MARTHA STEWART LIVING OMNIMEDIA, INC. OMNIBUS STOCK AND OPTION COMPENSATION PLAN RESTRICTED STOCK UNIT AGREEMENT
Exhibit 99.3
XXXXXX XXXXXXX LIVING OMNIMEDIA, INC.
OMNIBUS STOCK AND OPTION COMPENSATION PLAN
OMNIBUS STOCK AND OPTION COMPENSATION PLAN
This Restricted Stock Unit Agreement (the “Agreement”) is made and entered into as of
, 200___by and between Xxxxxx Xxxxxxx Living Omnimedia, Inc., a Delaware corporation
(the “Company”), and pursuant to the Xxxxxx Xxxxxxx Living Omnimedia,
Inc. Omnibus Stock and Option Compensation Plan (the “Plan”). To the extent any
capitalized terms used in this Agreement are not defined, they shall have the meaning ascribed to
them in the Plan, which is attached to, and made a part of, this Agreement. In the event of a
conflict between the terms and provisions of the Plan and the terms and provisions of this
Agreement, the Plan terms and provisions shall prevail.
In consideration of the mutual agreements herein contained and intending to be legally bound
hereby, the parties agree as follows:
1. Restricted Stock Units. Pursuant to the Plan, the Company hereby grants to you,
and you hereby accept from the Company, stock units, each of which is a bookkeeping
entry representing the equivalent in value of one (1) Share (the “Restricted Stock Units”),
on the terms and conditions set forth herein and in the Plan.
2. Vesting of Restricted Stock Units. So long as your Service continues, the
Restricted Stock Units shall vest in accordance with the following schedule:
Notwithstanding the foregoing, all Restricted Stock Units shall immediately vest upon a Change in
Control.
3. Termination of Service. In the event of the termination of your Service for any
reason, all unvested Restricted Stock Units shall be immediately forfeited without consideration.
4. Settlement of Restricted Stock Units. Restricted Stock Units shall be
automatically settled in Shares upon vesting of such Restricted Stock Units, provided that the
Company shall have no obligation to issue Shares pursuant to this Agreement unless and until
you have satisfied any applicable tax obligations pursuant to Section 5 below and such issuance
otherwise complies with all applicable law. Prior to the time the Restricted Stock Units are
settled upon vesting, you will have no rights other than those of a general creditor of the
Company. Restricted Stock Units represent an unfunded and unsecured obligation of the Company.
5. Withholding Taxes. You agree to make arrangements satisfactory to the Company for
the satisfaction of any applicable tax obligations that arise in connection with the Restricted
Stock Units which, at the sole discretion of the Committee, may include (i) having the Company
withhold Shares from the settlement of the Restricted Stock Units, or (ii) any other arrangement
approved by the Company, in either case, equal in value to the amount necessary to satisfy any such
tax obligations. The Company shall not be required to issue Shares pursuant to this Agreement
unless and until such obligations are satisfied.
6. Tax Advice. You represent, warrant and acknowledge that the Company has made no
warranties or representations to you with respect to the income tax consequences of the
transactions contemplated by this Agreement, and you are in no manner relying on the Company or the
Company’s representatives for an assessment of such tax consequences. YOU UNDERSTAND THAT THE TAX
LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. YOU SHOULD CONSULT YOUR OWN TAX ADVISOR REGARDING ANY
RESTRICTED STOCK UNITS. NOTHING STATED HEREIN IS INTENDED OR WRITTEN TO BE USED, AND CANNOT BE
USED, FOR THE PURPOSE OF AVOIDING TAXPAYER PENALTIES.
7. Non-Transferability of Restricted Stock Units. The Restricted Stock Units shall
not be transferable other than by will or the laws of descent and distribution. The designation of
a beneficiary or entry into a will or similar arrangement does not constitute a transfer. The
terms of this Agreement shall be binding upon your executors, administrators, heirs, successors and
assigns.
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8. Restriction on Transfer. Regardless of whether the transfer or issuance of the
Shares to be issued pursuant to the Restricted Stock Units have been registered under the
Securities Act or have been registered or qualified under the securities laws of any state, the
Company may impose additional restrictions upon the sale, pledge, or other transfer of the Shares
(including the placement of appropriate legends on stock certificates, if any, and the issuance of
stop-transfer instructions to the Company’s transfer agent) if, in the judgment of the Company and
the Company’s counsel, such restrictions are necessary in order to achieve compliance with the
provisions of the Securities Act, the securities laws of any state, or any other law.
9. Stock Certificate Restrictive Legends. Stock certificates evidencing the Shares
issued pursuant to the Restricted Stock Units, if any, may bear such restrictive legends as the
Company and the Company’s counsel deem necessary under applicable law or pursuant to this
Agreement.
10. Representations, Warranties, Covenants, and Acknowledgments. You hereby agree
that in the event the Company and the Company’s counsel deem it necessary or advisable in the
exercise of their discretion, the transfer or issuance of the Shares issued pursuant to the
Restricted Stock Units may be conditioned upon you making certain representations, warranties, and
acknowledgments relating to compliance with applicable securities laws.
