Exhibit 10.1


 


THE MACERICH COMPANY


 


STOCK UNIT AWARD AGREEMENT

2003 EQUITY INCENTIVE PLAN


 


	
  Participant Name:

  	
   

  	
   

  
	
  Soc. Sec. No.:

  	
   

  	
   

  
	
  No. Stock Units:

  	
   

  	
  (1)

  
	
   

  	
   

  	
   

  
	
  Vesting Schedule:

  	
   

  	
  33 1/3% of the Stock Units (as defined below) on each of
  March 15, 2010, March 15, 2011, and March 15, 2012.

  
	
   

  	
   

  	
   

  
	
  Award Date:

  	
   

  	
  March 6, 2009

  



 


THIS AGREEMENT
is among THE MACERICH COMPANY, a
Maryland corporation (the “Corporation”), THE
MACERICH PARTNERSHIP L.P., a Delaware limited partnership (the
“Operating Partnership”), and the employee named above (the “Participant”), and
is delivered under The Macerich Company 2003 Equity Incentive Plan, which
includes any applicable programs under the Plan (the “Plan”).


 


W I T N E S S E T H


 


WHEREAS,
pursuant to the Plan, the Corporation has granted to the Participant with
reference to services rendered and to be rendered to the Company, effective as
of the Award Date, a stock unit award (the “Stock Unit Award” or “Award”), upon
the terms and conditions set forth herein and in the Plan.


 


NOW THEREFORE,
in consideration of services rendered and to be rendered by the Participant and
the mutual promises made herein and the mutual benefits to be derived
therefrom, the parties agree as follows:


 


1.            Defined Terms.  Capitalized terms used herein and not otherwise defined herein
shall have the meaning assigned to such terms in the Plan.


 


2.            Grant.  Subject to the terms of this Agreement and the Plan, the
Corporation grants to the Participant a Stock Unit Award with respect to an
aggregate number of Stock Units (the “Stock Units”) set forth above.  The
consideration for the shares issuable with respect to the Stock Units on the
terms set forth in this Agreement includes services and the rights hereunder in
an amount not less than the minimum lawful consideration under Maryland law.


 


3.            Vesting.  The Award shall vest and become nonforfeitable (subject to Section 6.4
of the Plan), with respect to the portion of the total number of Stock Units
comprising the Award (subject to adjustment under Section 6.2 of the Plan)
on the dates specified in the Vesting Schedule above, subject to earlier
termination or acceleration as provided herein or in the Plan.  


 






(1) Subject to adjustment under Section 6.2
of the Plan and the terms of this Agreement.


 


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The vesting of the Stock
Units shall at all times be treated as a series of separate payments (on the
respective vesting dates) for purposes of Section 409A of the Code.


 


4.            Continuance of Employment Required.  Except as otherwise provided in
Sections 8(c) or 9 or pursuant to the Plan, the Vesting
Schedule requires continued 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 Participant to any proportionate
vesting or avoid or mitigate a termination of rights and benefits upon or
following a termination of employment or service as herein provided in Section 8
below or under the Plan.


 


5.            Dividend and Voting Rights.


 


(a)           Limitations on Rights Associated with Units. 
The Participant shall have no rights as a stockholder of the Corporation, no
dividend rights (except as expressly provided in Section 5(b) with
respect to Dividend Equivalent Rights) and no voting rights, with respect to
the Stock Units and any shares of Common Stock underlying or issuable in
respect of such Stock Units until such shares of Common Stock are actually
issued to and held of record by the Participant.  No adjustments will be
made for dividends or other rights of a holder for which the record date is
prior to the date of issuance of the stock certificate.


 


