EX-10.3






Exhibit 10.3




EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT (this “Agreement”), dated as of September 17, 2008, by and between
Martha Stewart Living Omnimedia, Inc., a Delaware corporation (the “Company”), and Wenda Harris
Millard (the “Executive”).



     WHEREAS, the Executive has been serving as the President — Media of the Company, and effective
June 11, 2008 (the “Effective Date”) was elevated to Co-Chief Executive Officer (“Co-CEO”), and the
Executive is willing to be so employed, in each case on the terms and conditions set forth herein;



     NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of
which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as
follows:



     1. Employment Term. Subject to the provisions of Section 7 of this Agreement, the
Company hereby agrees to employ the Executive hereunder, and the Executive hereby agrees to be
employed by the Company hereunder, in each case subject to the terms and conditions of this
Agreement, for the period commencing as of the Effective Date and ending on December 31, 2011 (such
period, as it may be extended in accordance with the terms of the following sentence, the
“Employment Term”). Unless the Company or the Executive has theretofore provided notice in writing
to the other party of its intention not to extend the Employment Term, on June 30, 2011 and on each
succeeding June 30, this Agreement shall automatically be extended for an additional 12 months from
the then scheduled expiration date.



     2. Duties.



          (a) During the Employment Term, the Executive shall serve as the President — Media of the
Company and as the Company’s Co-CEO. The Executive shall continue to have the Pre-Effective Date
Duties and Responsibilities (as defined in Section 7), and shall also have the duties and
responsibilities customarily exercised by an individual serving in such a position in a corporation
of the size and nature of the Company; provided, however, that Executive’s Post-Effective Date
Duties and Responsibilities (as defined in Section 7) shall be those duties and responsibilities as
the Company’s Board of Directors (the “Board”), upon notice to Executive, may specify from time to
time in its sole and absolute discretion (which specifications may increase, decrease or otherwise
alter the scope or nature of such duties and responsibilities). In such capacities, the Executive
shall use her best energies and abilities in the performance of her duties, services and
responsibilities for the Company as further detailed by the Board. In performing such duties,
services and responsibilities, the Executive will report directly to the Chairman of the Board (the
“Chairman”) in his role as principal executive officer of the Company or, as the Board may direct,
to a committee of the Board or to the full Board. Executive acknowledges and agrees that the
Company may determine that (i) the Chairman (or his successor) is, the “principal executive
officer” of the Company as such term is defined in any applicable laws, rules and regulations
(collectively, “Applicable Law”); or (ii) Executive, alone or jointly with any other officer(s) of
the Company, is the “principal executive officer” of the Company as such term is defined in any
Applicable Law and/or is the “chief executive officer . . . (or equivalent thereof)” of the Company
as such term is defined in any Applicable Law and/or serves in any similar role with respect to
which a person may have duties under any Applicable Law.




          (b) During the Employment Term, the Executive shall devote substantially all of her business
time and attention to the businesses of the Company and its subsidiaries and affiliates and shall
not engage in any activity inconsistent with the foregoing, whether or not such activity shall be
engaged in for pecuniary profit, unless approved by the Chairman or the Board; provided, however,
that, to the extent such activities do not violate, or interfere with her performance of her
duties, services and responsibilities under, this Agreement, the Executive shall be permitted to
manage her personal, financial and legal affairs and serve on civic or charitable boards and
committees of such boards. During the Employment Term, the Executive’s principal location of
employment shall be at the Company’s executive offices in New York City, New York, except for
customary business travel on behalf of the Company and its subsidiaries and affiliates.




 









 








          (c) Upon any termination of the Executive’s employment with the Company, the Executive shall
be deemed to have resigned from all other positions she then holds as an employee or director or
other independent contractor of the Company or any of its subsidiaries or affiliates, unless
otherwise agreed by the Company and the Executive.




