Exhibit
10.4


 


[TIME
VESTED FORM FOR EVPs]


THE MACERICH COMPANY


 


LTIP UNITS AWARD AGREEMENT


 


LTIP UNITS AWARD AGREEMENT made as of date set forth
on Schedule A hereto between The Macerich Company, a Maryland
corporation (the “Company”), its subsidiary The Macerich Partnership, L.P.,
a Delaware limited partnership and the entity through which the Company
conducts substantially all of its operations (the “Partnership”), and
the party listed on Schedule A (the “Grantee”).


 


RECITALS


 


A.            The Grantee is an employee of the Company
or one of its Subsidiaries or affiliates and provides services to the
Partnership.


 


B.            Pursuant to The
Macerich Company 2003 Equity Incentive Plan, as amended, which includes any
applicable programs thereunder (the “2003
Plan”), the Company has granted to the Grantee with reference to
services rendered and to be rendered to the Company, upon the terms and
conditions set forth herein, an award of LTIP Units (this “Award”) as described
in this Award Agreement (this “Agreement”
or “Award Agreement”). This Award
was made by the Compensation Committee (the “Committee”) of the Board of
Directors of the Company (the “Board”) pursuant to authority delegated
to it by the Board as set forth in the Committee’s charter, including authority
to make grants of equity interests in the Partnership which may, under certain
circumstances, become exchangeable for shares of the Company’s Common Stock
reserved for issuance under the 2003 Plan, or any successor equity plan (as any
such plan may be amended, modified or supplemented from time to time,
collectively the “Stock Plan”).


 


C.            Effective
as of the Effective Date specified in Schedule
A hereto, the
Committee awarded to the Grantee the number of LTIP Units set forth in Schedule A.


 


NOW, THEREFORE, the Company, the
Partnership and the Grantee agree as follows:


 


1.             Administration.
This Award and this Agreement shall be administered by the Committee
pursuant to its powers and authority in the administration of the Stock Plan, as
set forth in the Stock Plan. The Committee may from time to time adopt any
rules or procedures it deems necessary or desirable for the proper and
efficient administration of this Award and this Agreement, consistent with the
terms hereof and of the Stock Plan. The Committee’s determinations and
interpretations with respect to this Award and this Agreement shall be final
and binding on all parties.


 

















 


2.             Definitions.
Capitalized terms used herein without definitions shall have the meanings
given to those terms in the Stock Plan. In addition, as used herein:


 


“Award
LTIP Units” has the meaning set forth in Section 3.


 


“Change
of Control” means any of the following:


 


(a)           The acquisition by any Person
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 33% or more of either (A) the then-outstanding shares of
common stock of the Company (the “Outstanding Company Common Stock”) or
(B) the combined voting power of the then-outstanding voting securities of the
Company entitled to vote generally in the election of directors (the “Outstanding
Company Voting Securities”); provided, however, that, for purposes of this
definition, the following acquisitions shall not constitute a Change of
Control; (i) any acquisition directly from the Company, (ii) any acquisition by
the Company, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by 


 


2

















 


the Company or any affiliate of the Company or
successor or (iv) any acquisition by any entity pursuant to a transaction that
complies with (c)(i), (c)(ii) and (c)(iii) below;


 


(b)           Individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least two-thirds of the directors
then comprising the Incumbent Board (including for these purposes, the new
members whose election or nomination was so approved, without counting the
member and his predecessor twice) shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual
or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board;


 


(c)           Consummation of a reorganization, merger, statutory share exchange or
consolidation or similar corporate transaction involving the Company or any of
its subsidiaries, a sale or other disposition of all or substantially all of
the assets of the Company, or the acquisition of assets or stock of another
entity by the Company or any of its subsidiaries (each, a “Business
Combination”), in each case unless, following such Business Combination, (i)
all or substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 60% of the then-outstanding
shares of common stock and the combined voting power of the then-outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the entity resulting from such Business Combination (including,
without limitation, an entity that, as a result of such transaction, owns the
Company or all or substantially all of the Company’s assets directly or through
one or more subsidiaries (“Parent”)) in substantially the same
proportions as their ownership immediately prior to such Business Combination
of the Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (ii) no Person (excluding any entity resulting
from such Business Combination or a Parent or any employee benefit plan (or
related trust) of the Company or such entity resulting from such Business
Combination or Parent) beneficially owns, directly or indirectly, 20% or more
of, respectively, the then-outstanding shares of common stock of the entity resulting
from such Business Combination or the combined voting power of the
then-outstanding voting securities of such entity, except to the extent that
the ownership in excess of 20% existed prior to the Business Combination, and (iii)
at least a majority of the members of the board of directors or trustees of the
entity resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement or of the action of
the Board providing for such Business Combination; or


 


(d)           Approval by the stockholders of the Company of a complete liquidation
or dissolution of the Company.


 


3

















 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Common
Stock” means shares of the Company’s common stock, par value $0.01 per
share, either currently existing or authorized hereafter.


 


“Continuous Service” means the
continuous service to the Company or any Subsidiary or affiliate, without
interruption or termination, in any capacity of employee, or, with the written consent
of the Committee, consultant. Continuous Service shall not be considered
interrupted in the case of (A) any approved leave of absence, (B) transfers
among the Company and any Subsidiary or affiliate, or any successor, in any
capacity of employee, or with the written consent of the Committee, consultant,
or (C) any change in status as long as the individual remains in the service of
the Company and any Subsidiary or affiliate in any capacity of employee, member
of the Board or (if the Company specifically agrees in writing that the
Continuous Service is not uninterrupted) a consultant. An approved leave of
absence shall include sick leave, military leave, or any other authorized
personal leave.


