Exhibit 10.2


 


AMENDED AND RESTATED


 


EMPLOYMENT AGREEMENT


 


This Amended and Restated Employment
Agreement (the “Agreement”) is entered into by and among The Macerich Company,
a Maryland corporation and The Macerich Partnership, L.P., a Delaware
partnership (collectively, the “Company”), and Tony Grossi (“Employee”), as of
the 19th day of December, 2008.  This
Agreement amends and restates the Employment Agreement by and among the Company
and Employee dated as of the 1st day of November, 2006.


 


I.              EMPLOYMENT.


 


The Company
hereby employs Employee and Employee hereby accepts such employment, upon the
terms and conditions hereinafter set forth.


 


II.            TERM.


 


The initial
term of Employee’s employment pursuant to this Agreement commenced on January 8,
2007, and shall end on December 31, 2009. 
Upon the expiration of such term, this Agreement will lapse and have no
further force or effect and Employee shall become an “at will” employee in
accordance with the Company’s customary practices; provided, however,
and notwithstanding such at-will status, the severance provisions of Section V.D.3.b.
shall survive the specified term of the Agreement and be fully enforceable
during the period January 1, 2010 through December 31, 2011.


 


III.           DUTIES.


 


A.            Employee shall serve during the
course of his employment as Executive Vice President, Chief Operating Officer &
Chief Economist, and shall have such other duties and responsibilities as the
Board of Directors of the Company, or its President & Chief Executive
Officer, shall determine from time to time. 
In addition, Employee will be responsible for extensive travel
throughout the United States to acquaint himself with the Company, meet with
personnel, and visit all relevant and competitive properties.


 


B.            Employee agrees to devote substantially
all of his work day, energy and ability to the business of the Company.  Nothing herein shall prevent Employee from
investing in real estate for his own account or from becoming a partner or a
stockholder in any corporation, partnership or other venture not in competition
with the business of the Company or in competition with any present or future
affiliate of the Company.


 


C.            Employee hereby acknowledges and
agrees that, except as above contemplated, the engagement of Employee by the
Company under this Agreement is exclusive to the Company, and he shall not
render services to any other entity for compensation or otherwise without the
prior written consent of the Company.


 

















 


IV.           COMPENSATION.


 


A.            Salary.  The Company will pay to Employee a base
salary at the rate, which became effective March 2, 2008, of $600,000 per
year.  Such salary shall be earned
monthly and shall be payable biweekly in periodic installments in accordance
with the Company’s customary practices.  Amounts
payable shall be reduced by standard withholding and other authorized
deductions.  The Company will review
Employee’s salary at least annually.  The
Company may in its discretion increase Employee’s salary but it may not reduce
it during the term of this Agreement.


 


B.            Bonus and Incentive
Compensation.  Employee shall
be entitled to participate in all annual bonus, incentive, stock incentive,
LTIP, savings and retirement plans, practices, policies and programs applicable
generally to other Executive Officers of the Company.  Bonus and incentive plan awards will be based
on success in achieving personal goals and objectives and Company performance.


 


C.            Welfare Benefit Plans.  Employee and/or his family, as the case may
be, shall be eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs provided by the Company
(including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel accident
insurance plans and programs) to the extent applicable generally to other
Executive Officers of the Company.


 


D.            Expenses.  In addition, Employee shall be entitled to
receive prompt reimbursement for all reasonable employment expenses incurred by
him in accordance with the policies, practices and procedures as in effect
generally with respect to other Executive Officers of the Company.


 


E.             Fringe Benefits.  Employee shall be entitled to fringe benefits
in accordance with the plans, practices, programs and policies as in effect
generally with respect to other Executive Officers of the Company.


 


F.             Vacation.  Employee shall be entitled to at least 4
weeks of paid vacation in accordance with the plans, policies, programs and
practices as in effect generally with respect to other Executive Officers of
the Company.


 


G.            The Company reserves the right to
modify, suspend or discontinue any and all of the above plans, practices,
policies and programs at any time without recourse by Employee so long as such
action is taken generally with respect to other Executive Officers and does not
single out Employee.


