Exhibit 10.7.1


 


AMENDMENT NUMBER 1

TO

THE MACERICH COMPANY

ELIGIBLE DIRECTORS’ DEFERRED COMPENSATION/PHANTOM STOCK PLAN

(As Amended and Restated as of January 1, 2005)


 


WHEREAS, The
Macerich Company (the “Company”) has established and maintains The Macerich
Company Eligible Directors’ Deferred Compensation/Phantom Stock Plan (As
Amended and Restated Effective as of January 1, 2005) (the “Plan”) to
permit Eligible Directors (as defined in the Plan) to defer compensation and
link that compensation to an equity interest in the Company; and


 


WHEREAS, the Plan,
as amended and restated effective January 1, 2005, is intended to comply
with the requirements of Section 409A of the Internal Revenue Code of 1986
(the “Code”), and Article VII 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 II

DEFINITIONS


 


1.               Section 2.6 of the Plan is amended
to read as follows:


 


2.6                                 Change in Control Event


 


(a)                                  with
respect to the provisions of Section 5.5A of the Plan set forth in
Appendix A, which apply to the distribution of amounts deferred prior to January 1,
2005 and credited to Prior Cash Accounts, Prior Dividend Equivalent Cash
Accounts, Prior Dividend Equivalent Stock Accounts and Prior Stock Unit
Accounts, shall have the meaning specified for such term under The Macerich
Company Amended and Restated 1994 Incentive Plan, as amended from time to time;
and


 


(b)                                  with
respect to the provisions of the Plan that apply to distributions from Current
Cash Accounts, Current Dividend Equivalent Cash Accounts, Current Dividend
Equivalent Stock Accounts and Current Stock Unit Accounts, shall mean


 


(1)           the
acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as 


 

















 


amended (the “Exchange Act”)) (such individual, entity, or group, a “Person”)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of stock possessing 33% or more of the combined voting
power of the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company Voting
Securities”); provided, however, that, for purposes of this definition, the following
acquisitions shall not constitute a Change of Control; (A) any acquisition
directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any affiliate of the Company or successor or (D) any
acquisition by a Person having beneficial ownership of more than 50% of the
Outstanding Company Voting Securities prior to the acquisition;


 


(2)           individuals
who, as of any date (the “Initial Date”) after the date hereof, constitute the
Board (the “Incumbent Board”) cease for any reason, at any time within 12
months following the Initial Date, to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the Initial Date whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (including for these purposes, the new
members whose election or nomination was so approved, without counting the
member and his predecessor twice) shall be considered as though such individual
were a member of the Incumbent Board;


 


(3)           consummation
of a reorganization, merger, statutory share exchange or consolidation or
similar corporate transaction involving the Company or any of its subsidiaries,
or the acquisition of assets or stock of another entity by the Company or any
of its subsidiaries (each, a “Business Combination”), in each case if,
following such Business Combination, any Person (excluding any entity resulting
from such Business Combination or a parent of any such entity or any employee
benefit plan (or related trust) of the Company or such entity resulting from
such Business Combination or parent of any such entity) beneficially owns,
directly or indirectly, more than 50% of, respectively, the then-outstanding
shares of stock of the entity resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities of such entity,
except to the extent that the ownership in excess of 50% existed prior to the
Business Combination; or


 


(4)           consummation
of a sale or other disposition of all or substantially all of the assets of the
Company (an “Asset Transfer”), other than a transfer to (A) one or more of
the beneficial owners (immediately before the Asset Transfer) of the
then-outstanding shares of stock of the Company (“Outstanding Company Stock”)
in exchange for or with respect to such Outstanding Company Stock of such
beneficial owners, or (B) an entity, 50% or more of the total value or
voting power of which is owned, directly or indirectly, by the Company, or (C) a
Person that owns, directly or indirectly, 50% or more of the total value or
voting power of the Outstanding Company Stock, or (D) an entity, 50% or
more of the total value or voting power of which is owned, directly or
indirectly, by a Person described in the preceding clause (C).


 

















 


Each event comprising a Change in Control
Event under this Subsection (b) is intended to constitute a “change
in ownership or effective control” or a “change in the ownership of a
substantial portion of the assets” of the Company as such terms are defined for
purposes of Section 409A of the Internal Revenue Code and such definition
of “Change in Control Event” as used herein shall be interpreted consistently
therewith.


 


ARTICLE IV

DEFERRAL ELECTIONS


 


2.               Section 4.2 of the Plan is amended
by adding a new subsection (c) thereto to be effective January 1,
2008, to read as follows:


 


(c)   2008 Distribution Elections.  Notwithstanding the provisions of Sections
4.1, 4.2(a), 4.2(b) and 5.5 hereof, a Participant may elect to change his
or her distribution election with respect to his or her Current Cash Accounts,
Current Dividend Equivalent Cash Accounts, Current Dividend Equivalent Stock
Accounts and Current Stock Unit Accounts from among the optional times and
forms of distribution set forth in Section 5.5(a) 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 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 V

DEFERRAL ACCOUNTS


 


3.               Section 5.5(f) of the Plan is
amended in its entirety to read as follows:


 


(f)    Small Benefit Exception.  Notwithstanding
any other provision of this Plan to the contrary, if at the time any partial or
installment distribution is to be made to an Eligible Director hereunder the
total vested balance remaining in the Eligible Director’s Current Cash Account
and Current Dividend Equivalent Cash Account is less than $2,000 and the number
of vested Units credited to the Eligible Director’s Current Stock Unit Account
of Current Dividend Equivalent Stock Account is less than 100, then all such
remaining vested balances and vested Units shall be distributed in a lump sum
on the date scheduled for such partial or installment distribution.  This provision is intended to comply with
Treasury Regulations Section 1.409A-2(b)(2)(iii) and shall be
interpreted accordingly.


 


4.               Section 5.5 of the Plan is amended
by adding a new subsection (g) thereto to read as follows:


 


(g)   Distributions to Specified Employees. 
Notwithstanding any other provision
of this Plan to the contrary, and solely to the extent that a delay in payment
is required in order to avoid the imposition of any tax under Section 409A
of the Code, if an Eligible Director is a “specified employee” for purposes of Section 409A(a)(2)(B) of
the Code, and any amounts to be distributed under this Agreement are considered
to be non-qualified deferred compensation payable in connection with the
Eligible Director’s 


 

















 


separation from service with the Company for purposes of Section 409A
of the Code, which otherwise would be payable at any time during the six-month
period immediately following such separation from service, then such amounts
shall not be paid prior to, and shall instead be payable in a lump sum within
ten (10) business days following, the expiration of such six-month period.


 

















 


IN WITNESS WHEREOF,
the Company has caused its duly authorized officer to execute this amendment
this 11th day of December, 2008.


 


	
   

  	
  THE MACERICH COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Richard A. Bayer

  
	
   

  	
   

  	
  Richard A. Bayer

  
	
   

  	
   

  	
  Senior Executive Vice President, Chief

  
	
   

  	
   

  	
  Legal Officer & Secretary