 


“Disability”
means (1) a “permanent and total disability” within the meaning of Section
22(e)(3) of the Code, or (2) the absence of the Grantee from his duties with
the Company on a full-time basis for a period of nine months as a result of
incapacity due to mental or physical illness which is determined to be total
and permanent by a physician selected by the Company or its insurers and
acceptable to the Grantee or his legal representative (such agreements as to
acceptability not to be unreasonably withheld). For purposes of the definition
of Disability “incapacity” shall be limited only to a condition that
substantially prevents the Grantee from performing his or her duties.


 


“Effective
Date” means                                             ,
        .


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“LTIP
Units” means units of limited partnership interest of the Partnership
designated as “LTIP Units” in the Partnership Agreement having the rights,
voting powers, restrictions, 


 


4

















 


limitations
as to distributions, qualifications and terms and conditions of redemption set
forth in the Partnership Agreement.


 


“Partnership
Agreement” means the Amended and Restated Limited Partnership Agreement of
the Partnership, dated as of March 16, 1994, among the Company, as general
partner, and the limited partners who are parties thereto, as amended from time
to time.


 


“Person” means an individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization, other entity or “group” (as defined in the
Exchange Act).


 


 “Qualified Termination”
means a termination of the Grantee’s employment as a result of the Grantee’s
death or Disability.


 


“Service Agreement” means, as of a particular
date, any employment, consulting or
similar service agreement, including, without limitation, management continuity
agreement, then in effect between the Grantee, on the one hand, and the Company
or one of its affiliates, on the other hand, as amended or supplemented through
such date.


 


“Units”
means Partnership Units (as defined in the Partnership Agreement) that are outstanding
or are issuable upon the conversion, exercise, exchange or redemption of any
securities of any kind convertible, exercisable, exchangeable or redeemable for
Partnership Units.


 


“Vesting
Date” means each of the vesting dates set forth in Section 4.


 


“Vesting
Schedule” means the vesting schedule set forth in Section 4.


 


3.             Award
of LTIP Units. On the terms and conditions set forth in this Agreement, as
well as the terms and conditions of the Stock Plan, the Grantee is hereby
granted this Award consisting of the number of LTIP Units set forth on Schedule A hereto, which is incorporated herein by reference (the “Award
LTIP Units”). Award LTIP Units
constitute and shall be treated as the property of the Grantee, subject to the
terms of this Agreement and the Partnership Agreement. Award LTIP Units
will be: (A) subject to forfeiture to the extent provided in Section 5;
and (B) subject to vesting as provided in Sections 4 and 5 hereof.


 


4.             Vesting
of Award LTIP Units.


 


(a)           Vesting Schedule. Except as otherwise provided in Section
5 hereof, and/or the Stock Plan, the Award LTIP Units shall become vested
in the following amounts, provided that the Continuous Service of the
Grantee continues through and on the relevant Vesting Date.


 


5

















 


 


	
  Vesting Date

  	
   

  	
  Number
  of

  Award LTIP Units Becoming

  Vested

  	
   

  	
  Cumulative

  Percentage Vested

  	
   

  
	
                  ,
            

  	
   

  	
  [(33 1/3%)]

  	
   

  	
  [33 1/3%]

  	
   

  
	
                  ,
          

  	
   

  	
  [(33 1/3%)]

  	
   

  	
  [66 2/3%]

  	
   

  
	
                  ,
          

  	
   

  	
  [(33 1/3%)]

  	
   

  	
  [100%]

  	
   

  



 


[Vesting schedule subject
to change by the Committee.]


 


(b)           Continuous Service
Requirement. The Grantee agrees to provide Continuous Service to the
Company in consideration for the conditional rights to the unvested Award LTIP
Units. Except as otherwise provided in Section 5 or pursuant to the
Stock Plan, the Vesting Schedule requires Continuous Service through each
applicable Vesting Date as a condition to the vesting of the applicable
installment and rights and benefits under this Agreement. Partial service, even
if substantial, during any vesting period will not entitle the Grantee to any
proportionate vesting or avoid or mitigate a termination of rights and benefits
upon or following a termination of employment or service as provided in Section
5 below or under the Stock Plan.


 


5.             Change
of Control or Termination of Grantee’s Service Relationship.


 


(a)           Forfeiture after
Certain Events. If the Grantee is a party to a Service Agreement, the
provisions of Sections 5(b), 5(c) and 5(d) below shall
govern the vesting of the Grantee’s Award LTIP Units exclusively in the event
of a Change of Control or termination of the Grantee’s service relationship
with the Company or any Subsidiary or affiliate, unless the Service Agreement
contains provisions that expressly refer to this Section 5 and provides
that those provisions of the Service Agreement shall instead govern the vesting
of the Grantee’s Award LTIP Units. The foregoing sentence will be deemed an
amendment to any applicable Service Agreement to the extent required to apply
its terms consistently with this Section 5, such that, by way of
illustration, any provisions of the Service Agreement with respect to
accelerated vesting or payout of the Grantee’s bonus or incentive compensation
awards in the event of certain types of terminations of Grantee’s service relationship
shall not be interpreted as requiring that vesting occur with respect to this
Award other than as specifically provided in this Section 5. In the event an entity ceases to be a
Subsidiary or affiliate of the Company, such action shall be deemed to be a
termination of employment of all employees of that entity for purposes of this
Agreement, provided that the Committee, in its sole and absolute
discretion, may make provision in such circumstances for accelerated vesting of
some or all of the Grantee’s remaining unvested Award LTIP Units that have not
previously been forfeited, effective immediately prior to such event.


 


(b)           Change of Control,
Qualified Termination or Retirement. In the event of a Change of Control or
Qualified Termination, the unvested
Award LTIP Units subject to this Agreement that have not been previously
forfeited shall automatically and 


 


6

















 


 


immediately vest as of the
date of the Change of Control or Qualified Termination (or effective
immediately prior to such event to the extent necessary in order to enable the
realization of the benefits of such acceleration), subject to the provisions of
Sections 6.4 and 6.5 of the Stock Plan. If the Grantee’s employment with the Company or a Subsidiary or
affiliate terminates as a result of his or her Retirement, the Committee may,
on a case-by-case basis and in its sole discretion, provide for partial or
complete vesting prior to the Retirement of all or a portion of his or her
Award LTIP Units that have not previously been forfeited.