 


V.            TERMINATION.


 


A.            Death or Disability.  Employee’s employment shall terminate
automatically upon Employee’s death.  If
the Company determines in good faith that the Disability of Employee has
occurred (pursuant to the definition of Disability set forth below), it may
give to Employee written notice of its intention to terminate Employee’s
employment.  In such event, Employee’s
employment with the Company shall terminate effective on the 30th day after
receipt of such 


 


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notice by Employee, provided
that, within the 30 days after such receipt, Employee shall not have returned
to full-time performance of his duties. 
For purposes of this Agreement, “Disability” shall mean the absence of
Employee from his duties with the Company on a full-time basis for a period of
nine months as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by the Company
or its insurers and acceptable to Employee or his legal representative (such
agreement as to acceptability not to be withheld unreasonably).  “Incapacity” as used herein shall be limited
only to a condition that substantially prevents Employee from performing his
duties hereunder.


 


B.            Cause.  During the term of this Agreement, the
Company may terminate Employee’s employment for Cause.  “Cause” shall mean a termination of
employment of the Employee by the Company due to (a) the commission by the
Employee of an act of fraud or embezzlement against the Company; (b) the
conviction of the Employee in a court of law, or guilty plea or no contest
plea, to a felony charge; (c) the willful misconduct of the Employee which
is reasonably likely to result in injury or financial loss to the Company; (d) the
willful failure of the Employee to render services to the Company, which
failure amounts to material neglect of the Employee’s duties and does not
result from physical illness, injury or incapacity, and which failure is not
cured promptly after adequate notice of such failure and a reasonably detailed
explanation in writing has been presented by the Company to the Employee; or (e) any
other material breach of this Agreement, which breach is not cured, if curable,
within 30 days after a written notice of such breach is delivered to the
Employee.


 


C.            Termination by the Company
Without Cause.  The Company
may terminate Employee’s employment at any time during the term of this
Agreement without Cause and without prior notice.  Any such termination without Cause shall
trigger the Company’s obligations under Section V.D.3. below.


 


D.            Obligations of the Company
Upon Termination.


 


1.             Death or Disability.  If Employee’s employment is terminated by
reason of Employee’s death or Disability during the term of this Agreement (as
in effect on the date of Employee’s termination of employment), the Company
shall pay to Employee (or, in the case of his death, his surviving spouse or, if
there is no surviving spouse, his estate) in a lump sum in cash within 30 days
of the date of termination, an amount equal to the product of Employee’s annual
base salary multiplied by a fraction, the numerator of which shall be the
number of whole months remaining in the term of this Agreement (as in effect on
the date of Employee’s termination of employment) and the denominator of which
is 12.


 


2.             Cause.  If Employee’s employment is terminated by the
Company pursuant to Section V-B, this Agreement shall terminate without
further obligations to Employee other than for (a) payment of the sum of
Employee’s annual base salary through the date of termination and any accrued
vacation pay to the extent not theretofore paid, which shall be paid to
Employee or his estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the date of termination; (b) payment of any vested
compensation previously deferred by Employee (together with any accrued
interest or earnings thereon), which shall be paid to Employee or his estate or
beneficiary pursuant to terms of the plan or agreement under which such
compensation was deferred; and (c) payment to Employee or his estate or
beneficiary, as applicable, any amounts 


 


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due pursuant to the terms of
any applicable welfare benefit plans. 
The payments described in clauses (a) and (b) shall
hereinafter be referred to as the “Accrued Obligations.”  If it is subsequently determined that the
Company did not have Cause for termination under this Section V.D.2, then
the Company’s decision to terminate shall be deemed to have been made under Section V.D.3
and the amounts payable thereunder shall be the only amounts Employee may
receive for his termination.


 


3.             Termination Without Cause.  (a)  If the Company terminates this
Agreement and Employee’s employment during the term of this Agreement, other
than pursuant to Section V.A. or V.B, then upon Employee’s execution of a
standard form of Employee Release and Settlement Agreement (an exemplar of
which is attached hereto as Exhibit A for reference only) updated at the
time of any use to comply with all then applicable legal restrictions and
limitations within 52 days following the date of termination of employment, (i) the
Company shall pay to Employee within 60 days following the date of termination
of employment a lump sum equal to two times the aggregate of Employee’s base
salary and target bonus for one year, less standard withholdings and other
authorized deductions (which base salary and target bonus for the purposes of
this Section V.D.3 shall be deemed to be 600,000 salary + $900,000 target
bonus = $1,500,000; and therefore the gross payment under this Section V.D.3.(a) prior
to withholdings and other authorized deductions shall be $3,000,000), and (ii) the
Company shall timely pay to Employee the Accrued Obligations; (b) if
Company terminates this Agreement and Employee’s employment for a reason other
than described in Section V.A. or V.B., at any time during the 24-month
period immediately following the specified term of this Agreement, then upon
Employee’s execution of an Employee Release as described in Section V.D.3.(a) above
within 52 days following the date of termination of employment, the Company
shall pay to Employee within 60 days following the date of termination of
employment the sum specified in Section V.D.3(a)(i), multiplied by a
fraction, the numerator of which shall be the number of whole months remaining
in such 24-month period (with any partial month considered to be a whole month)
and the denominator of which shall be 24; and (c) none of the payments
provided in this Section V.D.3 shall be reduced by any amounts earned or
received by Employee from a third party at any time.


