**Exhibit 10.4.34**EMPLOYMENT AGREEMENT     EMPLOYMENT AGREEMENT (“Agreement”) effective as of September 1, 2007 (the “*EffectiveDate*”) between HARRIS INTERACTIVE INC., a Delaware corporation (“*Company*”), and GEORGE H. TERHANIAN(“*Executive*”).     This Agreement amends, restates, and replaces in its entirety the letter employment agreementbetween the Company and Executive dated as of September 6, 2002 and the Change in Control Agreementprovided by the Company to Executive in 2003 and executed August 21, 2007 (the “*Prior Agreements”*);provided, however, that all rights of Executive to payments and benefits under the Prior Agreementsthat are accrued but unpaid as of the Effective Date shall survive execution of this Agreement.This Agreement does not modify the terms of any stock option agreements and restricted stockagreements between Company and Executive in effect on the Effective Date, which stock optionagreements and restricted stock agreements shall remain unchanged and in full force and effectaccording and subject to the terms contained therein.1. CAPACITY AND DUTIES     1.1 Employment; Acceptance of Employment. Company hereby employs Executive andExecutive hereby accepts employment by Company for the period and upon the terms and conditionshereinafter set forth.     1.2 Capacity and Duties.          (a) Executive shall serve as the President, Harris Interactive Europe and Global InternetResearch. Executive shall perform duties and shall have authority as may from time to time bespecified by the Chief Executive Officer and the Board of Directors of Company (the “*Board*”).Executive’s title and duties may be changed from time to time by the Chief Executive Officer andthe Board; provided, however, that (i) Executive’s position, authority, duties, andresponsibilities shall be no less senior and executive in nature than those of President, HarrisInteractive Europe and Global Internet Research, and (ii) the duties assigned to the Executiveshall be in all respects consistent with all applicable laws and regulations. Executive willreport to the Chief Executive Officer of the Company.
 

 
          (b) Executive shall devote full time efforts to the performance of Executive’sduties hereunder, in a manner that will faithfully and diligently further the business andinterests of Company.          (c) Executive acknowledges that Company’s reputation is important in the continued success ofits business, and agrees that he will not discuss or comment in such a manner as may adverselyimpact the reputation or public perception, or otherwise disparage, Company or its officers,employees, or directors in any manner; provided, however, that Executive may make such disclosuresas may be required by law. Company acknowledges that Executive’s reputation is important to hiscontinued success. Company agrees that it will not, and that it will use all reasonable efforts tocause its officers, employees, and directors not to, defame, disparage, or otherwise discuss orcomment about Executive in such a manner as may adversely impact his reputation or publicperception; provided, however, that Company may make such disclosures as may be required by law.2. TERM OF EMPLOYMENT     2.1 Term.          (a) The term of Executive’s employment hereunder, for all purposes of this Agreement, shallcommence on the Effective Date (the “*Commencement Date*”) and continue through and including theearliest to occur of (i) June 30, 2008, if and as further extended to subsequent June 30ths asprovided in Section 2.1(b), (ii) the date on which Executive dies, and (iii) the date on whicheither the Company or Executive terminates Executive’s employment for any reason (collectively, the“*Termination Date*”).          (b) Except as hereinafter provided, on each June 30 this Agreement shall be automaticallyextended for an additional one-year term, and if so extended shall be automatically extended forsuccessive additional one-year terms, unless either the Executive or Company shall have given theother written notice of non-renewal of this Agreement on or before the March 31 immediately priorto the end of the initial one-year term, or if applicable any one-year extension term then ineffect. Executive’s employment under this Agreement shall terminate on the June 30 immediatelyfollowing the date of any timely non-renewal notice.3. COMPENSATION     3.1 Base Compensation. As compensation for Executive’s services, Company shall pay to Executive base compensationin the form of salary (“*Base Compensation*”) in the amount of $299,000 per annum. The Companyacknowledges that Executive’s primary business location
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is in the United Kingdom, Executivereceives his Base Compensation payments in U.S. dollars, and that therefore Executive’s BaseCompensation will be adjusted from time to time to reflect changes in the exchange rate (“*ExchangeAdjustments*”) that have an adverse effect on him. So long as Executive’s primary duties are in theUnited Kingdom, at the end of each fiscal quarter, if cumulative changes in the exchange ratebetween the U.S. dollar and the British pound are 5% or greater since the date of the most recentExchange Adjustment, Executive’s salary will be adjusted up or down in the same percentage ascumulative changes in the exchange rate since the most recent Exchange Adjustment; provided,however, in no event shall Executive’s Base Compensation be less than $299,000. Base Compensationshall be payable in periodic installments in accordance with Company’s regular payroll practicesfor 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 purposeof determining, in its sole discretion, whether Base Compensation should be adjusted for reasonsother than Exchange Adjustments; provided, however, that Executive’s Base Compensation shall not beless than $299,000.     