SEPARATION AGREEMENT, INCLUDING
RELEASE
AND WAIVER OF CLAIMS
This Separation
Agreement Including Release and Waiver of Claims (the
“Agreement”) is between the undersigned employee, David
Bakken (hereinafter referred to as “you”) and Harris
Interactive Inc., and any and all of its respective parents,
subsidiaries or affiliates, on behalf of itself and its agents,
employees, officers, directors, representatives, predecessors,
successors, and assigns (hereinafter referred to as “the
Company”).
Although the
Agreement and the Company’s severance policies would provide
no post-termination compensation to you, in recognition and
appreciation of your service to the Company, the Company is
prepared to make the arrangements with you provided in this
Agreement. In consideration of your agreement to the terms and
conditions contained in this Agreement, you will be entitled to the
benefits described below. This Agreement will not be effective and
you will not receive the benefits under it (i) unless you have
executed and returned this Agreement to the Company, and (ii) the
seven-day revocation period described below has expired and you
have not revoked this Agreement during that period.
The terms of
this Agreement are as follows:
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1.
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This Agreement replaces and
supersedes in all respects any Employment Agreement, if applicable,
which will be of no further force and effect. This Agreement does
not affect the amount of your vested benefits under any other
employee benefit plan, such as the 401(k) plan, in which you were a
participant and does not replace agreements, if any, related to the
stock options and restricted stock held by you. The Confidentiality
of Information and Non-Disclosure Policy to which you are a party
remains in effect.
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2.
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Your last day of active employment
with the Company will be 3/30/09. You will be paid for all unpaid
vacation accrued and prorated through 3/30/09. You will also
receive payment for all unused “carry over” vacation
time up to a maximum of 5 days, per the Company
policy.
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3.
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In
consideration for your agreement to this Agreement, including but
not limited to the release and waiver included in paragraph 5 and
the noncompete, nonsolicitation, and confidentiality restrictions
contained in paragraphs 10 and 11 below, and in lieu of any other
Company post-termination payments or benefits, you will receive
only the benefits outlined below.
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a.
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After 3/30/09 the Company will
continue to pay you your current bi-weekly salary, less standard
deductions, up to and including 9/30/2009, in the same manner and
frequency as you were compensated prior to 3/30/09. Should you
decease prior to 9/30/09, payments will continue to your
estate.
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b.
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The
Company will continue to provide to you, at Company expense, less
the standard employee contribution applicable to employees of
similar status, the health insurance benefits that you received
while actively employed for the time you are unemployed or without
work for which you are compensated, up to and including September
30, 2009. In the event you become employed or begin to perform work
for which you are eligible to receive health insurance benefits
(whether or not you enroll in the applicable plan), the Company
will no longer be obligated to provide you with such health
insurance benefits. Should you become eligible under COBRA for
continuation of your health insurance coverage after
September 30, 2009, you will be notified of such right. You
will not participate in the Company’s short term and long
term disability plans or life insurance plans after 3/30/09. You
acknowledge and agree that your receipt of the benefits described
in section 4(a) of this Agreement is contingent upon you
immediately notifying Human Resources at 60 Corporate
Woods,
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Rochester, New
York, 14623, that you have become employed or have begun to perform
work for which you are eligible to receive health insurance
benefits.
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c.
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If
you are a participant in the Company’s 401(k) plan, you will
not be eligible to continue your contributions after 3/30/09 and
the Company will make no further matching contributions. Should you
have a loan with the 401(k) plan, you may either (i) pay off
the loan balance immediately, or (ii) pay off the loan within
the 90 days after 3/30/09. Should you not pay off the loan,
the outstanding loan will be treated as a distribution from the
plan and may be subject to income taxes and penalties.
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d.
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For
purposes of accruing 401(k) benefits, vacation, or other employee
benefits, your last day of work shall be deemed 3/30/09. You will
not accrue seniority or other benefits during any period of salary
continuation.
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e.
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The
Company has coordinated career transition services to be available
to assist you during your job search. We will assist you with
resume writing, interviewing skills, networking strategies and
local outplacement. You must contact the service provider and begin
using the services within sixty (60) days from 3/30/09 to
remain eligible for this benefit.
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f.
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Any
existing stock option and restricted stock agreements between you
and the Company remain in effect. However, effective 3/30/09 all
vesting of Company stock options and restricted stock held by you
will cease.
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All
vested restricted stock from previous grants has been transferred
to your personal brokerage account in accordance with your
instructions.
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4.
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You
understand and agree that you would not receive the monies and
benefits specified in paragraph 3(a)-(f) above except for your
execution of this Agreement and the fulfillment of the promises
contained herein, and that the payments and benefits under this
Agreement are over and above any consideration or payments owed to
you by the Company arising out of your employment. You understand
that all wages and benefits received from the Company, except for
those outlined in paragraph 3(a)-(f) above will expire as of
3/30/09.
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5.
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Release and Waiver of All
Claims . You
knowingly and voluntarily release and forever discharge the Company
from any and all claims, known and unknown, which you have or may
have against the Company at any time prior to the date of the
execution of this Agreement, including, but not limited
to:
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a
release of any rights or claims he/she may have under the Americans
with Disabilities Act (“ADA”), which prohibits
discrimination on the basis of disability;
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the
Age Discrimination in Employment Act (“ADEA”), which
prohibits age discrimination in employment;
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the
Older Worker’s Benefit Protection Act;
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Title VII of the Civil Rights Act of
1964, as amended, which prohibits retaliation and discrimination in
employment based on race, color, national origin, religion or
sex;
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the
Family and Medical Leave Act;
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the
Employee Retirement Income Security Act of 1974
(“ERISA”), as amended;
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the
Fair Labor Standards Act (“FLSA”);
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the
New York Human Rights Law (“NYHRL”);
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the
New York Executive Law;
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the
New York Labor Law;
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any
other federal, state or local law or regulation prohibiting
employment discrimination;
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claims for wrongful discharge,
whether based on claimed violations of statute or based on claims
in contract or tort, common law or equity;
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claims for failure to pay wages due
or other moneys owed (including claims for unpaid vacation
pay);
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claims of fraud, misrepresentation,
defamation, interference with prospective economic
advantage;
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claims of intentional or negligent
infliction of emotional distress; and
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claimed violations of any other
federal, state, civil or human rights law, or any other alleged
violation of any local, state or federal law, regulation or
ordinance, and/or public policy, contract, or tort, or common law
having any bearing whatsoever on the terms and conditions and/or
cessation of employment with the Company, including but not limited
to, any allegations for costs, fees or other expenses, including
attorneys’ fees, incurred in these matters which you ever
had, now have, or may have as of the date you execute this
release.
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With the sole exception of a claim
under the Older Workers Benefit Protection Act
(“OWBPA”), which is discussed in the next paragraph
below, you agree not to initiate any legal action, charge or
complaint (“action”) against the Company in any
forum
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