 


4.             Management Continuity
Agreement.  Notwithstanding
the foregoing, in the event that Employee is entitled to receive any severance
payments or benefits under Section 2 of the Amended and Restated
Management Continuity Agreement entered into by and between the Company and
Employee dated December     , 2008, then the Company
shall have no obligation to make any payments or provide any benefits to
Employee or to his surviving spouse or estate under this Section V.


 


E.             Section 409A of the
Code.  The Company and
Employee intend that any payments and benefits that may be provided under this Section V
are to be exempt from or to comply with the requirements of Section 409A
of the U.S. Internal Revenue Code of 1986, as amended, and U.S. Treasury
guidance issued thereunder (“Section 409A”) so as not to result in the
imposition of any tax, interest charge or other assessment, penalty or addition
under Section 409A.  In this regard,
the following provisions shall apply to this Agreement.


 


1.             For purposes of determining the
date on which any payment is to be made or benefit provided under this
Agreement, references to “termination of employment,” 


 


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“employment terminates” and
similar terms shall mean “separation from service” as defined for purposes of Section 409A.


 


2.             It is intended that each payment
provided under this Section V shall be treated as a separate “payment”
(separate from any other payment from the Company to Employee, whether or not
under this Agreement) for purposes of Section 409A.


 


3.             It is intended that each payment
that may become due under this Section V will in all circumstances,
regardless of when Employee’s separation from service occurs, be paid within
the short-term deferral period (as defined for the purposes of Section 409A)
and shall be treated as a short-term deferral within the meaning of Treasury
Regulation Section 1.409A-1(b)(4) to the maximum extent permissible
under Section 409A.


 


4.             If, as of the date of Employee’s
“separation from service” with the Company, Employee is a “specified employee”
(each within the meaning of Section 409A), then each payment under this Section V
that cannot be treated as a short-term deferral within the meaning of Treasury
Regulation Section 1.409A-1(b)(4) and that would, absent this subsection,
be paid within the six-month period following Employee’s “separation from
service” with the Company shall be delayed until and paid on the date that is
six months and one day after such separation from service (or, if earlier, upon
Employee’s death); provided, however, that the preceding provisions of this
sentence shall not apply to any payment if and to the maximum extent that such
payment is deemed to be paid under a separation pay plan that does not provide
for a deferral of compensation by reason of the application of Treasury
Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an
involuntary separation from service). 
Any payment that qualifies for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must
be paid no later than the last day of the second taxable year following the
taxable year in which Employee’s separation from service occurs.


 


5.             In addition to any specific
references to Section 409A 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 or to comply
with the provisions of Section 409A. 
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 or otherwise to
comply with the provisions of Section 409A, and the making of such
modification itself does not fail to comply with any requirement of Section 409A,
then the Company and Employee 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 Employee.


 


VI.           ARBITRATION.


 


Any
controversy or claim arising out of or relating to this Agreement, its
enforcement or interpretation, or because of an alleged breach, default or
misrepresentation in connection with any of its provisions, shall be submitted
to arbitration, pursuant to the terms and conditions of the Arbitration
Agreement attached hereto as Exhibit B.


 


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VII.          CONFIDENTIAL INFORMATION.


 


A.            Employee shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company and its affiliates, and their
respective businesses, which shall have been obtained by Employee during his
employment by the Company and which shall not be or become public knowledge
(other than by acts by Employee or his representatives in violation of this
Agreement).  After termination of
Employee’s employment with the Company, he shall not, without the prior written
consent of the Company, or as may otherwise be required by law or legal
process, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by either of them.


