Exhibit 10.34


 


AMENDED AND RESTATED


 


MANAGEMENT CONTINUITY AGREEMENT


 


THIS AGREEMENT
is entered into by and between THE MACERICH COMPANY, a Maryland corporation
(the “Company”) and [   ] (the
“Executive”), this
     day of December, 2008.


 


The Board of
Directors of the Company (the “Board”) has
determined that it is in the best interests of the Company and its stockholders
to assure that the Company will have the continued commitment and dedication of
the Executive, notwithstanding the possibility or occurrence of a Change of
Control (as defined in Appendix A), to encourage the Executive’s full attention
and dedication to the Company currently and in the event of any impending
Change of Control, to encourage the Executive’s continued objectivity and
impartiality in the evaluation of alternative strategies and continued service
after a Change of Control and to provide the Executive with security,
compensation and benefits arrangements following termination upon a Change of
Control that further these objectives and that are competitive with those of
other corporations.  In order to accomplish
these objectives, the Board has approved the Company’s entering into this
Agreement which amends and restates the Management Continuity Agreement dated
as of [      ].


 


NOW THEREFORE,
IT IS HEREBY AGREED AS FOLLOWS:


 


1.                                      Certain
Definitions.  In addition to
terms defined elsewhere in this Agreement, the following terms have the
following meanings:


 


“1994 Plan” means The Macerich Company Amended and Restated
1994 Incentive Plan, as it may be amended from time to time.


 


“2000 Plan” means The Macerich Company 2000 Incentive Plan,
as it may be amended from time to time.


 


“2003 Plan” means The Macerich Company 2003 Equity Incentive
Plan, as it may be amended from time to time.


 


“Applicable Board” means the Board or, if the Company is not
the ultimate parent corporation of the Company and its Affiliates and is not
publicly-traded, the board of directors of the ultimate parent of the Company.


 


“Affiliate” means any company controlled by, controlling or
under common control with the Company.


 


“Base Salary” means the annual base rate of compensation
payable to Executive by the Company as of the Executive’s Date of Termination,
before deductions or voluntary deferrals authorized by the Executive or
required by law to be withheld from the Executive by the Company.  Salary excludes all other extra pay such as
overtime, pensions, severance payments, bonuses, stock incentives, living or
other allowances and other perquisites.


 

















 


“Cause” means
that the Company, acting in good faith based upon the information then known to
the Company, determines that the Executive has:


 


(1)                                  failed to perform in a material respect without proper cause his
obligations under this Agreement or the written employment agreement with
Executive, if any;


 


(2)                                  been convicted of or pled guilty or nolo contendere to a felony; or


 


(3)                                  committed an act of fraud, dishonesty or gross misconduct which is
materially injurious to the Company;


 


Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Applicable Board
or upon the instructions of the Chief Executive Officer of the Company or based
upon the advice of counsel or independent accountants for the Company shall be
conclusively presumed for purposes of this Agreement to be done, or omitted to
be done, by the Executive in good faith and in the best interests of the Company.  The cessation of employment of the Executive
shall not be deemed to be for Cause under clause (1) or (3) above unless
and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of at least a majority of the
entire membership of the Applicable Board (excluding the Executive and any
relative of the Executive, if the Executive or such relative is a member of the
Applicable Board) at a meeting of the Applicable Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel for the Executive, to be heard
before the Applicable Board), finding that, in the good faith opinion of the
Applicable Board, the Executive is guilty of the conduct described in clause (1) or
(3) above, and specifying the particulars thereof in reasonable detail.


 


“Change of Control”
shall have the meaning set forth in Appendix A.


 


“Change of Control Period”
means the period commencing on the Execution Date and ending on the third
anniversary of such date; provided, however, that commencing on
the date one year after the Execution Date, and on each annual anniversary of
such date (such date and each annual anniversary thereafter, the “Renewal Date”), unless previously terminated, the Change of
Control Period shall be automatically extended so as to terminate three years
from such Renewal Date, unless at least 60 days prior to the Renewal Date, the
Company shall give notice to the Executive that the Change of Control Period
shall not be so extended.


 


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


 


“Date of Termination”
means the date of receipt of a notice of termination from the Company or the
Executive as applicable, or any later date specified in the notice of termination,
which date shall not be more than 30 days after the giving of such notice.  For purposes of determining the date on which
any payment is to be made or benefit provided hereunder, Date of Termination
shall not be earlier than the date of the Executive’s “separation from service”
from the Company (within the meaning of Section 409A of the Code).


 


“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 Executive from his duties with the Company
on a


 


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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 Executive or his legal representative (such
agreements as to acceptability not to be unreasonably withheld).  “Incapacity” as used herein shall be limited
only to a condition that substantially prevents the Executive from performing
his or her duties.