          (d) The Company will recommend to the Board that the Executive be appointed to the Board as
soon as practicable but in no event later than twelve (12) months following the Effective Date.
The Executive acknowledges that appointment to the Board shall be determined by the Board in its
sole and absolute discretion and agrees that, provided the Company has made the recommendation set
forth in the immediately preceding sentence, any failure by the Board to appoint Executive to the
Board shall not be deemed a breach of this Agreement. In no event will the other Co-CEO be
appointed to the Board unless Executive is also appointed to the Board. Following the Effective
Date, whether or not a Board member, Executive shall be invited to and entitled to attend all
meetings of the Board; provided, however, that Executive shall be excluded from such portions of
Board meetings as the Company deems appropriate, including discussions related to her or the other
Co-CEO, or their respective performance, compensation or related issues.




     3. Base Salary; Bonus.



          (a) During the Employment Term, in consideration of the performance by the Executive of the
Executive’s obligations during the Employment Term (including any service in any position with any
subsidiary or affiliate of the Company), the Company shall pay the Executive a base salary (the
“Base Salary”) at an annual rate of $650,000, subject to increase but not decrease in the
discretion of the Board, payable in accordance with the normal payroll practices of the Company in
effect from time to time.




          (b) During the Employment Term, in addition to the payments of the Base Salary set forth
above, the Executive shall be eligible to receive, in respect of each calendar year during which
the Employment Term is in effect, a performance-based cash bonus of 100% of Base Salary at target
(the “Target Bonus”) and 150% of Base Salary at maximum based on achievement of goals established
each year by the Compensation Committee after reasonable consultation with Executive; provided that
with respect to calendar year 2008, the Target Bonus shall be $557,000. Such bonus, if any, shall
be paid concurrently with other bonuses paid to senior executives of the Company, provided you are
continuously and actively employed through such date of payment.




          (c) The Company shall reimburse Executive for reasonable legal fees in connection with
the negotiation and execution of this Agreement in an amount not to exceed $15,000.




     4. Benefits.



          (a) During the Employment Term, the Executive shall be entitled to participate in the employee
benefit plans, policies, perquisites, programs and arrangements, as may be amended from time to
time, that are provided generally to similarly situated employees of the Company (excluding for
this purpose Martha Stewart) to the extent the Executive meets the eligibility requirements for any
such plan, policy, program, perquisite or arrangement.




          (b) The Company shall reimburse the Executive for all reasonable business expenses incurred by
the Executive in carrying out the Executive’s duties, services and responsibilities under this
Agreement during the Employment Term in accordance with Company policies relating to such expenses;
it being understood that Executive shall be entitled to first-class air travel for long-haul
international or transcontinental flights as necessary. The Executive shall comply with generally
applicable policies, practices and procedures of the Company with respect to reimbursement for, and
submission of expense reports, receipts or similar documentation of, such expenses.




     5. Vacations. During each calendar year of the Employment Term (pro rata for partial
calendar years), the Executive shall be entitled to four weeks of paid vacation to be taken in
accordance with the applicable policy of the Company.



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     6. Equity Compensation.



          (a) Promptly after the execution and delivery of this Agreement by both parties, the Company
shall grant the Executive 50,000 shares of restricted Class A common stock, par value $0.01 per
share (the “Stock”) of the Company pursuant to the Company’s policy on equity issuances (the “Stock
Grant”). The Stock Grant shall vest in three approximately equal tranches on the first, second and
third anniversaries of the date of the Stock Grant pursuant to the Company’s form of Restricted
Stock Agreement attached hereto as Exhibit A (the “Restricted Stock Agreement”).




          (b) Promptly after the execution and delivery of this Agreement by both parties, the Company
shall grant the Executive a non-qualified option to acquire 100,000 shares of Stock pursuant to the
Company’s policy on equity issuances; provided, however that the Option Grant shall vest in three
approximately equal tranches on the first, second and third anniversaries of the date of the Option
Grant, with a seven (7) year term pursuant to the Company’s form of Option Agreement attached
hereto as Exhibit B (the “Option Agreement” and together with the Restricted Stock Agreement, the
“Equity Agreements”).




          (c) The Executive will continue to participate in the Company’s annual stock incentive
program, receiving awards as determined by the Compensation Committee from time to time.