(b)           Dividend
Equivalent Rights Distributions.  As of any applicable dividend or distribution payment date, the
Participant shall, except as otherwise provided below in this
Section 5(b), receive a payment of cash, shares of Common Stock or other
property, as determined by the Committee, on the dividend payment date in an amount
equal to or, if applicable, of equivalent value as the full amount of the
dividend or distribution then made with respect to each share of Common Stock
(a “Dividend Equivalent Right”) multiplied by the number of Stock Units in the
Participant’s Stock Unit Account as of the applicable dividend record
date.  Any cash, shares or other property
paid on account of Dividend Equivalent Rights with respect to this Award shall
be fully vested and nonforfeitable when paid. 
Dividend Equivalent Rights shall be paid only with respect to cash
dividends and distributions, and dividends in connection with which holders of
shares of Common Stock have the right to elect to receive cash, shares of
Common Stock of equivalent value, or a combination thereof (dividends referred
to in this sentence are referred to as “Cash or Combination Dividends”).  Cash or Combination Dividends do not include
any dividend declared by the Company solely in shares of Common Stock or other
non-cash property (a “Stock Dividend”). 
Regardless of the form in which the applicable dividend or distribution
is paid to holders of Common Stock, the Committee shall have the authority, in
its sole discretion, in connection with each dividend to determine whether
Dividend Equivalent Rights are satisfied through the payment of cash, the
delivery of shares of Common Stock of equivalent value, other property, or any
combination thereof, including without limitation such combination as
(i) is determined on the basis of elections made by holders of shares of
Common Stock (subject to any applicable limitation on the aggregate amount of
cash available to be included in the dividend or distribution) or (ii) is
applicable to those holders of Common Stock who fail to make a valid election.  The Committee shall also have the authority
to determine the measure of equivalent value per share through such valuation
methodologies as it deems reasonable, including without limitation a formula
based on (I) such combination of cash and shares of Common Stock as
reflects the relative percentages of 


 


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the aggregate dividend or
distribution paid by the Corporation after giving effect to all valid elections
received by the Corporation from holders of Common Stock (subject to any applicable
limitation on the aggregate amount of cash available to be included in the
dividend or distribution) and (II) the value per share of Common Stock
used to calculate the number of shares of Common Stock to be issued on the
applicable dividend or distribution payment date on account of such dividend or
distribution to holders of Common Stock.


 


6.            Restrictions on Transfer.  Prior to the time they vest, neither the
Stock Units comprising the Award nor any other rights of the Participant under
this Agreement or the Plan may be transferred, except as expressly provided in Section 1.8
and 4.1 of the Plan.  No other exceptions have been authorized by the
Committee.


 


7.            Timing and Manner of Distribution with Respect to
Stock Units. Any Stock
Unit credited to a Participant’s Stock Unit Account will be distributed in
shares of Common Stock as it vests.  The Participant or other person
entitled under the Plan to receive the shares shall deliver to the Company any
representations or other documents or assurances required pursuant to Section 6.4
of the Plan.  Pursuant to Section 1.7 of the Plan, fractional share
interests shall be disregarded, but may be accumulated.  The Committee,
however, may determine that cash, securities or other property will be paid or
transferred in lieu of fractional share interests.


 


8.            Effect of Termination of Employment.


 


(a)           Forfeiture after Certain Events.  Except as provided in Sections 8(c) and
9 hereof, the Participant’s Stock Units shall be extinguished to the extent
such Stock Units have not become vested upon the date the Participant is no
longer employed by the Company for any reason, whether with or without cause,
voluntarily or involuntarily.  Whether the Participant is no longer
employed by the Company shall be determined in a manner that is consistent with
the definition of “separation from service” under Section 409A of the Code
and the Treasury Regulations thereunder, based on whether the facts and
circumstances indicate that the Company and the Participant reasonably anticipate
that no further services will be performed after a specified date or that the
level of bona fide services the Participant would perform after such date would
permanently decrease to no more than twenty percent (20%) of the average level
of bona fide services performed over the immediately preceding 36 months (or
the full period of service if less than 36 months).  If an entity ceases to be a Subsidiary that
is considered to be a single employer or service recipient with the Corporation
(as defined in Treasury Regulations Section 1.409A-1(h)(3)), such action
shall be deemed to be a termination of employment of all employees of that
entity, but the Committee, in its sole and absolute discretion, may make
provision in such circumstances for accelerated vesting of some or all of the
remaining Stock Units held by such employees, effective immediately upon such
event.


 


(b)           Termination of Stock Units.  If any Stock Units are extinguished
hereunder, such unvested, extinguished Stock Units, without payment of any
consideration by the Company, shall automatically terminate and the related
Stock Unit Account shall be cancelled, without any other action by the
Participant, or the Participant’s Beneficiary or Personal Representative, as
the case may be.


