Exhibit 10.1


 


THE MACERICH COMPANY


2003 EQUITY INCENTIVE PLAN


 


(Amended and Restated as of June 8, 2009)


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
  THE PLAN

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Purpose

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.2

  	
  Administration and Authorization; Power and Procedure

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.3

  	
  Participation

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.4

  	
  Shares Available for Awards; Share Limits

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.5

  	
  Grant of Awards

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.6

  	
  Award Period

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.7

  	
  Limitations on Exercise and Vesting of Awards

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.8

  	
  No Transferability; Limited Exception to Transfer Restrictions

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  OPTIONS

  	
  5

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Grants

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Option Price

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  Limitations on Grant and Terms of Incentive Stock Options

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4

  	
  Limits on 10% Holders

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.5

  	
  Effects of Termination of Employment or Service

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.6

  	
  Limitation on Exercise of Option Award

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  STOCK APPRECIATION RIGHTS (INCLUDING LIMITED STOCK APPRECIATION
  RIGHTS)

  	
  7

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Grants

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Exercise of Stock Appreciation Rights

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Payment

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4

  	
  Limited Stock Appreciation Rights

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  RESTRICTED STOCK AND STOCK UNIT AWARDS

  	
  8

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Grants

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Restrictions

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3

  	
  Return to the Corporation

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  PERFORMANCE SHARE AWARDS, OTHER STOCK AWARDS AND DIVIDEND EQUIVALENT
  RIGHTS

  	
  10

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Grants of Performance Share Awards

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Special Performance-Based Share Awards

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.3

  	
  Grants of Stock Bonuses and Other Awards

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.4

  	
  Deferred Payments

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.5

  	
  Limitations on Awards

  	
  12

  



 


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  5.6

  	
  Dividend Equivalent Rights

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.7

  	
  Operating Partnership Units or other Convertible Units

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.8

  	
  Alternative Payments

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  OTHER PROVISIONS

  	
  12

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Rights of Eligible Persons, Participants and Beneficiaries

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Adjustments; Acceleration

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3

  	
  Effect of Termination of Service on Awards

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4

  	
  Compliance with Laws

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.5

  	
  Tax Matters

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.6

  	
  Plan and Award Amendments, Termination and Suspension

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.7

  	
  Privileges of Stock Ownership

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.8

  	
  Effective Date of the Plan

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.9

  	
  Term of the Plan

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.10
  

  	
  Governing
  Law/Construction/Severability 

  	
  17 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.11

  	
  Captions

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.12

  	
  Stock-Based Awards in Substitution for Stock Options or Awards
  Granted by Other Corporation

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.13

  	
  Non-Exclusivity of Plan

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.14

  	
  No Corporate Action Restriction

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.15

  	
  Other Company Benefit and Compensation Program

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  DEFINITIONS

  	
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Definitions

  	
  19

  



 


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THE MACERICH COMPANY


2003 EQUITY INCENTIVE PLAN


 


(Amended and Restated as of June 8, 2009)


 


1.                                           THE PLAN


 


1.1  Purpose


 


The purpose of this Plan is
to promote the success of the Company by providing an additional means through
the grant of Awards to attract, motivate, retain and reward key employees
(including employees who are officers) and directors of, and certain
consultants and advisors to, the Company with awards and incentives for
individual service or performance, financial performance of the Company and
market performance of the Corporation’s Common Stock. “Corporation” means The
Macerich Company, a Maryland corporation, and its successors, and “Company”
means the Corporation and its Subsidiaries, collectively. These terms and other
capitalized terms are defined in Article 7.


 


1.2  Administration
and Authorization; Power and Procedure.


 


(a)  Committee.  This Plan shall be administered by and all
Awards to Eligible Persons shall be authorized by the Committee. Action of the
Committee with respect to the administration of this Plan shall be taken
pursuant to a majority vote or by unanimous written consent of its members.
Where the Committee authorizes the issuance of shares under this Plan, the
Committee shall adopt a resolution which sets the minimum consideration for the
shares to be issued or a formula for its determination, fairly describes any
consideration other than money and states any findings required by this Plan or
the partnership agreement of The Macerich Partnership, L.P.


 


(b)  Plan Awards; Interpretation; Powers of Committee.  Subject to the express provisions of this
Plan, the resolutions of the Board approving this Plan, and compliance with Section 2-203
of the Maryland General Corporation Law, the Committee shall have the
authority:


 


(i)   to determine eligibility and, from among
those persons determined to be eligible, the particular Eligible Persons who
will receive an Award;


 


(ii)  to grant or approve Awards, including Awards
issued by its Subsidiaries, to Eligible Persons, determine the price at which
securities will be offered or awarded and the amount of securities to be
offered or awarded to any of such persons, and determine the other specific
terms and conditions of such Awards, including any performance criteria,
consistent with the express limits of this Plan, and establish the installments
(if any) in which such Awards shall become exercisable or shall vest, or
determine that no delayed exercisability or vesting is required, and establish
the events of termination or reversion of such Awards;


 


(iii) to approve the forms of Award Agreements (which
need not be identical either as to type of award or among Participants);


 


(iv) to construe and interpret this Plan and any
agreements defining the rights and obligations of the Company and Participants
under this Plan, further define the terms used in this Plan, and prescribe,
amend and rescind rules and regulations relating to the administration of
this Plan;


 


(v)  to cancel, modify, or waive the Corporation’s
rights with respect to, or modify, discontinue, suspend, or terminate any or
all outstanding Awards held by Eligible Employees, subject to any required
consent under Section 6.6;


 


(vi) to accelerate or extend the exercisability or
extend the term of any or all such outstanding Awards within the maximum term
of such Awards under Section 1.6;


 


(vii)
to determine whether, and the extent to which, adjustments are required
pursuant to Section 6.2 hereof and authorize the termination, conversion,
substitution or succession of Awards upon the occurrence of an event of the
type described in Section 6.2; and


 


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(viii)
to make all other determinations and take such other action as contemplated by
this Plan or as may be necessary or advisable for the administration of this
Plan and the effectuation of its purposes.


 


Notwithstanding the foregoing and except for
an adjustment pursuant to Section 6.2(a) or a repricing approved by
stockholders, in no case may the Committee (1) amend an outstanding Option
or SAR to reduce the exercise price or base price of the Award, (2) cancel,
exchange, or surrender an outstanding Option or SAR in exchange for cash or
other Awards for the purpose of repricing the Award, or (3) cancel,
exchange, or surrender an outstanding Option or SAR in exchange for an Option
or SAR with an exercise or base price that is less than the exercise or base
price of the original Award.


 


(c)  Binding Determinations/Liability Limitation.  Any action taken by, or inaction of, the
Corporation, any Subsidiary, the Board or the Committee relating or pursuant to
this Plan and within its authority hereunder or under applicable law shall be
within the absolute discretion of that entity or body and shall be conclusive
and binding upon all persons. Neither the Board nor any Committee, nor any
member thereof or person acting at the direction thereof shall be liable for
any act, omission, interpretation, construction or determination made in good
faith in connection with this Plan (or any Award made under this Plan), and all
such persons shall be entitled to indemnification and reimbursement by the
Company in respect of any claim, loss, damage or expense (including, without
limitation, attorneys’ fees) arising or resulting therefrom to the fullest
extent permitted by law and/or under any directors and officers liability
insurance coverage that may be in effect from time to time.


 


(d)  Reliance on Experts.  In making any determination or in taking or
not taking any action under this Plan, the Committee or the Board, as the case
may be, may obtain and may rely upon the advice of experts, including
professional advisors to the Corporation. No director, officer or agent of the
Company shall be liable for any such action or determination taken or made or
omitted in good faith.


 


(e)  Delegation.  The Committee may delegate ministerial,
non-discretionary functions to individuals who are officers or employees of the
Company.


 


1.3  Participation


 


Awards may be granted by the
Committee only to those persons that the Committee determines to be Eligible Persons.
An Eligible Person who has been granted an Award may, if otherwise eligible, be
granted additional Awards if the Committee shall so determine.


 


1.4  Shares
Available for Awards; Share Limits.


 


(a)  Shares Available.  Subject to the provisions of Section 6.2,
the capital stock that may be delivered under this Plan shall be shares of the
Corporation’s authorized but unissued Common Stock. The shares may be delivered
for any lawful consideration.


 


(b)  Share Limits.


 


(i)   The maximum number of shares of Common Stock
that may be delivered pursuant to Awards granted to Eligible Persons under this
Plan shall not exceed 12,800,000 shares (the “Share
Limit”). Shares issued in respect of any Full-Value Award granted
under this Plan after June 8, 2009 shall be counted against the foregoing
Share Limit as 2.62 shares for every one share actually issued in connection
with such Award. (For example, if a stock bonus of 100 shares of Common 


 


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Stock is granted under this
Plan after June 8, 2009, 262 shares shall be charged against the Share
Limit in connection with that Award.)