          (d) Upon a Change in Control (as defined hereinafter), all unvested shares of restricted stock
and option awards held by the Executive, other than the option granted to Executive on
approximately March 3, 2008, (the “March 2008 Option Grant”) shall become fully vested and (in the
case of Stock Options) exercisable, with outstanding stock options remaining exercisable for a
period of not less than five years after such Change in Control (but in no event beyond the
original term of the stock options). For the avoidance of doubt, this Agreement does not alter,
and a Change of Control shall not cause to vest the then-unvested portion of, the March 2008 Option
Grant.




     7. Termination of the Employment Term.



          (a) The Executive’s employment with the Company and the Employment Term shall terminate upon
the earliest to occur of:




               (i) the death of the Executive;



               (ii) the termination of the Executive’s employment by the Company by reason of the Executive’s
Disability;



               (iii) the termination of the Executive’s employment by the Company for Cause or without Cause;



               (iv) the termination of the Executive’s employment by the Executive for Good Reason or without
Good Reason; and



               (v) the expiration of the Employment Term.



          (b) For purposes of this Agreement, the following terms shall have the following meanings:




               (i) “Cause” shall mean that the Board has made a good faith determination, after providing the
Executive with reasonably detailed written notice and a reasonable opportunity to be heard on the
issues at a Board meeting, that any of the following has occurred:



                    (1) the willful and continued failure by the Executive to substantially perform her material
duties to the Company (other than due to mental or physical disability) after written notice
specifying such failure and the manner in which the Executive may rectify such failure in the
future;



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                    (2) the Executive has engaged in willful, intentional misconduct that has resulted in material
damage to the Company’s business or reputation;



                    (3) the Executive has been convicted of a felony; or



                    (4) the Executive has engaged in fraud against the Company or misappropriated Company property
(other than incidental property).


For purposes of this Agreement, no act or failure by the Executive shall be considered “willful” if
such act is done by the Executive in the good faith belief that such act is or was in the best
interests of the Company or one or more of its businesses. Nothing in this Section 7(b)(i) shall
be construed to prevent the Executive from contesting the Board’s determination that Cause exists.




               (ii) “Change in Control” of the Company shall mean:



                    (1) any “person” (as such term is used in Sections 3(a)(9) and 13(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) or “group” (as such term is used in
Section 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as such term is used in
Rule 13d-3 promulgated under the Exchange Act) of 50% or more of the Voting Stock of the Company;
provided that this clause (1) shall not apply with respect to a stockholder of the Company who
beneficially owns more than 50% of the Voting Stock of the Company on the Effective Date;



                    (2) all or substantially all of the assets or business of the Company are disposed of pursuant
to a merger, consolidation or other transaction unless, immediately after such transaction, the
stockholders of the Company immediately prior to the transaction own, directly or indirectly, in
substantially the same proportion as they owned the Voting Stock of the Company prior to such
transaction more than 50% of the Voting Stock of the company surviving such transaction or
succeeding to all or substantially all of the assets or business of the Company or the ultimate
parent company of such surviving or successor company if such surviving or successor company is a
subsidiary of another entity (there being excluded from the number of shares held by such
stockholders, but not from the Voting Stock of the combined company, any shares received by
affiliates of such other company in exchange for stock of such other company);



                    (3) the Company adopts any plan of liquidation providing for the distribution of all or
substantially all of its assets if such plan of liquidation will result in the winding-up of the
business of the Company;



                    (4) the consummation of any merger, consolidation or other similar corporate transaction
unless, immediately after such transaction, the stockholders of the Company immediately prior to
the transaction own, directly or indirectly, in substantially the same proportion as they owned the
Voting Stock of the Company prior to such transaction more than 50% of the Voting Stock of the
company surviving such transaction or its ultimate parent company if such surviving company is a
subsidiary of another entity (there being excluded from the number of shares held by such
stockholders, but not from the Voting Stock of the combined company, any shares received by
affiliates of such other company in exchange for stock of such other company); or



                    (5) the failure of the Company to have any securities required to be registered under
Section 12 of the Exchange Act.


For purposes of this definition, “the Company” shall include any entity that succeeds to all or
substantially all of the business of the Company; “Voting Stock” shall mean securities of any class
or classes having general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of a corporation; and references to ownership of “more than
50% of the Voting Stock” shall mean the ownership of shares of Voting Stock that represent the
right to exercise more than 50% of the votes entitled to be cast in the election of directors of a
corporation.