 


(c)           Change of Control
Benefits. To the extent that the Grantee’s Service Agreement entitles the
Grantee to receive any severance payments, or any other similar term used in
the Grantee’s Service agreement, from the Company in case of a termination of
the Grantee’s employment following a Change of Control or a similar event (“Change
of Control Benefits”), then for purposes of calculating the Grantee’s
entitlement to such Change of Control Benefits the amount of the Award LTIP
Units awarded with respect to any calendar year shall be included as part of
the Grantee’s annual incentive bonus amount, or any other similar term used in
the Grantee’s Service Agreement, for such calendar year.


 


(d)           Return
of Award LTIP Units. In the event of a termination of employment or other
cessation of the Grantee’s Continuous Service other than a Qualified
Termination, effective as of the date of such termination or cessation all
Award LTIP Units except for those that had previously become vested pursuant to
Section 4 or 5 hereof shall automatically and immediately be
forfeited by the Grantee. Upon
the occurrence of any forfeiture of Award LTIP Units hereunder, such unvested,
forfeited LTIP Units shall, without payment of any consideration by the Company
for such transfer, be automatically transferred to the Company, without any
other action by the Grantee, or the Grantee’s Beneficiary or Personal
Representative, as the case may be. The Company may take any other action
necessary or advisable to evidence such transfer. Any such forfeited Award LTIP
Units shall automatically and without notice, terminate and be and become null
and void, and neither the Grantee nor any of his Beneficiaries or Personal
Representatives will thereafter have any further rights or interests in such
forfeited Award LTIP Units. The Grantee, or the Grantee’s Beneficiary or
Personal Representative, as the case may be, and the Partnership shall deliver
any additional documents of transfer that the Company may request to confirm
the transfer of such unvested, forfeited LTIP Units to the Company.


 


(e)           Section 409A Matters.
Notwithstanding the foregoing, in the event vesting pursuant to Section 5
is determined to constitute “nonqualified deferred compensation” subject to
Section 409A of the Code, then, to the extent the Grantee is a “specified
employee” under Section 409A of the Code subject to the six-month delay
thereunder, any such vesting or related payments to be made during the
six-month period commencing on the Grantee’s “separation from service” (as
defined in Section 409A of the Code) shall be delayed until the expiration of
such six-month period.


 


7

















 


(f)            Schedule A Controls.
To the extent that Schedule A provides for amounts or schedules of
vesting that conflict with the provisions of this Section 5, the provisions of Schedule A will be
controlling and determinative.


 


6.             Payments
by Award Recipients. No amount shall be payable to the Company or the
Partnership by the Grantee at any time in respect of this Award.


 


7.             Distributions.
The Grantee shall be entitled to receive distributions with respect to the Award
LTIP Units to the extent provided for in the Partnership Agreement, as modified
hereby, if applicable. The Distribution Participation Date (as defined in the Partnership
Agreement) with respect to the Award LTIP Units shall be the Effective Date and
the Award LTIP Units shall be entitled to the full distribution payable on
Units outstanding as of the record date for the quarterly distribution in which
the Effective Date falls even though the Award LTIP Units will not have been
outstanding for the whole quarterly period. All distributions paid with respect to Award LTIP Units shall be fully
vested and non-forfeitable when paid whether the underlying Award LTIP Units
are vested or unvested.


 


8.             Restrictions
on Transfer. None of the Award LTIP Units shall be sold, assigned,
transferred, pledged or otherwise disposed of or encumbered (whether voluntarily
or involuntarily or by judgment, levy, attachment, garnishment or other legal
or equitable proceeding) (each such action a “Transfer”), or redeemed in
accordance with the Partnership Agreement (a) prior to vesting, (b) for a
period of two (2) years beginning on the Effective Date other than in
connection with a Change of Control, and (c) unless such Transfer is in
compliance with all applicable securities laws (including, without limitation,
the Securities Act of 1933, as amended (the “Securities Act”)), and such
Transfer is in accordance with the applicable terms and conditions of the
Partnership Agreement; provided
that, upon the approval of, and subject to the terms and conditions specified
by, the Committee, unvested Award LTIP Units that have been held for a period
of at least two (2) years may be Transferred to (i) the spouse, children or
grandchildren of the Grantee (“Immediate Family Members”), (ii) a trust
or trusts for the exclusive benefit of the Grantee and such Immediate Family
Members, (iii) a partnership in which the Grantee and such Immediate Family
Members are the only partners, or (iv) one or more entities in which the
Grantee has a 10% or greater equity interest, provided that the Transferee
agrees in writing with the Company and the Partnership to be bound by all the
terms and conditions of this Agreement and that subsequent transfers of
unvested Award LTIP Units shall be prohibited except those in accordance with
this Section 8. In connection with any Transfer of Award LTIP
Units, the Partnership may require the Grantee to provide an opinion of
counsel, satisfactory to the Partnership, that such Transfer is in compliance
with all federal and state securities laws (including, without limitation, the
Securities Act). Any attempted Transfer of Award LTIP Units not in accordance
with the terms and conditions of this Section 8 shall be null and void,
and the Partnership shall not reflect on its records any change in record
ownership of any LTIP Units as a result of any such Transfer, shall otherwise
refuse to recognize any such Transfer and shall not in any way give effect to
any such Transfer of any LTIP Units. This Agreement is personal to the Grantee,
is non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or the laws of descent and distribution.


