{"id":41362,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/warrant-for-a-percentage-of-the-internet-business-martha.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"warrant-for-a-percentage-of-the-internet-business-martha","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/warrant-for-a-percentage-of-the-internet-business-martha.html","title":{"rendered":"Warrant for a Percentage of the Internet Business &#8211; Martha Stewart Living Omnimedia LLC and KPCB Holdings, Inc."},"content":{"rendered":"<pre>\n                       MARTHA STEWART LIVING OMNIMEDIA LLC\n\n\n\n                WARRANT FOR A PERCENTAGE OF THE INTERNET BUSINESS\n                     OF MARTHA STEWART LIVING OMNIMEDIA LLC\n\n\n\n                            ISSUE DATE: JULY 27, 1999\n\n\n           THIS WARRANT AND THE SHARES OF COMMON STOCK OR OTHER SECURITIES THAT\n           MAY BE PURCHASABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE\n           SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF\n           ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD OR OTHERWISE\n           TRANSFERRED OR DISPOSED OF UNLESS REGISTERED OR QUALIFIED UNDER SAID\n           ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH REGISTRATION,\n           QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED UNDER ANY SUCH\n           LAWS. EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS WARRANT IS\n           NON-TRANSFERABLE.\n\n\n\n         FOR VALUE RECEIVED, MARTHA STEWART LIVING OMNIMEDIA LLC, a Delaware\nlimited liability company (\"MSLO,\" and, together with any successor entity, the\n\"Company\"), hereby certifies that KPCB Holdings, Inc., a California corporation\n(the \"Holder\"), is entitled, subject to the provisions of this Warrant, to\npurchase from the Company, (i) in the case of a Strategic Transaction, the\nWarrant Percentage of the fully paid and non-assessable shares of the then\nOutstanding Shares of Common Stock immediately prior to consummation of the\nStrategic Transaction but taking into account the exercise of this Warrant, or\n(ii) in the case of a Sale Transaction, the Warrant Percentage of the Net\nConsideration received by the Company in such Sale Transaction, in each case, at\na purchase price equal to the Exercise Price (each such term as hereinafter\ndefined).\n\n         SECTION 1. DEFINITIONS. (a) The following terms, as used herein, have\nthe following meanings:\n\n         \"BUSINESS DAY\" means any day except a Saturday, Sunday or other day on\nwhich commercial banks in The City of New York are authorized by law to close.\n\n         \"CLOSING PRICE\" on any day means (1) if the shares of Common Stock then\nare listed and traded on the New York Stock Exchange, Inc. (\"NYSE\"), the Closing\nPrice on such day as reported on the NYSE Composite Transactions Tape; (2) if\nshares of Common Stock then are not listed and traded on the NYSE, the Closing\nPrice on such day as reported by the principal\n\nnational securities exchange on which the shares of Common Stock are listed and\ntraded; (3) if the shares of Common Stock then are not listed and traded on any\nsuch securities exchange, the last reported sale price on such day on The Nasdaq\nStock Market (\"NASDAQ\"); or (4) if the shares of Common Stock then are not\ntraded on but are quoted by NASDAQ, the average of the highest reported bid and\nthe lowest reported ask price on such day as reported by NASDAQ.\n\n         \"COMMON STOCK\" means a common stock (or tracking stock, lettered stock\nor similar equity security) of the Company or a Subsidiary of the Company that\nprimarily reflects or is intended to primarily reflect the economic performance\nof the Internet Business as it exists as of the date such stock is first issued.\n\n         \"COMPANY\" shall have the meaning set forth in the first paragraph\nhereof.\n\n         \"EXERCISE PRICE\" means $21 million ($21,000,000), as adjusted pursuant\nto Sections 2(b)(ii) and 3 hereof.