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               (iii) “Disability” of the Executive shall have occurred if, as a result of the Executive’s
incapacity due to physical or mental illness as determined by a physician selected by the
Executive, and reasonably acceptable to the Company, the Executive shall have been substantially
unable to perform her duties hereunder for six consecutive months, or for an aggregate of 180 days
during any period of twelve consecutive months.



               (iv) “Good Reason” shall mean the occurrence, without the Executive’s express prior written
consent, of any one or more of the following:



                    (1) a material diminution of, or material reduction or material adverse alteration in, the
Executive’s title (except as may occur in response to a comment from a regulatory or governmental
agency), reporting status or authority to exercise Pre-Effective Date Duties, and Responsibilities
(as defined below), or the assignment to the Executive of duties inconsistent with those set forth
in Section 2(a) (or as subsequently amended in accordance with Section 18 with the consent of the
Executive) resulting in a materially adverse change to the Executive’s duties and responsibilities;
provided, however, that the following shall not constitute Good Reason pursuant to this Section
7(b)(iv)(1): the assignment to, or exercise by, the Chairman, the Company’s other Co-CEO and/or
any other officer(s) appointed by the Chairman or the Board, as the case may be, of (and any
related diminution, reduction, alteration or elimination of Executive’s authority to exercise) any
Post-Effective Date Duties and Responsibilities, regardless of whether Executive has exercised any
such Post-Effective Date Duties and Responsibilities; and provided further that any diminution,
reduction or adverse alteration in Executive’s authority to exercise any Pre-Effective Date Duties
and Responsibilities (the “Reduced Pre-Effective Date Duties and Responsibilities”) shall be
disregarded for the purposes of this Section 7(b)(iv)(1) to the extent that Executive has authority
to exercise any Post-Effective Date Duties and Responsibilities that are of approximately
comparable importance to the Company as the Reduced Pre-Effective Date Duties and Responsibilities;



                    (2) a material dimunition, material reduction or materially adverse alteration to Executive’s
Post-Effective Date Duties and Responsibilities as exercised by the Executive in the ordinary
course prior to the date of this Agreement;



                    (3) a material breach of the Agreement by the Company that continues after the reasonable
notice and opportunity to cure;



                    (4) the Company’s requiring the Executive to be based at a location in excess of 35 miles from
the location of the Executive’s principal job location or office specified in Section 2(b), except
for required travel on the Company’s business to an extent substantially consistent with the
Executive’s position; or



                    (5) a reduction by the Company of the Executive’s base salary as in effect on the Effective
Date, or as the same shall be increased from time to time.


“Pre-Effective Date Duties and Responsibilities” shall mean duties and responsibilities exercised
by Executive in her capacity as President – Media of the Company prior to the Effective Date with
respect to assets owned by the Company prior to the Effective Date. “Post-Effective Date Duties
and Responsibilities” shall mean duties and responsibilities other than Pre-Effective Date Duties
and Responsibilities, and notwithstanding anything to the contrary may include, without limitation,
any duties and responsibilities related to any assets or operations that were or may be acquired by
the Company on or after the Effective Date at the discretion of the Board.



The Executive’s right to terminate employment in a termination for Good Reason shall not be
affected by the Executive’s incapacity due to physical or mental illness. Subject to the
requirements set forth above, the Executive’s continued employment shall not constitute a consent
to, or a waiver of rights with respect to, any circumstance constituting Good Reason hereunder.




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     8. Termination Procedures.



          (a) Notice of Termination. Any termination of the Executive’s employment by the
Company or by the Executive during the Employment Term (other than pursuant to Sections 7(a)(i) and
7(a)(v)) shall be communicated by written Notice of Termination to the other party. For purposes
of this Agreement, a “Notice of Termination” shall mean a notice indicating the specific
termination provision in this Agreement relied upon and setting forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the Executive’s employment
under that provision.




