Exhibit 10.2.1


 


CONSULTING AGREEMENT


 


This Consulting Agreement (“Consulting
Agreement”) is entered into this 5th day of
September, 2008 (the “Effective Date”), by and between Mace Siegel, an
individual (“Consultant”), and The Macerich Company, a Maryland corporation
(the “Company”).  Consultant and the
Company agree as follows:


 


I.                                         Engagement


 


The Company hereby engages
Consultant and Consultant hereby accepts such engagement, upon the terms and
conditions hereinafter set forth, for the Consulting Term.  The “Consulting Term” is the period of time
commencing on the Effective Date and ending on the first to occur of:  (1) August 31, 2013; (2) the
date of Consultant’s death or disability (defined as a serious and continuing
medical condition which prevents Consultant from performing or substantially
performing as a consultant under this Agreement for a minimum of sixty (60)
days, such as a heart attack or stroke); (3) Consultant’s written notice
to the Company that he elects to terminate the Consulting Term for any reason;
or (4) the date that Consultant materially breaches one of his obligations
or agreements under this Consulting Agreement, provided, however, that if the
purported breach is a breach of Consultant’s obligations under Section II.A
or II.C, Consultant shall be given written notice of the alleged breach  and a thirty (30) day opportunity to cure the
alleged breach to the extent a cure is reasonably possible in the circumstances
and provided, further, that if the purported breach is the first breach of
Consultant’s obligations under Section VI, Consultant shall be given
written notice of the alleged breach and an opportunity to cure the alleged
breach, which cure may be reasonably specified (both as to time, manner and
content) by the Company.  The notice and
opportunity to cure specified in subparagraph (4) shall not be required
for any breach of Consultant’s obligations under Section VI after the
first such breach, regardless of whether a prior breach was cured.


 


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II.                                     Service


 


A.                                    Performance


 


Consultant shall perform
consulting services as requested by the Company with reasonable notice as to
matters with which Consultant is familiar or about which Consultant has
acquired knowledge, expertise, or experience. 
The Company is not obligated to call upon Consultant to provide any
services or any minimum level of services. 
In no event shall Consultant be required to perform services to the
Company on more than 3 days in any one month or at a location outside of
Southern California.


 


B.                                    Nature of
Consulting Services


 


Only the Company’s Chief
Executive Officer or President may request that Consultant provide consulting
services to the Company pursuant to this Consulting Agreement.  Consultant shall report the results of his
consulting services to the Company’s Chief Executive Officer or President.  Except (i) as may expressly be
authorized by the Chief Executive Officer or the President of the Company, and (ii) for
such contact (if any) as may reasonably be authorized by the Company’s Board of
Directors (“Board”) and arranged through the Chief Executive Officer for
Consultant to fulfill his obligations as a member of the Board, and (iii) for
contact (if any) with the Company’s Board of Directors and/or employees at the
level of Senior Executive Vice President or higher (in each case under this
clause (iii), only if such contact occurs while Consultant is a director of the
Company), Consultant shall not have any business contact with any other officer
or employee of the Company or its affiliates.


 


C.                                    Competent
Service


 


Consultant agrees to
honestly and faithfully conduct himself at all times during the performance of
consulting services for the Company.  Consultant
agrees to perform his services in a diligent and competent manner.


 


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III.                                 Compensation


 


In consideration for the
services to be provided by Consultant, the Company will pay Consultant a
Consulting Fee of FORTY ONE THOUSAND ONE HUNDRED SIXTY SIX DOLLARS AND SIXTY
SEVEN CENTS ($41,166.67) each month (the “Consulting Fee”).  The first Consulting Fee shall be paid to
Consultant for September 2008.  The
Consulting Fee shall continue after September 2008 and will be paid for
each month in the Consulting Term through and including the month in which the
Consulting Term ends, whether or not Consultant is called upon to perform
services during that month.  Except as
expressly provided in Section IV in the event of Consultant’s death or
disability (as such term is defined in Section I) during the Consulting
Term, no Consulting Fee shall be payable with respect to any month following
the month in which the Consulting Term ends. 
The Consulting Fee for a particular month shall be paid not later than
fifteen days following that month.  The
Company shall have no obligation to pay or reimburse any expenses incurred by
Consultant in performing the services.