3.2 Performance Bonus. As additional compensation for the services rendered byExecutive to Company Executive shall be paid a performance bonus (“*Performance Bonus*”) payable infull at the same time as payment of other executive bonuses by the Company but no later than twoand one-half (2.5) months after the end of the applicable fiscal year. The Performance Bonus awardcriteria and amounts shall be those established on an annual basis by the Compensation Committee ofthe Board of Directors of the Company based upon performance guidelines established for executiveofficers of the Company; provided, however, that the target bonus for Executive for the fiscal yearending June 30, 2008 shall be $100,000 provided that performance guidelines are met. No bonus willbe due in the event that award criteria established by the Compensation Committee are not met.Executive’s target bonus applicable for any fiscal year will be adjusted to correspond with changesin the exchange rate between the first and last day of the applicable fiscal year; provided,however, in no event shall Executive’s target Performance Bonus be less than $100,000.     3.3 Employee Benefits. Executive shall be entitled to participate in such of Company’s employee benefit plans andbenefit programs as may from time to time be provided by Company for its senior executives inEurope generally. Company shall have no obligation, however, to maintain any particular program orlevel of benefits referred to in this Section 3.3.     3.4 Vacation. Executive shall be entitled to the normal and customary amount of paidvacation provided to senior executive officers of the Company, but in no event less than 20 days
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during each calendar year. Any vacation days that are not taken in a given calendar year shallaccrue and carry over from year to year, or be paid or lost, according to the Company’s standardvacation policies. The Executive may be granted leaves of absence with or without pay for suchvalid and legitimate reasons as the Chief Executive Officer in its sole and absolute discretion maydetermine, and is entitled to the same personal days and holidays provided to other seniorexecutives the of Company.     3.5 Expense Reimbursement.          (a) Company shall reimburse Executive for all reasonable and documented expenses incurred byExecutive in connection with the performance of Executive’s duties hereunder in accordance with itsregular reimbursement policies as in effect from time to time.          (b) The Company shall reimburse the Executive for reasonable costs up to a maximum of $2,500incurred in the negotiation of this Employment Agreement.     3.6 Term Life Insurance. In addition to the Company-paid life insurance madeavailable to senior executives of the Company generally, the Company shall provide Executive with$250,000 face value of term life insurance. Upon the request of the Executive made in connectionwith a Termination Date, the Company shall take all reasonable steps to provide Executive the rightto continue such life insurance at his own expense after the Termination Date.     3.7 Foreign Location Benefits. In consideration of Executive’s agreement to maintainhis principal office in the United Kingdom, the Company shall provide Executive with (i) anapartment allowance of a minimum of $2,436 per month, adjusted from time to time in the discretionof the Company, (ii) reimbursement in each fiscal year for two round trip economyclass airfares to the United States for home leave, and (iii) income tax preparation andfiling assistance during your assignment in the United Kingdom and final preparation and filing ofreturns upon your return to the United States.     3.8 Withholding. All payments under this Agreement shall be subject to any requiredwithholding of foreign, Federal, state and local taxes pursuant to any applicable law orregulation.4. TERMINATION OF EMPLOYMENT     4.1 Accrued Obligations. For purposes of this Agreement:
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          (a) “*Accrued Base Obligations*” shall mean amounts for Base Compensation, expensereimbursement, and employee benefits which have accrued, vested, and are unpaid as of theTermination 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 the same metrics as then ineffect for calculation of bonuses on an annual basis (for example, net earnings or revenues) andshall be calculated by (1) dividing actual performance as of the end of the Applicable CalculationQuarter (described below) by budgeted performance (per the budget previously approved by the Board)for the Applicable Calculation Quarter, and then (2) using the resulting percentage in determiningthe dollar value bonus that would have been paid under the Company’s executive performance bonusplan had such percentage performance been achieved for the full fiscal year, and then (3)multiplying the result by a fraction, the numerator of which is the number of days elapsed in thefiscal year prior to the Termination Date and the denominator of which is 365. If the TerminationDate is in the first half of a fiscal quarter the “Applicable Calculation Quarter” is the fiscalquarter most recently ended before the Termination Date, and if the Termination Date is in thesecond half of a fiscal quarter, the Applicable Calculation Quarter is the first fiscal quarterending after the Termination Date.          (c) Accrued Base Obligations shall be paid within thirty (30) days after the Termination Date.Accrued Bonus Obligations shall be paid on the date on which they would have been paid under thisAgreement absent the occurrence of the Termination Date.     4.2 Termination Procedures. Except as otherwise provided in this Agreement, anytermination of Executive’s employment by the Company or by Executive (other than terminationpursuant to death) shall be communicated by written Notice of Termination to the other partyhereto. For purposes of this Agreement, a “*Notice of Termination*” shall mean a notice which shallindicate the specific termination provision in this Agreement relied upon and, if applicable, shallset forth in reasonable detail the facts and circumstances claimed to provide a basis fortermination of Executive’s employment under the provision so indicated.     4.3 Death of Executive. If Executive dies, Company shall not be obligated to make anyfurther payments under this Agreement except amounts for:          (a) Accrued Base Obligations,          (b) earned but unpaid Performance Bonus for fiscal years already ended,
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payable on the date onwhich such Performance Bonus would be paid absent Executive’s death, and,          (c) if Executive’s death is in the Company’s third or fourth fiscal quarter, Accrued BonusObligations.     4.4 Disability of Executive. If Executive is permanently disabled (as defined inCompany’s long-term disability insurance policy then in effect), then the Company shall have theright to terminate Executive’s employment upon 15 days’ prior written notice to Executive at anytime during the continuation of such disability (“*Disability*”). In the event Executive’semployment is terminated for Disability in accordance with this Section 4.4, Company shall not beobligated to make any further payments under this Agreement except for:          (a) Accrued Base Obligations,          (b) 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 Disability,and          (c) if the Termination Date occurs in the Company’s third or fourth fiscal quarter, AccruedBonus Obligations.     4.5 Termination for Cause.          (a) Executive’s employment shall terminate immediately upon a Notice of Termination from theCompany that Executive is being terminated for Cause (as defined herein), in which event Companyshall not thereafter be obligated to make any further payments under this Agreement except for:               (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 the termination ofExecutive, and               (iii) if the Termination Date occurs in the Company’s third or fourth fiscal quarter, AccruedBonus Obligations.          (b) “*Cause*” shall be limited to the following:
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               (i) willful failure to substantially perform Executive’s duties as described in Section 1.2after demand for substantial performance is delivered by Company in writing that specificallyidentifies the manner in which Company believes Executive has not substantially performedExecutive’s duties and Executive’s failure to cure such non-performance within thirty (30) daysafter receipt of the Company’s written demand; provided, however, that a failure to perform suchduties during the remedy period set forth in subsection (i) of the definition of Good Reason setforth 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 Section6.1 hereof finds Executive to have acted in bad faith in issuing such Notice of Termination;               (ii) willful conduct that is materially and demonstrably injurious to Company or any of itssubsidiaries, but not including good faith conduct taken without intention to injure the Company orits subsidiaries that, at the time engaged in, could not reasonably be expected to be more likelythan not to be materially injurious to the Company; or               (iii) conviction or plea of guilty or nolo contendere to a felony or to any other crime whichinvolves moral turpitude or, if not including moral turpitude, arises from an act that ismaterially and demonstrably injurious to the Company or any of its subsidiaries;               (iv) material violation of Section 5 of this Agreement,               (v) or material violation of Company polices set forth in Company manuals or writtenstatements of policy provided in the case of violation of policy that such violation is eithermaterially and demonstrably injurious to Company or, if curable, continues for more then three (3)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, which breachcontinues for more than ten (10) days after written notice thereof is given by the Company toExecutive.     4.6 Termination Without Cause or by Executive for Good Reason.          (a) The Company reserves the right to terminate Executive’s employment at any time. If,however, a Termination Date occurs due to Company terminating Executive without Cause or Executiveterminating for Good Reason, then Company shall have no further obligations under this Agreementexcept that Company shall pay to Executive the amounts shown in Section 4.6(c).