\n\n         \"EXPIRATION DATE\" means the earliest of 5:00 p.m. New York City time on\n(i) the 3-year anniversary of the date hereof, (ii) the date on which the Holder\nsells, transfers, distributes or otherwise disposes, other than pursuant to an\nexchange or a conversion of Membership Interests in a merger or similar\ntransaction involving the Company, of at least 50% of its Membership Interests\n(as defined in that certain Purchase Agreement, dated as of the date hereof), or\nsuch equity into which such Membership Interests may be exchangeable or\nconvertible pursuant to a Conversion (as defined in the LLC Operating Agreement)\n(iii) the tenth day following consummation of a Strategic Transaction, and (iv)\nthe tenth day following consummation of a Sale Transaction that involves all or\nsubstantially all of the Company's interest in the Internet Business as such\nbusiness exists as of the date of such Sale Transaction. In the event that the\nWarrant is exercised prior to the Expiration Date, any subsequent delay due to\nrequired regulatory approvals shall not affect the validity of such exercise.\n\n         \"FAIR MARKET VALUE\" as of any date of determination means, as to shares\nof the Common Stock, if the Common Stock is publicly traded at such time, the\naverage of the daily Closing Price of a share of Common Stock for the ten (10)\nconsecutive trading days ending on the most recent trading day prior to the date\nof determination. If the shares of Common Stock are not publicly traded at such\ntime, the Fair Market Value of the Common Stock shall be determined in good\nfaith by the Board of Directors of the Company.\n\n         \"FAIR VALUE\" as of any date, shall mean (i) in the case of Common\nStock, the Fair Market Value, (ii) in the case of cash, such amount of cash and\n(iii) in the case of other property, the fair value as determined by the Board\nof Directors of the Company, acting in good faith and based upon the advice of a\nnationally recognized investment banking firm.\n\n         \"HOLDER\" shall have the meaning set forth in the first paragraph\nhereof.\n\n         \"INTERNET BUSINESS\" means the Martha By Mail business (both online and\noffline), the business of selling advertisements on websites owned by MSLO, and\nany businesses of the\n\nCompany created after the date hereof that derive 50% or more of their revenues\nfor the Company from transactions occurring via websites owned by MSLO, provided\nthat any such business that contains both online and offline revenues may be\ndivided into online and offline portions in the discretion of the Board, with\nthe Internet Business containing the online portions. The Internet Business\nshall also include MSLO's interest in websites controlled by MSLO which are\ndetermined by the Board of Directors as properly included therein which\ndetermination shall be made in good faith and without regard to the existence of\nthis Warrant. For the avoidance of doubt, the Internet Business shall not\ninclude direct mail and online sales of magazines and books authored or produced\nby or on behalf of Martha Stewart and\/or MSLO. The Internet Business shall also\ninclude cost-sharing, transfer pricing and other intercompany arrangements with\nthe remainder of the Company as determined to be reasonable and appropriate by\nthe Board of Directors.\n\n         \"LLC OPERATING AGREEMENT\" shall mean the Fourth Amended and Restated\nLimited Liability Company Agreement of the Company, as amended from time to\ntime.\n\n         \"NET CONSIDERATION\" shall, with respect to a particular Sale\nTransaction, equal the Fair Value of the portion of the consideration received\nby the Company in a Sale Transaction which relates to the portion of the\nInternet Business (as such business exists as of the date of such Sale\nTransaction) involved in such Sale Transaction, net of taxes and transaction\nexpenses; provided, however, that the Company shall use reasonable efforts to\nstructure such Sale Transaction in a manner that is tax efficient for the\nCompany and the Holder, and, to the extent that the Company will not incur tax\non the Net Consideration payable to the Holder, such Net Consideration shall not\nbe reduced in respect of such taxes. In the event that the Internet Business has\ndebt at the time of a Sale Transaction, the Board of Directors shall equitably\nadjust the Net Consideration to the extent that such debt is not repaid prior to\nthe Sale Transaction.\n\n         \"OUTSTANDING SHARES\" means, with respect to the Common Stock, the sum\nof the outstanding shares and the shares held in treasury or otherwise\nrepresenting the interest of the Company and its Subsidiaries in such Common\nStock.\n\n         \"PERSON\" means an individual, partnership, corporation, limited\nliability company, trust, joint stock company, association, joint venture, or\nany other entity or organization, including a government or political\nsubdivision or an agency or instrumentality thereof.