 


(ii)  The maximum number of shares of Common Stock
that may be delivered pursuant to options qualified as Incentive Stock Options
granted under this Plan is 4,000,000 shares.


 


(iii) The maximum number of shares subject to those
Options and Stock Appreciation Rights that are granted during any calendar year
to any individual under this Plan shall be limited to 750,000 and the maximum
limit on the number of shares in the aggregate subject to all stock-related
Awards that during any calendar year are granted to any individual under this
Plan shall be 1,000,000.


 


(iv) Each of the foregoing numerical limits shall be
subject to adjustment as contemplated by this Section 1.4 and Section 6.2.


 


(c)  Calculation of Available Shares and Replenishment.  To the extent that an Award granted under
this Plan is settled in cash or a form other than shares of Common Stock, the
shares that would have been delivered had there been no such cash or other
settlement shall not be counted against the shares available for issuance under
this Plan. In the event that shares of Common Stock are delivered in respect of
a Dividend Equivalent Right granted under this Plan (and for purposes of
clarity, other than as a result of an adjustment pursuant to Section 6.2),
the actual number of shares delivered with respect to the Award shall be
counted against the share limits of this Plan. (For purposes of clarity, if
1,000 Dividend Equivalent Rights are granted and outstanding when the
Corporation pays a dividend, and 50 shares are delivered in payment of those
rights with respect to that dividend, 50 shares shall be counted against the
share limits of this Plan). To the extent that shares of Common Stock are
delivered pursuant to the exercise of an Option or Stock Appreciation Right
granted under this Plan, the number of underlying shares as to which the
exercise related shall be counted against the applicable share limits under Section 1.4(b),
as opposed to only counting the shares actually issued. (For purposes of
clarity, if a Stock Appreciation Right relates to 100,000 shares and is
exercised at a time when the payment due to the Participant is 15,000 shares,
100,000 shares shall be charged against the applicable share limits under Section 1.4(b) with
respect to such exercise.) Shares that are subject to or underlie Awards
granted under this Plan which expire or for any reason are cancelled or
terminated, are forfeited, fail to vest, or for any other reason are not paid
or delivered under this Plan shall again be available for subsequent Awards
under this Plan. Shares that are exchanged by a Participant or withheld by the
Corporation as full or partial payment in connection with any Award under this
Plan, as well as any shares exchanged by a Participant or withheld by the
Corporation or one of its Subsidiaries to satisfy the tax withholding
obligations related to any Award, shall not be available for subsequent Awards
under this Plan. Refer to Section 6.12 for application of the foregoing
share limits with respect to assumed awards. The foregoing adjustments to the
share limits of this Plan are subject to any applicable limitations under Section 162(m) of
the Code with respect to Awards intended as performance-based compensation
thereunder.


 


1.5  Grant of
Awards.


 


Subject to the express
provisions of this Plan, the Committee shall determine the number of shares of
Common Stock subject to each Award, the price (if any) to be paid for the shares
or the Award and, in the case of Performance Share Awards, in addition to
matters addressed in Section 1.2(b), the specific objectives, goals and
performance criteria that further define the terms of the Performance Share
Award. Each Award shall be evidenced by an Award Agreement. The Award Agreement
shall set forth the material terms and conditions of the Award established by
the Committee consistent with the specific provisions of this Plan.


 


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1.6  Award Period.


 


Each Award and all executory
rights or obligations under the related Award Agreement shall expire on such
date (if any) as shall be determined by the Committee, but, subject to Section 4.1(c),
in the case of Options and Stock Appreciation Rights, not later than ten (10) years
after the Award Date.


 


1.7  Limitations
on Exercise and Vesting of Awards.


 


(a)  Provisions for Exercise.  Unless the Committee otherwise expressly
provides or as provided in or pursuant to Section 6.2, no Award shall be exercisable
or shall vest until at least six months after the initial Award Date, and once
exercisable an Award shall remain exercisable until the expiration or earlier
termination of the Award.


 


(b)  Procedure.  Any exercisable Award shall be deemed to be exercised
when the Secretary or the Treasurer of the Corporation or its or their designee
approves a notice of such exercise in the form required by the Company from the
Participant, together with any required payment made in accordance with Section 2.2.


 


(c)  Fractional Shares/Minimum Issue.  Fractional share interests shall be
disregarded, but may be accumulated. The Committee, however, may determine in
the case of Eligible Persons that cash, other securities, or other property
will be paid or transferred in lieu of any fractional share interests. No fewer
than 100 shares may be purchased on exercise of any Award at one time unless
the number purchased is the total number at the time available for purchase
under the Award.


 


1.8  No
Transferability; Limited Exception to Transfer Restrictions.


 


(a)  Limit On Exercise and Transfer.  Unless otherwise expressly provided in (or
pursuant to) this Section 1.8, by applicable law and by the Award
Agreement, as the same may be amended, (i) Awards are non-transferable and
shall not be subject in any manner to sale, transfer, anticipation, alienation,
assignment, pledge, encumbrance or charge; (ii) Awards shall be exercised
only by the Participant; and (iii) amounts payable or shares issuable
pursuant to any Award shall be delivered only to (or for the account of) the
Participant.


 


(b)  Exceptions.  The Committee may permit Awards to be
exercised by and paid to certain persons or entities related to the
Participant, including but not limited to members of the Participant’s
immediate family, or charitable institutions, trusts or other entities
controlled by or whose beneficiaries or beneficial owners are the Participant
and/or members of the Participant’s immediate family or to such other related
persons or entities as may be approved by the Committee, pursuant to such
conditions and procedures, including limitations on subsequent transfers, as
the Committee may establish. Consistent with Section 6.4, any permitted
transfer shall be subject to the condition that the Committee receive evidence
satisfactory to it that the transfer (i) is being made for essentially
donative, estate and/or tax planning purposes on a gratuitous or donative basis
and without consideration (other than nominal consideration or in exchange for
an interest in a qualified transferee), and (ii) will not compromise the
Corporation’s ability to register shares issuable under this Plan on SEC Form S-8
under the Securities Act or a Subsidiary’s ability to rely on SEC Rule 701
thereunder with respect to Subsidiary interests or securities. Notwithstanding
the foregoing, ISOs and Restricted Stock Awards shall be subject to any and all
additional transfer restrictions under the Code.


 


(c)  Further Exceptions to Limits On Transfer.  The exercise and transfer restrictions in Section 1.8(a) shall
not apply to:


 


(i)   transfers to the Corporation,


 


(ii)  the designation of a beneficiary to receive
benefits in the event of the Participant’s death or, if the Participant has
died, transfers to or exercise by the Participant’s beneficiary, or, in the
absence of a validly designated beneficiary, transfers by will or the laws of
descent and distribution,


 


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(iii) subject to any applicable ISO limitations,
transfers to a family member (or former family member) pursuant to a domestic
relations order if approved or ratified by the Committee,


 


(iv) if the Participant has suffered a disability,
permitted transfers or exercises on behalf of the Participant by his or her
legal representative, or


 


(v)  the authorization by the Committee of “cashless
exercise” procedures with third parties who provide financing for the purpose
of (or who otherwise facilitate) the exercise of Awards consistent with
applicable laws and the express authorization of the Committee.


 


2.                                           OPTIONS.


 


2.1  Grants.


 


One or more Options may be
granted under this Article to any Eligible Person. Each Option granted
shall be designated in the applicable Award Agreement, by the Committee as
either an Incentive Stock Option, subject to Section 2.3, or a
Nonqualified Stock Option.


 


2.2  Option Price.


 


(a)  Pricing Limits.  The purchase price per share of the Common
Stock covered by each Option shall be determined by the Committee at the time
of the Award, provided that such price shall be no less than 100% (110% in the
case of an Incentive Stock Option granted to a Participant described in Section 2.4)
of the Fair Market Value of the Common Stock on the date of grant and in all
cases shall not be less than the par value thereof, payable in any form of
lawful consideration specified by the Committee.


 


(b)  Payment Provisions.  The purchase price of any shares purchased on
exercise of an Option granted under this Article shall be paid in full at
the time of each purchase in one or a combination of the following methods: (i) in
cash or by electronic funds transfer; (ii) by check payable to the order
of the Corporation; or (iii) by the delivery of shares of Common Stock of
the Corporation already owned by the Participant, provided, however,
that the Committee may in its absolute discretion limit the Participant’s
ability to exercise an Award by delivering such shares. Shares of Common Stock
used to satisfy the exercise price of an Option shall be valued at their Fair
Market Value on the date of exercise. In addition to the payment methods
described above and to the extent permitted by applicable law, the Committee
may provide that the Option can be exercised and payment made by delivering a
properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Corporation the amount of sale proceeds
necessary to pay the exercise price and, unless otherwise allowed by the
Committee, any applicable tax withholding under Section 6.5. The
Corporation shall not be obligated to deliver the shares unless and until it
receives full payment of the exercise price therefor and any related
withholding obligations have been satisfied.