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          (b) For the avoidance of doubt, Section 4.6(c) shall not apply to (i) termination in theordinary course on any applicable June 30 if the term of this Agreement is not automaticallyrenewed, which circumstance is covered by Section 4.6(d), (ii) termination for Cause whichcircumstance is covered by Section 4.5, (iii) termination by Executive without Good Reason whichcircumstance is covered by Section 4.7, (iv) termination by reason of death which circumstance iscovered by Section 4.3, or (v) termination by reason of Disability which circumstance is covered bySection 4.4.          (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 through the Termination Date, payable promptly after theTermination Date,               (ii) any unpaid Performance Bonus earned for any fiscal year ended on or before theTermination Date payable on the date on which such Performance Bonus would be paid absenttermination,               (iii) Accrued Bonus Obligations,               (iv) amounts equal to Base Compensation through and including the date one year after theTermination Date, and               (v) health and medical benefits as required by Section 3.3 of this Agreement during the sameperiod that amounts equal to Base Compensation are due under Section 4.6(c)(iv); provided, however,if Executive, Executive’s spouse or Executive’s dependents, if any, are ineligible to participatein the Company benefit programs under Section 3.3, the Company shall arrange to reimburse Executivefor coverage reasonably comparable to that previously provided under Section 3.3, and furtherprovided that such benefits shall become secondary to primary coverage upon the date or datesExecutive receives coverage and benefits which are substantially similar, taken as a whole, withoutwaiting period or pre-existing condition limitations, under the plans and programs of a subsequentemployer.          (d) If this Agreement is terminated in the ordinary course on any applicable June 30 becauseof a non-renewal notice given by the Company under Section 2.1, then Company shall have no furtherobligations under this Agreement except that Company shall pay to Executive the same payments as towhich the Executive would be entitled under Section 4.6(c)(i), (ii), (iv), and (v). If thisAgreement is terminated in the ordinary course on any
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applicable June 30 because of a non-renewalnotice given by the Executive under Section 2.1, then Company shall have no further obligationsunder this Agreement except that Company shall pay to Executive the payments to which the Executivewould be entitled under Section 4.6(c)(i) and (ii).     4.7 Termination by Executive without Good Reason.          (a) Executive may terminate this Agreement without Good Reason upon fifteen (15) days priornotice. In the event Executive’s employment is voluntarily terminated by Executive without GoodReason, Company shall not be obligated to make any further payments to Executive hereunder otherthan:               (i) Accrued Base Obligations through the Termination Date,               (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) if the Termination Date occurs in the Company’s third or fourth fiscal quarter, AccruedBonus Obligations.          (b) “*Good Reason*” shall mean the following:               (i) material breach of Company’s obligations hereunder, including any assignment of duties notincluded within the Executive’s duties described in Section 1.2 unless previously agreed to inwriting by Executive, provided that Executive shall have given reasonably specific written noticethereof to Company, and Company shall have failed to remedy the circumstances within thirty (30)days thereafter;               (ii) any decrease in Executive’s salary as it may have increased during the term of thisAgreement, except for decreases that are in conjunction with decreases in executive salaries by theCompany generally and that do not result in a decrease in Executive’s annual salary below $299,000per annum as adjusted by Exchange Adjustments;               (iii) any decrease of Executive’s target Performance Bonus below $100,000 (as adjusted forexchange rate differences as described herein, or               (iv) the failure of any successor in interest of the Company to be bound by the terms of thisAgreement in accordance with Section 6.4 hereof.