          (b) Date of Termination. For purposes of this Agreement, “Date of Termination” shall
mean (i) if the Executive’s employment is terminated by her death, the date of her death, (ii) if
the Executive’s employment is terminated pursuant to Section 7(a)(ii), 30 days after the date of
receipt of the Notice of Termination (provided that the Executive does not return to the
substantial performance of her duties on a full-time basis during such 30-day period), (iii) if the
Executive’s employment is terminated pursuant to Section 7(a)(v), the date of expiration of the
Employment Term, and (iv) if the Executive’s employment is terminated for any other reason, the
date on which a Notice of Termination is given or any later date (within 30 days after the giving
of such notice) set forth in such Notice of Termination.




     9. Termination Payments.



          (a) Upon any termination of the Executive’s employment, she shall be entitled to payment of
any earned but unpaid portion of the Base Salary, bonus, benefits and unreimbursed business
expenses, in each case with respect to the period ending on the Date of Termination. In addition,
upon termination of Executive’s employment without Cause or a termination by Executive with Good
Reason, Executive will be entitled to a pro-rated bonus for the year of termination (calculated at
the end of the fiscal year and then pro rated through the date of termination) provided that
applicable performance targets have been met and bonuses are paid generally to similarly situated
executives at the Company. Any payments due pursuant to this Section shall be paid in a lump sum
at the time the Company pays other bonuses, subject to Section 18 hereof (if applicable).




          (b) In addition to the payments and benefits provided in Section 9(a), if the Executive’s
employment is terminated (x) by the Company without Cause or (y) by the Executive for Good Reason,
(i) outstanding equity awards consisting of restricted stock and stock options held by the
Executive other than the March 2008 Option Grant shall vest and/or become exercisable, (ii) the
Company shall pay the Executive the Severance Payment and (iii) the Company shall provide the
Executive with continued medical coverage at active-employee rates for eighteen months or, if
earlier, until the Executive receives subsequent employer-provided coverage. For purposes of this
Section 9(b), the “Severance Payment” shall be a lump-sum cash payment equal to 18 months’ salary.
The Severance Payment shall be paid no later than 60 days following the Date of Termination;
provided the Executive has executed the release referred to below and any waiting period with
respect to such release has elapsed. Payment of the Severance Payment shall be conditioned upon
the Executive’s execution of a general release in form satisfactory to the Company and the
Executive within sixty (60) days of the date of termination; provided, however, that such release
shall not contain post-termination restrictions that are more onerous for the Executive than those
contained in this Agreement.




          (c) Executive understands and agrees that she shall, effective upon the full execution of this
Agreement, cease to be a participant in, or eligible for any benefits or claims under, the
Company’s 2008 Executive Severance Pay Plan.




     10. Confidential Information; Noncompetition; Nonsolicitation; Nondisparagement.



          (a) Confidential Information. Except as may be required or appropriate in connection
with her carrying out her duties under this Agreement, the Executive shall not, without the prior
written consent of the Company or as may otherwise be required by law or any legal process, or as
is necessary in connection with any adversarial proceeding against the Company (in which case the
Executive shall cooperate with the Company in obtaining a protective order at the Company’s expense
against disclosure by a court of competent jurisdiction), communicate, to anyone other than the
Company and those designated by the Company or on behalf of the Company in the furtherance of its
business or to perform her duties hereunder, any trade secrets, confidential



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information, knowledge or data relating to the Company, its affiliates or any businesses or
investments of the Company or its affiliates, obtained by the Executive during the Executive’s
services to the Company that is not generally available public knowledge or known within the
Company’s industry (other than by acts by the Executive in violation of this Agreement).




