Exhibit 10.19


 


INDEMNIFICATION AGREEMENT


 


THIS
INDEMNIFICATION AGREEMENT is made and entered into as of the
           day of
                    ,
20         (“Agreement”), by and
between The Macerich Company, a Maryland corporation (the “Company”), and
                                                
(“Indemnitee”).


 


WHEREAS, at
the request of the Company, Indemnitee currently serves as a [director]  [and]  [officer] of the Company and may, therefore, be subjected to
claims, suits or proceedings arising as a result of his service; and


 


WHEREAS, as an
inducement to Indemnitee to continue to serve as such [director]
[and] [officer], the Company has agreed
to indemnify and to advance expenses and costs incurred by Indemnitee in
connection with any such claims, suits or proceedings, to the maximum extent
permitted by law; and


 


WHEREAS, the
parties by this Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;


 


NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:


 


Section 1.                                            Definitions.  For purposes of this Agreement:


 


(a)                                  “Change in Control” shall have
the same meaning as the term “Change in Control Event” under the Company’s 2003
Equity Incentive Plan, as that term may be revised from time to time.


 


(b)                                 “Corporate Status” means the
status of a person as a present or former director, officer, employee or agent
of the Company or as a director, trustee, officer, partner, manager, managing
member, fiduciary, employee or agent of any other foreign or domestic
corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise that such person is or was serving in
such capacity at the request of the Company. 
As a clarification and without limiting the circumstances in which
Indemnitee may be serving at the request of the Company, service by Indemnitee
shall be deemed to be at the request of the Company if Indemnitee serves or
served as a director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other enterprise of
which (i) a majority of the voting power or equity interest is owned
directly or indirectly by the Company or (ii) the management is controlled
directly or indirectly by the Company.


 


(c)                                  “Disinterested Director” means a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification and/or advance of Expenses is sought by
Indemnitee.


 


(d)                                 “Effective Date” means the date
set forth in the first paragraph of this Agreement.


 

















 


(e)                                  “Expenses” shall include any and
all reasonable and out-of-pocket attorneys’ fees and costs, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement, ERISA excise taxes and penalties and other disbursements or
expenses incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in or
otherwise participating in a Proceeding. 
Expenses shall also include Expenses incurred in connection with any
appeal resulting from any Proceeding including, without limitation, the
premium, security for and other costs relating to any cost bond supersedeas
bond or other appeal bond or its equivalent.


 


(f)                                    “Independent Counsel” means a
law firm, or a member of a law firm, that is experienced in matters of
corporation law and neither is, nor in the past five years has been, retained
to represent:  (i) the Company or
Indemnitee in any matter material to either such party (other than with respect
to matters concerning Indemnitee under this Agreement or of other indemnitees
under similar indemnification agreements), or (ii) any other party to or
participant or witness in the Proceeding giving rise to a claim for
indemnification or advance of expenses hereunder.  Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.


 


(g)                                 “Proceeding” includes any
threatened, pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative hearing or any
other proceeding, whether brought by or in the right of the Company or
otherwise and whether of a civil (including intentional or unintentional tort
claims), criminal, administrative or investigative (formal or informal) nature,
including any appeal therefrom, except one pending or completed on or before
the Effective Date, unless otherwise specifically agreed in writing by the
Company and Indemnitee.  If Indemnitee
reasonably believes that a given situation may lead to or culminate in the
institution of a Proceeding, such situation shall also be considered a Proceeding.


 


Section 2.                                            Services
by Indemnitee.  Indemnitee will serve
as a [director]  [and]
[officer] of the Company.  However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue Indemnitee’s service to the
Company beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.  This
Agreement shall not be deemed an employment contract between the Company (or
any other entity) and Indemnitee.  This
Agreement shall continue in force after Indemnitee has ceased to serve as a [director]  [and]  [officer] of the Company in accordance with Section 18(a) of
this Agreement.