 


2.3  Limitations
on Grant and Terms of Incentive Stock Options.


 


(a)  $100,000 Limit.  To the extent that the aggregate “Fair Market
Value” of stock with respect to which incentive stock options first become
exercisable by a Participant in any calendar year exceeds $100,000, taking into
account both Common Stock subject to Incentive Stock Options under this Plan
and stock subject to incentive stock options under all other plans of the
Company, such options shall be treated as Nonqualified Stock Options. For this
purpose, the “Fair Market Value” of the stock subject to options shall be
determined as of the date the options were awarded. In reducing the number of
options treated as incentive stock options to meet the $100,000 limit, the most
recently granted options shall be reduced first. To the extent a reduction of
simultaneously granted options is necessary to meet the $100,000 limit, the
Committee may, in the manner and to the extent permitted by law, designate
which shares of Common Stock are to be treated as shares acquired pursuant to
the exercise of an Incentive Stock Option.


 


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(b)  Other Code Limits.  Incentive Stock Options may only be granted
to Eligible Employees of the Corporation or a Subsidiary that qualifies as a “subsidiary
corporation” pursuant to Section 424(f) of the Code. For this
purpose, a “subsidiary corporation” means any Subsidiary that is a corporation
in an unbroken chain of corporations beginning with the Corporation if, at the
time of the granting of the option, each of the corporations other than the
last corporation in the unbroken chain of corporations owns stock possessing
50% or more of the total combined voting power of all classes of stock in one
of the other corporations in such chain. There shall be imposed in any Award
Agreement relating to Incentive Stock Options such other terms and conditions
as from time to time are required in order that the Option be an “incentive
stock option” as that term is defined in Section 422 of the Code.


 


2.4  Limits on 10%
Holders.


 


No Incentive Stock Option
may be granted to any person who, at the time the Option is granted, owns (or
is deemed to own under Section 424(d) of the Code) shares of
outstanding Common Stock possessing more than 10% of the total combined voting
power of all classes of stock of the Corporation, unless the exercise price of
such Option is at least 110% of the Fair Market Value of the stock subject to
the Option and such Option by its terms is not exercisable after the expiration
of five years from the date such Option is granted.


 


2.5  Effects of Termination
of Employment or Service.


 


(a)  Options. 
Unless otherwise provided in, or by authorized amendment to, the Award
Agreement or provided in another applicable agreement with the Participant:


 


(i)  Options—Resignation or Dismissal.  If the Participant’s employment by (or other
service specified in the Award Agreement to) the Company terminates for any
reason (the date of such termination being referred to as the “Severance Date”) (other than Total
Disability or death, Retirement, or for Cause (as determined in the discretion
of the Committee)), the Participant shall have three months after the Severance
Date to exercise any Option to the extent it shall have become exercisable on
the Severance Date. In the case of a termination for Cause, the Option shall
terminate on the Severance Date. In other cases, the Option, to the extent not
exercisable on the Severance Date, shall terminate on that date.


 


(ii)  Options—Death or Disability.  If the Participant’s employment by (or
specified service to) the Company terminates as a result of Total Disability or
death, the Participant, Participant’s Personal Representative or his or her
Beneficiary, as the case may be, shall have until 12 months after the
Severance Date to exercise any Option to the extent it shall have become
exercisable by the Severance Date. The Option, to the extent not exercisable on
the Severance Date, shall terminate on that date.


 


(iii)  Options—Retirement.  If the Participant’s employment by (or
specified service to) the Company terminates as a result of Retirement, the
Participant, Participant’s Personal Representative or his or her Beneficiary,
as the case may be, shall have until 12 months after the Severance Date to
exercise any Nonqualified Stock Option (three months after the Severance Date
in the case of an Incentive Stock Option) to the extent it shall have become
exercisable by the Severance Date. The Option, to the extent not exercisable on
the Severance Date, shall terminate on that date.


 


(b)  Certain SARs.  Any SAR granted concurrently or in tandem
with an Option shall have the same post-termination provisions and
exercisability periods as the Option to which it relates, unless the Committee
otherwise provides.


 


(c)  Committee Discretion.  Notwithstanding and without limiting the
foregoing provisions of this Section 2.5, in the event of, or in
anticipation of, a termination of employment or service with the Company for
any reason the Committee may, in its discretion, increase the portion of the
Participant’s 


 


6

















 


Award available to the Participant, or
Participant’s Beneficiary or Personal Representative, as the case may be, or,
subject to the provisions of Section 1.6, extend the exercisability
period, upon such terms as the Committee shall determine and expressly set
forth in or by amendment to the Award Agreement.


 


(e)  Limitations on Incentive Stock Options.  Notwithstanding the foregoing, to the extent
that the post-termination exercise period of an Incentive Stock Option exceeds
the limitations under Section 422 the Code, such Option will cease to be
treated as Incentive Sock Option and shall be treated as a Nonqualified Stock
Option at such time that the applicable time limit is exceeded.


 


2.6  Limitation on
Exercise of Option Award.  No
Participant may receive Common Stock upon exercise of an Option to the extent
that it will cause such person to Beneficially or Constructively Own Equity
Shares in excess of the Ownership Limit. If a Participant exercises any portion
of an Option (by tendering the exercise price to the Corporation) which upon
delivery of the Common Stock would cause the holder of the Option to
Beneficially or Constructively Own Equity Shares in excess of the Ownership
Limit, the Corporation shall have the right to deliver to the Participant, in
lieu of Common Stock, a check or cash in the amount equal to the Fair Market
Value of the Common Stock otherwise deliverable on the date of exercise (minus
any amounts withheld pursuant to Section 6.5).


 


3.                                           STOCK
APPRECIATION RIGHTS (INCLUDING LIMITED STOCK APPRECIATION RIGHTS).


 


3.1  Grants.


 


In its discretion, the
Committee may grant to any Eligible Person Stock Appreciation Rights either
concurrently with the grant of another Award or in respect of an outstanding
Award, in whole or in part, or independently of any other Award. Any Stock
Appreciation Right granted in connection with an Incentive Stock Option shall
contain such terms as may be required to comply with the provisions of Section 422
of the Code and the regulations promulgated thereunder, unless the holder
otherwise agrees.


 


3.2  Exercise of
Stock Appreciation Rights.


 


(a)  Tandem SARs.  Unless the Award Agreement or the Committee
otherwise provides, a Stock Appreciation Right related to an Option shall be
exercisable at such time or times, and to the extent, that the related Option
shall be exercisable. The base price of any SAR related to an Option may be
less than the Fair Market Value of the Common Stock on the grant date, provided
that such price shall be no less than the exercise price of the related Option.
To the extent that a Stock Appreciation Right is exercised, the number of
shares subject to the Stock Appreciation Right and the related Option of the
Participant shall, however, be reduced by the referenced number of underlying
shares as to which the exercise related.


 


(b)  Stand-Alone SARs.  Subject to Sections 1.6 and 1.7, a Stock
Appreciation Right granted independently of any other Award shall be
exercisable pursuant to the terms of the Award Agreement. The base price of
each stand-alone SAR shall be determined by the Committee at the time of the
Award, provided that such price shall be no less than 100% of the Fair Market
Value of the Common Stock on the date of grant.


 


3.3  Payment.


 


(a)  Amount. 
Unless the Committee otherwise provides, upon exercise of a Stock
Appreciation Right and the attendant surrender of an exercisable portion of any
related Award, the Participant shall be entitled to receive payment of an
amount determined by multiplying:


 


(i)   the difference obtained by subtracting the
exercise price per share of Common Stock under the related Award (if
applicable) or the initial share value specified in the Award from the


 


7
















 


Fair Market Value of a share
of Common Stock on the date of exercise of the Stock Appreciation Right, by


 


(ii)   the number of shares with respect to which
the Stock Appreciation Right shall have been exercised.