 


“Effective Date”
means the first date during the Change of Control Period on which a Change of
Control occurs; provided, however that notwithstanding anything
in this Agreement to the contrary, if a Change of Control occurs and if the
Executive’s employment with the Company was terminated by the Company for no
reason or any reason other than death, Disability or for Cause, or by the
Executive for Good Reason, after the public announcement of but prior to the
consummation of such Change of Control, or such termination or events giving
rise to such termination otherwise occurred in specific contemplation of such
Change of Control (including, without limitation, at the request of a third
party that has taken steps reasonably calculated to effect such Change of
Control), then for the purposes of this Agreement, the “Effective Date” shall
mean the date immediately prior to the date of such termination of employment.


 


“Execution Date”
means the date first set forth above.


 


“Good Reason”
means an action taken by the Company, without the Executive’s written consent
thereto, resulting in a material negative change in the employment
relationship.  For these purposes, a “material
negative change in the employment relationship” shall include, without
limitation, any one or more of the following events, to the extent not remedied
by the Company within 30 days after receipt by the Company of written notice
from the Executive provided to the Company within 90 days (the “Cure Period”) of the Executive’s knowledge of the occurrence
of an event or circumstance set forth in clauses (1) through (5) below
specifying in reasonable detail such occurrence:


 


(1)                                  the assignment to the Executive of any duties materially inconsistent in
any respect with the Executive’s position (including reporting requirements), authority,
duties or responsibilities, or any other material diminution in such position,
authority, duties or responsibilities (whether or not occurring solely as a
result of the Company’s ceasing to be a publicly traded entity);


 


(2)                                  a change in the Executive’s principal office location to a location
further away from the Executive’s home which is more than 30 miles from the
Executive’s current principal office;


 


(3)                                  the taking of any action by the Company to eliminate benefit plans in
which the Executive participated in or was eligible to participate in
immediately prior to a Change of Control 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 of Control
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


 


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elimination in the aggregate of not more than 10% in
aggregate benefits in connection with across the board reductions or
modifications affecting similarly situated persons of executive rank in the
Company or a combined organization shall not constitute Good Reason;


 


(4)                                  any one or more reductions in the
Executive’s Base Salary that, individually or in the aggregate, exceed 10% of the
Executive’s Base Salary; or


 


(5)                                  any material breach by the Company of this Agreement or the written
employment agreement with Executive, if any.


 


In the event that the Company fails to remedy
the condition constituting Good Reason during the applicable Cure Period, the
Executive’s “separation from service” (within the meaning of Section 409A
of the Code) 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. 
If the Executive suffers a Disability or dies following the occurrence
of any of the events described in clauses (1) through (5) above and
the Executive has given the Company the requisite written notice but the
Company has failed to remedy the situation prior to such physical or mental
incapacity or death, the Executive’s physical or mental incapacity or death
shall not affect the ability of the Executive or his heirs or beneficiaries, as
applicable, to treat the Executive’s termination of employment as a termination
for Good Reason.


 


“Protected Period”
means the period commencing on the Effective Date and ending on the second
anniversary of the Effective Date.


 


“Qualified Termination”
means a termination of the Executive’s employment with the Company during the
Protected Period (a) by the Company for no reason, or for any reason other
than for Cause, death or Disability or (b) by the Executive for Good
Reason.


 


2.                                      Benefits
Following a Change of Control.


 


(a)                                  Severance
Payments.  Upon a Qualified
Termination, the Company shall pay to the Executive an amount equal to three
(3) times the sum of (1) Executive’s Base Salary and (2) the amount of the
highest cash and stock/unit portion of the Executive’s annual incentive bonus
(including any cash portion of an incentive bonus which the Executive has
elected to convert into shares of restricted stock, LTIP units or stock units
under the Company’s Cash Bonus/Restricted Stock/LTIP Unit and/or Stock Unit
Award Programs or other comparable express, optional stock/units-in-lieu of
cash benefit programs) awarded to the Executive for performance for each of the
three fiscal years preceding the Date of Termination (the “Bonus Amount”).  If the annual incentive bonus has not yet
been awarded for the fiscal year immediately preceding the Date of Termination,
the measurement period will be for each of the four fiscal years preceding the
Date of Termination.  For purposes of
calculation of the Bonus Amount the following shall also be included:  (i) any supplemental or special cash and/or
stock bonus awarded to the Executive for any of the applicable years and (ii)
the value of any outstanding performance-based LTIP units that vest during the
applicable year as provided in the applicable award agreement.  The severance amount described in this
paragraph shall be paid in


 


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cash to the Executive in a
single lump sum as soon as practicable after the Date of Termination, but in no
event later than 30 days after the Date of Termination.