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Notwithstanding subsections (i) and (iii) above, after a Change of Control, Good Reason shall notinclude a change of title, reporting line, responsibilities, and duties so long as such changedtitle, reporting line, and reassignment of executive duties are at a level commensurate with thelevel of participation of the Company in the controlling person (such as, for example, executiveduties at a divisional, subsidiary, or group level, if the Company becomes a division, subsidiary,or group within the controlling person), or assignment of other duties not materially inconsistentwith duties appropriate for a past president of European operations and head of global Internetresearch provided that following such Change in Control Executive reports to the highest rankingemployee of such division, subsidiary, or group within the controlling person.          (c) Executive must provide a Notice of Termination to the Company that he isintending to terminate his employment for Good Reason within one hundred and eighty (180) daysafter Executive has actual knowledge of the occurrence of the latest event he believes constitutesGood Reason, which termination notice shall specify a termination date within thirty (30) daysafter the date of such notice except for termination under subsection (i) in which case thetermination date shall be as provided in such subsection. Executive’s right to terminateExecutive’s employment hereunder for Good Reason shall not be affected by Executive’s subsequentDisability provided that the notice of intention to terminate is given prior to the onset of suchDisability. Subject to compliance by Executive with the notice provisions of this Section 4.7,Executive’s continued employment prior to terminating employment for Good Reason shall notconstitute consent to, or a waiver of rights with respect to, any act or failure to actconstituting Good Reason. In the event Executive delivers to the Company a Notice of Terminationfor Good Reason, upon request of the Board Executive agrees to appear before a meeting of the Boardcalled and held for such purpose (after reasonable notice) and specify to the Board the particularsas to why Executive believes adequate grounds for termination for Good Reason exist. No action bythe Board, other than the remedy of the circumstances within the time periods specified in thisSection 4.7, shall be binding on Executive.     4.8 Mitigation. Executive shall not be required to mitigate amounts payable underthis Section 4 by seeking other employment or otherwise, and there shall be no offset againstamounts due Executive under this Agreement on account of subsequent employment except asspecifically provided herein.     4.9 Change of Control.          (a) If Executive is terminated without Cause, a Termination Date occurs on a June 30 due tonon-renewal by the Company of the term of this Agreement under Section 2.1, or
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Executive terminateshis employment for Good Reason, in each such case during the one year period following a Change ofControl (as defined below), then in addition to payments and benefits to which Executive isentitled under Section 4.6, Executive also shall receive reimbursement for reasonable (in thediscretion of the Company) and actual expenses incurred by Executive for six months ofout-placement services.          (b) If a Change of Control shall have occurred:               (i) after such Change of Control Executive’s entitlement to Bonus under Section 3.2 may bemodified by the new controlling Person in a reasonable manner (not toafford Executive with materially less opportunity to earn bonus than existed prior to theChange of Control) so that such Bonus is calculated with reference to a performance-based bonusplan provided by the new controlling Person; and               (ii) after such Change of Control Executive’s entitlement to payments and benefits underSections 3.3 and 3.4 may be modified by the new controlling Person to entitlement to those benefitsgenerally 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 aproxy statement with respect to the Company (even if the Company is not actually subject to saidreporting requirements) in response to Item 6(e) (or any comparable or successor Item) of Schedule14A 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 theowners of the Company’s capital stock entitled to vote in the election of directors (the “*VotingStock*”) prior to said combination receive 75% or more of the resulting entity’s Voting Stock shallnot 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 aRelated Company) becomes the “beneficial owner” (as that term is defined by the Securities andExchange Commission for purposes of Section 13(d) of the Exchange Act), directly or indirectly, ofmore than 15% of the outstanding voting stock of the Company or its successors; or
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               (iii) during any period of two consecutive years a majority of the Board of Directors nolonger consists of individuals who were members of the Board of Directors at the beginning of suchperiod, unless the election of each director who was not a director at the beginning of the periodwas approved by a vote of at least 75% of the directors still in office who were directors at thebeginning of the period.          (d) In connection with, or within one year after, a Change of Control, if all or any portionof the payments or other benefits paid or payable to Executive under this Agreement and under anyother plan, program or agreement of the Company or its affiliates are determined to constitute anexcess parachute payment within the meaning of Section 280G of the InternalRevenue Code of 1986, as it may have been or may be amended on or after the date of thisAgreement (the “*Code*”), and results in the imposition on Executive of an excise tax under Section4999 of the Code, then, in addition to any other benefits to which Executive is entitled under thisAgreement, Harris shall pay to Executive an amount equal to the sum of (i) the excise tax payableby Executive by reason of receiving excess payments; and (ii) a gross-up amount necessary to offsetany and all applicable federal, state, and local excise, income, or other taxes incurred byExecutive by reason of Harris’s payment of the excise tax described in (i) above (but not includingany additional amount to offset any taxes on the excise tax reimbursement or gross-up amount paidpursuant to this subclause (ii)).     4.10 Effect of Section 409A. Notwithstanding anything to the contrary containedherein, in the event that (i) Executive notifies the Company, or the Company notifies Executive, ineither case prior to the date on which a payment would otherwise be due under this agreement thatExecutive (or the Company, as applicable) believe that (x) the operation of this Agreement withrespect to any such payment hereunder would fall within the coverage of Section 409A(a)(1) of theInternal Revenue Code (“IRC”) and (y) any payment hereunder is to be made on account of IRC Section409A(a)(2)(A)(i) and Executive is a “specified employee” pursuant to IRC Section 409A(a)(2)(B)(i)then (ii) if Executive’s legal counsel and the Company’s legal counsel, in each case actingreasonably, agree that the foregoing analysis is correct, then such payment shall not be made untilthe date which is the earlier of the date of Executive’s death and the date which is six (6) monthsafter the date of separation from service (the Termination Date).     4.11 Precondition to Post-Termination Payments. As a condition for the payment of anypost-Termination Date benefits to be provided hereunder except for Accrued Base Obligations, earnedbut unpaid Performance Bonus for fiscal years ended prior to the Termination Date, and AccruedBonus Obligations, Executive shall deliver to the Company a release in favor of the Company in theform attached hereto as Exhibit A.