\n\n         \"SALE TRANSACTION\" means a sale, disposition or other transaction\n(including by way of merger, share exchange, stock sale, asset divestiture or\notherwise) engaged in by the Company or its Subsidiaries, the primary motive of\nwhich, as determined in good faith by the Board of Directors without taking into\naccount the existence of this Warrant, is to maximize the value of the Internet\nBusiness as a whole or in part, it being agreed that any such sale, disposition\nor other transaction in which 65% or more of the consideration received by the\nCompany in such sale, disposition or other transaction is in respect of the\nCompany's interest in the Internet Business shall be deemed to be a \"Sale\nTransaction;\" provided, however, that in no event shall a \"Sale Transaction\" be\ndeemed to include a sale of all or substantially all of the Company or its\nassets or businesses (including by way of merger, reorganization, consolidation,\nasset sale,\n\nshare exchange or otherwise). The allocation of consideration between the\nInternet Business and other Company businesses shall be as determined by the\nBoard of Directors, acting in good faith and based upon the advice of a\nnationally recognized investment banking firm.\n\n         \"STRATEGIC TRANSACTION\" shall mean the initial issuance of publicly\ntraded shares of Common Stock.\n\n         \"SUBSIDIARY\" means, with respect to any Person, any corporation or\nother entity of which a majority of the capital stock or other ownership\ninterests having ordinary voting power to elect a majority of the board of\ndirectors or other persons performing similar functions are at the time directly\nor indirectly owned by such Person.\n\n         \"WARRANT PERCENTAGE\" means 15%, as the same may be adjusted pursuant to\nthe terms of this Warrant.\n\n         \"WARRANT SHARES\" means the shares of Common Stock deliverable upon\nexercise of this Warrant, as adjusted from time to time.\n\n         SECTION 2. EXERCISE OF WARRANT.\n\n         (a) Strategic Transaction. In the case of a Strategic Transaction, the\nHolder is entitled to exercise this Warrant in whole (but not in part) prior to\nthe Expiration Date or, if such day is not a Business Day, then on the next\nsucceeding day that shall be a Business Day. To exercise this Warrant, the\nHolder shall deliver to the Company this Warrant and a Notice to Exercise form\nattached hereto duly executed by the Holder, together with payment of the\nExercise Price. Upon such delivery and payment, the Holder shall be deemed, in\nthe case of a Strategic Transaction, to be the holder of record of the Warrant\nShares, notwithstanding that the stock transfer books of the Company shall then\nbe closed or that certificates representing such shares shall not then be\nactually delivered to the Holder.\n\n         (b) Sale Transaction.\n\n         (i) In the case of a Sale Transaction which involves all or\n         substantially all of the Internet Business (as such business exists at\n         the time of such Sale Transaction), the Holder is entitled to exercise\n         this Warrant in whole (but not in part) prior to the Expiration Date\n         or, if such day is not a Business Day, then on the next succeeding day\n         that shall be a Business Day. To exercise this Warrant, the Holder\n         shall deliver to the Company this Warrant and a Notice to Exercise form\n         attached hereto duly executed by the Holder, together with payment of\n         the Exercise Price.\n\n         (ii) In the case of a Sale Transaction which involves less than all or\n         substantially all of the Internet Business (as such business exists at\n         the time of such Sale Transaction), the Holder is entitled to exercise\n         this Warrant with respect to all (but not less than all) of the Sale\n         Transaction within ten (10) days of the occurrence of the Sale\n         Transaction but in no event later than the Expiration Date or, if such\n         day is not a Business Day, then on the next succeeding day that shall\n         be a Business Day.