 


(b)                                 Welfare
Benefits.  Upon a Qualified
Termination, from the Date of Termination until the third anniversary of the
Date of Termination or, with respect to each welfare benefit other than health
care and life insurance benefits, such shorter period as the receipt of such
welfare benefit is not considered taxable income to the Executive (the “Benefit Continuation Period”), the Company shall provide
welfare benefits for the Executive and/or the Executive’s family at least equal
to, and at the same after-tax cost to the Executive and/or the Executive’s
family, as those that would have been provided to them in accordance with the
plans, programs, practices and policies providing welfare benefits and at the benefit
level as in effect immediately prior to the Change of Control if the Executive’s
employment had not been terminated or, if more favorable to the Executive, as
in effect generally at any time thereafter with respect to other peer
executives of the Company and its Affiliates and their families at no cost to
the Executive or his family.  Such
welfare benefits shall be provided to the Executive and/or the Executive’s
family only if permitted under the applicable plan or policy under which the
welfare benefit is provided and only to the extent that the receipt of such
welfare benefit, other than health care and life insurance benefits, is not
considered taxable income to the Executive. 
To the greatest extent possible, the health care benefits provided during
the Benefit Continuation Period shall be provided in such a manner that such
benefits (and the costs and premiums thereof) are excluded from the Executive’s
income for federal income tax purposes. 
Any health care benefits to be provided during the Benefit Continuation
Period that would be included in the Executive’s income for federal income tax
purposes shall be provided only during the period of time during which (but for
the provisions of this Section 2(b)) the Executive would be entitled to
COBRA continuation coverage under Section 4980B of the Code (“COBRA Coverage”). 
Notwithstanding the foregoing, if the Executive becomes re-employed with
another employer and is eligible to receive health care or other welfare
benefits under another employer provided plan, the health care and other
welfare benefits provided hereunder shall be secondary to those provided under
such other plan, and such other benefits shall not be provided by the Company,
during such applicable period of eligibility. 
The Executive’s entitlement to COBRA Coverage shall not be offset by the
provision of benefits under this Section 2(b) and the period of COBRA
Coverage shall commence at the end of the Benefit Continuation Period.


 


(c)                                  Payment
of Accrued Obligations.


 


Upon a Qualified Termination, the Executive
will receive in addition to any other payments that may become due under this
Agreement, the following:


 


(1)                                  payment of the sum of (A) the Executive’s Base Salary through the
Date of Termination, (B) the Executive’s accrued vacation pay and (C) the
Executive’s accrued annual incentive bonus for the fiscal year immediately
preceding the year in which the Date of Termination occurs, in each case, to
the extent not theretofore paid, which shall be paid to the Executive, subject
to any deferral elections then in effect, in a lump sum in cash as soon as
practicable after the Date of Termination but in no event later than 30 days
after the Date of Termination;


 


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(2)                                  payment in an amount equal to the product of (A) the Bonus Amount
and (B) a fraction, the numerator of which is the number of days in the
bonus year from the commencement of the bonus year until the Date of
Termination and the denominator of which is 365, which shall be paid to the
Executive in a lump sum in cash as soon as practicable after the Date of
Termination but in no event later than 30 days after the Date of Termination;
and


 


(3)                                  to the extent not theretofore paid or provided, payment or provision of
any Other Benefits (as defined in Section 10(b)) in accordance with the
terms of the underlying plans or agreements.


 


(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 Executive’s “separation
from service” (within the meaning of Section 409A of the Code) while the
Executive 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 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 Executive’s
separation from service.


 


3.                                      Equity
Awards.  Upon a Change of
Control, notwithstanding any provision of any plan or applicable award
agreement to the contrary as in effect on the Effective Date, (1) any
shares of restricted stock held by the Executive that remain unvested shall
immediately vest and shall no longer be subject to any restrictions unless such
restrictions are required by any applicable law or regulation; (2) any
restricted stock units held by the Executive that remain unvested shall immediately
vest and, if such restricted stock units constitute “deferred compensation”
within the meaning of Section 409A of the Code, shall be settled (A) if
such Change of Control is not a “change in control event” within the meaning of
Section 409A of the Code, at such time as provided in the applicable award
agreement, or (B) if such Change of Control is a “change in control event”
within the meaning of Section 409A of the Code, as of such Change of
Control; (3) any stock options and stock appreciation rights held by the
Executive, to the extent that they are unvested and unexercisable, shall vest
in full and become immediately exercisable; and (4) any outstanding LTIP
units shall vest as provided in the applicable award agreement.  In the case of a Change of Control under
subsection (3) of the Change of Control definition (merger or similar
transaction), such restricted stock, stock units, stock options or stock
appreciation rights shall vest effective immediately prior to such Change of
Control to the extent necessary in order to enable the realization of the
benefits of such acceleration.  Any stock
options and stock appreciation rights held by the Executive that become vested
and exercisable under this Section 3 or any other agreement or are
otherwise vested shall remain exercisable for a period at least until the first
to occur of (1) the expiration of the full term of the option or stock
appreciation right, and (2) one year after the date on which the Change of
Control occurs, subject only to Section 6.2(b) of the 1994 Plan, the
2000 Plan and the 2003 Plan or any comparable provisions of any plan under
which the options or stock appreciation rights are granted.