 


Section 3.                                            General.  The Company shall indemnify, and advance
Expenses to, Indemnitee (a) as provided in this Agreement and (b) otherwise
to the maximum extent permitted by Maryland law in effect on the Effective Date
and as amended from time to time; provided, however, that no change in Maryland
law shall have the effect of reducing the benefits available to Indemnitee
hereunder based on Maryland law as in effect on the Effective Date.  The rights of 


 


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Indemnitee provided in this Section 3
shall include, without limitation, the rights set forth in the other sections
of this Agreement, including any additional indemnification permitted by Section 2-418(g) of
the Maryland General Corporation Law (the “MGCL”).


 


Section 4.                                            Standard
for Indemnification.  If, by reason
of Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be, made a
party to any Proceeding, Indemnitee shall be indemnified against all judgments,
penalties, fines and amounts paid in settlement and all Expenses actually and
reasonably incurred by him or on his behalf in connection with any such
Proceeding unless it is established that (a) the act or omission of
Indemnitee was material to the matter giving rise to the Proceeding and (i) was
committed in bad faith or (ii) was the result of active and deliberate
dishonesty, (b) Indemnitee actually received an improper personal benefit
in money, property or services or (c) in the case of any criminal
Proceeding, Indemnitee had reasonable cause to believe that his conduct was
unlawful.


 


Section 5.                                            Certain
Limits on Indemnification.  Notwithstanding
any other provision of this Agreement (other than Section 6), Indemnitee
shall not be entitled to:


 


(a)                                  indemnification hereunder if the Proceeding was
one by or in the right of the Company and Indemnitee is adjudged to be liable
to the Company;


 


(b)                                 indemnification hereunder if Indemnitee is adjudged to be liable on the
basis that personal benefit was improperly received in any Proceeding charging improper personal
benefit to Indemnitee, whether or not involving action in the Indemnitee’s
Corporate Status; or


 


(c)                                  indemnification or advancement
of expenses hereunder if the Proceeding was brought by Indemnitee unless: (i) the
Proceeding was brought to enforce indemnification under this Agreement, and
then only to the extent in accordance with and as authorized by Section 12
of this Agreement, or (ii) the Company’s charter or Bylaws, a resolution
of the stockholders entitled to vote generally in the election of directors or
of the Board of Directors or an agreement approved by the Board of Directors to
which the Company is a party expressly provide otherwise.


 


Section 6.                                            Court-Ordered
Indemnification.  Notwithstanding any
other provision of this Agreement, a court of appropriate jurisdiction,
upon application of Indemnitee and such notice as the court shall require, may
order indemnification in the following circumstances:


 


(a)                                  if it determines Indemnitee is
entitled to reimbursement under Section 2-418(d)(1) of the MGCL, the
court shall order indemnification, in which case Indemnitee shall be entitled
to recover the expenses of securing such reimbursement; or


 


(b)                                 if it determines that Indemnitee
is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not Indemnitee (i) has met the
standards of conduct set forth in Section 2-418(b) of the MGCL or (ii) has
been adjudged liable for receipt of an improper personal benefit under Section 2-418(c) of
the MGCL, the court may order such indemnification as the court shall deem
proper.  However, indemnification with
respect to any Proceeding by or in the right of the Company or in which
liability shall have been


 


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adjudged in the circumstances described in Section 2-418(c) of
the MGCL shall be limited to Expenses.


 


Section 7.                                            Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.  Notwithstanding any other provision of this
Agreement, and without limiting any such provision, to the extent that
Indemnitee is, by reason of his Corporate Status, made a party to (or otherwise
becomes a participant in) any Proceeding and is successful, on the merits or
otherwise, in the defense of such Proceeding, Indemnitee shall be indemnified
for all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.  If Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in
such Proceeding, the Company shall indemnify Indemnitee under this Section 7
for all Expenses actually and reasonably incurred by him or on his behalf in
connection with each such claim, issue or matter, allocated on a reasonable and
proportionate basis.  For purposes of
this Section 7 and without limitation, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or matter.