 


B.            Employee agrees that all lists,
materials, books, files, reports, correspondence, records, and other documents
(“Company material”) used, prepared or made available to Employee, shall be and
shall remain the property of the Company. 
Upon the termination of employment or the expiration of this Agreement,
all Company material shall be returned immediately to the Company, and Employee
shall not make or retain any copies, excerpts or summaries thereof.


 


VIII.        SUCCESSORS.


 


A.            This Agreement is personal to
Employee and shall not, without the prior written consent of the Company, be
assignable by Employee.


 


B.            This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns and
any such successor or assignee shall be deemed substituted for the applicable
company under the terms of this Agreement for all purposes.  As used herein, “successor” and “assignee”
shall include any person, firm, corporation or other business entity which at
any time, whether by purchase, merger or otherwise, directly or indirectly
acquires the equity of the Company, or to which the Company assigns its
interest in this Agreement by operation of law or otherwise.


 


IX.           WAIVER.


 


No waiver of
any breach of any term or provision of this Agreement shall be construed to be,
nor shall be, a waiver of any other breach of this Agreement.  No waiver shall be binding unless in writing
and signed by the party waiving the breach.


 


X.            MODIFICATION.


 


This Agreement
may not be amended or modified other than by a written agreement executed by
the Employee and the Company,


 


XI.           SAVINGS CLAUSE.


 


If any
provision of this Agreement or the application thereof is held invalid, the
invalidity shall not affect other provisions or applications of the Agreement
which can be given effect 


 


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without the invalid provisions or
applications and to this end the provisions of this Agreement are declared to
be severable.


 


XII.         COMPLETE AGREEMENT.


 


This instrument
constitutes and contains the entire agreement and understanding concerning
Employee’s employment and the other subject matters addressed herein between
the parties, and supersedes and replaces all prior negotiations and all
agreements proposed or otherwise, whether written or oral, concerning the
subject matters hereof.  This is an
integrated document.


 


XIII.        GOVERNING LAW.


 


This 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.


 


XIV.        CONSTRUCTION.


 


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


 


XV.         COMMUNICATIONS.


 


All notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered in person, by telecopy,
telex or equivalent form of written telecommunication or if sent by registered
or certified mail, return receipt requested, postage prepaid, as follows:


 


	
  To Company

  	
   

  	
  Richard A.
  Bayer

  
	
   

  	
   

  	
  Executive
  Vice President & Chief Legal Officer

  
	
   

  	
   

  	
  The Macerich
  Company

  
	
   

  	
   

  	
  401 Wilshire
  Boulevard, Suite 700

  
	
   

  	
   

  	
  Santa
  Monica, CA 90401

  
	
   

  	
   

  	
   

  
	
  To Employee:

  	
   

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

  



 


Any party may
change the address at which notice shall be given by written notice given in
the above manner.  All notices required
or permitted hereunder shall be deemed duly given and received on the date of
delivery, if delivered in person or by telex, telecopy or other written
telecommunication on a regular business day and within normal business hours or
on the fifth day next succeeding the date of mailing, if sent by certified or
registered mail.


 


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XVI.        EXECUTION.


 


This Agreement
is being executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.  Photographic copies of such
signed counterparts may be used in lieu of the originals for any purpose.


 


XVII.       LEGAL COUNSEL.


 


The Employee
and the Company recognize that this is a legally binding contract and
acknowledge and agree that they have had the opportunity to consult with legal
counsel of their choice.


 


XVIII.     SURVIVAL.


 


The provisions
of this Agreement shall survive the term of this Agreement to the extent
necessary to accommodate full performance of all such terms.


 


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IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.


 


	
  THE
  COMPANY:

  	
   

  	
  THE MACERICH COMPANY

  
	
   

  	
  a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Bayer

  
	
   

  	
   

  	
  Richard A. Bayer

  
	
   

  	
   

  	
  Senior Executive VP & Chief Legal
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE MACERICH PARTNERSHIP, L.P.

  
	
   

  	
  a Delaware partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  The Macerich Company

  
	
   

  	
   

  	
  a Maryland corporation

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Bayer

  
	
   

  	
   

  	
  Richard A. Bayer

  
	
   

  	
   

  	
  Senior Executive VP & Chief Legal
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EMPLOYEE:

  	
   

  	
  /s/ Tony Grossi

  
	
   

  	
  Tony Grossi

  
									



 


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