 


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4.                                      Soliciting
Employees.  Executive agrees that
he will not, from the Effective Date through a period of two years following
the later of the Date of Termination, directly or indirectly solicit or recruit
any of the Company employees (other than through general advertising not
specifically directed at such current or former Company employees) who earned
annually $25,000 or more as a Company employee during the last six months of
his or her own employment to work for him or any business, individual,
partnership, firm, corporation or other entity, whether for him or such entity,
in competition with the Company or any subsidiary or affiliate of the Company.


 


5.                                      Confidential
Information.


 


(a)                                  The
Executive shall, beginning on the Execution Date and for the term of this
Agreement and thereafter in perpetuity, hold in a fiduciary capacity for the benefit
of the Company all secret or confidential information, knowledge or data,
whether in tangible or intangible form, including but not limited to,
information relating to the Company or any of its affiliated companies, or
their respective businesses, plans, finances, tenants, customers, partners,
properties, processes or means of operation, which shall have been obtained by
the Executive during the Executive’s employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement).  After termination of
the Executive’s employment with the Company, the Executive shall not, without
the prior written consent of the Company or as may otherwise be required by law
or legal process, use (other than in furtherance of the Company’s business), or
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it.


 


(b)                                 Executive
agrees that all lists, materials, books, files, reports, correspondence, records,
and other documents (“Company Material”)
used, prepared or made available to Executive, shall be and remain the property
of the Company.  Upon the Executive’s termination
of employment, all Company Materials shall be returned immediately to the
Company, and Executive shall not make or retain any copies hereof.


 


6.                                      Certain
Additional Payments by the Company.


 


(a)                                  Amount
of Section 280G Additional Payment. 
Anything in this Agreement or any other agreement between the Executive
and the Company (including but not limited to any restricted stock award
agreement under the 1994 Plan, the 2000 Plan, and/or the 2003 Plan) to the
contrary notwithstanding, if it shall be determined that any payment or distribution
by the Company to or for the benefit of the Executive (within the meaning of Section 280G(b)(2) of
the Code) (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 6) (a “Payment”) would be subject to the excise tax imposed by Section 4999
of the Code or any interest or penalties are incurred by the Executive with
respect to such excise tax, but excluding any income taxes and penalties
imposed pursuant to Section 409A (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to
receive an additional payment (a “Gross-Up Payment”).  The Gross-Up Payment shall equal an amount
such that after payment by the Executive of all taxes (and any interest or
penalties imposed with respect to such taxes),


 


7

















 


including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, but excluding any income
taxes and penalties imposed pursuant to Section 409A of the Code, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. 
Notwithstanding the foregoing provisions of this Section 6(a), if
it shall be determined that the Executive is entitled to the Gross-Up Payment,
but that the Parachute Value (as defined below) of all Payments does not exceed
110% of an amount equal to 2.99 times the Executive’s “base amount” within the
meaning of Section 280G(b)(3) of the Code (the “Safe Harbor
Amount”), then no Gross-Up Payment shall be made to the Executive
and the amounts payable under Section 2(a) of this Agreement shall be
reduced so that the Parachute Value of all Payments, in the aggregate, equals
the Safe Harbor Amount.  For purposes of
reducing the Payments to the Safe Harbor Amount, only amounts payable under Section 2(a) of
this Agreement (and no other Payments) shall be reduced.  If the reduction of the amount payable under Section 2(a) of
this Agreement would not result in a reduction of the Parachute Value of all
Payments to the Safe Harbor Amount, no amounts payable under the Agreement
shall be reduced pursuant to this Section 6(a) and the Executive
shall be entitled to the Gross-Up Payment. 
The Company’s obligation to make Gross-Up Payments under this Section 8
shall not be conditioned upon the Executive’s termination of employment.  For the purposes of this Section 6(a), “Parachute Value” shall mean the present value of a Payment
as of the date of a change of control for purposes of Section 280G of the
Code of the portion of such Payment that constitutes a “parachute payment”
under Section 280G(b)(2), as determined by the Accounting Firm for
purposes of determining whether and to what extent the Excise Tax would apply
to such Payment, and “Value” shall
mean the economic present value of a Payment as of the date of the change of
control for purposes of 280G of the Code, as determined by the Accounting Firm
using the discount rate required by Section 280G(d)(4) of the Code.