 


Section 8.                                            Indemnification
for Expenses of a Witness. 
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is or may be, by reason of his Corporate Status, made a witness
or otherwise asked to participate in any Proceeding, whether instituted by the
Company or any other party, and to which Indemnitee is not a party, he shall be
advanced all reasonable Expenses and indemnified against all Expenses actually
and reasonably incurred by him or on his behalf in connection therewith.


 


Section 9.                                            Advance
of Expenses.  If, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be, made a party
to or a witness or other participant in any Proceeding, the Company shall,
without requiring a preliminary determination of Indemnitee’s ultimate
entitlement to indemnification hereunder, advance all reasonable Expenses
incurred by or on behalf of Indemnitee in connection with such Proceeding
within ten days after the receipt by the Company of a statement or statements
requesting such advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. 
Such statement or statements shall reasonably evidence the Expenses
incurred by Indemnitee and shall include or be preceded or accompanied by a
written affirmation by Indemnitee of Indemnitee’s good faith belief that the
standard of conduct necessary for indemnification by the Company as authorized
by law and by this Agreement has been met and a written undertaking by or on
behalf of Indemnitee, in substantially the form attached hereto as Exhibit A
or in such form as may be required under applicable law as in effect at the
time of the execution thereof, to reimburse the portion of any Expenses
advanced to Indemnitee relating to claims, issues or matters in the Proceeding
as to which it shall ultimately be established that the standard of conduct has
not been met and which have not been successfully resolved as described in Section 7
of this Agreement.  To the extent that
Expenses advanced to Indemnitee do not relate to a specific claim, issue or
matter in the Proceeding, such Expenses shall be allocated on a reasonable and proportionate
basis.  The undertaking required by this Section 9
shall be an unlimited general obligation by or on behalf of Indemnitee and
shall be accepted without reference to Indemnitee’s financial ability to repay
such advanced Expenses and without any requirement to post security therefor.


 


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Section 10.                                      Procedure
for Determination of Entitlement to Indemnification.


 


(a)                                  To obtain indemnification under
this Agreement, Indemnitee shall submit to the Company a written request,
including therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification.  Indemnitee may submit one or more such
requests from time to time and at such time(s) as Indemnitee deems
appropriate in his sole discretion.  The
officer of the Company receiving any such request from Indemnitee shall,
promptly upon receipt of such a request for indemnification, advise the Board
of Directors in writing that Indemnitee has requested indemnification.


 


(b)                                 Upon written request by
Indemnitee for indemnification pursuant to Section 10(a) hereof, a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall promptly be made in the specific case: (i) if
a Change in Control shall have occurred, by Independent Counsel, in a written
opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee, which Independent Counsel shall be selected by the Indemnitee and
approved by the Board of Directors in accordance with Section 2-418(e)(2)(ii) of
the MGCL, which approval will not be unreasonably withheld; or (ii) if a
Change in Control shall not have occurred, (A) by the Board of Directors
by a majority vote of a quorum consisting of Disinterested Directors or, if
such a quorum cannot be obtained, then by a majority vote of a duly-authorized
committee of the Board of Directors consisting solely of one or more Disinterested
Directors, or (B) by Independent Counsel, in a written opinion to the
Board of Directors, a copy of which shall be delivered to Indemnitee, which
Independent Counsel shall be selected by the Board of Directors in accordance
with Section 2-418(e)(2)(ii) of the MGCL and approved by the
Indemnitee, which approval shall not be unreasonably withheld, or (C) if
so directed by a majority of the members of the Board of Directors, by the
stockholders of the Company.  If it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten
days after such determination. 
Indemnitee shall cooperate with the person, persons or entity making
such determination with respect to Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination in the discretion of the Board of
Directors or Independent Counsel if retained pursuant to clause (ii)(B) of
this Section 10(b).  Any Expenses
incurred by Indemnitee in so cooperating with the person, persons or entity
making such determination shall be borne by the Company (irrespective of the
determination as to Indemnitee’s entitlement to indemnification) and the
Company shall indemnify and hold Indemnitee harmless therefrom.