 


9.             Changes
in Capital Structure. Without duplication with the provisions of Section 6.2
of the Stock Plan, if (a) the Company shall at any time be involved in a
merger, 


 


8

















 


consolidation,
dissolution, liquidation, reorganization, exchange of shares, sale of all or
substantially all of the assets or stock of the Company or other fundamental transaction
similar thereto, (b) any stock dividend, stock split, reverse stock split,
stock combination, reclassification, recapitalization, significant repurchases
of stock, or other similar change in the capital structure of the Company shall
occur, (c) any extraordinary dividend or other distribution to holders of shares
of Common Stock or Units other than regular cash dividends shall be made, or (d)
any other event shall occur that in each case in the good faith judgment of the
Committee necessitates action by way of appropriate equitable adjustment in the
terms of this Award or the LTIP Units, then the Committee shall take such
action as it deems necessary to maintain the Grantee’s rights hereunder so that
they are substantially proportionate to the rights existing under this Award
and the terms of the LTIP Units prior to such event, including, without
limitation: (i) adjustments in the Award LTIP Units or other pertinent terms of
this Award; and (ii) substitution of other awards under the Stock Plan or
otherwise. The Grantee shall have the right to vote the Award LTIP Units if and
when voting is allowed under the Partnership Agreement, regardless of whether
vesting has occurred.


 


10.           Possible Early Termination of Award LTIP
Units. As permitted by Section 6.2(b) of the Stock Plan, and without
limiting the authority of the Committee under other provisions of Section 6.2
of the Stock Plan or Section 5 of this Agreement, the Committee retains
the right to terminate the Award LTIP Units, to the extent they have not
vested, upon a dissolution of the Company or a reorganization event or
transaction in which the Company does not survive (or does not survive as a
public company in respect of its outstanding Common Stock). This Section 10
is not intended to prevent future vesting of any Award LTIP Units if they (or a
substituted award) remain outstanding following a Change of Control.


 


11.           Miscellaneous.


 


(a)           Amendments;
Modifications. This Agreement may be amended or modified only with the
consent of the Company and the Partnership acting through the Committee; provided
that any such amendment or modification materially and adversely affecting the
rights of the Grantee hereunder must be consented to by the Grantee to be
effective as against him; and provided,
further, that the Grantee
acknowledges that the Stock Plan may be amended or discontinued in accordance
with Section 6.6 thereof and that this Agreement may be amended or canceled by
the Committee, on behalf of the Company and the Partnership, for the purpose of
satisfying changes in law or for any other lawful purpose, so long as no such
action shall impair the Grantee’s rights under this Agreement without the
Grantee’s written consent. Notwithstanding the foregoing, this Agreement may be
amended in writing signed only by the Company to correct any errors or
ambiguities in this Agreement and/or to make such changes that do not materially
adversely affect the Grantee’s rights hereunder. No promises, assurances,
commitments, agreements, undertakings or representations, whether oral,
written, electronic or otherwise, and whether express or implied, with respect
to the subject matter hereof, have been made by the parties which are not set
forth expressly in this Agreement. This grant shall in no way affect the
Grantee’s participation or benefits under any other plan or benefit program
maintained or provided by the Company.


 


(b)           Incorporation of Stock
Plan; Committee Determinations. The provisions of the Stock Plan are hereby
incorporated by reference as if set forth herein.
In the event of a 


 


9

















 


conflict between this
Agreement and the Stock Plan, this Agreement shall be controlling and determinative. The
Committee will make the determinations and certifications required by this
Award as promptly as reasonably practicable following the occurrence of the
event or events necessitating such determinations or certifications.


 


(c)           Status as a Partner.
As of the grant date set forth on Schedule A, the Grantee shall be
admitted as a partner of the Partnership with beneficial ownership of the number
of Award LTIP Units issued to the Grantee as of such date pursuant to Section 3 hereof by: (A) signing
and delivering to the Partnership a copy of this Agreement; and (B) signing, as
a Limited Partner, and delivering to the Partnership a counterpart signature
page to the Partnership Agreement (attached hereto as Exhibit A). The
Partnership Agreement shall be amended from time to time as applicable to
reflect the issuance to the Grantee of Award LTIP Units pursuant to Section 3 hereof, if any, whereupon
the Grantee shall have all the rights of a Limited Partner of the Partnership
with respect to the number of LTIP Units then held by the Grantee, as set forth
in the Partnership Agreement, subject, however, to the restrictions and
conditions specified herein and in the Partnership Agreement.


 


(d)           Status of LTIP Units
under the Stock Plan. The Award LTIP Units are both issued as equity
securities of the Partnership and granted as awards under the Stock Plan. The
Company will have the right at its option, as set forth in the Partnership
Agreement, to issue shares of Common Stock in exchange for Units into which
Award LTIP Units may have been converted pursuant to the Partnership Agreement,
subject to certain limitations set forth in the Partnership Agreement, and such
shares of Common Stock, if issued, will be issued under the Stock Plan. The
Grantee must be eligible to receive the Award LTIP Units in compliance with
applicable federal and state securities laws and to that effect is required to
complete, execute and deliver certain covenants, representations and warranties
(attached as Exhibit B). The Grantee acknowledges that the Grantee will
have no right to approve or disapprove such determination by the Committee.


 


(e)           Legend. The
records of the Partnership evidencing the Award LTIP Units shall bear an
appropriate legend, as determined by the Partnership in its sole discretion, to
the effect that such LTIP Units are subject to restrictions as set forth herein,
in the Stock Plan and in the Partnership Agreement.


 


(f)            Compliance With Securities
Laws. The Partnership and the Grantee will make reasonable efforts to
comply with all applicable securities laws. In addition, notwithstanding any
provision of this Agreement to the contrary, no LTIP Units will become vested
or be issued at a time that such vesting or issuance would result in a
violation of any such laws.