 


(b)                                 Determination
of Amount.  Subject to the Provisions
of Section 6(c), all determinations required to be made under this Section 6,
including whether and when a Gross-Up Payment is required and the amount of
such Gross-Up Payment or Parachute Value and the assumptions to be utilized in
arriving at such determinations, shall be made by a nationally recognized
accounting firm selected in the discretion of the Company immediately prior to
the Change of Control (the “Accounting Firm”)
which shall provide detailed supporting calculations both to the Company and
the Executive within 15 business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the Company.  If the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the Change
of Control, the Executive may appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder).  All fees and expenses of the Accounting Firm
shall be borne solely by the Company; provided, however, (i) the
Company shall pay the fees and expenses of the Accounting Firm not later than
the end of the calendar year following the calendar year in which the related
work is performed or the expenses are incurred by the Accounting Firm, (ii) the
amount of the Accounting Fees that the Company is obligated to pay in any given
calendar year shall not affect the Accounting Fees that the Company is
obligated to pay in any other calendar year, and (iii) the Executive’s
right to have the Company pay such fees and expenses may not be liquidated or
exchanged for any other benefit.  Any
determination by the Accounting Firm shall be binding upon the Company and the
Executive.  As a result of the
uncertainty in the application of Section 4999 of the Code at the time of
the


 


8

















 


initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made (“Underpayment”),
consistent with the calculations required to be made hereunder.  If the Company exhausts its remedies pursuant
to Section 6(c) and the Executive thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive.


 


(c)                                  Claim
Process.  The Executive shall notify
the Company in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the Gross-Up
Payment.  Such notification shall be
given as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid.  The Executive shall not pay such
claim prior to the expiration of the 30-day period following the date on which
it gives such notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due).  If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall:


 


(1)                                  give the Company any information reasonably requested by the Company
relating to such claim,


 


(2)                                  take such action in connection with contesting such claim as the Company
shall reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an
attorney reasonably selected by the Company,


 


(3)                                  cooperate with the Company in good faith in order effectively to contest
such claim, and


 


(4)                                  permit the Company to participate in any proceedings relating to such
claim; provided, however, that the Company shall bear and
pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and
hold the Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and expenses; provided, however,
(i) the Company shall pay the costs and expenses not later than the end of
the calendar year following the calendar year in which the costs and expenses
are incurred, (ii) the amount of such costs and expenses that the Company
is obligated to pay in any given calendar year shall not affect the costs and
expenses that the Company is obligated to pay in any other calendar year, and (iii) the
Executive’s right to have the Company pay such costs and expenses may not be
liquidated or exchanged for any other benefit. 
Without limitation on the foregoing provisions of this Section 6(c),
the Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either pay the tax claimed to the
appropriate taxing authority on behalf of the Executive and direct


 


9

















 


the Executive to sue for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company pays such
claim and directs the Executive to sue for a refund, the Company shall
indemnify and hold the Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such payment or with respect to any imputed income with
respect to such payment; and provided, further that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount.  Furthermore, the Company’s control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.


 


(d)                                 Refunds.  If, after the receipt by the Executive of a
Gross-Up Payment or the payment of an amount by the Company on the Executive’s
behalf pursuant to Section 6(c), the Executive becomes entitled to receive
any refund with respect to the Excise Tax to which such Gross-Up Payment relates
or with respect to such claim, the Executive shall (subject to the Company’s
complying with the requirements of Section 6(c)) promptly pay to the
Company the amount of such refund together with any interest paid or credited
thereon after taxes applicable thereto. 
If, after the payment of an amount paid by the Company on the Executive’s
behalf pursuant to Section 6(c), a determination is made that the
Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then the amount of such payment shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.


 


(e)                                  Section 409A.  Any Gross-Up Payment, as determined pursuant
to this Section 6, shall be paid by the Company to the Executive within
five days of the receipt of the Accounting Firm’s determination; provided
that, the Gross-Up Payment shall in all events be paid no later than the end of
the Executive’s taxable year next following the Executive’s taxable year in
which the Excise Tax (and any income or other related taxes or interest or
penalties thereon) on a Payment are remitted to the Internal Revenue Service or
any other applicable taxing authority or, in the case of amounts relating to a
claim described in Section 6(c) that does not result in the
remittance of any federal, state, local and foreign income, excise, social
security and other taxes, the calendar year in which the claim is finally
settled or otherwise resolved. 
Notwithstanding any other provision of this Section 6, the Company
may, in its sole discretion, withhold and pay over to the Internal Revenue
Service or any other applicable taxing authority, for the benefit of the
Executive, all or any portion of any Gross-Up Payment, and the Executive hereby
consents to such withholding.


 


7.                                      Full
Settlement; Resolution of Disputes.


 


(a)                                  No Offset.  Subject to Section 2(b), the Company’s
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder


 


10














 


shall not be subject to any
set-off, counterclaim, recoupment, or other claim, right or action which the
Company may have against the Executive.


 


(b)                                 No Mitigation.  In no event shall the Executive be obligated
to seek other employment or take any other action to attempt to reduce any of
the amounts payable to the Executive under any of the provisions of this
Agreement.  Further, except as otherwise
provided under Section 2(b), amounts or benefits hereunder shall not be
reduced if the Executive obtains other employment.


 


(c)                                  Arbitration of Disputes.