 


(c)                                  The Company shall pay the
reasonable fees and expenses of Independent Counsel, if one is appointed.


 


Section 11.                                      Presumptions
and Effect of Certain Proceedings.


 


(a)                                  In making any determination with
respect to entitlement to indemnification hereunder, the person or persons or
entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has 


 


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submitted a request for indemnification in accordance with Section 10(a) of
this Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making of any determination contrary to that
presumption.


 


(b)                                 The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, upon a plea of nolo  contendere
or its equivalent, or entry of an order of probation prior to judgment, does
not create a presumption that Indemnitee did not meet the requisite standard of
conduct described herein for indemnification.


 


(c)                                  The knowledge and/or actions, or
failure to act, of any other director, officer, employee or agent of the
Company or any other director, trustee, officer, partner, manager, managing
member, fiduciary, employee or agent of any other foreign or domestic
corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise shall not be imputed to Indemnitee
for purposes of determining any other right to indemnification under this
Agreement.


 


Section 12.                                      Remedies
of Indemnitee.


 


(a)                                  If (i) a determination is
made pursuant to Section 10(b) of this Agreement that Indemnitee is
not entitled to indemnification under this Agreement, (ii) advance of
Expenses is not timely made pursuant to Section 9 of this Agreement, (iii) no
determination of entitlement to indemnification shall have been made pursuant
to Section 10(b) of this Agreement within 30 days after receipt by
the Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 7 of this Agreement within
ten days after receipt by the Company of a written request therefor, or (v) payment
of indemnification is not made within ten days after a determination has been
made that Indemnitee is entitled to indemnification, Indemnitee shall be
entitled to an adjudication in an appropriate court located in the State of
Maryland, or in any other court of competent jurisdiction, of his entitlement
to such indemnification or advance of Expenses. 
Alternatively, Indemnitee, at his option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association.  Indemnitee shall commence a proceeding
seeking an adjudication or an award in arbitration within 180 days following
the date on which Indemnitee first has the right to commence such proceeding
pursuant to this Section 12(a); provided, however, that the foregoing
clause shall not apply to a proceeding brought by Indemnitee to enforce his
rights under Section 7 of this Agreement.


 


(b)                                 In any judicial proceeding or
arbitration commenced pursuant to this Section 12, Indemnitee shall be
presumed to be entitled to indemnification or advance of Expenses, as the case
may be, under this Agreement and the Company shall have the burden of proving
that Indemnitee is not entitled to indemnification or advance of Expenses, as
the case may be.  If Indemnitee commences
a judicial proceeding or arbitration pursuant to this Section 12,
Indemnitee shall not be required to reimburse the Company for any advances
pursuant to Section 9 of this Agreement until a final determination is
made with respect to Indemnitee’s entitlement to indemnification (as to which
all rights of appeal have been exhausted or lapsed).  The Company shall, to the fullest extent not
prohibited by law, be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 12 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall



 


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stipulate in any such court or before any such arbitrator that the
Company is bound by all of the provisions of this Agreement.


 


(c)                                  If a determination shall have
been made pursuant to Section 10(b) of this Agreement that Indemnitee
is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 12, absent a misstatement by Indemnitee of a material fact,
or an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification.


 


(d)                                 In the event that Indemnitee,
pursuant to this Section 12, seeks a judicial adjudication of or an award
in arbitration to enforce his rights under, or to recover damages for breach
of, this Agreement, Indemnitee shall be entitled to recover from the Company,
and shall be indemnified by the Company for, any and all Expenses actually and
reasonably incurred by him in such judicial adjudication or arbitration.  If it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advance of Expenses sought, the Expenses incurred
by Indemnitee in connection with such judicial adjudication or arbitration
shall be appropriately prorated.