11. Voting and Other Rights. Subject to the terms of this Agreement, you shall not
have any voting rights or any other rights and privileges of a stockholder of the Company unless
and until the Restricted Stock Units are settled upon vesting.
12. Authorization to Release Necessary Personal Information. You hereby authorize and
direct your employer to collect, use and transfer in electronic or other form, any personal
information (the “Data”) regarding your employment, the nature and amount of your
compensation and the facts and conditions of your participation in the Plan (including, but not
limited to, your name, home address, telephone number, date of birth, social security number (or
any other social or national identification number), salary, nationality, job title, number of
shares held and the details of all Awards or any other entitlement to shares awarded, cancelled,
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exercised, vested, unvested or outstanding) for the purpose of implementing, administering and
managing your participation in the Plan. You understand that the Data may be transferred to the
Company or any of its Parent, Subsidiaries, or Affiliates, or to any third parties assisting in the
implementation, administration and management of the Plan, including any requisite transfer to a
broker or other third party assisting with the administration of this Restricted Stock Unit under
the Plan or with whom shares acquired pursuant to this Restricted Stock Unit or cash from the sale
of such shares may be deposited. You acknowledge that recipients of the Data may be located in
different countries, and those countries may have data privacy laws and protections different from
those in the country of your residence. Furthermore, you acknowledge and understand that the
transfer of the Data to the Company or any of its Parent, Subsidiaries, or Affiliates, or to any
third parties is necessary for your participation in the Plan. You may at any time withdraw the
consents herein by contacting your local human resources representative in writing. You further
acknowledge that withdrawal of consent may affect your ability to realize benefits from this
Restricted Stock Unit, and your ability to participate in the Plan.
13. No Entitlement or Claims for Compensation.
(a) Your rights, if any, in respect of or in connection with this Restricted Stock Unit or any
other Award is derived solely from the discretionary decision of the Company to permit you to
participate in the Plan and to benefit from a discretionary Award. By accepting this Restricted
Stock Unit, you expressly acknowledge that there is no obligation on the part of the Company to
continue the Plan and/or grant any additional Awards to you. This Restricted Stock Unit is not
intended to be compensation of a continuing or recurring nature, or part of your normal or expected
compensation, and in no way represents any portion of a your salary, compensation, or other
remuneration for purposes of pension benefits, severance, redundancy, resignation or any other
purpose.
(b) Neither the Plan nor this Restricted Stock Unit or any other Award granted under the Plan
shall be deemed to give you a right to become or remain an Employee, Consultant or director of the
Company, a Parent, a Subsidiary, or an Affiliate. The Company and its Parents and Subsidiaries and
Affiliates reserve the right to terminate your Service at any time, with or without cause, and for
any reason, subject to applicable laws, the Company’s Articles of
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Incorporation and Bylaws and a written employment agreement (if any), and you shall be deemed
irrevocably to have waived any claim to damages or specific performance for breach of contract or
dismissal, compensation for loss of office, tort or otherwise with respect to the Plan, this
Restricted Stock Unit or any outstanding Award that is forfeited and/or is terminated by its terms
or to any future Award.
14. Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient when delivered personally or sent by telegram or fax or forty-eight
(48) hours after being deposited in the mail, as certified or registered mail, with postage
prepaid, and addressed to the Company at its principal corporate offices and to you at the address
maintained for you in the Company’s records.
15. Entire Agreement; Enforcement of Rights. This Agreement, together with the Plan,
sets forth the entire agreement and understanding of the parties relating to the subject matter
herein and therein and merges all prior discussions between the parties. Except as contemplated
under the Plan, no modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the parties to this Agreement.
The failure by either party to enforce any rights under this Agreement shall not be construed as a
waiver of any rights of such party.
16. Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to principles of conflicts
of law.
17. Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable replacement for
such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of
this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of
this Agreement shall be enforceable in accordance with its terms.
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18. Successors and Assigns. The rights and benefits of this Agreement shall inure to
the benefit of, and be enforceable by the Company’s successors and assigns. The rights and
obligations of you under this Agreement may not be assigned without the prior written consent of
the Company.
19. Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to this Restricted Stock Unit under the Plan and participation in the Plan or
future Awards that may be granted under the Plan by electronic means or to request your consent to
participate in the Plan by electronic means. You hereby consent to receive such documents by
electronic delivery and, if requested, to agree to participate in the Plan through an on-line or
electronic system established and maintained by the Company or a third party designated by the
Company.
20. Language. If you have received this Agreement or any other document related to
the Plan translated into a language other than English and if the translated version is different
than the English version, the English version will control.
21. Acceptance of Agreement. You must expressly accept the terms and conditions of
your Restricted Stock Unit as set forth in this Agreement by signing and returning this Agreement
to the Company within 90 days after the Company sends this Agreement to you. If you do not accept
your Restricted Stock Unit in the manner instructed by the Company, your Restricted Stock Unit will
be subject to cancellation.
22. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
* * * *
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this ___day of
, 200_.
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