Exhibit 10.6.3


 


AMENDMENT NUMBER 1

TO

THE MACERICH COMPANY

2005 DEFERRED COMPENSATION PLAN

FOR SENIOR EXECUTIVES


 


WHEREAS, The
Macerich Company (the “Company”) has established and maintains The Macerich
Company 2005 Deferred Compensation Plan for Senior Executives (the “Plan”) to
provide supplemental retirement income benefits through deferrals of salary and
bonuses for certain Senior Executives (as defined in the Plan); and


 


WHEREAS, the Plan is
intended to comply with the requirements of Section 409A of the Internal
Revenue Code of 1986 (the “Code”), and Section 10.4 of the Plan provides
for the amendment of the Plan to ensure such compliance and to add provisions
that so comply; and


 


WHEREAS, Treasury
Regulations and Internal Revenue Service guidance promulgated since the
adoption of the Plan necessitate and allow certain amendments to the Plan in
order to maintain compliance with Section 409A of the Code; and


 


WHEREAS, the Company
has determined that it is appropriate and desirable to amend the Plan in a manner
that complies with such regulations and guidance.


 


NOW, THEREFORE, the
Plan is hereby amended as set forth below, effective January 1, 2009, or
such other date or dates as may be specified below.


 


ARTICLE I

TITLE AND DEFINITIONS


 


1.               Section 1.2 of the Plan is amended
by changing the definition of “Company Matching Amount” to read as follows:


 


“Company Matching Amount” shall mean an
amount equal to a percentage, determined by the Company in its sole discretion
no later than the December 31 immediately preceding a Plan Year, of the
amount of Compensation deferred under the Plan for the Plan Year.


 


ARTICLE III

DEFERRAL ELECTIONS


 


2.               Section 3.1(a) of the Plan is
amended in its entirety, effective from the inception of the Plan, to read as
follows:


 


(a)           Elections to Defer.  Each Eligible Employee may elect to defer
Compensation for any Plan Year by filing with the Committee an election that
conforms to the requirements of this Section 3.1, on a form provided by
the Committee, no later than the December 15 immediately preceding such
Plan Year (or such later date that the Committee determines, but in no event
later than December 31) in which the 


 

















 


Compensation is to be earned.  Notwithstanding the foregoing, an Eligible
Employee who is a participant in the Prior Plan may make such election on such
form under this Plan with respect to the Eligible Employee’s Bonus earned for
service in 2004 and payable in 2005 no later than December 15, 2004 (or
such later date that the Committee determines, but in no event later than December 31,
2004).  The Committee shall notify each
Eligible Employee of his or her eligibility to participate in the Plan at least
10 days prior to the time he or she must file an election for participation.  Each participation election shall signify the
portion of the Eligible Employee’s Salary or Bonus, as applicable, that he or
she elects to defer.


 


3.               Section 3.1(e) of the Plan is
amended in its entirety to read as follows:


 


(e)           Withholding Taxes.  If any deferral election under this Plan, either
alone or in combination with a deferral election under any other nonqualified
elective deferred compensation plan maintained by the Company (hereinafter
referred to as an “Other Plan”), would reduce the nondeferred Compensation
payable to a Participant for a Plan Year to an amount less than the amount of
FICA withholding taxes applicable to his or her deferred Compensation and/or
Company Matching Amounts (under this Plan and any Other Plan(s)) for such Plan
Year, then the Company shall reduce the amount credited to the Participant’s
Deferral Account under this Plan and to the Participant’s accounts under any
such Other Plan(s) (pro rata among such plans in proportion to the amounts
elected to be deferred under each for such Plan Year) by an amount equal to the
excess of such FICA withholding taxes over the nondeferred Compensation payable
to the Participant for such Plan Year plus any additional federal, state, local
or foreign withholding taxes due as a result of such reduction in the amount of
the Participant’s deferred Compensation for the Plan Year.  In addition, in the event of a reduction in
the amount of a Participant’s Compensation that is deferred under this Plan
pursuant to the preceding sentence, the Company shall reduce the amount of any
Company Matching Amount under this Plan for the Participant for the Plan Year
to reflect such reduction in the amount of deferred Compensation.


