This Separation
Agreement (the “ Agreement ”), dated as of April
20, 2009 (the “ Effective Date ”), is entered
into between Martha Stewart Living Omnimedia, Inc. (the “
Company ”) and Wenda Harris Millard (“
Ms. Millard ”).
WHEREAS, the
parties are party to an Employment Agreement dated as of
September 17, 2008 (the “ Employment Agreement
”), pursuant to which Ms. Millard serves as the
Company’s Co-Chief Executive Officer and President —
Media;
WHEREAS,
Ms. Millard has informed the Board of Directors of her
intention to voluntarily resign from her positions with the Company
other than for Good Reason (as defined in the Employment Agreement)
pursuant to the terms of this Agreement effective as of the
Effective Date; and
WHEREAS, the
parties desire that, subject to the terms and conditions set forth
herein, Ms. Millard shall cooperate with the Company to assist in
the transition of her responsibilities;
NOW, THEREFORE, in
consideration of these premises and the mutual covenants
hereinafter set forth, the parties agree as follows:
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1.
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(a) Ms. Millard
shall:
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(i) resign as of
the Effective Date (which date shall constitute the “Date of
Termination” for purposes of the Employment Agreement) as the
Co-Chief Executive Officer and President — Media;
(ii) cooperate
with the Company in efforts to effect an orderly transition;
and
(iii) execute and
deliver the Waiver and Release of Claims within twenty-five
(25) days after the Effective Date in the form attached hereto
as Exhibit A (the “ Waiver and Release of
Claims ”).
(i) pay
Ms. Millard in accordance with payroll practices the amount of
her Base Salary (as defined in the Employment Agreement) and unused
vacation time, each prorated on a daily basis, that was accrued and
unpaid as of the Effective Date; and
(ii) have amended
that certain Notice of Stock Option Grant and Stock Option
Agreement awarding Ms. Millard an option in respect of 330,000
shares of the Company’s Class A common stock granted on
March 2, 2009 (all of which is currently unvested) (the
“Option Agreement”). The Option Agreement shall have
been amended to provide that the option shall terminate as to
230,000 shares on the Effective Date and remain outstanding in
respect to 100,000 shares and
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become
exercisable with respect to such 100,000 shares on the 18-month
anniversary of the Effective Date (the “Amended Option
Agreement”), provided that as of such anniversary date
Ms. Millard is not in breach of her obligations under the
Employment Agreement, including without limitation Section 10
thereof. In the event that the option in respect to 100,000 shares
becomes exercisable pursuant to the Amended Option Agreement, the
option shall remain exercisable for a period of 12 months from the
date of vesting. In the event Ms. Millard breaches such
obligations, such option will immediately terminate. Any
equity-based awards granted to Ms. Millard that have become vested
prior to the Effective Date shall remain outstanding in accordance
with their terms.
(c)
Notwithstanding anything in the Employment Agreement to the
contrary, except as explicitly provided herein Ms. Millard
shall not be entitled to any further payments or benefits under the
Employment Agreement except as provided herein.
2. Subject to
Section 1 of this Agreement, nothing in this Agreement shall
be construed to amend or modify the terms of the Employment
Agreement, including without limitation Section 10 thereof.
Ms. Millard acknowledges and agrees that the voluntary
termination of her employment is not a termination by the Company
“without Cause” or a termination by her for “Good
Reason” (each as defined in the Employment Agreement).
Accordingly, Ms. Millard shall not, and is not entitled to,
receive any severance payments or other benefits pursuant to the
Employment Agreement or the Company’s 2008 Executive
Severance Pay Plan and, except as otherwise provided in the Amended
Option Agreement, no equity-based awards granted to her pursuant to
the Equity Agreements (as defined under the Employment Agreement),
the Option Agreement or any other equity-based award granted
pursuant to the Omnibus Plan (or any predecessor plan or agreement)
shall accelerate and all unvested equity awards shall be forfeited
and cancelled and of no further force or effect.
3. Ms. Millard
acknowledges and agrees that her execution on the date hereof and
the enforceability of the Waiver and Release of Claims is an
integral part of, and a material inducement to the Company to enter
into, this Agreement and agrees that in the event that either
(i) Ms. Millard fails to execute and deliver to the
Company the Waiver and Release of Claims within twenty-five
(25) days after the Effective Date, or
(ii) Ms. Millard revokes the Waiver and Release of Claims
as provided in Section 9 of the Waiver and Release of Claims,
the Company may in its sole and absolute discretion revoke this
Agreement by giving written notice to Ms. Millard, in which
event this Agreement shall be deemed null and void ab initio, as
will the Amended Option Agreement.