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5. NON-COMPETITION AND CONFIDENTIALITY     5.1 Non-Competition.          (a) Consideration for this Section. Executive acknowledges and agrees that:               (i) the benefits, including in particular and without limitation those obligations underSection 4.6(b)(iv), afforded by this Agreement are over and above those otherwise afforded byCompany policy, and in making its decision to offer Executive the benefits afforded by thisagreement and bind itself in advance to the obligations hereunder theCompany 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 ofsignificant value, and Company’s entry into this Agreement and its incurrence of the relatedpayment and other obligations hereunder are fair and adequate consideration for the Executive’sobligations under this Section 5,               (iii) Executive’s position with the Company places Executive in a position of confidence andtrust with the clients and employees of the Company,               (iv) the Company’s business is carried on throughout the world and accordingly, it isreasonable that the restrictive covenants set forth below are not limited by specific geographicarea,               (v) the course of Executive’s employment with the Company necessarily requires the disclosureof 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 ofclients with sufficient authority to influence a shift in suppliers) as well as other confidentialand proprietary information, (such as databases, methodologies, and technologies),               (vi) Executive’s employment affords Executive the opportunity to develop a personalacquaintanceship and relationship with the Company’s employees and clients, which in some cases mayconstitute the Company’s primary or only contact with such employees and clients, and to develop aknowledge of those client’s and employee’s affairs and requirements,               (vii) the Company’s relationships with its established clientele and
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employees are placed inExecutive’s hands in confidence and trust,               (viii) it is reasonable and necessary for the protection of the goodwill and business of theCompany that Executive make the covenants contained in this agreement, and               (ix) the Executive understands that the provisions of this Section 5 may limit Executive’sability to earn a livelihood in a business similar or related to the business of Company, butnevertheless agrees and acknowledges that (A) the provisions of Section 5 arereasonable and necessary for the protection of Company, and do not impose a greater restraintthan necessary to protect the goodwill or other business interest of Company, (B) such provisionscontain reasonable limitations as to the time and the scope of activity to be restrained, and (C)the Company’s advance agreement to make payments under the various circumstances set forth in thisAgreement provide Executive with benefits adequate to fully compensate Executive for any lostopportunity due to the operation of Section 5.In consideration of the foregoing and in light of Executive’s education, skills and abilities,which are sufficient to enable Executive to earn a living in way that is not competitive with theCompany’s business, Executive agrees that all defenses by Executive to the strict enforcement ofsuch provisions are hereby waived by Executive.     5.2 Restricted Activity.          (a) During the period that Executive is employed by the Company, and for a period of one yearafter the Termination Date (the “*Non-Competition Period*”), Executive shall not, directly orindirectly, own, manage, operate, join, control, participate in, invest in or otherwise beconnected or associated with, in any manner, including, without limitation, as an officer,director, employee, distributor, independent contractor, independent representative, partner,consultant, advisor, agent, proprietor, trustee or investor, any Competing Business (definedbelow); provided, however, that ownership of 4.9% or less of the stock or other securities of acorporation, the stock of which is listed on a national securities exchange shall not constitute abreach of this Section 5, so long as the Executive does not in fact have the power to control, ordirect the management of, or is not otherwise engaged in activities with, such corporation.          (b) For purposes of this Section 5.2, the term “*Competing Business*” shall mean any business orventure which is substantially similar to the whole or any significant part of the businessconducted by Company, and which is in material competition with the Company,
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and the term“*Affiliate*” of any person or entity shall mean any other person or entity directly or indirectlycontrolling, 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 andpolicies of a person or entity whether through the ownership of voting securities, contract, orotherwise.          (c) During the Non-Competition Period, Executive shall not (including without limitation onbehalf of, for the benefit of, or in conjunction with, any other person orentity) directly or indirectly:               (i) solicit, assist, discuss with or advise, influence, induce or otherwise encourage in anyway, 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, assist, engage or otherwise contract or create any relationship with any employeeor former employee of Company in any business or venture of any kind or nature, in the case of aformer employee unless such person shall not have been employed by Company for a period of at leastone year and no solicitation prohibited hereby shall have occurred prior to the end of such oneyear period, or               (iii) interfere in any manner with the relationship between any employee and Company.     5.3 Confidential Information.          (a) “*Confidential Information*” shall mean all proprietary or confidential records andinformation, including, but not limited to, development, marketing, purchasing, organizational,strategic, financial, managerial, administrative, production, distribution and sales information,distribution methods, data, specifications, technologies, methods, and processes (including theTransferred Property as hereinafter defined) presently owned or at any time hereafter developed byCompany, or its agents, consultants, or otherwise on its behalf, or used presently or at any timehereafter in the course of the business of Company, that are not otherwise part of the publicdomain.          (b) Executive hereby sells, transfers and assigns to Company, or to any person or entitydesignated by Company, all of Executive’s entire right, title and interest in and to allinventions, ideas, methods, developments, disclosures and improvements (the “*Inventions*”), whetherpatented or unpatented, and copyrightable material, and all trademarks, trade names, all