 


(g)           Investment
Representations; Registration. The Grantee hereby makes the covenants,
representations and warranties and set forth on Exhibit B attached
hereto. All of such covenants, warranties and representations shall survive the
execution and delivery of this Agreement by the Grantee. The Partnership will
have no obligation to register under the Securities Act any LTIP Units or any
other securities issued pursuant to this Agreement or upon conversion or
exchange of LTIP Units. The Grantee agrees that any resale of the shares of Common
Stock received upon the exchange of Units into which LTIP Units may be
converted 


 


 


10

















 


shall not occur during
the “blackout periods” forbidding sales of Company securities, as set forth in
the then applicable Company employee manual or insider trading policy. In
addition, any resale shall be made in compliance with the registration
requirements of the Securities Act or an applicable exemption therefrom,
including, without limitation, the exemption provided by Rule 144
promulgated thereunder (or any successor rule).


 


(h)           Section 83(b)
Election. In connection with each separate issuance of LTIP Units under
this Award pursuant to Section 3
hereof the Grantee hereby agrees to make an election to include in gross income
in the year of transfer the applicable Award LTIP Units pursuant to Section
83(b) of the Code substantially in the form attached hereto as Exhibit C
and to supply the necessary information in accordance with the regulations
promulgated thereunder.


 


(i)            Severability. If,
for any reason, any provision of this Agreement is held invalid, such
invalidity shall not affect any other provision of this Agreement not so held
invalid, and each such other provision shall to the full extent consistent with
law continue in full force and effect. If any provision of this Agreement shall
be held invalid in part, such invalidity shall in no way affect the rest of
such provision not held so invalid, and the rest of such provision, together
with all other provisions of this Agreement, shall to the full extent
consistent with law continue in full force and effect.


 


(j)            Governing Law. This
Agreement is made under, and will be construed in accordance with, the laws of State
of Delaware, without giving effect to the principles of conflict of laws of
such state.


 


(k)           No Obligation to
Continue Position as an Employee, Consultant or Advisor. Neither the
Company nor any affiliate is obligated by or as a result of this Agreement to
continue to have the Grantee as an employee, consultant or advisor and this
Agreement shall not interfere in any way with the right of the Company or any
affiliate to terminate the Grantee’s service relationship at any time.


 


(l)            Notices. Any
notice to be given to the Company shall be addressed to the Secretary of the
Company at its principal place of business and any notice to be given the
Grantee shall be addressed to the Grantee at the Grantee’s address as it
appears on the employment records of the Company, or at such other address as
the Company or the Grantee may hereafter designate in writing to the other.


 


(m)          Withholding and Taxes.
No later than the date as of which an amount first becomes includible in the
gross income of the Grantee for income tax purposes or subject to the Federal
Insurance Contributions Act withholding with respect to this Award, the Grantee
will pay to the Company or, if appropriate, any of its affiliates, or make
arrangements satisfactory to the Committee regarding the payment of, any United
States federal, state or local or foreign taxes of any kind required by law to
be withheld with respect to such amount. The obligations of the Company under
this Agreement will be conditional on such payment or arrangements, and the
Company and its affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the Grantee.


 


11

















 


 


(n)           No Service
Commitment by Company. Nothing contained in this Agreement or the Stock
Plan constitutes an employment or service commitment by the Company, affects
the Grantee’s status as an employee at will who is subject to termination
without cause, confers upon the Grantee any right to remain employed by the
Company, interferes in any way with the right of the Company at any time to
terminate such employment, or affects the right of the Company to increase or
decrease the Grantee’s other compensation or benefits. Nothing in this Section,
however, is intended to adversely affect any independent contractual right of
the Grantee without his consent thereto. Employment for any period of time
(including a substantial period of time) after the Effective Date will not
entitle the Grantee to any proportionate vesting or avoid or mitigate a
termination of rights and benefits upon or following a termination of
employment as provided in Section 4 or 5 above if the express
conditions to vesting set forth in such Sections have not been satisfied.


 


(o)           Headings. The
headings of paragraphs hereof are included solely for convenience of reference
and shall not control the meaning or interpretation of any of the provisions of
this Agreement.


 


(p)           Counterparts. This
Agreement may be executed in multiple counterparts with the same effect as if
each of the signing parties had signed the same document. All counterparts
shall be construed together and constitute the same instrument.


 


(q)           Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and any successors to the Company and the Partnership, on
the one hand, and any successors to the Grantee, on the other hand, by will or
the laws of descent and distribution, but this Agreement shall not otherwise be
assignable or otherwise subject to hypothecation by the Grantee.


 


(r)            Section 409A. This Agreement shall be construed, administered and interpreted in
accordance with a good faith interpretation of Section 409A of the Code. Any
provision of this Agreement that is inconsistent with Section 409A of the Code,
or that may result in penalties under Section 409A of the Code, shall be
amended, in consultation with the Grantee and with the reasonable
cooperation of the Grantee and the Company, in the least restrictive manner
necessary to (i) exclude the Award LTIP Units from the definition of “deferred
compensation” within the meaning of such Section 409A or (ii) comply
with the provisions of Section 409A, other applicable provision(s) of the
Code and/or any rules, regulations or other regulatory guidance issued under
such statutory provisions, in each case without diminution in the value of the
benefits granted hereby to the Grantee.


 


 


12

















 


(s)           Complete Agreement.
This Agreement (together with those agreements and documents expressly referred
to herein, for the purposes referred to herein) embody the complete and entire
agreement and understanding between the parties with respect to the subject
matter hereof, and supersede any and all prior promises, assurances,
commitments, agreements, undertakings or representations, whether oral,
written, electronic or otherwise, and whether express or implied, which may
relate to the subject matter hereof in any way.


 


[signature page follows]


 


 


 


13

















 


IN WITNESS WHEREOF, the undersigned have caused this Award
Agreement to be executed as of the      day of                     ,
        .


 


 


	
   

  	
  THE MACERICH COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   Name:

  
	
   

  	
   Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE MACERICH PARTNERSHIP, L.P.