 


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(c)           Qualified Termination Upon or Following Change in
Control Event. 
[Subject to Section 18,] if the Participant upon or not later than 12
months following a Change in Control Event has a Qualified Termination (as defined
in Section 7.1(gg) of the Plan) or terminates his or her employment for
Good Reason, then any portion of the Award that has not previously vested shall
thereupon vest, subject to the provisions of Sections 6.2(a), 6.2(e), 6.4 and
6.5 of the Plan and Sections 11 and 12 of this Agreement; provided, however,
that in no event shall restrictions on the Stock Units lapse or the Stock Units
vest earlier than six months after the date hereof.  As used in this
Agreement, the term “Good Reason” means a termination of employment by the
Participant for any one or more of the following reasons, to the extent not
remedied by the Company within a reasonable period of time of not less than 30
days (the “Cure Period”) after receipt by the Company of written notice from the
Participant provided within 90 days of the initial existence of the condition
and specifying in reasonable detail such condition, without the Participant’s
written consent thereto: (1)  an adverse and significant change in
the Participant’s authority, duties or responsibilities with the Company; 
(2)  a change in the Participant’s principal office location to a
location farther away from the Participant’s home which is more than 30 miles
from the Participant’s principal office;  (3)  the taking of any
action by the Company to eliminate benefit plans in which the Participant
participated or was eligible to participate immediately prior to the Change in
Control Event without providing substitutes therefor, to materially reduce
benefits thereunder or to substantially diminish the aggregate value of the
incentive awards or other fringe benefits; provided that if neither a surviving
entity nor its parent following a Change in Control Event is a publicly-held
company, the failure to provide stock-based benefits shall not be deemed Good
Reason if benefits of comparable value using recognized valuation methodology
are substituted therefor; and provided further that a reduction or elimination
in the aggregate of not more than 10% in aggregate benefits in connection with
across the board reductions or modifications affecting persons similarly
situated of comparable rank in the Company or a combined organization shall not
constitute Good Reason;  (4)  any one or more reductions in the Participant’s Base Salary that, individually
or in the aggregate, exceed 10% of the Participant’s Base Salary; or (5)  any
material breach by the Company of any written employment or management
continuity agreement with the Participant.  For purposes of the definition
of “Good Reason,” the term “Base Salary” means the annual base rate of
compensation payable as salary to the Participant by the Company as of the
Participant’s date of termination, before deductions or voluntary deferrals
authorized by the Participant or required by law to be withheld from the
Participant by the Company, and salary excludes all other extra pay such as
overtime, pensions, severance payments, bonuses, stock incentives, living or
other allowances, and other benefits and perquisites.  In the event that the Company fails to remedy
a condition constituting Good Reason during the applicable Cure Period, the
Participant’s termination of employment for Good Reason must occur, if at all,
within two years following the occurrence of such condition in order for such
termination as a result of such condition to constitute a termination for Good
Reason.


 


(d)           Delayed Payment. 
Notwithstanding the foregoing, solely to the extent that a delay in
payment is required in order to avoid the imposition of any tax under Section 409A
of the Code, if a payment obligation under this Agreement arises on account of
the Participant’s “separation from service” (within the meaning of Section 409A
of the Code) while the Participant is a “specified employee” (as determined for
purposes of Section 409A(a)(2)(B) of the Code in good faith by the
compensation committee of the Board), then payment of any amount or benefit
provided under this Agreement that is considered to be non-qualified deferred 


 


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compensation for purposes of
Section 409A of the Code and that is scheduled to be paid within six (6) months
after such separation from service shall be paid without interest on the first
business day after the date that is six months following the Participant’s
separation from service.


 


9.            Effect of Total Disability, Death or Retirement.  If the Participant incurs a Total
Disability that is also a “disability” as defined in Section 409A of the
Code and Treasury Regulations thereunder or dies, in either case while employed
by the Company, then any portion of his or her Award that has not previously
vested shall thereupon vest, subject to the provisions of Sections 6.4 and 6.5
of the Plan.  If the Participant’s employment with the Company 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
immediately upon Retirement of that portion of his or her Award that has not
previously vested.  [If
the Participant’s employment with the Company terminates as a result of his or
her Retirement on or after attaining age 55 with 10 or more years of service
with the Company, then any portion of his or her Award that has not then vested
(including as a result of Committee action pursuant to the immediately
preceding sentence) shall continue to vest in accordance with the Vesting
Schedule above, subject to the provisions of Sections 6.4 and 6.5 of the
Plan, provided that such continued vesting shall immediately cease and any
remaining unvested Stock Units shall be extinguished in the event that the
Participant is employed, directly or indirectly, by a competitor of the
Company, as determined by the Company in its sole and absolute discretion.]  [This provision is to be included only in agreements with
Participants subject to the Policy on Retirement.  ]


 