 


IV.                                Termination


 


Upon termination or
expiration of the Consulting Term pursuant to Section I, this Agreement
shall terminate without further obligations to or by the Consultant under this
Agreement, other than for payment of Consultant’s Consulting Fee through the
month in which the Consulting Term ends (to the extent not theretofore paid);
provided that if the Consulting Term ends due to Consultant’s death or
disability (as defined in Section I), the Company shall continue to pay
the Consulting Fee to Consultant (or Consultant’s estate, in the event of
Consultant’s death) through August 31, 2013 as though the Consulting Term
had not ended upon Consultant’s death or disability; provided, further, that in
the event of such a termination of the Consulting Term due to such a disability
of Consultant, the Company’s obligation to continue to pay the Consulting Fee
as though the Consulting Term had not ended upon Consultant’s death or
disability is subject to the condition precedent that Consultant


 


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not
breach any of Consultant’s other obligations or agreements under this Consulting
Agreement (except the obligation to perform the consulting services pursuant to
Section II.A) as though the Consulting Term had continued in effect
through August 31, 2013.


 


V.                                    Relationship


 


A.                                    Independent
Contractor


 


Consultant shall operate at
all times under this Consulting Agreement as an independent contractor of the
Company.  Nothing in this Consulting
Agreement shall alter or limit the rights or obligations of Consultant as a
member of the Board.


 


B.                                    Agency


 


This Consulting Agreement
does not authorize Consultant to act as an agent of the Company or any of its
affiliates or to make commitments on behalf of the Company or any of its
affiliates.  Consultant and the Company
intend that an independent contractor relationship be created by this Consulting
Agreement, and nothing herein shall be construed as creating an
employer/employee relationship, partnership, joint venture, or other business
group or concerted action.  Consultant
shall at no time hold himself out as an agent of the Company or any of its
affiliates for any purpose, including reporting to any governmental authority
or agency, and shall have no authority to bind the Company or any of its
affiliates to any obligation whatsoever.


 


C.                                    Taxes


 


Consultant and the Company
agree that Consultant is not an employee for state or federal tax purposes.  Consultant shall be solely responsible for any
taxes due as a result of the payment of any consulting fee or other
compensation pursuant to this Consulting Agreement.  Consultant will defend and indemnify the
Company and each of its affiliates from and against any tax arising out of
Consultant’s failure to pay such taxes with respect to any such payments.  If the Company reasonably determines that
applicable law requires that taxes should be withheld from any payments


 


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or
other compensation and benefits pursuant to this Consulting Agreement, the
Company reserves the right to withhold, as legally required, and to notify
Consultant accordingly.


 


D.                                    Workers’
Compensation and Unemployment Insurance


 


Consultant is not entitled
to workers’ compensation benefits or unemployment compensation benefits
provided by the Company.  Consultant
shall be solely responsible for the payment of his workers’ compensation, unemployment
compensation, and other such payments.  The
Company will not pay for workers’ compensation for Consultant.  The Company will not contribute to a state
unemployment fund for Consultant.  The
Company will not pay the federal unemployment tax for Consultant.


 


E.                                      Benefits


 


Consultant shall not be
entitled to participate in any vacation, medical, retirement, or other health
and welfare or fringe benefit plan of the Company by virtue of this Consulting
Agreement, and Consultant shall not make claim of entitlement any such employee
plan, program or benefit on the basis of this Consulting Agreement.   Nothing in this Consulting Agreement is
intended, however, to supersede or otherwise affect Consultant’s rights to
continued medical, dental or group health or life insurance coverage following
his termination of employment with the Company pursuant to COBRA.