  
	
   

  	
   

  
	
   

  	
  By: The Macerich Company, its general partner

  
	
   

  	
   

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  
	
   

  	
   

  
	
   

  	
  GRANTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
								



 

















EXHIBIT A


 


FORM OF LIMITED PARTNER
SIGNATURE PAGE


 


The Grantee, desiring to become one of the within
named Limited Partners of The Macerich Company, L.P., hereby accepts all of the
terms and conditions of (including, without limitation, the provisions related
to powers of attorney), and becomes a party to, the Agreement of Limited
Partnership, dated as of March 16, 1994, of The Macerich Partnership, L.P., as
amended (the “Partnership Agreement”). The Grantee agrees that this
signature page may be attached to any counterpart of the Partnership Agreement
and further agrees as follows (where the term “Limited Partner” refers to the
Grantee:


 


1.             The Limited Partner
hereby confirms that it has reviewed the terms of the Partnership Agreement and
affirms and agrees that it is bound by each of the terms and conditions of the
Partnership Agreement, including, without limitation, the provisions thereof
relating to limitations and restrictions on the transfer of Partnership Units.
Without limitation of the foregoing, the Limited Partner is deemed to have made
all of the acknowledgements, waivers and agreements set forth in Section 10.6
and 13.11 of the Partnership Agreement.


 


2.             The Limited Partner
hereby confirms that it is acquiring the Partnership Units for its own account
as principal, for investment and not with a view to resale or distribution, and
that the Partnership Units may not be transferred or otherwise disposed of by
the Limited Partner otherwise than in a transaction pursuant to a registration
statement filed by the Partnership (which it has no obligation to file) or that
is exempt from the registration requirements of the Securities Act of 1933, as
amended (the “Securities Act”), and all applicable state and foreign
securities laws, and the General Partner may refuse to transfer any Partnership
Units as to which evidence of such registration or exemption from registration
satisfactory to the General Partner is not provided to it, which evidence may
include the requirement of a legal opinion regarding the exemption from such
registration. If the General Partner delivers to the Limited Partner shares of
common stock of the General Partner (“Common Shares”) upon redemption of
any Partnership Units, the Common Shares will be acquired for the Limited
Partner’s own account as principal, for investment and not with a view to
resale or distribution, and the Common Shares may not be transferred or
otherwise disposed of by the Limited Partner otherwise than in a transaction
pursuant to a registration statement filed by the General Partner with respect
to such Common Shares (which it has no obligation under the Partnership
Agreement to file) or that is exempt from the registration requirements of the
Securities Act and all applicable state and foreign securities laws, and the
General Partner may refuse to transfer any Common Shares as to which evidence
of such registration or exemption from such registration satisfactory to the
General Partner is not provided to it, which evidence may include the
requirement of a legal opinion regarding the exemption from such registration.


 


3.             The Limited Partner
hereby affirms that it has appointed the General Partner, any liquidator and
authorized officers and attorneys-in-fact of each, and each of those acting
singly, in each case with full power of substitution, as its true and lawful
agent and attorney-in-fact, with full power and authority in its name, place
and stead, in accordance with Section 6.10 of the Partnership Agreement, which
section is hereby incorporated by


 

















 


reference. The foregoing power of attorney is hereby
declared to be irrevocable and a power coupled with an interest, and it shall
survive and not be affected by the death, incompetency, dissolution,
disability, incapacity, bankruptcy or termination of the Limited Partner and
shall extend to the Limited Partner’s heirs, executors, administrators, legal
representatives, successors and assigns.


 


4.


(a)           The Limited Partner
hereby irrevocably consents in advance to any amendment to the Partnership
Agreement, as may be recommended by the General Partner, intended to avoid the
Partnership being treated as a publicly-traded partnership within the meaning
of Section 7704 of the Internal Revenue Code, including, without
limitation, (x) any amendment to the provisions of Section 9.1 or the
Redemption Rights Exhibit of the Partnership Agreement intended to increase the
waiting period between the delivery of a notice of redemption and the
redemption date to up to sixty (60) days or (y) any other amendment to the
Partnership Agreement intended to make the redemption and transfer provisions,
with respect to certain redemptions and transfers, more similar to the
provisions described in Treasury Regulations Section 1.7704-1(f).


 


(b)           The Limited Partner
hereby appoints the General Partner, any Liquidator and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, as its true and lawful agent and attorney-in-fact,
with full power and authority in its name, place and stead, to execute and
deliver any amendment referred to in the foregoing paragraph 4(a) on the Limited
Partner’s behalf. The foregoing power of attorney is hereby declared to be
irrevocable and a power coupled with an interest, and it shall survive and not
be affected by the death, incompetency, dissolution, disability, incapacity,
bankruptcy or termination of the Limited Partner and shall extend to the
Limited Partner’s heirs, executors, administrators, legal representatives,
successors and assigns.


 


5.             The Limited Partner
agrees that it will not transfer any interest in the Partnership Units (x) through
(i) a national, non-U.S., regional, local or other securities exchange, (ii)
PORTAL or (iii) an over-the-counter market (including an interdealer quotation
system that regularly disseminates firm buy or sell quotations by identified
brokers or dealers by electronic means or otherwise) or (y) to or through (a) a
person, such as a broker or dealer, that makes a market in, or regularly quotes
prices for, interests in the Partnership or (b) a person that regularly makes
available to the public (including customers or subscribers) bid or offer
quotes with respect to any interests in the Partnership and stands ready to
effect transactions at the quoted prices for itself or on behalf of others.


 


6.             The Limited Partner
acknowledges that the General Partner shall be a third party beneficiary of the
representations, covenants and agreements set forth in Sections 4 and 5 hereof.
The Limited Partner agrees that it will transfer, whether by assignment or
otherwise, Partnership Units only to the General Partner or to transferees that
provide the Partnership and the General Partner with the representations and
covenants set forth in Sections 4 and 5 hereof.