10.          Adjustments Upon Specified Events.  Upon the occurrence of certain events
relating to the Corporation’s stock contemplated by Section 6.2 of the
Plan, the Committee shall make adjustments as it deems appropriate in the
number and kind of securities or other consideration that may become payable
with respect to the Award; provided, however, that the Committee shall not make
any such adjustment to the Award with respect to any Cash or Combination
Dividend, but it shall make an adjustment to the Award pursuant to Section 6.2
of the Plan with respect to any Stock Dividend. 
If any adjustment shall be made under Section 6.2 of the Plan or a
Change in Control Event shall occur and the Stock Unit Award is not fully
vested upon such Event or prior thereto, the amount payable in respect of the
Stock Unit Award may be made payable in the securities or other consideration
(the “Restricted Property”) payable in respect of the Common Stock.  Such
Restricted Property shall become payable at such times and in such proportion
as the Stock Unit Award vests.  Notwithstanding the foregoing, to the
extent that the Restricted Property includes any cash, the commitment hereunder
shall become an unsecured promise to pay an amount equal to such cash (with
earnings attributable thereto as if such amount had been invested, pursuant to
policies established by the Committee, in interest bearing, FDIC insured
(subject to applicable insurance limits) deposits of a depository institution
selected by the Committee) at such times and in such proportions as the Stock
Unit Award vests.  Notwithstanding the foregoing, the Stock Unit Award and
any Common Stock payable in respect of the Stock Unit Award shall continue to
be subject to such proportionate and equitable adjustments (if any) under Section 6.2
of the Plan consistent with the effect of such event on stockholders generally,
as the Committee determines to be necessary or appropriate, in the number, kind
and/or character of shares of Common Stock or other securities, property and/or
rights payable in respect of Stock Units and Stock Unit Accounts credited under
the Plan.  All rights of the Participant hereunder are subject to those
adjustments.


 


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11.          Possible Early Termination of Award.  As permitted by Section 6.2(b) of
the Plan, and without limiting the authority of the Committee under other
provisions of Section 6.2 of the Plan or Section 8 of this Agreement,
the Committee retains the right to terminate the Award, to the extent it has
not vested, upon a dissolution of the Corporation or a reorganization event or
transaction which the Corporation does not survive (or does not survive as a
public company in respect of its outstanding common stock).  This Section 11
is not intended to prevent future vesting of the Award if it (or a substituted
award) remains outstanding following a Change in Control Event.


 


12.          Limitations on Acceleration and Reduction in Benefits in
Event of Tax Limitations.


 


(a)           Limitation on Acceleration.  Notwithstanding anything contained
herein [(except as otherwise provided in Section 18 hereof)] or in the
Plan or any other agreement to the contrary, in no event shall the vesting of
any Stock Unit be accelerated pursuant to Section 6.3 of the Plan or Section 8(c) hereof
to the extent that the Company would be denied a federal income tax deduction
for such vesting or the distribution of shares of Common Stock in respect of
the Award because of Section 280G of the Code and, in such circumstances,
the Stock Units not subject to acceleration will continue to vest in accordance
with and subject to the other provisions hereof.


 


(b)           Reduction in Benefits.  If the Participant would be entitled
to benefits, payments or coverage hereunder and under any other plan, program
or agreement which would constitute “parachute payments,” then notwithstanding
any other provision of this Agreement or of any such other plan, program or
agreement, such “parachute payments” shall be reduced or modified in such
manner, if any, as may be specified in [the MCA referenced in Section 18
hereof, in which case the provisions of Section 12(a) hereof shall
not apply, and, to the extent permitted by the MCA, thereafter, as specified
in] this Agreement prior to any reduction or modification being made under any
other then-existing agreement between the Company and the Participant (other
than any Stock Unit Award Agreement under the Plan).  If any “parachute payment” reduction provisions
become applicable under this Agreement and one or more other Stock Unit Award
Agreements under the Plan, then the “parachute payments” under this Agreement
and such other Stock Unit Award Agreement(s) shall be reduced or modified
in reverse chronological order of the scheduled vesting dates of the “parachute
payments” under all such agreements (the Stock Units with the latest scheduled
vesting date reduced or modified first) so that the Company is not denied
federal income tax deductions for any “parachute payments” because of Section 280G
of the Code.


 


(c)           Determination of Limitations.  The term “parachute payments” shall
have the meaning set forth in and be determined in accordance with Section 280G
of the Code and regulations issued thereunder.  All determinations
required by this Section 12, including without limitation the
determination of whether any benefit, payment or coverage would constitute a
parachute payment, the calculation of the value of any parachute payment and
the determination of the extent to which any parachute payment would be
nondeductible for federal income tax purposes because of Section 280G of
the Code, shall be made by an independent accounting firm (other than the
Corporation’s outside auditing firm) having nationally 


 


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recognized expertise in such
matters selected by the Committee.  Any such determination by such
accounting firm shall be binding on the Corporation, its Subsidiaries and the
Participant.