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goodwillassociated therewith and all federal and state registrations or applications thereof, made, adoptedor conceived by solely or jointly, in whole or in part prior to the Termination Date which (i)relate to methods, apparatus, designs, products, processes or devices sold, leased, used or underconstruction or development by Company or (ii) otherwise relate to or pertain to the business,products, services, functions or operations of the Company (collectively, the “*TransferredProperty*”). Executive shall make adequate written records of all Inventions, which records shallbe Company’s property and shall communicate promptly and disclose to Company, in such forms Companyrequests, all information, details and data pertaining to theaforementioned Inventions. Whether during the term of this Agreement or thereafter, Executiveshall execute and deliver to Company such formal transfers and assignments and such other papersand documents as may be required of Executive to permit Company, or any person or entity designatedby 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 applicationor the acquisition of letters patent in the United states, foreign counties or otherwise) and, asto copyrightable material, to obtain copyrights thereon, and as to trademarks, to record thetransfer of ownership of any federal or state registrations or applications.          (c) All Confidential Information is considered secret and will be disclosed to the Executivein confidence, and Executive acknowledges that, as a consequence of Executive’s employment andposition with Company, Executive may have access to and become acquainted with ConfidentialInformation. Except in the performance of Executive’s duties as an employee of Company, Executiveshall not, during the term and at all times thereafter, directly or indirectly for any reasonwhatsoever, disclose or use any such Confidential Information. All records, files, drawings,documents, equipment and other tangible items (whether in electronic form or otherwise), whereverlocated, relating in any way to or containing Confidential Information, which Executive hasprepared, used or encountered or shall in the future prepare, use or encounter, shall be and remainCompany’s sole and exclusive property and shall be included in the Confidential Information. Upontermination of this Agreement, or whenever requested by Company, Executive shall promptly deliverto Company any and all of the Confidential Information and copies thereof, not previously deliveredto Company, that may be in the possession or under the control of the Executive. The foregoingrestrictions shall not apply to the use, divulgence, disclosure or grant of access to ConfidentialInformation to the extent, but only to the extent, (i) expressly permitted or required pursuant toany other written agreement between Executive and Company, (ii) such Confidential Information hasbeen publicly disclosed (not due to a breach by the Executive of Executive’s obligations hereunder,or by breach of any
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other person, of a fiduciary or confidential obligation to Company) or (iii)the Executive is required to disclose Confidential Information by or to any court of competentjurisdiction or any governmental or quasi-governmental agency, authority or instrumentality ofcompetent jurisdiction, provided, however, that the Executive shall, prior to any such disclosure,immediately notify Company of such requirements and provided further, however, that the Companyshall have the right, at its expense, to object to such disclosures and to seek confidentialtreatment of any Confidential Information to be so disclosed on such terms as it shall determine.     5.4 Acknowledgement; Remedies; Survival of this Agreement.          (a) Executive acknowledges that violation of any of the covenants and provisions set forth inSection 5 of this Agreement would cause Company irreparable damage and agrees that Company’sremedies at law for a breach or threatened breach of any of the provisions of this Section 5 wouldbe inadequate and, in recognition of this fact, in the event of a breach or threatened breach byExecutive of any of the provisions of this Agreement, it is agreed that, in addition to theremedies at law or in equity, Company shall be entitled, without the posting of a bond, toequitable relief in the form of specific performance, a temporary restraining order, temporary orpermanent injunction, or any other equitable remedy which may then be available for the purposes ofrestraining Executive from any actual or threatened breach of such covenants. Without limiting thegenerality of the foregoing, if Executive breaches or threatens to breach this Section 5 hereof,such breach or threatened breach will entitle Company (i) to terminate its obligations to makefurther payments otherwise required under this Agreement, (ii) to recover from the Executive anypayments previously made under Section 4.6(b)(iv), (iii) to extend the Non-Competition Period by aperiod equal to the period in which Executive was in violation of this Section 5, and (iv) toenjoin Executive from disclosing any Confidential Information to any Competing Business, to enjoinany Competing Business from retaining Executive or using any such Confidential Information, and toenjoin Executive from rendering personal services to or in connection with any Competing Business,it being understood that the embedded knowledge of Executive gained at the Company will beimpossible to separate from the performance of duties for a Competing Business. The rights andremedies hereunder are cumulative and shall not be exclusive, and the Company shall be entitled topursue all legal and equitable rights and remedies and to secure performance of the obligations andduties of the Executive under this Agreement, and the enforcement of one or more of such rights andremedies by the Company shall in no way preclude the Company from pursuing, at the same time orsubsequently, any and all other rights and remedies available to it.