 


4.               Subsection (f) is hereby added to Section 3.1
of the Plan to read as follows:


 


(f)            Hardship Withdrawal Cancellation
of Election.  Notwithstanding the
foregoing, in the event that an Eligible Employee who has elected to defer
Compensation for a Plan Year pursuant to this Section 3.1 receives a
hardship withdrawal during such Plan Year from a 401(k) Plan maintained by
the Company, the Eligible Employee’s election to defer Compensation hereunder
shall be cancelled immediately upon such Eligible Employee’s receipt of such
hardship withdrawal.  No Eligible
Employee may elect to defer Compensation pursuant to this Section 3.1, and
no such election shall take effect, if the election would result in the
deferral of Compensation within six (6) months after the Eligible Employee
has received a hardship withdrawal from a 401(k) Plan maintained by the
Company.


 

















 


ARTICLE VI

DISTRIBUTIONS


 


5.               Section 6.2 of the Plan is amended
in its entirety to read as follows:


 


6.2                               Small
Benefits.


 


Notwithstanding anything herein contained to
the contrary, if on the date that any installment payment is to be made to a
Participant (or the Participant’s Beneficiary) hereunder the remaining balance
in the Participant’s Accounts is less than $10,000, then the entire remaining
balance in the Participant’s Accounts shall be paid in the form of a cash lump
sum to the Participant (or the Participant’s Beneficiary) on the date scheduled
for such installment payment.  This
provision is intended to comply with Treasury Regulations Section 1.409A-2(b)(2)(iii) and
shall be interpreted accordingly.


 


6.               Article VI of the Plan is amended
by adding a new Section 6.4 thereto, subsection (a) thereof to be
effective January 1, 2007 and subsection (b) thereof to be effective January 1,
2008, to read as follows:


 


6.4                               Transition
Relief Distribution Elections.


 


(a)           Notwithstanding the provisions of
Sections 6.1(b) and 6.3 hereof, a Participant may elect to change his or
her distribution election under Section 6.1 by filing a new election with
the Committee on or after January 1, 2007 and on or before December 31,
2007.  In making such election change, a
Participant may elect a scheduled in-service distribution only if the
Participant elected a scheduled in-service distribution in connection with his
or her initial enrollment in the Plan. 
Any such election change shall apply only to amounts that would not
otherwise be payable in 2007 and shall not cause any amount to be paid in 2007
that would not otherwise be payable in 2007.


 


(b)           Notwithstanding the provisions of
Sections 6.1(b) and 6.3 hereof, a Participant may elect to change his or
her distribution election under Section 6.1 by filing a new election with
the Committee on or after January 1, 2008 and on or before December 31,
2008.  Any such election change shall
apply to the balance in the Participant’s Accounts on January 1, 2009 and
amounts credited thereafter, and may select any of the optional forms of
distribution specified in Section 6.1(a) (including a scheduled
in-service distribution on a specified date on or after January 1, 2009)
without regard to whether any distribution (including any scheduled in-service
distribution) previously has been made pursuant to a prior election.  Any such election change shall apply only to
amounts that would not otherwise be payable in 2008 and shall not cause any
amount to be paid in 2008 that would not otherwise be payable in 2008.


 

















 


ARTICLE X

MISCELLANEOUS


 


7.               The fourth sentence of Section 10.4
of the Plan is amended to read as follows:


 


In the event that this Plan is terminated in
accordance with the provisions of either paragraph (A) or (B) of
Treasury Regulations Section 1.409A-3(j)(4)(ix), the amounts credited to a
Participant’s Deferral Account and Company Matching Account shall be
distributed to the Participant or, in the event of his or her death, to his or
her Beneficiary in a lump sum within thirty (30) days following the date of
termination; provided, however, if the Plan is terminated under circumstances
to which such provisions do not apply, distributions to the Participants or
their Beneficiaries shall be made on the dates on which the Participants or
their Beneficiaries would receive benefits hereunder without regard to the
termination of the Plan or as otherwise required or permitted by applicable
law.


 


IN WITNESS WHEREOF,
the Company has caused its duly authorized officer to execute this amendment
this 30th day of October, 2008.


	
   

  	
   

  
	
   

  	
  THE MACERICH COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Richard A. Bayer

  
	
   

  	
   

  	
  Richard A. Bayer

  
	
   

  	
   

  	
  Senior Executive Vice President, Chief

  
	
   

  	
   

  	
  Legal Officer & Secretary