4. Ms. Millard’s
contribution to the Company’s 401 (k) plan (the
“401 (k) Plan”) will cease upon her termination
pursuant to the terms of the 401(k) Plan. Ms. Millard shall be
entitled to distribution and/or rollover of any vested amounts
under the 401(k) Plan in accordance with the terms of the 401
(k) Plan. To the extent that Ms. Millard does not vest in
any portion of the Company contribution for 2009 under the 401(k)
Plan as a result of her not being employed on the last day of the
plan year, Ms. Millard shall receive a separate cash payment
from the Company promptly following the date the Waiver and Release
of Claims becomes effective, not to exceed the amount of maximum
match contribution set forth in the 401(k) Plan.
Ms. Millard’s active participation in any of the
Company’s employee benefit plans and arrangements shall
end
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as of the
Effective Date and she shall retain all rights to vested benefits
payable in accordance with the terms of such employee benefit
plans. In addition, until such time as Ms. Millard is entitled
to medical benefits from another employer, but in no event for a
period of longer than one (1) year from the Effective Date,
the Company shall reimburse Ms. Millard for the portion of
COBRA benefits Ms. Millard pays in an amount equal to the
contributions that the Company would have made on her behalf had
she remained an employee of the Company (i.e.,
Ms. Millard will not be reimbursed for that portion of the
COBRA premium equal to the amount that was deducted from her
payroll for such benefits when she was an employee).
5. Promptly
after the Effective Date, Ms. Millard shall submit to the
Company a reimbursement request, with supporting documentation as
required by the Company, for any reasonable business expenses
incurred through the date hereof with respect to which
Ms. Millard is entitled to be reimbursed pursuant to Section
4(b) of the Employment Agreement (“ Reimbursable
Expenses ”) and the Company shall promptly reimburse
Ms. Millard for such expenses (or pay such expenses directly
if requested pursuant to the following sentence). Ms. Millard
shall promptly pay any expenses that Ms. Millard incurred with
respect to which the Company could be liable (e.g., expenses
incurred on any corporate credit card if the Company may be liable
for the payment thereof); except that Ms. Millard may request
the Company to pay directly, in accordance with the Company’s
policy and procedure, any Reimbursable Expenses incurred on her
Company American Express Corporate Card.
6. Capitalized
terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Employment
Agreement.
7. This
Agreement, the Employment Agreement, the Amended Option Agreement
and the Waiver and Release of Claims constitute the complete and
final agreement between the parties and supersede and replace all
prior or contemporaneous agreements, negotiations, or discussions
relating to the subject matter of this Agreement, the Employment
Agreement, the Amended Option Agreement and the Waiver and Release
of Claims. This Agreement may not be amended except in a writing
signed by each of the parties hereto. No waiver of any right set
forth in this Agreement shall be effective unless set forth in a
writing signed by the party against whom the waiver is to be
enforced. All provisions and portions of this Agreement are
severable. If any provision or portion of this Agreement or the
application of any provision or portion of this Agreement shall be
determined to be invalid or unenforceable to any extent or for any
reason, all other provisions and portions of this Agreement shall
remain in full force and shall continue to be enforceable to the
fullest and greatest extent permitted by law. This Agreement shall
be binding upon and inure to benefit of each party’s
respective successors and permitted assigns. The word
“including” shall mean “including without
limitation.” As used herein, the plural includes the singular
and the singular includes the plural, unless such a construction of
such sentence would be unreasonable. Titles and headings to
Sections in this Agreement are inserted for convenience only and
are not intended to be a part of or to affect the meaning or
interpretation of the Agreement. The parties acknowledge that they
are entering into this Agreement after consulting with counsel and
based upon equal bargaining power and that the attorneys for each
party have had an equal opportunity to participate in the
negotiation and preparation of this Agreement. The terms of this
Agreement shall not be interpreted in favor of or against any party
on account of the draftsperson, but shall be interpreted solely for
the purpose of fairly effectuating the intent of the parties hereto
expressed herein.
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8. Except for
issues or matters as to which federal law is applicable, this
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving
effect to the conflicts of law principles thereof. The federal and
state courts located in New York County, New York, shall have sole
and exclusive jurisdiction over any dispute arising out of or
relating to this Agreement, and each party hereby expressly
consents to the jurisdiction of such courts and waives any
objection (whether on grounds of venue, residence, domicile,
inconvenience of forum or otherwise), to such a proceeding brought
before such a court.
By signing below,
the Company and Ms. Millard acknowledge that they have
carefully read and understood the terms of
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