\n\n         To exercise this Warrant, the Holder shall deliver to the Company this\n         Warrant and a Notice to Exercise form attached hereto duly executed by\n         the Holder, together with payment of the Exercise Price as determined\n         in accordance with the following sentence. The Exercise Price for the\n         Warrant in connection with the Sale Transaction described in this\n         paragraph (b)(ii) shall be determined by multiplying the then-current\n         Exercise Price by a fraction, the numerator of which is the Fair Value\n         of the portion of the Internet Business (as such business exists at the\n         time of such Sale Transaction) included in such Sale Transaction, and\n         the denominator of which is the Fair Value of the Internet Business\n         immediately prior to such Sale Transaction and without taking the\n         prospect of such Sale Transaction into account. In the event that\n         Holder exercises this Warrant in a Sale Transaction pursuant to this\n         paragraph (ii), the Warrant shall continue in effect with respect to\n         the Company's remaining interest in the Internet Business (as such\n         business exists at the time of such Sale Transaction), and immediately\n         following such exercise (or the Holder's election not to so exercise),\n         the Exercise Price with respect to the remaining Warrant shall be\n         reduced by the Exercise Price paid (or that would have been paid) by\n         the Holder in respect of such Sale Transaction.\n\n         (c) At the option of the Holder, the Exercise Price may be paid in cash\n(including by wire transfer of immediately available funds), by certified or\nofficial bank check or bank cashier's check payable to the order of the Company,\nor, in the event of an exercise following a Strategic Transaction, in fully-paid\nand non-assessable shares (or the surrender by the Holder of the right to\nreceive such number of shares) of Common Stock valued at the initial public\noffering price of such Common Stock or by any combination of the foregoing. The\nCompany shall pay any and all documentary, or similar issue or transfer taxes\npayable in respect of the issue or delivery of the Warrant Shares. The Company\nshall not be required to pay any transfer tax which may be payable in respect of\nany transfer involved in the issue or delivery of Warrant Shares (or other\nsecurities or assets) in a name other than that in which the Warrant so\nexercised was registered, and no such issue or delivery shall be made unless and\nuntil the person requesting such issue has paid to the Company the amount of\nsuch transfer tax or has established, to the satisfaction of the Company, that\nsuch transfer tax has been paid.\n\n         (d) Upon surrender of this Warrant in conformity with the foregoing\nprovisions, the Company shall, subject to the expiration of any applicable\nwaiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,\nas amended, transfer to the Holder of this Warrant appropriate evidence of\nownership of the shares of Common Stock or other securities or property\n(including any money) to which the Holder is entitled, registered or otherwise\nplaced in, or payable to the order of, the name or names of the Holder or such\ntransferee as may be directed in writing by the Holder, and shall deliver such\nevidence of ownership and any other securities or property (including any money)\nto the Person or Persons entitled to receive the same, together with an amount\nin cash in lieu of any fraction of a share as provided in Section 8, subject to\nany required withholding.\n\n         SECTION 3. ADJUSTMENT TO WARRANT PERCENTAGE OR EXERCISE PRICE. If at\nany time after the date hereof, the Company engages in a transaction pursuant to\n\nwhich it acquires an interest in (whether by acquisition, merger, asset purchase\nor otherwise) a business or assets that is intended to, and does, become part of\nthe Internet Business, Holder shall have the option of either adjusting the\nWarrant Percentage or the Exercise Price as follows:\n\n         (a) Adjustment of Warrant Percentage. The Warrant Percentage shall be\nadjusted by multiplying the then-current Warrant Percentage by a fraction, the\nnumerator of which is the Fair Value of the Internet Business immediately prior\nto such transaction, and the denominator of which is the sum of such Fair Value\nplus the Fair Value of the consideration paid or issued (and debt assumed which\nis not retained by the Internet Business) by the Company in such transaction.\n\n         (b) Adjustment of Exercise Price. The Exercise Price shall be adjusted\nby adding to the then-current Exercise Price the product of the Warrant\nPercentage at such time and the Fair Value of the consideration paid or issued\n(and debt assumed which is not retained by the Internet Business) by the Company\nin such transaction.