          (b) Noncompetition. The Executive hereby agrees that during her employment with the
Company and (unless this Agreement expires pursuant to Clause (v) of Section 7(a) hereof) during
any Tail Period (as defined below), if any, Executive shall not engage in or become associated with
a Competitive Activity (as defined below). A “Competitive Activity” shall mean any business which
develops or produces lifestyle-based content aimed primarily at adult female audiences (e.g., Oprah
Magazine, iVillage, the WE Network). Executive shall be deemed to be “engaged in or associated
with a Competitive Activity” if she is or becomes an owner, employee, officer, director,
independent contractor, agent, partner, advisor, or renders personal services in any other
capacity, with or for any individual, partnership, corporation or other organization (collectively,
an “Enterprise”) that is engaged in a Competitive Activity, provided, however, that Executive shall
not be prohibited from (a) owning less than five percent of the stock in any publicly traded
Enterprise engaging in a Competitive Activity, or (b) being an employee, independent contractor or
otherwise providing services to an Enterprise that is engaged in a Competitive Activity so long as
Executive’s services relate to (x) an aspect or endeavor of such Enterprise that is distinct from,
and unrelated to, and Executive has no influence or control over, such Enterprise’s pursuit of a
Competitive Activity or (y) the overall operation or management of the Enterprise (or any portion
thereof) provided that the Competitive Activity is not the primary component of such Enterprise (or
portion thereof). “Tail Period” shall mean the period, if any, commencing on the Date of
Termination and ending on the 18-month anniversary of such date. If, at any time, the provisions
of this paragraph shall be determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this paragraph shall be considered
divisible and shall become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court or other body having
jurisdiction over the matter. The Executive agrees that this paragraph as so amended shall be
valid and binding as though any invalid or unenforceable provision had not been included herein.
The Executive further agrees that the remedies at law for any breach or threat of breach by her of
this paragraph will be inadequate, and that, in addition to any other remedy to which the Company
may be entitled at law or in equity, the Company will be entitled to seek a temporary or permanent
injunction or injunctions or temporary restraining order or orders to prevent breaches thereof.
The Executive’s agreement shall not be deemed to prohibit her from opposing such relief on the
basis of a dispute of facts related to any such application.




          (c) Nonsolicitation. During her employment with the Company, and for 18 months after
the Date of Termination, the Executive shall not, directly or indirectly, (1) solicit for
employment by other than the Company any person (other than any personal secretary or assistant
hired to work directly for the Executive) employed by the Company or its affiliated companies as of
the Date of Termination, (2) solicit for employment by other than the Company any person known by
the Executive (after reasonable inquiry) to be employed at the time by the Company or its
affiliated companies as of the date of the solicitation or (3) solicit any employee, customer or
other person with an employment or business relationship with the Company or any of its affiliated
companies to terminate, curtail or otherwise limit such employment or business relationship.




          (d) Non-disparagement. During her employment with the Company, and thereafter,
(i) the Executive shall not, directly or indirectly, make or publish any disparaging statements
(whether written or oral) regarding the Company or any of its affiliated companies or businesses,
or the affiliates, directors, officers, agents, principal stockholders or customers of any of them
and (ii) neither the Company nor any of its affiliated companies or businesses or their affiliates,
directors, or officers shall directly or indirectly, make or publish any disparaging statements
(whether written or oral) regarding the Executive. Executive shall not author, co-author, or
assist in the production or authorship of any story, book, show, script or other work about the
Company or Martha Stewart without the Company’s prior review of such work and the Company’s written
consent as to the production and content thereof.




          (e) Injunctive Relief. In the event of a breach or threatened breach of this Section
10, each party agrees that the non-breaching party shall be entitled to injunctive relief in a
court of appropriate jurisdiction to remedy any such breach or threatened breach, the parties
acknowledging that damages would be inadequate and insufficient.




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     11. Reimbursement of Legal Fees. If any contest or dispute shall arise between the
Company and the Executive regarding any provision of this Agreement, the Company shall reimburse
the Executive for all legal fees and expenses reasonably incurred by the Executive in connection
with such contest or dispute, but only if the Executive prevails to a substantial extent with
respect to the Executive’s claims brought and pursued in connection with such contest or dispute.
Such reimbursement shall be made as soon as practicable following the resolution of such contest or
dispute (whether or not appealed) to the extent the Company receives written evidence of such fees
and expenses.



     12. Indemnification. The Company shall indemnify the Executive as required pursuant
to the indemnification provisions contained in the Company’s By-laws.



     13. Dispute Resolution. Except as set forth in Section 10(e), any controversy or
claim arising out of or relating to this Agreement or the making, interpretation or breach thereof
shall be settled by arbitration in New York City, New York by three arbitrators in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrators may be entered in any court having jurisdiction thereof, and any
party to the arbitration may institute proceedings in any court having jurisdiction for the
specific performance of any such award. The powers of the arbitrator shall include, but not be
limited to, the awarding of injunctive relief.