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          (b) The provisions of this Section 5 shall survive the termination of Executive’s employmentwith Company.6. MISCELLANEOUS     6.1 Arbitration. Any dispute or controversy arising under or in connection with thisAgreement shall be settled exclusively by arbitration in Rochester, New York, in accordance withthe CommercialArbitration Rules of the American Arbitration Association then in effect. Judgment may beentered on the arbitrator’s award in any court having jurisdiction. The parties consent to theauthority of the arbitrator, if the arbitrator so determines, to award fees and expenses (includinglegal fees) to the prevailing party in the arbitration. Notwithstanding the foregoing, Companyshall be entitled to enforce the provisions of Section 5 hereof through proceedings brought in acourt of competent jurisdiction as contemplated by Section 6.7 hereof.     6.2 Severability; Reasonableness of Agreement. If any term, provision or covenant ofthis Agreement or part thereof, or the application thereof to any person, place or circumstanceshall be held to be invalid, unenforceable or void by an arbitrator or court of competentjurisdiction, the remainder of this Agreement and such term, provision or covenant shall remain infull force and effect, and any such invalid, unenforceable or void term, provision or covenantshall be deemed, without further action on the part of the parties hereto, modified, amended andlimited, 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 theAgreement valid, enforceable and lawful.     6.3 Key Employee Insurance. Company in its sole discretion shall have the right atits expense to purchase insurance on the life of Executive, in such amounts as it shall from timeto time determine, of which Company shall be the beneficiary. Executive shall submit to suchphysical examinations as may reasonably be required and shall otherwise cooperate with Company inobtaining such insurance.     6.4 Assignment; Benefit. This Agreement shall not be assignable by Executive, otherthan Executive’s rights to payments or benefits hereunder, which may be transferred only by will orthe laws of descent and distribution. Upon Executive’s death, this Agreement and all rights ofExecutive hereunder shall inure to the benefit of and be enforceable by Executive’s beneficiary orbeneficiaries, personal or legal representatives, or estate, to the extent any such person succeedsto Executive’s interests under this Agreement. No rights or obligations of Company under thisAgreement may be assigned or transferred except to any successor to the Company’s
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business and/orassets (by merger, purchase of stock or assets, or otherwise) which, to the extent not otherwiseautomatically provided by operation of law, expressly assumes and agrees to perform this Agreementin the same manner and to the same extent that Company would be required to perform if no suchsuccession had taken place.     6.5 Notices. All notices hereunder shall be in writing and shall be deemedsufficiently given (i) if hand-delivered, on the date of delivery, (ii) if sent by documentedovernight delivery service, on the first business day after deposit with such service for overnightdelivery, and (iii) if sent by registered or certified mail, postage prepaid, return receiptrequested, on the third business day after deposit in the U.S. mail, in each case addressed as setforth below or at such other address for either party as may be specified in a notice given asprovided herein by such party to the other. Any and all service of process and any other notice inany such action, suit or proceeding shall be effective against any party if given as provided inthis Agreement; provided that nothing herein shall be deemed to affect the right of any party toserve process in any other manner permitted by law.     If to Company:Harris Interactive Inc.