 


13.          Tax Withholding.  Upon payment of Dividend Equivalent Rights and/or the
distribution of shares of Common Stock in respect of a Participant’s Stock Unit
Account, the entity within the Company last employing the Participant shall
have the right at its option to (a) require the Participant (or the
Participant’s Personal Representative or Beneficiary, as the case may be) to
pay or provide for payment in cash of the amount of any taxes which the Company
may be required to withhold with respect to such payment or distribution or (b) deduct
from any amount or property payable to the Participant the amount of any taxes
which the Company may be required to withhold with respect to such payment or
distribution.  In any case where a tax is required to be withheld in
connection with the delivery of shares of Common Stock under this Agreement,
the Committee may permit the Participant to elect, pursuant to such rules and
subject to such conditions as the Committee may establish, to have the Company
reduce the number of shares to be delivered by (or otherwise reacquire) the
appropriate number of shares valued at their then Fair Market Value, to satisfy
such withholding obligation.


 


14.          Notices.  Any notice to be given under the terms of this Agreement shall
be in writing and addressed to the Corporation at its principal office located
at 401 Wilshire Boulevard, Suite 700, Santa Monica, California 90401, to
the attention of the Corporate Secretary and to the Participant at the address
given beneath the Participant’s signature hereto, or at such other address as
either party may hereafter designate in writing to the other.


 


15.          Plan.  The Award and all rights of the Participant with respect
thereto are subject to, and the Participant agrees to be bound by, all of the
terms and conditions of the provisions of the Plan, incorporated herein by
reference, to the extent such provisions are applicable to Awards granted to
Eligible Persons.  The Participant acknowledges receipt of a copy of the
Plan which is made a part hereof by this reference, and agrees to be bound by
the terms thereof.  Unless otherwise expressly provided in other Sections
of this Agreement, provisions of the Plan that confer discretionary authority
on the Committee do not (and shall not be deemed to) create any rights in the
Participant unless such rights are otherwise in the sole discretion of the
Committee specifically so conferred by appropriate action of the Committee
under the Plan after the date hereof.


 


16.          No Service Commitment by Company.  Nothing contained in this Agreement
or the Plan constitutes an employment or service commitment by the Company,
affects the Participant’s status as an employee at will who is subject to
termination without cause, confers upon the Participant 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 Participant’s other compensation or benefits. 
Nothing in this Section, however, is intended to adversely affect any
independent contractual right of the Participant without his or her consent
thereto.  Employment for any period of time (including a substantial
period of time) after the Award Date will not entitle the Participant 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 3 or
8 above if the express conditions to vesting set forth in such Sections have
not been satisfied.


 


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17.          Limitation on Participant’s Rights.  Participation in this Plan  confers no  rights or interests other than as herein provided.  This
Agreement creates only a contractual obligation on the part of the Company as
to amounts payable and shall not be construed as creating a trust. 
Neither the Plan nor any underlying program, in and of itself, has any
assets.  The Participant shall have only the rights of a general unsecured
creditor of the Company (or applicable Subsidiary) with respect to amounts
credited and benefits payable in cash, if any, on Stock Unit Account(s), and
rights no greater than the right to receive the Common Stock (or equivalent
value) as a general unsecured creditor with respect to Stock Units, as and when
payable thereunder.


 


[18.        Other
Agreements.  If any provision of this
Agreement is inconsistent with any provision of the Management Continuity
Agreement between the Corporation and Participant and as it may be amended from
time-to-time (the “MCA”), the provisions of the MCA shall control and shall be
deemed incorporated herein by reference.]  [This
provision and the language in
brackets in Sections 8(c), 12(a) and 12(b) are to be included only in agreements with
Participants subject to the MCA.  ]


 


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IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first above
written.  By the Participant’s execution of this Agreement, the
Participant agrees to the terms and conditions of this Agreement and of the
Plan.


 


THE MACERICH COMPANY

(a Maryland corporation)


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Richard A. Bayer

  
	
   

  	
  Senior Executive Vice
  President, Chief Legal Officer & Secretary

  



 


 


THE
MACERICH PARTNERSHIP, L.P.

(a Delaware limited partnership)


 


	
  By:

  	
  The Macerich Company

  	
   

  
	
   

  	
  (its general partner)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Richard A.
  Bayer

  	
   

  
	
   

  	
   

  	
  Senior
  Executive Vice President, Chief Legal Officer & Secretary

  



 


 


	
   

  	
  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Signature)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print Name)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City,
  State, Zip Code)

  



 


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