     14. Representations.



          (a) The Executive represents and warrants that (i) she is not subject to any contract,
arrangement, policy or understanding, or to any statute, governmental rule or regulation, that in
any way limits her ability to enter into and fully perform her obligations under this Agreement and
(ii) she is not otherwise unable to enter into and fully perform her obligations under this
Agreement.




          (b) The Company represents and warrants to the Executive that (i) this Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and binding obligation of
the Company and (ii) subject to the accuracy of the Executive’s representation in Section 14(a),
the employment of the Executive on the terms and conditions contained in this Agreement will not
conflict with or result in a breach or violation of the terms of any contract or other obligation
or instrument to which the Company is a party or by which it is bound or any statute, law, rule,
regulation, judgment, order or decree applicable to the Company.




     15. Successors; Binding Agreement.



          (a) Company’s Successors. No rights or obligations of the Company under this
Agreement may be assigned or transferred, except that the Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the Company would be required
to perform it if no such succession had taken place. As used in this Agreement, “Company” shall
include any successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 15 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law.




          (b) Executive’s Successors. No rights or obligations of the Executive under this
Agreement may be assigned or transferred by the Executive other than her rights to payments or
benefits hereunder, which may be transferred only by will or the laws of descent and distribution.
Upon the Executive’s death, this Agreement and all rights of the Executive hereunder shall inure to
the benefit of and be enforceable by the Executive’s beneficiary or beneficiaries, personal or
legal representatives, or estate, to the extent any such person succeeds to the Executive’s
interests under this Agreement. If the Executive should die following her Date of Termination
while any amounts would still be payable to her hereunder if she had continued to live, all such
amounts unless otherwise provided herein shall be paid in accordance with the terms of this
Agreement to such person or persons so appointed in writing by the Executive, or otherwise to her
legal representatives or estate.




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     16. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have been
duly given when delivered either personally or by United States certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:



     If to the Executive, at her residence address most recently filed with the Company; and



     With a copy to:


Gavin McElroy, Esq.

Frankfurt, Kurnit, Klein & Selz PC

488 Madison Avenue

New York, NY 10022

Tel: (212) 826-5541

Fax: (347) 438-2111




     If to the Company:


Martha Stewart Living Omnimedia, Inc.

11 West 42nd Street

New York, NY 10036

Attention: General Counsel

Tel: (212) 827-8036

Fax: (212) 827-8188




or to such other address as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.



     17. Mitigation. The Executive shall not be required to mitigate damages with respect
to the termination of her employment under this Agreement by seeking other employment or otherwise,
and there shall be no offset against amounts due the Executive under this Agreement on account of
subsequent employment except as specifically provided in Section 9(b). Additionally, amounts owed
to the Executive under this Agreement shall not be offset by any claims the Company may have
against the Executive, and the Company’s obligation to make the payments provided for in this
Agreement, and otherwise to perform its obligations hereunder, shall not be affected by any other
circumstances, including, without limitation, any counterclaim, recoupment, defense or other right
which the Company may have against the Executive or others.



     18. Section 409A.




(a) The intent of the parties is that payments and benefits under this Agreement
comply with Section 409A of the Code as amended, and the regulations and guidance
promulgated thereunder (collectively “Section 409A”) and, accordingly, to the
maximum extent permitted, all provisions of this Agreement shall be construed in a
manner consistent with the requirements for avoiding taxes or penalties under
Section 409A. You are hereby advised to seek independent advice from your tax
advisor(s) with respect to any payments or benefits under this Agreement.
Notwithstanding the foregoing, the Company does not guarantee the tax treatment of
any payments or benefits provided under this Agreement, whether pursuant to the
Code, federal, state, local or foreign tax laws and regulations.