 


VI.                                Non-Disparagement


 


Consultant agrees that he
will not at any time during the Consulting Term, (1) directly or
indirectly, make or ratify any statement, public or private, oral or written,
to any person that denigrates or disparages, either professionally or
personally, the Company, any of its subsidiaries or affiliates, or any of their
respective directors, officers, or employees, successors or products, past and
present, or (2) make any statement or engage in any conduct that has the
purpose (or which a reasonable person reasonably should have known would likely
have the effect) of disrupting the business of the Company or any of its
subsidiaries or affiliates.  Nothing
herein shall abridge, limit,


 


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or
modify in any way Consultant’s duties or responsibilities as a Director of the
Company, or from disclosing such information in a truthful manner as may be
required by law, or by judicial or administrative process or order or the rules of
any securities exchange or similar self-regulatory organization applicable to
such party.


 


VII.                            Miscellaneous


 


A.                                    Successors


 


This Consulting Agreement is
personal to each of Consultant and the Company and shall not, without the prior
written consent of the other, be assignable by either of them; provided,
however, that in the event any person acquires all or substantially all of the
business or assets of the Company (by purchase, merger, or otherwise), this
Consulting Agreement shall inure to the benefit of and be binding upon such
other person.


 


B.                                    Waiver and
Modification


 


No waiver of any breach of
any term or provision of this Consulting Agreement shall be construed to be,
nor shall be, a waiver of any other breach of this Consulting Agreement.  No waiver shall be binding unless in writing
and signed by the party waiving the breach.  This Consulting Agreement may not be amended
or modified other than by a written agreement executed by Consultant and an
authorized officer of the Company.


 


C.                                    Complete
Agreement


 


This Consulting Agreement
constitutes and contains the entire agreement and final understanding
concerning Consultant’s consulting relationship with the Company and its
affiliates, and the other subject matters addressed herein between the parties,
and it supersedes and replaces all prior negotiations and all agreements
proposed or otherwise, whether written or oral, concerning the subject matters
hereof provided, however, that Consultant’s confidentiality, proprietary
information, trade secret and similar obligations under any existing agreement
with the Company shall continue.


 


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D.                                    Severability


 


If any provision of this
Consulting Agreement or the application thereof is held invalid, the invalidity
shall not affect other provisions or applications of the Consulting Agreement
which can be given effect without the invalid provisions or applications and to
this end the provisions of this Consulting Agreement are declared to be
severable.


 


E.                                      Choice of Law


 


This Consulting Agreement
shall be deemed to have been executed and delivered within the State of
California, and the rights and obligations of the parties hereunder shall be
construed and enforced in accordance with, and governed by, the laws of the
State of California without regard to principles of conflict of laws.


 


F.                                      Advice of
Counsel


 


In entering this Consulting
Agreement, the parties represent that they have relied upon the advice of their
attorneys, who are attorneys of their own choice, and that the terms of this
Consulting Agreement have been completely read and explained to them by their
attorneys, and that those terms are fully understood and voluntarily accepted
by them.  Each party has cooperated in
the drafting and preparation of this Consulting Agreement.  Hence, in any construction to be made of this
Consulting Agreement, the same shall not be construed against any party on the
basis that the party was the drafter.


 


G.                                    Counterparts


 


This Consulting Agreement
may be executed in counterparts, and each counterpart, when executed, shall
have the efficacy of a signed original. 
Photographic copies of such signed counterparts may be used in lieu of
the originals for any purpose.


 


H.                                    Headings


 


The section headings
contained in this Consulting Agreement are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Consulting
Agreement.


 


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*  *  *


 


I have read the foregoing
Consulting Agreement and I accept and agree to the provisions it contains and
hereby execute it voluntarily with full understanding of its consequences.


 


 


EXECUTED this 24th day of
December, 2008, in the State of California, with the effective date as set
forth above.


 


	
   

  	
  CONSULTANT

  
	
   

  	
   

  
	
   

  	
  /s/ Mace Siegel

  
	
   

  	
  Mace Siegel

  



 


 


EXECUTED this 2nd day of January,
2009, in the state of California, with the effective date as set forth above.


 


	
   

  	
  THE COMPANY

  
	
   

  	
   

  
	
   

  	
  THE MACERICH COMPANY, A MARYLAND CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Bayer

  
	
   

  	
  Its:

  	
   Sr. EVP & CLO

  



 


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