\n\n         (c) In the event that a transaction described in this Section 3\nincludes both a business to be included in the Internet Business and businesses\nthat will be retained by the Company outside of the Internet Business, the Board\nshall apportion the consideration in the transaction on a fair and equitable\nbasis, acting in good faith and based upon the advice of a nationally recognized\ninvestment banking firm.\n\nPromptly following consummation of a transaction giving rise to an adjustment in\nthe Warrant Percentage or Exercise Price pursuant to this Section 3, the Company\nshall provide the Holder with written notice thereof, which notice shall also\ninclude (i) the revised Warrant Percentage as calculated pursuant to paragraph\n(a) above, (ii) the revised Exercise Price as calculated pursuant to paragraph\n(b) above, (iii) the basis on which such adjustments were calculated and (iv) a\ndescription of the business acquired and copies of information provided to the\nBoard of Directors in connection with its approval of the transaction. Holder\nshall, within 10 days of receipt of such notice, notify the Company in writing\nof its election to adjust either the Warrant Percentage or the Exercise Price.\nIf the Company has not received written notice of Holder's election within such\n10-day period, Holder shall be deemed to have elected to adjust the Warrant\nPercentage.\n\n         SECTION 4. CERTAIN NON-DILUTION OF WARRANT SHARES. The percentage of\nCommon Stock owned by Holder upon exercise of this Warrant shall not be diluted\nby options on the Common Stock granted prior to the initial public offering of\nthe Common Stock to (or the exercise thereof by) employees representing a\nmaximum of 10% of the Common Stock immediately prior to such offering, provided,\nthat options in excess of that amount shall be dilutive on a pro rata basis.\n\n         SECTION 5. ASSUMPTION OF WARRANT BY SUBSIDIARY. The Company and Holder\nhereby agree that in the event that the Common Stock issued in a Strategic\nTransaction is Common Stock of a Subsidiary of the Company, such Subsidiary\nshall assume all of the Company's rights and obligations hereunder.\n\n         SECTION 6. REGISTERED SHARES AND RESTRICTIVE LEGEND; REGISTRATION\nRIGHTS. (a) Each certificate representing shares of Common Stock issued pursuant\nto this Warrant, unless at the time of exercise such shares are registered under\nthe Securities Act, shall bear a legend substantially in the form of the legend\nset forth on the first page of this Warrant. The Company hereby agrees to use\nits reasonable best efforts to cause all shares of Common Stock issued pursuant\nto this Warrant to be promptly registered under the Securities Act. In the event\nthat Company is unable to so register such shares of Common Stock, Holder shall\nbe entitled to customary registration rights with respect to such shares.\n\n         (b) In connection with the issuance of shares of Common Stock to the\nHolder pursuant to this Warrant, the Company shall provide the Holder with\ncustomary registration rights with respect to such shares, consistent with the\nterms of the post-IPO registration rights granted to the Holder in connection\nwith its investment in MSLO.\n\n         SECTION 7. RESERVATION OF SHARES. The Company hereby represents and\nagrees that all shares of Common Stock issued pursuant to this Warrant shall be\nduly authorized and, when issued upon such exercise, shall be validly issued,\nfully paid and non-assessable, free and clear of all liens, security interests,\ncharges and other encumbrances or restrictions on sale imposed by the Company\nand free and clear of all preemptive or similar rights, except to the extent\nimposed by or as a result of the status, act or omission of, the Holder.\n\n         SECTION 8. FRACTIONAL SHARES. No fractional shares or scrip\nrepresenting fractional shares shall be issued upon the exercise of this Warrant\nand in lieu of delivery of any such fractional share upon any exercise hereof,\nthe Company shall pay to the Holder an amount in cash equal to such fraction\nmultiplied by the Fair Market Value thereof.\n\n         SECTION 9. TRANSFER, EXCHANGE OR ASSIGNMENT OF WARRANT AND SHARES. (a)\nThe Holder by taking or holding this Warrant, consents and agrees that the\nregistered holder hereof may be treated by the Company and all other persons\ndealing with this Warrant as the absolute owner hereof for any purpose and as\nthe person entitled to exercise the rights represented hereby.