Exhibit 10.11.1





Exhibit 10.11.1




FIRST AMENDMENT TO THE INTANGIBLE ASSET LICENSE AGREEMENT

BETWEEN MS REAL ESTATE MANAGEMENT COMPANY AND MARTHA

STEWART LIVING OMNIMEDIA, INC. DATED AS OF JUNE 13, 2008




THIS FIRST AMENDMENT (this “Amendment”), dated as of December, 2008, between MS Real
Estate Management Company (the “Licensor”) and Martha Stewart Living Omnimedia, Inc. (the
“Company”).



WHEREAS, the Licensor and the Company previously entered into the Intangible Asset
License Agreement, dated as of June 13, 2008 (the “License Agreement”); and



WHEREAS, the Licensor and the Company believe it is in the best interests of the parties
to amend the License Agreement to comply with the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended, and the guidance issued thereunder (“Section 409A”) pursuant
to the terms of the Amendment as set forth herein; and



NOW, THEREFORE, in consideration of the promises and the mutual covenants set forth
below, the parties hereby agree as follows:



1. Termination. The second sentence of Section 10 shall be amended by inserting the
clause “, subject to the application of Section 13(b),” immediately prior to the clause “all
sums otherwise due to Licensor under this Agreement”.



2. Section 409A. A new Section 13 shall be inserted immediately after Section 12 to read
as follows:




“13. Section 409A. (a) The intent of the parties is that payments and benefits under
this Agreement comply with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the guidance issued thereunder (“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. Licensor is hereby advised to seek independent advice from
Licensor’s 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 Martha Stewart is deemed to have “separation from service” with the Company as a
result of a Termination Trigger and she is deemed 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, including without
limitation the Annual License Fee, that is required to be 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 earlier of (i) the expiration of the six-month period measured
from the date of Martha Stewart’s separation from service, or (ii) the date of her
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 13 (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 Regulation Section
1.409A-2(b)(2)(iii).”


 


 









 






IN WITNESS WHEREOF, the parties hereto have duly caused this Amendment to be executed in its
name on its behalf, all as of the day and year first written above.



	 	 	 	 	 
	 	MS REAL ESTATE MANAGEMENT COMPANY

 	 
	 	By:  	/s/
Martha Stewart
 	 
	 	 	Name:  	Martha Stewart  	 
	 	 	Title:  	 	 
	 
	 	MARTHA STEWART LIVING OMNIMEDIA, INC.
 	 
	 
	 	By:  	/s/
Wenda Harris Millard
 	 
	 	 	Name:  	Wenda Harris Millard 	 
	 	 	Title:  	Co-Chief Executive Officer 	 
	 	 	 
	 	By:  	/s/  Robin Marino
 	 
	 	 	Name:  	Robin Marino 	 
	 	 	Title:  	Co-Chief Executive Officer 	 



 


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