 


(e)                                  Interest shall be paid by the
Company to Indemnitee at the maximum rate allowed to be charged for judgments
under the Courts and Judicial Proceedings Article of the Annotated Code of
Maryland for amounts which the Company pays or is obligated to pay hereunder
for the period commencing with the date on which Indemnitee requests
indemnification, reimbursement or advancement of any Expenses and ending on the
date such payment is made to Indemnitee by the Company.


 


Section 13.                                      Defense
of the Underlying Proceeding.


 


(a)                                  Indemnitee shall notify the
Company promptly in writing upon being served any summons, citation, subpoena,
complaint, indictment, request or other document relating to any Proceeding
which may result in the right to indemnification or the advance of Expenses
hereunder and shall include with such notice a description of the nature of the
Proceeding and a summary of the facts underlying the Proceeding.  The failure to give any such notice shall not
disqualify Indemnitee from the right, or otherwise affect in any manner any
right of Indemnitee, to indemnification or the advance of Expenses under this
Agreement unless the Company’s ability to defend in such Proceeding or to
obtain proceeds under any insurance policy is materially and adversely
prejudiced thereby, and then only to the extent the Company is thereby actually
so prejudiced.


 


(b)                                 Subject to the provisions of the
last sentence of this Section 13(b) and of Section 13(c) below,
the Company shall have the right to defend Indemnitee in any Proceeding which
may give rise to indemnification hereunder; provided, however, that the Company
shall notify Indemnitee of any such decision to defend within 15 calendar days
following receipt of notice of any such Proceeding under Section 13(a) above.  The Company shall not, without the prior
written consent of Indemnitee, which shall not be unreasonably withheld or
delayed, consent to the entry of any judgment against Indemnitee or enter into
any settlement or compromise which (i) includes an admission of fault of
Indemnitee, (ii) does not include, as an 


 


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unconditional term thereof, the full release of Indemnitee from all
liability in respect of such Proceeding, which release shall be in form and
substance reasonably satisfactory to Indemnitee or (iii) would impose any
Expense, judgment, fine, penalty or limitation on Indemnitee.  This Section 13(b) shall not apply
to a Proceeding brought by Indemnitee under Section 12 above.


 


(c)                                  Notwithstanding the provisions
of Section 13(b) above, if in a Proceeding to which Indemnitee is a
party by reason of Indemnitee’s Corporate Status, (i) Indemnitee
reasonably concludes, based upon an opinion of counsel approved by the Company,
which approval shall not be unreasonably withheld, that he may have separate
defenses or counterclaims to assert with respect to any issue which may not be
consistent with other defendants in such Proceeding, (ii) Indemnitee
reasonably concludes, based upon an opinion of counsel approved by the Company,
which approval shall not be unreasonably withheld, that an actual or apparent
conflict of interest or potential conflict of interest exists between
Indemnitee and the Company, or (iii) if the Company fails to assume the
defense of such Proceeding in a timely manner, Indemnitee shall be entitled to
be represented by separate legal counsel of Indemnitee’s choice, subject to the
prior approval of the Company, which shall not be unreasonably withheld, at the
expense of the Company.  In addition, if
the Company fails to comply with any of its obligations under this Agreement or
in the event that the Company or any other person takes any action to declare
this Agreement void or unenforceable, or institutes any Proceeding to deny or
to recover from Indemnitee the benefits intended to be provided to Indemnitee
hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice,
subject to the prior approval of the Company, which shall not be unreasonably
withheld, at the expense of the Company (subject to Section 12(d) of
this Agreement), to represent Indemnitee in connection with any such matter.


 


Section 14.                                      Non-Exclusivity;
Survival of Rights; Subrogation.


 


(a)                                  The rights of indemnification
and advance of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the charter or Bylaws of the Company, any agreement or a
resolution of the stockholders entitled to vote generally in the election of
directors or of the Board of Directors, or otherwise.  Unless consented to in writing by Indemnitee,
no amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal, regardless of whether a claim with
respect to such action or inaction is raised prior or subsequent to such
amendment, alteration or repeal.  No
right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right or remedy shall be cumulative and in addition
to every other right or remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion of any right or remedy hereunder, or otherwise, shall not prohibit
the concurrent assertion or employment of any other right or remedy.