\n\n         (b) This Warrant is not transferable or assignable (by operation of law\nor otherwise) by the Holder without the prior written consent of the Company. In\nthe event Holder receives shares of Common Stock upon exercise of this Warrant,\nHolder shall not, on or prior to the one-year anniversary of the date it\nreceives such shares, sell, transfer, distribute or otherwise dispose of any\nsuch shares of Common Stock, or any rights with respect thereto (a \"Transfer\"),\nprovided, however, that, following the six-month anniversary of such date,\nHolder may distribute up to 50% of such shares to the limited partners or other\nfund participants in the relevant Kleiner Perkins Caufield &amp; Byers fund. The\nforegoing limitation shall not apply to any Transfer approved by the MSLO Board\nof Directors, including a Transfer pursuant to a corporate transaction relating\nto MSLO approved by the MSLO Board of Directors.\n\n         (c) Upon receipt by the Company of evidence satisfactory to it (in the\nexercise of its reasonable discretion) of the loss, theft, destruction or\nmutilation of this Warrant, and (in the case of loss, theft or destruction) of\nindemnification or security reasonably required by the Company, and upon\nsurrender and cancellation of this Warrant, if mutilated, the Company shall\nexecute and deliver a new Warrant of like tenor and date.\n\n         (d) The Company shall pay all expenses, taxes (other than transfer\ntaxes) and other charges payable in connection with the preparation, issuance\nand delivery of the Warrant hereunder.\n\n         (e) This Warrant shall be binding on any successor or parent entity of\nthe Company, whether by merger, sale, reorganization or similar transaction.\n\n         SECTION 10. NO IMPAIRMENT. So long as this Warrant is outstanding, the\nCompany will not, by amendment of its LLC Operating Agreement or through any\nreorganization, transfer of assets, consolidation, merger, dissolution, issue or\nsale of securities or any other voluntary action, avoid or seek to avoid the\nobservance or performance of any of the terms to be observed or performed\nhereunder by the Company, but will at all times in good faith assist in the\ncarrying out of all the provisions of this Section 10 and in the taking of all\nsuch action as may be necessary or appropriate in order to protect the rights of\nthe Holder against impairment.\n\n         SECTION 11. NOTICES. Any notice, demand or delivery authorized by this\nWarrant shall be in writing and shall be given to the Holder or to the Company,\nas the case may be, at its address (or facsimile number) set forth below, or\nsuch other address (or facsimile number) as shall have been furnished to the\nparty giving or making such notice, demand or delivery:\n\n          If to the Company:           Martha Stewart Living Omnimedia LLC\n                                       20 West 43rd Street\n                                       New York, New York  10036\n                                       Attention:  General Counsel\n                                       Facsimile:  (212) 827-8289\n\n          with a copy to:              Wachtell, Lipton, Rosen &amp; Katz\n                                       51 West 52nd Street\n                                       New York, New York  10019\n                                       Attention:  Andrew J. Nussbaum, Esq.\n                                       Facsimile:  (212) 403-2000\n\n          If to the Holder:            Kleiner Perkins Caufield &amp; Byers\n                                       2750 Sand Hill Road\n                                       Menlo Park, CA 94025\n                                       Attention:  John Doerr\n                                       Facsimile:  (650) 233-0300\n\n          with a copy to:              Fenwick &amp; West LLP\n                                       2 Palo Alto Square\n                                       Palo Alto, CA  94306\n                                       Attention:  Gordon K. Davidson, Esq.\n                                       Facsimile:  (650) 494-1417\n\nEach such notice, demand or delivery shall be effective (i) if given by\ntelecopy, when such telecopy is transmitted to the telecopy number specified\nherein and the intended recipient confirms the receipt of such telecopy, or (ii)\nif given by any other means, when received at the address specified herein.\n\n         SECTION 12. RIGHTS OF THE HOLDER. Prior to the exercise of this Warrant\nfor shares of Common Stock, if available, the Holder shall not, by virtue\nhereof, be entitled to any rights of a shareholder of the Company, including,\nwithout limitation, the right to vote, to receive dividends or other\ndistributions, to exercise any preemptive right or to receive any notice of\nmeetings of shareholders or any notice of any proceedings of the Company except\nas may be specifically provided for herein.\n\n         SECTION 13. GOVERNING LAW. THIS WARRANT AND ALL RIGHTS ARISING\nHEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS\nOF THE STATE OF DELAWARE, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED AND\nENFORCED IN ACCORDANCE WITH SUCH LAWS.\n\n         SECTION 14. AMENDMENTS; WAIVERS. Any provision of this Warrant may be\namended or waived if, and only if, such amendment or waiver is in writing and\nsigned, in the case of an amendment, by the Holder and the Company, or in the\ncase of a waiver, by the party against whom the waiver is to be effective. No\nfailure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise\nof any other right, power or privilege.\n\n         SECTION 15. INTERPRETATION. When a reference is made in this Warrant to\na Section such reference shall be to a Section of this Warrant unless otherwise\nindicated. Whenever the words \"include\", \"includes\" or \"including\" are used in\nthis Warrant, they shall be deemed to be followed by the words \"without\nlimitation\". The words \"hereof\", \"herein\" and \"hereunder\" and words of similar\nimport when used in this Warrant shall refer to this Warrant as a whole and not\nto any particular provision of this Warrant. The definitions contained in this\nWarrant are applicable to the singular as well as the plural forms of such terms\nand to the masculine as well as to the feminine and neuter genders of such term.\nReferences to a person are also to its permitted successors and assigns and, in\nthe case of an individual, to his heirs and estate, as applicable.\n\n         IN WITNESS WHEREOF, the Company has duly caused this Warrant to be\nsigned by its duly authorized officer and to be dated as of the date first above\nwritten.\n\n                                                     MARTHA STEWART LIVING\n                                                     OMNIMEDIA LLC\n\n\n\n   \n                                                   By: \/s\/ Martha Stewart\n                                                       _________________________\n                                                       Name:  Martha Stewart\n                                                       Title: Chairman and Chief\n                                                              Executive Officer\n    \n\n\nATTEST:\n\n\n\nBy: \/s\/ Sharon Lee Patrick\n   __________________________\n   Name:  Sharon Lee Patrick\n   Title: President\n\n\n\nACKNOWLEDGED AND AGREED:\n\nKPCB HOLDINGS, INC., AS NOMINEE\n\n\n\nBy: \/s\/ L. John Doerr\n    ___________________________\n    Name:  L. John Doerr\n    Title: Senior Vice President\n\n                                     FORM OF\n                               NOTICE OF EXERCISE\n\n\nTo:  MARTHA STEWART LIVING OMNIMEDIA LLC\n\n         (1) The undersigned hereby elects to exercise the attached Warrant\npursuant to the terms of the attached Warrant, and has tendered herewith payment\nof the purchase price in full.\n\n         (2) The undersigned hereby certifies that it has complied with all of\nits obligations pursuant to the terms of the attached Warrant.\n\n         (3) To the extent shares are being issued in respect of the Warrant,\nthe undersigned represents that the aforesaid shares are being acquired for the\naccount of the undersigned for investment and not with a view to, or for resale\nin connection with, the distribution thereof and that the undersigned has no\npresent intention of distributing or reselling such shares, except in compliance\nwith applicable federal and state securities laws and that the aforesaid shares\nare subject, if applicable, to certain provisions of the LLC Operating Agreement\nof the Company.