 


(1)                                  Any controversy or claim arising out of or relating to this Agreement,
its enforcement, arbitrability or interpretation, or because of an alleged
breach, default or misrepresentation in connection with any of its provisions,
or arising out of or relating in any way to the Executive’s employment or
termination of the same or conduct thereafter, including, without limiting the
generality of the foregoing, any alleged violation of statute, common law or
public policy, shall be submitted to final and binding arbitration, to be held
in Los Angeles County, California, before a single arbitrator, in accordance
with California Civil Procedure Code §§ 1280 et seq.  The arbitrator shall be selected by mutual
agreement of the parties or, if the parties cannot agree, then by striking from
a list of arbitrators supplied by the American Arbitration Association or
JAMS/Endispute.  The arbitrator shall
issue a written opinion revealing, however briefly, the essential findings and
conclusions upon which the arbitrator’s award is based.  The Company will pay the arbitrator’s fees
and arbitration expenses and any other costs associated with the arbitration
hearing.  The Company agrees to pay as
incurred (within 10 days following the Company’s receipt of an invoice from the
Executive), to the full extent permitted by law, all legal fees and expenses
that the Executive may reasonably incur as a result of any contest (regardless
of the outcome thereof) by the Company, the Executive or others of the validity
or enforceability of, or liability under, any provision of this Agreement or
any guarantee of performance thereof (including as a result of any contest by
the Executive about the amount of any payment pursuant to this Agreement), plus,
in each case, interest on any delayed payment at the applicable federal rate
provided for in Section 7872(f)(2)(A) of the Code.  In order to comply with Section 409A of
the Code, (i) in no event shall the payments by the Company under this
Section 7(c) be made later than the end of the calendar year next
following the calendar year in which such fees and expenses were incurred, and
the Executive shall be required to have submitted an invoice for such fees and
expenses at least 10 days before the end of the calendar year next following
the calendar year in which such fees and expenses were incurred, (ii) the
amount of such legal fees and expenses that the Company is obligated to pay in
any given calendar year shall not affect the legal fees and expenses that the
Company is obligated to pay in any other calendar year, (iii) the
Executive’s right to have the Company pay such legal fees and expenses may not
be liquidated or exchanged for any other benefit and (iv) the Company’s
obligations to pay such legal fees and expenses shall apply to amounts incurred
during the Executive’s remaining lifetime (or, if longer, through the 20th anniversary of the Effective
Date).  Nothing in this paragraph shall
affect the Executive’s or the Company’s ability to seek from a court injunctive
or equitable relief.


 


11

















 


(2)                                  Except as may be necessary to enter judgment upon the award or to the
extent required by applicable law, all claims, defenses and proceedings
(including, without limiting the generality of the foregoing, the existence of
a controversy and the fact that there is an arbitration proceeding) shall be
treated in a confidential manner by the arbitrator, the parties and their
counsel, each of their agents, and employees and all others acting on behalf of
or in concert with them.  Without
limiting the generality of the foregoing, no one shall divulge to any third
party or person not directly involved in the arbitration the content of the
pleadings, papers, orders, hearings, trials or awards in the arbitration,
except as may be necessary to enter judgment upon an award as required by
applicable law.  Any controversy relating
to the arbitration, including, without limiting the generality of the
foregoing, to prevent or compel arbitration or to confirm, correct, vacate or
otherwise enforce an arbitration award, shall be filed under seal with the
court, to the extent permitted by law.


 


8.                                      Restraint on Alienation.


 


None of the
benefits, payments, proceeds or claims of the Executive shall be subject to any
claim of any creditor and, in particular, the same shall not be subject to
attachment or garnishment or other legal process by any creditor, nor shall the
Executive have any right to alienate, anticipate, commute, pledge, encumber or
assign any of the benefits or payments of proceeds which he or she may expect
to receive, contingently or otherwise, under this Agreement.  Notwithstanding the above, benefits which are
in pay status may be subject to a garnishment or wage assignment or authorized
or mandatory deductions made pursuant to a court order, a tax levy or
applicable law or the Executive’s elections.


 


9.                                      Grantor Trust.


 


The Company
may establish a trust with a bank trustee, for the purpose of paying benefits
under this Agreement.  If so established,
the trust shall be a grantor trust subject to the claims of the Company’s
creditors and shall, immediately prior to a Change of Control, be funded in
cash or common stock of the Company or such other assets as the Company deems
appropriate with an amount equal to 100 percent of the aggregate benefits
payable under this Agreement assuming that the Executive incurred a Qualified
Termination immediately following the Change of Control; provided, however, that the Trust shall not be funded if the funding thereof
would result in taxable income to the Executive by reason of Section 409A(b) of
the Code; and  provided, further, that  in no event
shall any Trust assets at any time be located or transferred outside of the
United States, within the meaning of Section 409A(b) of the
Code.  Any fees and expenses of the
Trustee shall be paid by the Company. 
Notwithstanding the establishment of any such trust, the Executive’s
rights hereunder will be solely those of a general unsecured creditor.