 


(b)                                 In the event of any payment
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee, who shall execute all
papers required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring
suit to enforce such rights.


 


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Section 15.                                      Insurance.  The Company will use its reasonable best
efforts to acquire directors and officers liability insurance, on terms and
conditions deemed appropriate by the Board of Directors, with the advice of
counsel, covering Indemnitee or any claim made against Indemnitee by reason of
his Corporate Status and covering the Company for any indemnification or
advance of Expenses made by the Company to Indemnitee for any claims made
against Indemnitee by reason of his Corporate Status.  Without in any way limiting any other
obligation under this Agreement, the Company shall indemnify Indemnitee for any
payment by Indemnitee arising out of the amount of any deductible or retention
and the amount of any excess of the aggregate of all judgments, penalties,
fines, settlements and Expenses incurred by Indemnitee in connection with a
Proceeding over the coverage of any insurance referred to in the previous
sentence.  The purchase, establishment
and maintenance of any such insurance shall not in any way limit or affect the
rights or obligations of the Company or Indemnitee under this Agreement except
as expressly provided herein, and the execution and delivery of this Agreement
by the Company and the Indemnitee shall not in any way limit or affect the
rights or obligations of the Company under any such insurance policies.  If, at the time the Company receives notice
from any source of a Proceeding to which Indemnitee is a party or a participant
(as a witness or otherwise), and the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of such Proceeding to
the insurers in accordance with the procedures set forth in the respective
policies.


 


Section 16.                                      Coordination
of Payments.  The Company shall not
be liable under this Agreement to make any payment of amounts otherwise
indemnifiable or payable or reimbursable as Expenses hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.


 


Section 17.                                      Reports
to Stockholders.  To the extent
required by the MGCL, the Company shall report in writing to its stockholders
the payment
of any amounts for indemnification of, or advance of expenses to, Indemnitee
under this Agreement arising out of a Proceeding by or in the right of the
Company with the notice of the meeting of stockholders of the Company next
following the date of the payment of any such indemnification or advance of
expenses or prior to such meeting.


 


Section 18.                                      Duration
of Agreement; Binding Effect.


 


(a)                                  This Agreement shall supersede
in its entirety any and all prior indemnification agreements between the
Indemnitee and the Company.  The
indemnification and advance of Expenses provided by, or granted pursuant to,
this Agreement shall be binding upon and be enforceable by the parties hereto
and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), shall continue as
to an Indemnitee who has ceased to be a director, officer, employee or agent of
the Company or a director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any other foreign or domestic corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise that such person is or was serving in such capacity at
the request of the Company, and shall inure to the benefit of Indemnitee and
his spouse, assigns, heirs, devisees, executors and administrators and other
legal representatives.


 


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(b)                                 The Company shall require and
cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all or a substantial part, of
the business and/or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place.


 


(c)                                  The Company and Indemnitee agree
herein that a monetary remedy for breach of this Agreement, at some later date,
may be inadequate, impracticable and difficult of proof, and further agree that
such breach may cause Indemnitee irreparable harm.  Accordingly, the parties hereto agree that
Indemnitee may enforce this Agreement by seeking injunctive relief and/or
specific performance hereof, without any necessity of showing actual damage or
irreparable harm and that by seeking injunctive relief and/or specific
performance, Indemnitee shall not be precluded from seeking or obtaining any
other relief to which he may be entitled. 
Indemnitee shall further be entitled to such specific performance and
injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, without the necessity of posting bonds
or other undertakings in connection therewith. 
The Company acknowledges that, in the absence of a waiver, a bond or
undertaking may be required of Indemnitee by a court, and the Company hereby
waives any such requirement of such a bond or undertaking.