(b) If the Executive is deemed on the date of termination of her “separation from
service” with the Company to be a “specified employee”, each within the meaning of
Section 409A(a)(2)(B) of the Code, then with regard to any payment or the providing
of any benefit under this Agreement, and any other payment or the provision of any
other benefit that is required to be



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delayed in compliance with Section 409A(a)(2)(B) of the Code, such payment or
benefit shall not be made or provided prior to the expiration of the six-month
period measured from the date of the Executive’s separation from service (or, if
earlier, the date of the Executive’s death) if and to the extent such six-month
delay is required to comply with Section 409A(a)(2)(B) of the Code. In such event,
on or promptly after the first business day following the six-month delay period,
all payments delayed pursuant to this Section 18)(ii) (whether they would have
otherwise been payable in a single sum or in installments in the absence of such
delay) shall be paid or reimbursed to the 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 payment dates specified for them herein.




(c) If under this Agreement, an amount is to be paid in installments, each
installment shall be treated as a separate payment for purposes of Treasury
Regulations Section 1.409A-2(b)(2)(iii).



     19. Modification; Waiver. No provision of this Agreement may be amended, modified, or
waived unless such amendment or modification is agreed to in writing and signed by the Executive
and by a duly authorized officer of the Company, and such waiver is set forth in writing and signed
by the party to be charged; provided, however, that the Board may in its sole and absolute
discretion, upon written notice to Executive, increase, decrease or otherwise alter the scope or
nature of the Post-Effective Date Duties and Responsibilities; provided however, that such
alteration does not override the definition of “Good Reason” contained in Section 7(b)(iv) of this
Agreement. No waiver by either party hereto at any time of any breach by the other party hereto of
any condition or provision of this Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent
time.



     20. Validity. The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.



     21. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.



     22. Entire Agreement. This Agreement and the Equity Agreements set forth the entire
agreement of the parties hereto in respect of the subject matter contained herein and supersede all
prior agreements, promises, covenants, arrangements, communications, representations and warranties
(including without limitation that agreement between the parties dated as of June 25, 2007),
whether oral or written, by any officer, employee or representative of any party hereto in respect
of such subject matter.



     23. Withholding. All payments hereunder shall be subject to any required withholding
of federal, state and local taxes pursuant to any applicable law or regulation.



     24. Section Headings. The section headings in this Agreement are for convenience of
reference only, and they form no part of this Agreement and shall not affect its interpretation.



     25. Governing Law; Survival. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New York without regard
to its conflicts of law principles. Each of the parties agrees that if any dispute is not resolved
by the parties pursuant to Section 13, such dispute shall be resolved only in the courts of the
State of New York sitting in the County of New York or the United States District Court for the
Southern District of New York and the appellate courts having jurisdiction of appeals in such
courts. In that context, and without limiting the generality of the foregoing, each of the parties
irrevocably and unconditionally (a) submits for itself in any action or proceeding relating to this
Agreement, or for recognition and enforcement of any judgment in respect thereof, to the exclusive
jurisdiction of the courts of the State of New York sitting in the County of New York, the United
States District Court for the Southern District of New York, and appellate courts having
jurisdiction of appeals from any of the foregoing, and agrees that all claims in respect of any
such action or proceeding shall be heard and determined in such New York State court or, to the
extent permitted by law, in such federal court; (b) consents that any such action or proceeding may
and shall be brought in such courts and waives any objection that it may now or thereafter have to
the venue or jurisdiction of any such action or



10









 







proceeding in any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same; (c) waives all right to trial by jury in any
action or proceeding (whether based on contract, tort or otherwise) arising out of or relating to
this Agreement, or its performance under or the enforcement of this Agreement; (d) agrees that
service of process in any such action or proceeding may be effected by mailing a copy of such
process by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address as provided in Section 16; and (e) agrees that nothing in
this Agreement shall affect the right to effect service of process in any other manner permitted by
the laws of the State of New York. The provisions of Section 10 that are intended to survive the
Employment Term shall remain in full force and effect for their respective periods of duration; it
being understood that the provisions of Section 10(d) shall be perpetual.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	MARTHA STEWART LIVING OMNIMEDIA, INC.

 	 
	 	By:  	/s/ Charles Koppleman
 	 
	 	 	Name:  	Charles A. Koppelman 	 
	 	 	Title:  	Chairman of the Board of Directors 	 
	 



	 	 	 	 	 
	 	EXECUTIVE:

 	 
	 	  	/s/ Wenda Harris Millard
 	 
	 	 	Name:  	Wenda Harris Millard 	 
	 	 	 	 
	 




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