 


10.                               Entire Understanding.


 


(a)                                  This Agreement constitutes
the entire understanding between the parties with respect to the subject
matters contemplated by this Agreement, except with respect to any outstanding
LTIP units.  Such agreements and terms
supersede all prior written or oral communications, negotiations,
understandings or agreements of any kind with respect to such subject matters,
including without limitation any prior management continuity agreements.  [In


 


12

















 


the case of Tony Grossi, the
following is included: “If the Executive is entitled to receive any benefits
under Section 2 of this Agreement, he shall not receive any termination
benefits under Section V of the Amended and Restated Employment Agreement
between the Executive and the Company dated
December      2008.”].


 


(b)           Nothing in this Agreement shall
prevent or limit the Executive’s continuing or future participation in any
plan, program, policy or practice provided by the Company or its Affiliates and
for which the Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as the Executive may have under any other contract
or agreement with the Company or its Affiliates.  Amounts that are vested benefits or that the
Executive and/or the Executive’s dependents are otherwise entitled to receive
under any plan, policy, practice or program of or any other contract or
agreement with the Company or its Affiliates at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement, except as explicitly modified by this
Agreement (the “Other Benefits”).  The benefit provided pursuant to Section 2
above shall be provided in addition to, and not in lieu of, all other accrued
or vested or earned but deferred compensation, rights, options or other
benefits which may be owed to the Executive upon or following termination,
including but not limited to accrued vacation or sick pay, amounts or benefits
payable under any bonus or other compensation plans, stock option plan, stock
ownership plan, stock purchase plan, life insurance plan, health plan,
disability plan or similar or successor plan. 
Without limiting the generality of the foregoing, the Executive’s
resignation under this Agreement with or without Good Reason, shall in no way
affect the Executive’s ability to terminate employment by reason of the
Executive’s “retirement” under any of the Company’s or its Affiliate’s
compensation or benefits plans, programs, policies or arrangements or
substitute plans adopted by the Company or its successors, including without
limitation, any retirement or pension plans or to be eligible to receive
benefits under any compensation or benefits plans, programs, policies or
arrangements, including without limitation any retirement or pension plan of
the Company and its Affiliates or substitute plans adopted by the Company or
its successors, and any termination which otherwise qualifies as Good Reason
shall be treated as such even if it is also a “retirement” for purposes of any
such plan.  Notwithstanding the
foregoing, if the Executive receives payments and benefits pursuant to Section
2(a) of this Agreement, the Executive shall not be entitled to any severance
pay or benefits under any severance plan, program or policy of the Company and
its Affiliates, unless otherwise specifically provided therein in a specific
reference to this Agreement.


 


11.                               Successors.


 


(a)                                  Executive.  This Agreement and rights under it are
personal to the Executive and without the prior written consent of the Company
shall not be assignable or assigned by the Executive.  If the Executive dies or suffers a Disability
after a Qualified Termination, this Agreement shall inure to the benefit of and
be enforceable by the Executive’s heirs or legal representatives, as the case
may be.


 


(b)                                 Company.  This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns, including any
transferee of all or substantially all of its assets as an entirety.  The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, reorganization
or otherwise) to all or substantially all of the


 


13

















 


business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place.  As used in
the preceding sentence, “Company” shall
mean the Company as previously defined herein and any successor to its business
and/or assets described in the preceding sentence that assumes and agrees to
perform this Agreement by operation of law or otherwise.


 


12.                               Indemnification.


 


In any
circumstance where, under the Company’s certificate of incorporation, bylaws,
The Macerich Partnership, L.P. Limited Partnership Agreement, or applicable
law, the Company has the power to indemnify or advance expenses to the
Executive in respect of any judgments, fines, settlements, loss, costs or
expertise (including attorneys’ fees) of any nature relating to or arising out
of the Executive’s activities as an agent, employee, officer or director of the
Company or in any other capacity on behalf of or at the request of the Company,
then the Company will promptly, upon written request, indemnify and advance
expenses to the Executive to the fullest extent permitted by applicable law,
including but not limited to, making such findings and determinations and
taking any and all such actions as the Company may, under applicable law, be
permitted to have the discretion to take so as to effectuate such
indemnification or advancement.  Such
agreement by the Company will not be deemed to impair any other obligation of
the Company or The Macerich Partnership, L.P. respecting indemnification of the
Executive arising out of this or any other Agreement or promise by the Company
or under the Company’s certificate of incorporation, bylaws or any statute. In
order to comply with Section 409A of the Code, (i) in no event shall
the advancement of expenses by the Company under this Section 12 be made
later than the end of the calendar year next following the calendar year in
which such expenses were incurred, and the Executive shall be required to have
submitted an invoice for such expenses at least 10 days before the end of the
calendar year next following the calendar year in which such expenses were
incurred; (ii) the amount of such expenses that the Company is obligated
to pay in any given calendar year shall not affect the expenses that the
Company is obligated to pay in any other calendar year; (iii) the
Executive’s right to have the Company pay such expenses may not be liquidated
or exchanged for any other benefit; and (iv) the Company’s obligations to
pay such expenses shall apply to amounts incurred during the Executive’s
remaining lifetime (or, if longer, through the 20th anniversary of the
Effective Date).