 


Section 19.                                      Severability.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of
any Section, paragraph or sentence of this Agreement containing any such
provision held to be invalid, illegal or unenforceable that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any section,
paragraph or sentence of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
thereby.


 


Section 20.                                      Exception
to Right of Indemnification or Advance of Expenses.  Notwithstanding any other provision of this
Agreement, Indemnitee shall not be entitled to indemnification or advance of
Expenses under this Agreement with respect to any Proceeding brought by
Indemnitee, unless (a) the Proceeding is brought to enforce
indemnification under this Agreement or otherwise or (b) the Company’s
Bylaws, as amended, the Charter, a resolution of the stockholders entitled to
vote generally in the election of directors or of the Board of Directors or an
agreement approved by the Board of Directors to which the Company is a party
expressly provide otherwise.


 


Section 21.                                      Identical
Counterparts.  This Agreement may be
executed in one or more counterparts, each of which shall for all purposes be
deemed to be an original but all of which together shall constitute one and the
same Agreement.  One such counterpart
signed by the party 


 


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against whom enforceability is sought shall be sufficient to evidence
the existence of this Agreement.


 


Section 22.                                      Headings.  The headings of the paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.


 


Section 23.                                      Modification
and Waiver.  No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. 
No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.


 


Section 24.                                      Notices.  All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered
by hand and receipted for by the party to whom said notice or other
communication shall have been directed or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:


 


(a)                                  If to Indemnitee, to the address
set forth on the signature page hereto.


 


(b)                                 If to the Company, to:


 


The Macerich
Company


401 Wilshire
Blvd., Suite 700


Santa Monica,
CA 90401


Attn:  Chief Legal Officer


 


or to such other address as may have been furnished in writing to
Indemnitee by the Company or to the Company by Indemnitee, as the case may be.


 


Section 25.                                      Governing
Law.  The parties agree that this
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Maryland, without regard to its conflicts of laws
rules.


 


Section 26.                                      Miscellaneous.  Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.


 


[SIGNATURE PAGE FOLLOWS]


 


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


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  THE MACERICH
  COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Address:

  



 


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EXHIBIT A


 


FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED


 


The Board of Directors of The Macerich Company


 


Re:  Undertaking to Repay
Expenses Advanced


 


Ladies and Gentlemen:


 


This
undertaking is being provided pursuant to that certain Indemnification
Agreement dated the           
day of                             ,
20        , by and between                                                     ,
a Maryland corporation (the “Company”), and the undersigned Indemnitee (the “Indemnification
Agreement”), pursuant to which I am entitled to advance of expenses in
connection with [Description of Proceeding] (the “Proceeding”).


 


Terms used herein
and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.


 


I am subject
to the Proceeding by reason of my Corporate Status or by reason of alleged
actions or omissions by me in such capacity. 
I hereby affirm my good belief that at all times, insofar as I was
involved as [a director]  [an officer]
of the Company, in any of the facts or events giving rise to the
Proceeding, I (1) did not act with bad faith or active or deliberate
dishonesty, (2) did not receive any improper personal benefit in money,
property or services and (3) in the case of any criminal proceeding, had
no reasonable cause to believe that any act or omission by me was unlawful.


 


In
consideration of the advance of Expenses by the Company for reasonable
attorneys’ fees and related expenses incurred by me in connection with the
Proceeding (the “Advanced Expenses”), I hereby agree that if, in connection
with the Proceeding, it is established that (1) an act or omission by me
was material to the matter giving rise to the Proceeding and (a) was
committed in bad faith or (b) was the result of active and deliberate
dishonesty or (2) I actually received an improper personal benefit in
money, property or services or (3) in the case of any criminal proceeding,
I had reasonable cause to believe that the act or omission was unlawful, then I
shall promptly reimburse the portion of the Advanced Expenses relating to the
claims, issues or matters in the Proceeding as to which the foregoing findings
have been established.


 


IN WITNESS
WHEREOF, I have executed this Affirmation and Undertaking on this       
day of                                         ,
20        .