 

















 


7.             This Acceptance shall
be construed and enforced in accordance with and governed by the laws of the
State of Delaware, without regard to the principles of conflicts of law.


 


 


	
   

  	
  Signature Line for Limited Partner:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Date:

  	
                        ,
          

  	
   

  
	
   

  	
   

  
	
   

  	
  Address of Limited Partner:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
							



 

















 


EXHIBIT B


 


GRANTEE’S COVENANTS, REPRESENTATIONS
AND WARRANTIES


 


The Grantee hereby represents, warrants and covenants
as follows:


 


(a)           The Grantee has
received and had an opportunity to review the following documents (the “Background
Documents”):


 


(i)            The
Company’s latest Annual Report to Stockholders;


 


(ii)           The
Company’s Proxy Statement for its most recent Annual Meeting of Stockholders;


 


(iii)          The Company’s Report on Form 10-K for the
fiscal year most recently ended;


 


(iv)          The
Company’s Form 10-Q, if any, for the most recently ended quarter filed by the
Company with the Securities and Exchange Commission (“SEC”) since the filing of
the Form 10-K described in clause (iii) above;


 


(v)           Each
of the Company’s Current Report(s) on Form 8-K, if any, filed since the end of
the fiscal year most recently ended for which a Form 10-K has been filed by the
Company (except for those Items of the Form 8-K that are not deemed to be
“filed” with the SEC or incorporated by reference into any filing with the
SEC);


 


(vi)          The
Partnership Agreement;


 


(vii)         The Stock Plan; and


 


(viii)        The Company’s Articles of Amendment and
Restatement, as amended.


 


The Grantee also acknowledges that any delivery of the
Background Documents and other information relating to the Company and the
Partnership prior to the determination by the Partnership of the suitability of
the Grantee as a holder of LTIP Units shall not constitute an offer of LTIP
Units until such determination of suitability shall be made.


 


(b)           The Grantee hereby
represents and warrants that


 


(i)            The
Grantee either (A) is an “accredited investor” as defined in Rule 501(a) under
the Securities Act, or (B) by reason of the business and financial
experience of the Grantee, together with the business and financial experience
of those persons, if any, retained by the Grantee to represent or advise him
with respect to the grant to him of LTIP Units, the potential conversion of
LTIP Units into units of limited partnership of the Partnership (“Common
Units”) and the potential redemption of such Common Units for shares the
Company’s common stock (“REIT Shares”), has such knowledge,
sophistication and experience in financial and business matters and in making
investment decisions of this type that the Grantee (I) is capable of evaluating
the merits


 

















 


and
risks of an investment in the Partnership and potential investment in the
Company and of making an informed investment decision, (II) is capable of
protecting his own interest or has engaged representatives or advisors to
assist him in protecting his interests, and (III) is capable of bearing the
economic risk of such investment.


 


(ii)           The
Grantee understands that (A) the Grantee is responsible for consulting his own
tax advisors with respect to the application of the U.S. federal income tax
laws, and the tax laws of any state, local or other taxing jurisdiction to
which the Grantee is or by reason of the award of LTIP Units may become
subject, to his particular situation; (B) the Grantee has not received or
relied upon business or tax advice from the Company, the Partnership or any of their
respective employees, agents, consultants or advisors, in their capacity as
such; (C) the Grantee provides services to the Partnership on a regular basis
and in such capacity has access to such information, and has such experience of
and involvement in the business and operations of the Partnership, as the
Grantee believes to be necessary and appropriate to make an informed decision
to accept the award of LTIP Units; and (D) an investment in the Partnership
and/or the Company involves substantial risks. The Grantee has been given the
opportunity to make a thorough investigation of matters relevant to the LTIP
Units and has been furnished with, and has reviewed and understands, materials
relating to the Partnership and the Company and their respective activities
(including, but not limited to, the Background Documents). The Grantee has been
afforded the opportunity to obtain any additional information (including any
exhibits to the Background Documents) deemed necessary by the Grantee to verify
the accuracy of information conveyed to the Grantee. The Grantee confirms that
all documents, records, and books pertaining to his receipt of LTIP Units which
were requested by the Grantee have been made available or delivered to the
Grantee. The Grantee has had an opportunity to ask questions of and receive
answers from the Partnership and the Company, or from a person or persons
acting on their behalf, concerning the terms and conditions of the LTIP Units. The Grantee has relied upon, and is making its decision solely upon,
the Background Documents and other written information provided to the Grantee
by the Partnership or the Company.


 


(iii)          The LTIP Units to be issued, the Common Units
issuable upon conversion of the LTIP Units and any REIT Shares issued in
connection with the redemption of any such Common Units will be acquired for
the account of the Grantee for investment only and not with a current view to,
or with any intention of, a distribution or resale thereof, in whole or in
part, or the grant of any participation therein, without prejudice, however, to
the Grantee’s right (subject to the terms of the LTIP Units, the Stock Plan,
the agreement of limited partnership of the Partnership, the articles of
organization of the Company, as amended, and the Award Agreement) at all times
to sell or otherwise dispose of all or any part of his LTIP Units, Common Units
or REIT Shares in compliance with the Securities Act, and applicable state
securities laws, and subject, nevertheless, to the disposition of his assets being
at all times within his control.