 


13.                               Miscellaneous.


 


(a)                                  Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without
reference to principles of conflict of laws.


 


(b)                                 No Contract or Right of
Employment.  Nothing in this Agreement
(1) shall be construed as creating an express or implied contract of
employment, changing Executive’s status as an employee at will, if that is or
becomes the case, giving the Executive any right to be retained in the employ
of the Company or any subsidiary or affiliate, or giving the Executive the right
to any particular level of compensation or benefits or (2) shall interfere
in any way with the right of the Company or a subsidiary or affiliate, as the
case may be, to terminate the Executive’s 


 


14

















 


employment at any time with
or without Cause, subject in either case to any express payment and other
obligations of the Company under this Agreement in the case of a termination of
employment after the Effective Date.


 


(c)                                  Termination Prior to
Effective Date.  If, prior to the Effective
Date, the Executive’s employment with the Company terminates, then the
Executive shall have no rights under this Agreement.


 


(d)                                 Headings.  The captions of this Agreement are not part
of the provisions hereof and shall have no force or effect.


 


(e)                                  Amendments.  This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.


 


(f)                                    Interest.  Interest shall not be payable on any benefit
payable by the Company under this Agreement prior to the time such payment is
due.


 


(g)                                 Notices.  All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:


 


If to
the Executive:


 


At the
most recent address on file for the Executive at the Company.


 


If to
the Company:


 


The
Macerich Company

401 Wilshire Boulevard, No. 700

Santa Monica, California 90401

Attention:  Secretary


 


or to
such other address as either party shall have furnished to the other in writing
in accordance herewith.  Notice and
communications shall be effective when actually received by the addressee.


 


(h)                                 Tax Withholdings.  The Company shall be entitled to withhold
from any amounts payable under or pursuant to this Agreement all taxes as
legally shall be required (including, without limitation, United States federal
taxes and any other state, city or local taxes).


 


(i)                                     Strict Compliance;
Severability.  The Executive’s or the
Company’s failure to insist upon strict compliance with any provision hereof or
any other provision of this Agreement or the failure to assert any right the
Executive or the Company may have hereunder, including, without limitation, the
right of the Executive to terminate employment for Good Reason, shall not be
deemed to be a waiver of such provision or right with respect to any subsequent
lack of compliance, or of any other provision or right of this Agreement.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability


 


15

















 


of any other provision of
this Agreement, if the essential terms from the perspective of both parties
remain enforceable.


 


(j)                                     Section 409A Compliance.  This Agreement is intended not to result in
the imposition of any tax, interest charge or other assessment, penalty or
addition under Section 409A of the Code. 
In addition to any specific references to Section 409A of the Code
in this Agreement, all terms and conditions of this Agreement are intended, and
shall be interpreted and applied to the greatest extent possible in such manner
as may be necessary, to exclude any compensation and benefits provided by this
Agreement from the definition of “deferred compensation” within the meaning of
Section 409A of the Code or to comply with the provisions of
Section 409A of the Code and any rules, regulations or other regulatory
guidance issued under Section 409A of the Code.  If any modification of this Agreement is
necessary to exclude any compensation or benefits provided by this Agreement
from the definition of “deferred compensation” within the meaning of
Section 409A of the Code or otherwise to comply with the provisions of
Section 409A of the Code, and the making of such modification itself does
not fail to comply with any requirement of Section 409A of the Code, then
the Company and the Executive agree to modify this Agreement in the least
restrictive manner necessary to accomplish such result without causing any
diminution in the value of the payments to the Executive.


 


16

















 


IN WITNESS
WHEREOF, the Executive has hereunto set the Executive’s
hand and, pursuant to the authorization from its Board of Directors, the
Company has caused these presents to be executed in its name on its behalf, all
as of the day and year first above written.


 


	
  EXECUTIVE

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [

  	
  ]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE MACERICH COMPANY

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Richard A. Bayer

  	
   

  
	
   

  	
  Senior Executive Vice President,

  	
   

  
	
   

  	
  Chief Legal Officer & Secretary

  	
   

  
				



 


17

















 


Appendix A


 


Definition of Change of Control


 


“Change of Control” means any of the following:


 


(1)                                  The acquisition by
any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (such individual, entity, or group, a “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 the Company or any affiliate of the Company
or successor or (iv) any acquisition by any entity pursuant to a
transaction that complies with Sections (3)(A), (3)(B) and (3)(C) below;


 


(2)                                  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;


 


(3)                                  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, (A) 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, (B) no 


 


A-1

















 


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 (C) 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


 


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


 


A-2