\n\n\n\n\n------------------                     ------------------------------------\n     Date                                             Signature\n\n\n\n TYPE:  EX-5.1\n SEQUENCE:  5\n DESCRIPTION:  FORM OF OPINION\n\n\n\n                                                                 Exhibit 5.01\n\n                   [Wachtell, Lipton, Rosen &amp; Katz Letterhead]\n\n\n                                                         ___________ __, 1999\n\n\nMartha Stewart Living Omnimedia, Inc.\n11 West 42nd Street\nNew York, New York  10036\n\nLadies and Gentlemen:\n\n                  Reference is made to the Registration Statement on Form S-1\n(Registration No. 333-84001), as amended, filed with the Securities and Exchange\nCommission (the \"Registration Statement\") in connection with the registration of\nshares of Class A common stock, par value $0.01 per share (the \"Shares\"), of\nMartha Stewart Living Omnimedia, Inc. (the \"Company\") under the Securities Act\nof 1933, as amended, to be sold by you in your initial public offering (the\n\"Offering\"). In connection with the Offering, you have requested our opinion\nwith respect to the following matters.\n\n                  In connection with the delivery of this opinion, we have\nexamined originals or copies of the Certificate of Incorporation and the By-Laws\nof the Company as set forth as exhibits to the Registration Statement, the\nRegistration Statement, certain resolutions adopted or to be adopted by the\nBoard of Directors, the form of stock certificate representing the Shares and\nsuch other records, agreements, instruments, certificates and other documents of\npublic officials, the Company and its officers and representatives and have made\nsuch inquiries of the Company and its officers and representatives, as we have\ndeemed necessary or appropriate in connection with the opinions set forth\nherein. We are familiar with the proceedings heretofore taken, and with the\nadditional proceedings proposed to be taken, by the Company in connection with\nthe authorization, registration, issuance and sale of the Shares. With respect\nto certain factual\n\nMartha Stewart Living Omnimedia, Inc.\n_______________, 1999\nPage 2\n\n\nmatters material to our opinion, we have relied upon representations from, or\ncertificates of, officers of the Company. In making such examination and\nrendering the opinions set forth below, we have assumed without verification the\ngenuineness of all signatures, the authenticity of all documents submitted to us\nas originals, the authenticity of the originals of such documents submitted to\nus as certified copies, the conformity to originals of all documents submitted\nto us as copies, the authenticity of the originals of such later documents, and\nthat all documents submitted to us as certified copies are true and correct\ncopies of such originals.\n\n                  Based on such examination and review, and subject to the\nforegoing, we are of the opinion that the Shares, upon issuance, delivery and\npayment therefor in the manner contemplated by the Registration Statement, will\nbe validly issued, fully paid and non-assessable.\n\n                  We are members of the Bar of the State of New York, and we\nhave not considered, and we express no opinion as to, the laws of any\njurisdiction other than the laws of the United States of America, the State of\nNew York and the General Corporation Law of the State of Delaware.\n\n                  We consent to the inclusion of this opinion as an Exhibit to\nthe Registration Statement and to the reference to our firm in the Prospectus\nthat is a part of the Registration Statement. In giving such consent, we do not\nhereby admit that we are in the category of persons whose consent is required\nunder Section 7 of the Securities Act of 1933, as amended.\n\n                                                              Very truly yours,\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8137],"corporate_contracts_industries":[9464],"corporate_contracts_types":[9560,9572],"class_list":["post-41362","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-martha-stewart-living-omnimedia-inc","corporate_contracts_industries-media__books","corporate_contracts_types-finance","corporate_contracts_types-finance__warrant"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41362","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41362"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41362"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41362"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41362"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}