 


(iv)          The
Grantee acknowledges that (A) neither the LTIP Units to be issued, nor the
Common Units issuable upon conversion of the LTIP Units, have been registered
under the Securities Act or state securities laws by reason of a specific
exemption or exemptions from registration under the Securities Act and
applicable state


 

















 


securities
laws and, if such LTIP Units or Common Units are represented by certificates,
such certificates will bear a legend to such effect, (B) the reliance by
the Partnership and the Company on such exemptions is predicated in part on the
accuracy and completeness of the representations and warranties of the Grantee
contained herein, (C) such LTIP Units or Common Units, therefore, cannot be
resold unless registered under the Securities Act and applicable state
securities laws, or unless an exemption from registration is available, (D)
there is no public market for such LTIP Units and Common Units and (E) neither
the Partnership nor the Company has any obligation or intention to register
such LTIP Units or the Common Units issuable upon conversion of the LTIP Units
under the Securities Act or any state securities laws or to take any action
that would make available any exemption from the registration requirements of
such laws, except, that, upon the redemption of the Common Units for REIT
Shares, the Company may issue such REIT Shares under the Stock Plan and
pursuant to a Registration Statement on Form S-8 under the Securities Act, to
the extent that (I) the Grantee is eligible to receive such REIT Shares under
the Stock Plan at the time of such issuance, (II) the Company has filed a Form
S-8 Registration Statement with the Securities and Exchange Commission
registering the issuance of such REIT Shares and (III) such Form S-8 is
effective at the time of the issuance of such REIT Shares. The Grantee hereby
acknowledges that because of the restrictions on transfer or assignment of such
LTIP Units acquired hereby and the Common Units issuable upon conversion of the
LTIP Units which are set forth in the Partnership Agreement or this Agreement,
the Grantee may have to bear the economic risk of his ownership of the LTIP
Units acquired hereby and the Common Units issuable upon conversion of the LTIP
Units for an indefinite period of time.


 


(v)           The
Grantee has determined that the LTIP Units are a suitable investment for the
Grantee.


 


(vi)          No
representations or warranties have been made to the Grantee by the Partnership
or the Company, or any officer, director, shareholder, agent, or affiliate of
any of them, and the Grantee has received no information relating to an
investment in the Partnership or the LTIP Units except the information
specified in paragraph (b) above.


 


(c)           So long as the Grantee
holds any LTIP Units, the Grantee shall disclose to the Partnership in writing
such information as may be reasonably requested with respect to ownership of
LTIP Units as the Partnership may deem reasonably necessary to ascertain and to
establish compliance with provisions of the Code, applicable to the Partnership
or to comply with requirements of any other appropriate taxing authority.


 


(d)           The Grantee hereby
agrees to make an election under Section 83(b) of the Code with respect to
the LTIP Units awarded hereunder, and has delivered with this Agreement a
completed, executed copy of the election form attached hereto as Exhibit C.
The Grantee agrees to file the election (or to permit the Partnership to file
such election on the Grantee’s behalf) within thirty (30) days after the
award of the LTIP Units hereunder with the IRS Service Center at which such
Grantee files his personal income tax returns, and to file a copy of such
election with the Grantee’s U.S. federal income tax return for the taxable year
in which LTIP Units are issued or awarded to the Grantee.


 

















 


(e)           The address set forth
on the signature page of this Agreement is the address of the Grantee’s
principal residence, and the Grantee has no present intention of becoming a
resident of any country, state or jurisdiction other than the country and state
in which such residence is sited.


 

















 


EXHIBIT C


 


ELECTION TO INCLUDE IN GROSS
INCOME IN YEAR OF


TRANSFER OF PROPERTY PURSUANT TO
SECTION 83(B)


OF THE INTERNAL REVENUE CODE


 


The undersigned hereby makes an election pursuant to
Section 83(b) of the Internal Revenue Code with respect to the property
described below and supplies the following information in accordance with the
regulations promulgated thereunder:


 


1.             The
name, address and taxpayer identification number of the undersigned are:


 


Name:
                                                              
(the “Taxpayer”)


 


Address:                                                                   


 


                                                                                 


 


Social Security No./Taxpayer Identification No.:                              


 


2.             Description
of property with respect to which the election is being made:


 


The election is being
made with respect to                              
LTIP Units in The Macerich Partnership, L.P. (the “Partnership”).


 


3.             The
date on which the LTIP Units were transferred is                               
           ,                       .
The taxable year to which this election relates is calendar year                   .


 


4.             Nature
of restrictions to which the LTIP Units are subject:


 


(a)           With
limited exceptions, until the LTIP Units vest, the Taxpayer may not transfer in
any manner any portion of the LTIP Units without the consent of the
Partnership.


 


(b)           The
Taxpayer’s LTIP Units vest in accordance with the vesting provisions described
in the Schedule attached hereto. Unvested LTIP Units are forfeited in
accordance with the vesting provisions described in the Schedule attached
hereto.


 


5.             The
fair market value at time of transfer (determined without regard to any
restrictions other than restrictions which by their terms will never lapse) of
the LTIP Units with respect to which this election is being made was $0 per
LTIP Unit.


 


6.             The
amount paid by the Taxpayer for the LTIP Units was $0 per LTIP Unit.


 


7.             A
copy of this statement has been furnished to the Partnership and The Macerich
Company.


 


	
  Dated: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
     Name:

  



 

















 


SCHEDULE
TO EXHIBIT C


 


Vesting
Provisions of LTIP Units


 


LTIP Units are subject to
time-based vesting with 33 1/3% of such units vesting on each successive                       ,
beginning                                 
and ending                                .
[Vesting schedule subject to change by the Compensation Committee.]  The above vesting is conditioned upon the
Taxpayer remaining an employee of The Macerich Company (the “Company”) through
the applicable vesting dates, and subject to acceleration in the event of a
change of control of the Company or termination of the Taxpayer’s service
relationship with the Company under specified circumstances. Unvested LTIP
Units are subject to forfeiture in the event of failure to vest based on the
passage of time and continued employment with the Company or its subsidiaries.


 

















 


SCHEDULE
A TO LTIP UNITS AWARD AGREEMENT


 


	
  Date of Award Agreement:

  	
   

  
	
   

  	
   

  
	
  Name of Grantee:

  	
   

  
	
   

  	
   

  
	
  Number of LTIP Units Subject to Grant:

  	
   

  
	
   

  	
   

  
	
  Effective Date:

  	
   

  



 


 


 


Initials of Company representative:  


 


Initials of Grantee: