









 







expressly consent to the jurisdiction
of any state or federal court located in the State of New York, and to venue therein, and consent
to the service of process in any such action or proceeding by certified or registered mailing of
the summons and complaint therein directed to Executive or Company, as the case may be, at its
address as provided in Section 6.5 hereof.



     6.8 Prevailing Party. Should either party breach the terms of this Agreement, the prevailing party who seeks to
enforce the terms and conditions of this Agreement shall be entitled to recover its attorneys fee
and disbursements; provided, however, that no award for legal fees or other fees and expenses shall
be made against Executive unless the arbitrator or court, as applicable, finds that the Executive’s
position was frivolous or taken in bad faith.



     6.9 Indemnification. The Company shall indemnify Executive to the maximum extent
permitted by law (including advancement of legal fees) against any claim with regard to any action
or inaction taken by Executive in the good faith performance of her duties as an officer or
director of the Company or any Affiliate or as a fiduciary of any benefit plan of either, except
with respect to any action or inaction by Executive in breach of this Agreement which shall be
covered by Section 6.8. The Company shall cover Executive with directors and officers insurance at
no lesser a level that at which it covers any other current officer or director,
including without limitation any tail coverage after a Change in Control. This provision
shall survive any termination of employment while any potential of liability of Executive exists.



     6.10 Headings; Counterparts; Interpretation.



          (a) The headings of paragraphs in this Agreement are for convenience only and shall not affect
its interpretation.



          (b) This Agreement may be executed in two or more counterparts, each of which shall be deemed
to be an original and all of which, when taken together, shall be deemed to constitute the same
Agreement.



          (c) The Company and the Executive each acknowledge that it has been represented by legal
counsel in the negotiation and drafting of this Agreement, that this Agreement has been drafted by
mutual effort, and that no ambiguity in this Agreement shall be construed against either party as
draftsperson.



     6.11 Further Assurances. Each of the parties hereto shall execute such further instruments and take such other
actions as the other party shall reasonably request in order to effectuate the purposes of this
Agreement.



     IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date first above
written.



[Signature Pages Follow]





22












 








	 	 	 	 	 
	 	HARRIS INTERACTIVE INC.

 	 
	 	By:  	/s/ George Bell
 	 
	 	 	George Bell 	 
	 	 	Chairman of the Board 	 
	 




23









 








	 	 	 	 	 
	 	 	 
	 	/s/ Kimberly Till
 	 
	 	      KIMBERLY TILL 	 
	 	 	 
	 




24









 








EXHIBIT A

RELEASE





     In consideration of the benefits provided under an Employment Agreement (“Agreement”)
effective as of _______ by and between Kimberly Till (“Executive”) and Harris Interactive
Inc. (“Harris”), Executive hereby releases Harris and its employees, officers, directors,
attorneys, affiliates, subsidiaries, successors and assigns, from any and all claims, causes of
action, and/or liabilities of any kind or nature whatsoever, known or unknown, at law, in equity,
or otherwise, that may have occurred at any time up to the date hereof, arising from her employment
relationship with Harris or as a result of the parties’ agreement to modify and end the employment
relationship, including, without limitation, any and all claims arising under any federal, state or
local laws, rules or regulations pertaining to employment or pay or benefit practices, including,
but not limited to, claims under the Age Discrimination in Employment Act, Older Workers’ Benefit
Protection Act, Equal Pay Act, Title VII of the Civil Rights Act of 1964, as amended, Fair Labor
Standards Act, Americans with Disabilities Act, the Employee Retirement Income Security Act
(ERISA), Family and Medical Leave Act (FMLA), New York State Human Rights Law, New York Labor Law
and any other provisions relating to employment or pay or benefit practices, or relating to
discrimination on the basis of race, creed, color, age, sex, national origin, disability, or arrest
record, and Executive hereby agrees not to asset such claims or causes of action for monetary
damages; provided, however, that Executive is not releasing any claims other than those expressly
released hereby. Without limiting the foregoing proviso, Executive is not releasing any claims (i)
arising from or relating to the breach of the Agreement or any document executed in connection
therewith, or breach of any agreement covering equity grants (stock options, restricted stock, or
otherwise) made to Executive prior to the date hereof, (ii) arising from or relating to any rights
Executive may have to indemnity, contribution, advancement of legal fees or directors and officers
liability insurance in connection with actions, proceedings, or investigations, (iii) to enforce
vested rights under pension, benefit, or insurance plans, policies, programs or arrangements, or
(iv) arising out of or relating to Executive’s status as a director or shareholder of Harris.



     In the event that Executive brings a claim which is determined by a court of law to have been
released by the terms of this Release, she understands and agrees that, unless otherwise expressly
prohibited by law or regulation, she will be required to reimburse the defending parties for their
reasonable attorneys’ fees in connection with their defense of any such claim.



     Executive acknowledges that she has been advised to consult with legal counsel prior to
signing this Release. Executive further understands and agrees that she is being provided with
twenty-one (21) calendar days after her Termination Date (as defined in the Agreement) to consider
the terms of this Release, and that this Release will expire and become null and void if it is not
executed and returned before the end of the twenty-one (21) calendar-day period. Executive further
understands and agrees that she shall have the right to execute this Release at any time before the
expiration of the twenty-one (21) calendar-day period, and that if she does so, she agrees that she
has thereby waived the remainder of that twenty-one (21) day period. Finally, Executive
acknowledges and agrees that after executing this Release, she has the right to revoke her
acceptance of this Release by delivering a written revocation within seven (7) calendar days after
her execution of the Release, provided such revocation is received within said seven (7) day period
by legal counsel for Harris: Beth Ela Wilkens, Harris Beach PLLC, 99



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Garnsey Road, Pittsford, New York, 14534. This Release shall become effective only after it
has been executed by Executive and only after the seven (7) day revocation period has expired
without revocation by Executive.



          IN WITNESS WHEREOF, Executive has executed and delivered this Release as of the date shown
below.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Kimberly Till 	 
	 	 	 
	 



	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	) 		 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	)SS.:
	 	 
	COUNTY OF

	 	 	 	) 		 	 	 
	 

	 	 	 	 	 	 	 	 





     On
the ______ day of ___ in the year
20___ before me, the undersigned, a notary public in
and for said state, personally appeared Kimberly Till, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her capacity, and that by her
signature on the instrument, the individual executed the instrument.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public 	 
	 	 	 
	 




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