 


(b)  Form of Payment.  The Committee, in its sole discretion, shall
determine the form in which payment shall be made of the amount determined
under paragraph (a) above, either solely in cash, solely in shares of
Common Stock (valued at Fair Market Value on the date of exercise of the Stock
Appreciation Right), or partly in such shares and partly in cash, provided that
the Committee shall have determined that such exercise and payment are
consistent with applicable law. If the Committee permits the Participant to
elect to receive cash or shares (or a combination thereof) on such exercise,
any such election shall be subject to such conditions as the Committee may
impose. Notwithstanding anything contained herein to the contrary, no
Participant may receive Common Stock upon the exercise of a Stock Appreciation
Right to the extent it will cause such person to Beneficially or Constructively
Own Equity Shares in excess of the Ownership Limit. In the event that a
Participant exercises any portion of a Stock Appreciation Right which upon
delivery of Common Stock would cause such Participant to Beneficially or
Constructively Own Equity Shares in excess of the Ownership Limit, the
Corporation shall have the right, notwithstanding any election granted to the
Participant by the Committee, to deliver a check or cash to the Participant.


 


3.4  Limited Stock
Appreciation Rights.


 


The Committee may grant to
any Eligible Person Stock Appreciation Rights exercisable only upon or in
respect of a change in control or any other specified event (“Limited SARs”)
and such Limited SARs may relate to or operate in tandem or combination with or
substitution for Options, other SARs or other Awards (or any combination
thereof), and may be payable in cash or shares based on the spread between the
base price of the SAR and a price based upon the Fair Market Value of the
Shares during a specified period or at a specified time within a specified
period before, after or including the date of such event.


 


4.                                           RESTRICTED
STOCK AND STOCK UNIT AWARDS.


 


Subject to any applicable
limitations under applicable law, resolutions of the Board, other generally
applicable terms and conditions of this Plan, and such rules and
procedures as the Committee may establish from time to time:


 


4.1  Grants.


 


(a)  Restricted Stock.  The Committee may, in its discretion, grant
one or more Restricted Stock Awards to any Eligible Person. Each Restricted
Stock Award Agreement shall specify the number of shares of Common Stock to be
issued to the Participant, the date of such issuance, the consideration for
such shares (but not less than the minimum lawful consideration under
applicable law) by the Participant, the extent (if any) to which and the time
(if ever) at which the Participant shall be entitled to dividends, voting and
other rights in respect of the shares prior to vesting, and the restrictions
(which may be based on performance criteria, passage of time or other factors
or any combination thereof) imposed on such shares and the conditions of
release or lapse of such restrictions. Such restrictions shall not lapse
earlier than six months after the Award Date, except to the extent the
Committee may otherwise provide, such as in the case of Awards principally for
services already rendered, or to the extent provided in an applicable agreement
with the Participant. Stock certificates or book entries evidencing shares of
Restricted Stock pending the lapse of the restrictions (“Restricted Shares”)
shall bear a legend or notation making appropriate reference to the
restrictions imposed hereunder and (if in certificate form) shall be held by
the Corporation or by a third party designated by the Committee until the
restrictions on such shares shall have lapsed and the shares shall have vested


 


8

















 


in accordance with the provisions of the
Award and Section 1.7. Upon issuance of the Restricted Stock Award, the
Participant may be required to provide such further assurance and documents as
the Committee may require to enforce the restrictions.


 


(b)  Stock Units.  The Committee may, in its discretion,
authorize and grant to any Eligible Person a Stock Unit Award or the crediting
of Stock Units for services rendered or to be rendered or in lieu of other
compensation, consistent with other applicable terms of this Plan, may permit an
Eligible Person to irrevocably elect to defer by means of Stock Units or
receive in Stock Units all or a portion of any Award hereunder, or may grant
Stock Units in lieu of, in exchange for, in respect of, or in addition to any
other compensation or Award under this Plan. The specific terms, conditions,
and provisions relating to each Stock Unit grant or election, including the
applicable vesting and payout provisions of the Stock Units and the form of
payment to be made at or following the vesting thereof, shall be set forth in
or pursuant to the applicable agreement or Award and any relevant Company
bonus, performance or other service or deferred compensation plan, in form
substantially as approved by the Committee.


 


(c)  Payouts. 
The Committee in the applicable Award Agreement or the relevant Company
deferred compensation plan may permit the Participant to elect the form and
time of payout of vested Stock Units on such conditions or subject to such
procedures as the Committee may impose, and may permit or require Restricted
Stock or Stock Unit offsets or other provision for payment of any applicable
taxes that may be due on the crediting, vesting or payment in respect of the
Stock Units in accordance with Section 6.5.


 


4.2  Restrictions.


 


(a)  Pre-Vesting Restraints.  Except as provided in Section 4.1 and
1.8, Restricted Shares comprising any Restricted Stock Award and rights in
respect of Stock Unit Awards may not be sold, assigned, transferred, pledged or
otherwise disposed of or encumbered, either voluntarily or involuntarily, until
the restrictions on Restricted Shares have lapsed and the shares issuable
pursuant to the Stock Unit Award have been issued.


 


(b)  Dividend and Voting Rights.  Unless otherwise provided in the applicable
Award Agreement, a Participant receiving a Restricted Stock Award shall be
entitled to dividend and voting rights for all shares issued even though they
are not vested, provided that such rights shall terminate immediately as to any
Restricted Shares that cease to be eligible for vesting. Restricted Stock
Awards (to the extent not also entitled to receive dividends) and Stock Unit
Awards may include Dividend Equivalent Rights to the extent authorized by the
Committee, as provided in Section 5.6.


 


(c)  Payments. 
If the Participant shall have paid or received cash, shares or other
property (including any payments in respect of dividends) in connection with
the Restricted Stock Award or Stock Unit Award, the Award Agreement shall
specify the extent (if any) to which such amounts shall be returned (with or
without an earnings factor) as to any Restricted Shares or Stock Unit Awards
which cease to be eligible for vesting.


 


4.3  Return to the
Corporation.


 


Unless the Committee
otherwise expressly provides, Restricted Shares or Stock Units that remain
subject to conditions to vesting upon restrictions at the time of termination
of employment or service or are subject to other conditions to vesting that
have not been satisfied by the time specified in the applicable Award Agreement
shall not vest and shall be returned to the Corporation or cancelled, as the
case may be, unless the Committee otherwise provides in or by amendment to the
applicable terms of the Award.


 


9

















 


5.                                           PERFORMANCE
SHARE AWARDS, OTHER STOCK AWARDS AND DIVIDEND EQUIVALENT RIGHTS.


 


5.1  Grants of
Performance Share Awards.


 


Subject to Section 6.4,
the Committee may, in its discretion, grant Performance Share Awards to
Eligible Persons based upon such factors as the Committee shall deem relevant
in light of the specific type and terms of the award. An Award Agreement shall
specify the maximum number of shares of Common Stock (if any) subject to the
Performance Share Award, the consideration (but not less than the minimum lawful
consideration and subject to any limitations under applicable law, resolutions
of the Board, other generally applicable terms and conditions of this Plan) to
be paid for any such shares as may be issuable to the Participant, the duration
of the Award and the conditions upon which delivery of any shares, cash or
other property to the Participant shall be based. The amount of cash or shares
or other property that may be deliverable pursuant to such Award shall be based
upon the degree of attainment over a specified period of not more than
10 years (a “performance cycle”) as may be established by the Committee of
such measure(s) of the performance of the Company (or any part thereof) or
the Participant as may be established by the Committee. The Committee may provide
for full or partial credit, prior to completion of such performance cycle or
the attainment of the performance achievement specified in the Award, in the
event of the Participant’s death, Retirement, Total Disability, a Change in
Control Event or in such other circumstances as the Committee may determine.


 


5.2  Special
Performance-Based Awards.


 


(a)  General Provisions.  Without limiting the generality of the
foregoing, and in addition to qualifying awards granted under other provisions
of this Plan (i.e. Options or SARs granted with an exercise price not less
than Fair Market Value at the applicable date of grant for Section 162(m) purposes
to Eligible Employees (“Presumptively Qualifying Awards”)), the Committee may
authorize and grant to any Eligible Employee, other cash or stock-related
performance-based awards, including “performance-based” awards within the
meaning of Section 162(m) of the Code (“Performance-Based Awards”),
whether in the form of restricted stock, stock appreciation rights, performance
stock, phantom stock, stock units, Dividend Equivalent Rights (“DERs”), or
other rights, whether or not related to stock values or appreciation, and
whether payable in cash, Common Stock or a combination thereof. If the Award
(other than a Presumptively Qualifying Award) is intended as performance-based
compensation under Section 162(m) of the Code, the vesting or payment
thereof will depend on the performance of the Company on a consolidated,
Subsidiary, segment, division, region or property basis with reference to
performance goals relative to one or more of the following business criteria
(the “criterion”): funds from operations, EBITDA, stock appreciation, total
stockholder return, total revenue growth, net income, occupancy gains, square
footage growth, and sales per square foot growth, each as defined in Exhibit A.
To qualify Awards as performance-based under Section 162(m), the
applicable business criteria and specific performance goal or goals (“targets”)
must be established and approved by the Committee during the first 90 days
of the year (or before one-quarter of the performance measurement period has
elapsed, if such period exceeds one year) and while the performance relating to
such targets remains substantially uncertain within the meaning thereof. To the
extent provided in the applicable Award Agreement, performance targets shall be
adjusted to mitigate the unbudgeted impact of material, unusual or nonrecurring
gains and losses, accounting changes or other extraordinary events not foreseen
at the time the targets were set. The applicable performance measurement period
may be not less than one nor more than 10 years.


 


(b)  Maximum Award.  Grants or awards under this Section 5.2
may be paid in cash or stock or any combination thereof. In no event shall
grants of stock-related Awards made in any calendar year to any Eligible
Employee under this Plan relate to more than 1,000,000 shares, subject to
adjustment pursuant to Section 6.2. In no event shall grants made to any
Eligible Employee under this Plan of 


 


10

















 


Awards payable only in cash and not related
to stock provide for payment of more than (x) $3,000,000, times (y) the
applicable number of years (not more than 10) to which the Awards relate in
the performance periods. If an Award pursuant to this
Section 5.2 is payable in cash or restricted shares, the lesser of the
share limit or the dollar limit of this Section 5.2(b) shall apply
and, for purposes of such limits, the restricted shares shall be deemed to have
a value not less than two-thirds of the Fair Market Value of the Common Stock
on the applicable measurement date.


 


(c)  Committee Certification.  Except as otherwise permitted to qualify as
performance-based compensation under Section 162(m), before any
Performance-Based Award under this Section 5.2 is paid, the Committee must
certify that the performance standard, target(s), and the other material terms
of the Performance-Based Award were in fact satisfied.


 


(d)  Terms and Conditions of Awards.  The Committee will have discretion to
determine the restrictions or other limitations of the individual Awards under
this Section 5.2, including the authority to reduce Awards, to determine
payout schedules and the extent of vesting or to pay no Awards, in its sole
discretion, if the Committee
preserves such authority at the time of grant by language to this effect in its
authorizing resolutions or otherwise. The Committee may provide that in the
event a Participant terminates employment or service for any one or more reason
during a Plan Year, the Participant shall forfeit all rights to any Award for
the Plan Year.


 


(e)  Stock Payout Features.  In lieu of cash payment of an Award, the
Committee may require or allow a portion of the Award to be paid in the form of
stock, Restricted Shares or an Option.


 


(f)  Expiration of Grant Authority.  As required pursuant to Section 162(m) of
the Code and the regulations promulgated thereunder, the Committee’s authority
to grant new awards that are intended to qualify as performance-based
compensation within the meaning of Section 162(m) of the Code (other
than Presumptively Qualifying Awards) shall terminate upon the first meeting of
the Corporation’s stockholders that occurs in the fifth year following the year
in which the Corporation’s stockholders first approve this Plan, subject to any
subsequent extension that may be approved by stockholders..


 


5.3  Grants of
Stock Bonuses and Other Awards.


 


Subject to Section 6.4,
the Committee may grant a Stock Bonus to any Eligible Person to reward
services, contributions or achievements, or in connection with the deferral of
compensation, the value of which shall be determined by the Committee, in the
manner and on such terms and conditions (including restrictions on such shares,
if any) as determined from time to time by the Committee. The number of shares
so awarded shall be determined by the Committee. The Award may be granted
independently or in lieu of a cash bonus.


 


5.4  Deferred
Payments.


 


The Committee may authorize
for the benefit of any Eligible Person the deferral of any payment of cash or
shares or other property that may become due or of cash otherwise payable under
this Plan, and provide for accretions to benefits thereon based upon such
deferment (including, but not limited to a greater nominal value in shares than
in cash or an allowance for interest, dividend equivalents or appreciation
rights) at the election or at the request of such Participant or as a mandatory
basis as a condition of the Award, subject to the other terms of this Plan.
Such deferral shall be subject to such further conditions, restrictions or
requirements as the Committee may impose, subject to any then vested rights of
Participants.


 


11

















 


5.5  Limitations
on Awards.


 


Notwithstanding the
provisions of this Article 5, in no case may any Award of shares be
granted to the extent that it will cause an Eligible Person to Beneficially or
Constructively Own Equity Shares in excess of the Ownership Limit.


 


5.6  Dividend
Equivalent Rights.


 


In its discretion, the
Committee may grant to any Eligible Person DERs concurrently with the grant of
any Award on such terms as set forth by the Committee in the Award Agreement;
provided that DERs shall not be granted as to any shares covered by an Option
or a Stock Appreciation Right. DERs shall be based on all or part of the amount
of dividends declared on shares of Common Stock and shall be paid or credited
as of dividend payment dates, during the period between the date of grant (or
such later date as the Committee may set) and the date the Award is settled or
expires (or such earlier date as the Committee may set), as determined by the
Committee. DERs shall be payable in cash, shares or other property, or (to the
extent permitted by law) may be subject to such conditions, not inconsistent
with Section 162(m) (in the case of Options or SARs, or other Awards
intended to satisfy its conditions with respect to deductibility), as may be
determined by the Committee.


 


5.7  Operating
Partnership Units or other Convertible Units.  The Committee may authorize for the benefit
of any Eligible Person the issuance of Common Stock or the payment of cash in
connection with, or upon exercise, conversion or exchange of, phantom units or
other interests in Subsidiaries that are issued by the Subsidiary with the
Committee’s approval and any required Board approval and that are convertible
or exchangeable into Common Stock, units or cash.


 


5.8  Alternative
Payments


 


The Committee may require or
allow all or a portion of an Award under this Article 5 to be paid or
credited in the form of shares of Common Stock, Restricted Shares, Stock Units,
an Option or other Award.


 


6.                                           OTHER
PROVISIONS


 


6.1  Rights of
Eligible Persons, Participants and Beneficiaries.


 


(a)  Employment Status.  Status as an Eligible Person shall not be
construed as a commitment that any Award will be made under this Plan to an
Eligible Person or to Eligible Persons generally.


 


(b)  No Employment/Service Agreement.  Nothing contained in this Plan (or in any
other documents under this Plan or in any Award) shall confer upon any Eligible
Employee or other Participant any right to continue in the employ or other
service of the Company, constitute any contract or agreement of employment or
other service or affect an employee’s status as an employee at will, nor shall
interfere in any way with the right of the Company to change a person’s
compensation or other benefits, or to terminate his or her employment or other
service, with or without cause. Nothing in this Section, however, is intended
to adversely affect any express independent right of such person under a
separate employment or other agreement other than an Award Agreement.


 


(c)  Plan Not Funded.  Awards payable under this Plan shall be
payable in shares or from the general assets of the Company, and (except as
provided in Section 1.4) no special or separate reserve, fund or deposit
shall be made to assure payment of such Awards. No Participant, Beneficiary or
other person shall have any right, title or interest in any fund or in any
specific asset (including shares of Common Stock, except as expressly otherwise
provided) of the Company by reason of any Award hereunder. Neither the
provisions of this Plan (or of any related documents), nor the creation or
adoption of this Plan, nor any action taken pursuant to the provisions of this
Plan shall create, or be construed to create, a trust of any kind or a
fiduciary relationship between the Company and any Participant, Beneficiary or
other person. To the extent that a Participant, Beneficiary or other person


 


12

















 


acquires a right to receive payment pursuant
to any Award hereunder, such right shall be no greater than the right of any
unsecured general creditor of the Company.


 


6.2  Adjustments;
Acceleration.


 


(a)  Adjustments.  Upon or in contemplation of: any
reclassification, recapitalization, stock split, stock dividend or reverse
stock split (collectively, a “stock split”); any merger, combination,
consolidation, or other reorganization; any spin-off, split-up, or similar
extraordinary dividend distribution in respect of the Common Stock (whether in
the form of securities or property); any exchange of Common Stock or other
securities of the Corporation, or any similar, unusual or extraordinary corporate
transaction in respect of the Common Stock; or a sale of all or substantially
all the assets of the Corporation as an entirety; then the Committee shall:


 


(1)  equitably and proportionately adjust any or
all of (a) the number and type of shares of Common Stock (or other
securities) that thereafter may be made the subject of Awards (including the
specific share limits, maximums and numbers of shares set forth elsewhere in
this Plan), (b) the number, amount and type of shares of Common Stock (or
other securities or property) subject to any or all outstanding Awards, (c) the
grant, purchase, or exercise price (which term includes the base price in the
case of SARs or similar rights) of any or all outstanding Awards, (d) the
securities, cash or other property deliverable upon exercise of any or all
outstanding Awards, or (e) (subject to limitations under Section 6.10(c))
the performance standards appropriate to any or all outstanding Awards, or


 


(2)  make provision for a cash payment or for the
assumption, substitution or exchange of any or all outstanding share-based
Awards or the cash, securities or property deliverable to the holder of any or
all outstanding share-based Awards, based upon the distribution or
consideration payable to holders of the outstanding Common Stock upon or in
respect of such event.


 


The Committee may adopt such
valuation methodologies for outstanding Awards as it deems reasonable in the
event of a cash or property settlement and, in the case of Options, SARs or
similar rights, but without limitation on other methodologies, may base such
settlement solely upon the excess
if any of the per share amount payable upon or in respect of such event over
the exercise price of the Award, unless otherwise provided in, or by authorized
amendment to, the Award Agreement or provided in another applicable agreement
with the Participant.


 


The Committee shall also
make equitable or proportionate adjustments in the number of shares subject to
outstanding Awards and the exercise price and/or the terms of outstanding
Awards to take into account cash dividends declared and paid other than in the
ordinary course to the extent determined to be necessary by the Committee to
avoid distortion in the value of the Awards. Notwithstanding anything to the
contrary set forth in this Section 6.2(a), no adjustment shall be required
if such action would cause an Award to fail to satisfy the conditions of any
applicable exception from the requirements of Section 409A of the Code or
otherwise would subject a participant to the additional tax imposed under Section 409A
of the Code in respect of an outstanding Award.


 


In any of such events, the
Committee may take such action prior to such event to the extent that the
Committee deems the action necessary to permit the Participant to realize the
benefits intended to be conveyed with respect to the underlying shares in the
same manner as is or will be available to stockholders generally. In the case
of any stock split, if no action is taken by the Committee, the proportionate
adjustments contemplated by clause (a)(1) above shall nevertheless be
made.


 


It is intended that, if
possible, any adjustments contemplated by the preceding provisions of this Section 6.2(a) be
made in a manner that satisfies applicable U.S. legal, tax (including, without
limitation and as applicable in the circumstances, Section 424 of the
Code, Section 409A of the Code and Section 162(m) of the Code)
and accounting (so as to not trigger any charge to earnings with respect to
such adjustment) requirements.


 


13

















 


Without limiting the
generality of Section 1.2(c), any good faith determination by the
Committee as to whether an adjustment is required in the circumstances pursuant
to this Section 6.2(a), and the extent and nature of any such adjustment,
shall be conclusive and binding on all persons.


 


(b)  Automatic Termination upon Settlement.  Without limiting the authority of the Company
under Section 6.2(a) or (c), if provision has been made by the
Committee for the assumption, substitution, exchange or other settlement (each
of the foregoing, a “settlement”) or continuation of at least the vested
portion of an outstanding Award pursuant to Section 6.2(a) upon or in
anticipation of either (i) a Change in Control Event approved by the
Board, or (ii) a reorganization event which the Company does not survive
(or does not survive as a public company in respect of its outstanding common
stock) then (subject, however, to the terms of such settlement or continuation
and any specific terms of the Award or another applicable written agreement to
the contrary) the prior outstanding Award shall terminate upon consummation of
the event to the extent so provided.


 


(c)  Acceleration of Awards Upon Change in Control.  Except as otherwise expressly provided in the
Award or another applicable written agreement with the Participant: unless
prior to a Change in Control Event the Committee determines that, upon its
occurrence, the benefits under any or all Awards shall not be subject to
acceleration as provided below or determines that only certain or limited
benefits under any or all Awards shall be so accelerated and the extent to which
they shall be accelerated, and/or establishes a different time or circumstance
in respect of such Change in Control Event for such acceleration, by the Award
Agreement or otherwise, then as to the Awards (or replacement awards) held by
any Participant immediately prior to the occurrence of a Qualified Termination
upon or not later than 12 months following a Change in Control Event:


 


(i)    each Option and Stock Appreciation Right
shall become immediately vested and exercisable,


 


(ii)   all shares of Restricted Stock shall
immediately vest free of restrictions, and


 


(iii)  each other Award shall become immediately
payable to the Participant.


 


A “Qualified Termination” for these purposes (i) includes
any termination of employment by the Company (other than for Cause or because
of the Participant’s death or Total Disability), subject to the actual
occurrence of the Change in Control Event, (ii) may include a constructive
termination by the Company (such as a termination by the Participant for
specified reasons), and (iii) may be deemed (subject to actual occurrence
of the Change in Control Event before expiration or other termination of the
Award) to include any such termination by the Company in express contemplation
of a publicly announced Change in Control Event.


 


The Committee may override
the provisions regarding acceleration in this Section 6.2(c) by
express provision in the Award Agreement or otherwise and may accord any
Eligible Person a right to refuse any acceleration, whether pursuant to the
Award Agreement or otherwise, in such circumstances as the Committee may
approve. Any acceleration of Awards shall comply with applicable legal
requirements and, if necessary to accomplish the purposes of the acceleration
or if the circumstances require, may be deemed by the Committee to occur
(subject to Section 6.2(d)), immediately prior to the event.


 


(d)  Limitation on Award Adjustments.  To the extent limited by Section 162(m) in
the case of an Award intended as a performance-based award for purposes of Section 162(m) and
necessary to assure deductibility of the compensation payable under the Award,
the Committee shall have no discretion under this Plan (i) to increase the
amount of compensation or the number of shares that would otherwise be due upon
the attainment of the applicable performance goal or the exercise of the option
or SAR or (ii) to waive the achievement of any applicable performance goal
as a condition to receiving a benefit or right under an Award.


 


(e)  No Extension Beyond Expiration.  Notwithstanding the foregoing, in no event
shall an Award be reinstated or extended beyond its final expiration date.


 


14

















 


(f)  Possible Rescission of Acceleration.  If the vesting of an Award has been
accelerated expressly in anticipation of an event or upon stockholder approval
of an event and the Committee or the Board later determines that the event will
not occur, the Committee may rescind the effect of the acceleration as to any
then outstanding and unexercised or otherwise unvested Awards.


 


(g)  Terminology.  As used in this Section 6.2 and without
limiting the authority of the Board in other contexts, the term “Committee”
includes alternatively, the Board.


 


6.3  Effect of
Termination of Service on Awards.


 


(a)  General. 
Subject to Section 2.5, the Committee shall establish the effect of
a termination of employment or service on the rights and benefits under each
Award under this Plan and in so doing may make distinctions based upon, inter
alia, the cause of termination and type of Award. Unless otherwise provided in
the Award or other provision of this Plan or another written agreement with the
Participant, the Severance Date shall be the later of (1) the date of
termination (for any reason whatsoever) of the Participant’s employment by the
Company, in the case of an Award granted to an employee; (2) the date of
termination of directorship in the case of an Award granted to or held by a
director (or former employee continuing in service as a director); or (3) the
date of termination of services to the Company, as determined by the Committee,
in the case of an Other Eligible Person. Notwithstanding the foregoing, the
Committee may authorize by express provision in or amendment to an Award an
extension of the date of termination of the Award if a person’s status after
grant changes from one eligible category to another, or in other circumstances
that the Committee deems appropriate.


 


(b)  Termination of Consulting or Affiliate Services.  If the Participant is not an Eligible
Employee or Non-Employee Director and provides services as an Other Eligible
Person, the Committee shall be the sole judge of whether the Participant
continues to render services to the Company, unless a written agreement with
the Participant or the Award otherwise provides. If in these circumstances the
Company notifies the Participant in writing that a termination of services of
the Participant for purposes of this Plan has occurred, then (unless the
written agreement or Award otherwise expressly provides), the Participant’s
termination of services for purposes of Section 2.5, 3, 4.3 or 5 shall be
the date which is 10 days after the Company’s mailing of the notice or, in
the case of a termination for Cause, the date of the mailing of the notice.


 


(c)  Effect on Unvested Awards.  Unless otherwise provided in the applicable
Award Agreement and subject to the other provisions of this Plan, a Restricted
Stock Award, Stock Appreciation Right, Performance Share Award, or Stock Unit
Award, to the extent such Award has not become exercisable, or vested, as the
case may be, as of the applicable Severance Date, shall terminate on the
Severance Date without further payment or benefit of any kind; and any Option
theretofore outstanding and not exercisable shall terminate. Vested Options and
any related SARs are further subject to the provisions of Section 2.5.


 


(d)  Events Not Deemed Terminations of Service.  Unless Company policy or the Committee
otherwise provides, the employment relationship shall not be considered
terminated in the case of (i) sick leave, (ii) military leave, or (iii) any
other leave of absence authorized by the Company or the Committee; provided
that unless reemployment upon the expiration of such leave is guaranteed by
contract or law, such leave is for a period of not more than 90 days. In
the case of any Eligible Employee on an approved leave of absence, continued
vesting of the Award while on leave from the employ of the Company may be
suspended until the employee returns to service, unless the Committee otherwise
provides or applicable law otherwise requires. In no event shall an Award be
exercised after the expiration of the term set forth in the Award Agreement.


 


(e)  Effect of Change of Subsidiary Status.  For purposes of this Plan and any Award, if
an entity ceases to be a Subsidiary an involuntary termination of employment or
service shall be deemed to have occurred with respect to each Eligible Person
in respect of the Subsidiary who does not continue as an 


 


15

















 


Eligible Person in respect of another entity
within the Company after giving effect to the Subsidiary’s change of status.


 


6.4  Compliance
with Laws.


 


This Plan, the granting and
vesting of Awards under this Plan, the offer, issuance and delivery of shares
of Common Stock, and/or the payment of money under this Plan or under Awards
are subject to compliance with all applicable federal and state laws, rules and
regulations (including but not limited to state and federal securities law),
and to such approvals by any listing, regulatory or governmental authority as
may, in the opinion of counsel for the Company, be necessary or advisable in
connection therewith. The person acquiring any securities under this Plan will,
if requested by the Company, provide such assurances and representations to the
Company as the Committee may deem necessary or desirable to assure compliance
with all applicable legal and accounting requirements.


 


6.5  Tax Matters.


 


Upon any exercise, vesting,
or payment of any Award or upon the disposition of shares of Common Stock
acquired pursuant to the exercise of an Incentive Stock Option prior to
satisfaction of the holding period requirements of Section 422 of the
Code, the Company shall have the right at its option to (i) require the
Participant (or Personal Representative or Beneficiary, as the case may be) to
pay or provide for payment of at least the minimum amount of any taxes which
the Company may be required to withhold with respect to such Award event or
payment or (ii) deduct from any amount payable in cash the minimum amount
of any taxes which the Company may be required to withhold with respect to such
cash payment. In any case where a tax is required to be withheld in connection
with the delivery of shares of Common Stock under this Plan, the Committee may
in its sole discretion (subject to Section 6.4) require or grant (either
at the time of the Award or thereafter) to the Participant the right to elect,
pursuant to such rules and subject to such conditions as the Committee may
establish, that the Corporation reduce the number of shares to be delivered by
(or otherwise reacquire) the appropriate number of shares, valued in a
consistent manner at their Fair Market Value or at the sales price in
accordance with authorized procedures for cashless exercises, necessary to
satisfy the minimum applicable withholding obligation on exercise, vesting or
payment. In no event shall the shares withheld exceed the minimum number
required for tax withholding under applicable law.


 


6.6  Plan and
Award Amendments, Termination and Suspension.


 


(a)  Board Authorization.  The Board may, at any time, terminate or,
from time to time, amend, modify or suspend this Plan, in whole or in part. No
Awards may be granted during any suspension of this Plan or after termination of
this Plan, but the Committee shall retain jurisdiction as to Awards then
outstanding in accordance with the terms of this Plan.


 


(b)  Stockholder Approval.  To the extent then required under Section 1.2(b) of
the Plan, Sections 162, 422 or 424 of the Code or any other applicable law
or listing agency, or deemed necessary or advisable by the Board, any amendment
to this Plan shall be subject to stockholder approval.


 


(c)  Amendments to Awards.  Without limiting any other express authority
of the Committee under (but subject to) the express limits of this Plan, the
Committee by agreement or resolution may waive conditions of or limitations on
Awards to Participants that the Committee in the prior exercise of its
discretion has imposed, without the consent of a Participant, and (subject to
the requirements of Sections 1.2(b), 1.6 and 6.6(d) and subject to
the resolutions of the Board approving the Plan) may make other changes to the
terms and conditions of Awards, including without limitation, providing for shorter
vesting periods or longer exercise periods for Awards.


 


(d)  Limitations on Amendments to Plan and Awards.  No amendment, suspension or termination of
this Plan or change of or affecting any outstanding Award shall, without
written consent of the Participant, affect in any manner materially adverse to
the Participant any rights or benefits of the 


 


16

















 


Participant or obligations of the Company
under any Award granted under this Plan prior to the effective date of such
change. Changes contemplated by Section 6.2 shall not be deemed to
constitute changes or amendments for purposes of this Section 6.6.


 


(e)  ISO Acceleration.  The portion of any Incentive Stock Option
accelerated in connection with a Change in Control Event or any other action
permitted hereunder shall remain exercisable as an Incentive Stock Option only
to the extent the applicable $100,000 limitation is not exceeded. To the extent
exceeded, the accelerated portion of the Option shall be exercisable as a
Nonqualified Stock Option under the Code.


 


6.7  Privileges of
Stock Ownership.


 


Except as otherwise
expressly authorized by the Committee or this Plan, a Participant shall not be
entitled to any privilege of stock ownership as to any shares of Common Stock
not actually delivered to and held of record by the Participant. No adjustment
will be made for dividends or other rights as a stockholder for which a record
date is prior to such date of delivery.


 


6.8  Effective
Date of the Plan.


 


This Plan is effective as of
April 1, 2003 the date of approval by the Board. The Plan shall be
submitted for and subject to stockholder approval.


 


6.9  Term of the
Plan.


 


No Award will be granted
under this Plan after June 8, 2019 (the “termination
date”). Unless otherwise expressly provided in this Plan or in an applicable
Award Agreement, any Award granted prior to the termination date may extend
beyond such date, and all authority of the Committee with respect to Awards
hereunder, including the authority to amend an Award, shall continue during any
suspension of this Plan and in respect of Awards outstanding on the termination
date.


 


6.10  Governing
Law/Construction/Severability.


 


(a)  Choice of Law.  This Plan, the Awards, all documents
evidencing Awards and all other related documents shall be governed by, and
construed in accordance with the laws of the State of Maryland.


 


(b)  Severability.  If a court of competent jurisdiction holds
any provision invalid and unenforceable, the remaining provisions of this Plan
shall continue in effect.


 


(c)  Plan Construction.


 


(1)  Rule 16b-3.  It is the intent of the Corporation that the
Awards and transactions permitted by Awards be interpreted in a manner that, in
the case of Participants who are or may be subject to Section 16 of the
Exchange Act, qualify, to the maximum extent compatible with the express terms
of the Award, for exemption from matching liability under Rule 16b-3.
Notwithstanding the foregoing, the Corporation shall have no liability to any
Participant for Section 16 consequences of Awards or events under Awards
or if a particular Award or event does not so qualify.


 


(2)  Section 162(m).  It is the further intent of the Company that
(to the extent the Company or Awards under this Plan may be or become subject
to limitations on deductibility under Section 162(m) of the Code),
Options or SARs granted with an exercise or base price not less than the Fair
Market Value on the date of grant and performance-based awards under Section 5.2
of this Plan that are granted to or held by a person subject to Section 162(m) of
the Code will qualify as performance-based compensation or otherwise be exempt
from deductibility limitations under


 


17
















 


Section 162(m) of
the Code, to the extent that the authorization of the Award (or the payment
thereof, as the case may be) satisfies any applicable administrative
requirements thereof.


 


6.11  Captions.


 


Captions and headings are
given to the sections and subsections of this Plan solely as a convenience to
facilitate reference. Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of this Plan or any provision
thereof.


 


6.12  Stock-Based
Awards in Substitution for Stock Options or Awards Granted by Other
Corporation.


 


Awards may be granted under
this Plan in substitution for or in connection with an assumption of employee
stock options, SARs, restricted stock or other stock-based awards granted by
other entities to persons who are or who will become Eligible Persons in
respect of the Company, in connection with a distribution, merger or other
reorganization by or with the granting entity or an affiliated entity, or the
acquisition by the Company, directly or indirectly, of all or a substantial
part of the stock or assets of the employing entity. The Awards so granted need
not comply with other specific terms of this Plan, provided the Awards reflect
only adjustments giving effect to the assumption or substitution consistent
with the conversion applicable to the Common Stock in the transaction and any
change in the issuer of the security.


 


Any such shares that are
issued and any awards that are granted by, or become obligations of, the
Company, as a result of the assumption by the Company or an affiliate of, or in
substitution for, outstanding awards previously granted by an acquired company
(or previously granted by a predecessor employer (or direct or indirect parent
thereof) in the case of persons that become employed by the Company (or a
subsidiary or affiliate) in connection with a business or asset acquisition or
similar transaction) shall not be counted against the maximum number of shares
and awards available for issuance under the Plan.


 


6.13  Non-Exclusivity
of Plan.


 


Nothing in this Plan shall
limit or be deemed to limit the authority of the Board or the Committee to
grant awards or authorize any other compensation, with or without reference to
the Common Stock, under any other plan or authority.


 


6.14  No Corporate
Action Restriction.


 


The existence of the Plan,
the Award Agreements and the Awards granted hereunder shall not limit, affect
or restrict in any way the right or power of the Board or the stockholders of
the Corporation to make or authorize: (a) any adjustment,
recapitalization, reorganization or other change in the Corporation’s or any
Subsidiary’s capital structure or its business, (b) any merger,
amalgamation, consolidation or change in the ownership of the Corporation or
any subsidiary, (c) any issue of bonds, debentures, capital, preferred or
prior preference stock ahead of or affecting the Corporation’s or any
Subsidiary’s capital stock or the rights thereof, (d) any dissolution or
liquidation of the Corporation or any Subsidiary, (e) any sale or transfer
of all or any part of the Corporation or any Subsidiary’s assets or business,
or (f) any other corporate act or proceeding by the Corporation or any
Subsidiary. No participant, beneficiary or any other person shall have any
claim under any Award or Award Agreement against any member of the Board or the
Committee, or the Corporation or any employees, officers or agents of the
Corporation or any Subsidiary, as a result of any such action.


 


6.15  Other Company
Benefit and Compensation Program.


 


Payments and other benefits
received by a Participant under an Award made pursuant to this Plan shall not
be deemed a part of a Participant’s compensation for purposes of the
determination of benefits under any other employee welfare or benefit plans or
arrangements, if any, provided by the Corporation or any Subsidiary, except
where the Committee or the Board expressly otherwise provides or authorizes in
writing. Awards under this Plan may be made in addition to, in combination
with, as


 


18

















 


alternatives to or in payment of grants,
awards or commitments under any other plans or arrangements of the Company or
the Subsidiaries.


 


7.                                           DEFINITIONS.


 


7.1  Definitions.


 


(a)  “Award” means (i) an
award of any Option, Stock Appreciation Right, Restricted Stock, Stock Bonus,
Stock Unit, Performance Share Award, Dividend Equivalent Right or deferred
payment right, convertible, exchangeable or other security pursuant to Section 5.7,
or other right or security that would constitute a “derivative security” under Rule 16a-1(c) of
the Exchange Act, or any combination thereof, whether alternative or
cumulative, or (ii) a cash award (whether or not intended to qualify as a
Performance-Based Award under Section 5.2), in each case authorized by and
granted under this Plan.


 


(b)  “Award Agreement”
means either (1) a written award agreement in a form approved by the
Committee and executed by the Corporation by an officer duly authorized to act
on its behalf, or (2) an electronic notice of award grant in a form
consistent with the written award agreement approved by the Committee and
recorded by the Corporation (or its designee) in an electronic recordkeeping
system used for the purpose of tracking award grants under this Plan generally,
as the Corporation may provide and, in each case and if required by the
Corporation, executed or otherwise electronically accepted by the recipient of
the Award in such form and manner as the Corporation may require.


 


(c)  “Award Date” means
the date upon which the Committee took the action granting an Award or such
later date as the Committee designates as the Award Date at the time of the
Award.


 


(d)  “Award Period” means
the period beginning on an Award Date and ending on the expiration date of such
Award.


 


(e)  “Beneficial Ownership”
shall mean ownership of Equity Shares by a person who would be treated as an
owner of such shares either directly or indirectly through the application of Section 544
of the Code, as modified by Section 856(h)(1)(B) of the Code. The
terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall
have correlative meanings.


 


(f)   “Beneficiary” means
the person, persons, trust or trusts designated by a Participant or, in the
absence of a designation, entitled by will or the laws of descent and
distribution, to receive the benefits specified in the Award Agreement and
under this Plan in the event of a Participant’s death, and shall mean the
Participant’s executor or administrator if no other Beneficiary is designated and
able to act under the circumstances.


 


(g)  “Board” means the
Board of Directors of the Corporation.


 


(h)  “Cause” with respect
to a Participant means (unless otherwise expressly provided in the applicable
Award Agreement or another applicable agreement with the Participant) a
termination of service based upon a finding by the Company, acting in good
faith based on its reasonable belief at the time, that the Participant:


 


(1)  has failed to perform job duties in a material
respect without proper cause; or


 


(2)  has materially breached a fiduciary duty, or
willfully and materially violated any other duty, law, rule, regulation or
policy of the Company in a manner injurious to the Company; or has been
convicted of a felony; or


 


(3)  has materially breached any of the provisions
of any agreement with the Company.


 


A termination for Cause shall be deemed to
occur (subject to reinstatement upon a contrary final determination by the
Committee) on the date on which the Company first delivers written notice to
the Participant of a finding of termination for Cause.


 


19

















 


(i)   “Change in Control Event”
means any of the following:


 


(1)  The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (A) the
then-outstanding shares of common stock of the Corporation (the “Outstanding
Company Common Stock”) or (B) the combined voting power of the
then-outstanding voting securities of the Corporation 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; (i) any
acquisition directly from the Corporation, (ii) any acquisition by the
Corporation, (iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any affiliate of
the Corporation or successor or (iv) any acquisition by any entity
pursuant to a transaction that complies with Sections (3)(A), (3)(B) and
(3)(C) below;


 


(2)  Individuals who, as of the date hereof, constitute
the Board (the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Corporation’s stockholders, was approved by a vote of at least
two-thirds 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, but excluding, for
this purpose, any such individual whose initial assumption of office occurs as
a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board;


 


(3)  Consummation of a reorganization, merger,
statutory share exchange or consolidation or similar corporate transaction
involving the Corporation or any of its subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Corporation, or
the acquisition of assets or stock of another entity by the Corporation or any
of its subsidiaries (each, a “Business Combination”), in each case unless,
following such Business Combination, (A) all or substantially all of the
individuals and entities that were the beneficial owners of the Outstanding
Company Common Stock and the Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or indirectly,
more than 60% of the then-outstanding shares of common stock and the combined
voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the entity
resulting from such Business Combination (including, without limitation, an
entity that, as a result of such transaction, owns the Corporation or all or
substantially all of the Corporation’s assets directly or through one or more
subsidiaries (“Parent”)) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the Outstanding
Company Common Stock and the Outstanding Company Voting Securities, as the case
may be, (B) no Person (excluding any entity resulting from such Business
Combination or a Parent or any employee benefit plan (or related trust) of the
Corporation or such entity resulting from such Business Combination or Parent)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then-outstanding shares of common 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 20% existed prior to the Business Combination, and (C) at least
a majority of the members of the board of directors or trustees of the entity
resulting from such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement or of the action of the
Board providing for such Business Combination; or


 


20

















 


(4)  Approval by the stockholders of the Corporation
of a complete liquidation or dissolution of the Corporation.


 


(j)   “Code” means the
Internal Revenue Code of 1986, as amended from time to time.


 


(k)  “Commission” means
the Securities and Exchange Commission.


 


(l)   “Committee” means
the Board or one or more committees appointed by the Board to administer all or
certain aspects of this Plan, each committee to be comprised solely of one or
more directors or such number as may be required under applicable law or the
Corporation’s Articles of Amendment and Restatement or By-Laws. Each member of
a Committee in respect of his or her participation in any decision with respect
to an Award intended to satisfy the requirements of Section 162(m) of
the Code must satisfy the requirements of “outside director” status within the
meaning of Section 162(m) of the Code; provided, however, that the failure to satisfy such
requirement shall not affect the validity of the action of any committee
otherwise duly authorized and acting in the matter.


 


(1)  “Common Stock” means
the Common Stock of the Corporation and such other securities or property as
may become the subject of Awards, or become subject to Awards, pursuant to an
adjustment made under Section 6.2 of this Plan.


 


(m) “Company” means,
collectively, the Corporation and its Subsidiaries.


 


(n)  “Constructive Ownership”
shall mean ownership of Equity Shares by a person who would be treated as an
owner of such shares either directly or indirectly through the application of Section 318
of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive
Owner,” “Constructive Owns” and “Constructively Owned” shall have correlative
meanings.


 


(o)  “Corporation” means
The Macerich Company, a Maryland corporation, and its successors.


 


(p)  “Dividend Equivalent Right”
or “DER” means a right authorized
under Section 5.6 of this Plan; provided, however, that Restricted Stock
and other stock-based Awards shall not be deemed to be Awards coupled with
Dividend Equivalent Rights insofar as shares of Common Stock or other securities
underlying these Awards carry by their own terms the right to receive dividends
or distributions.


 


(q)  “Eligible Employee”
means an officer (whether or not a director) or key employee of the Company.


 


(r)   “Eligible Person”
means an Eligible Employee, a Non-Employee Director or any Other Eligible
Person, as designated by the Committee in its discretion.


 


(s)  “Equity Shares” means
shares that are either Common Stock or Preferred Stock.


 


(t)   “Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time.


 


(u)  “Fair Market Value”
means, unless otherwise determined or provided by the Committee in the
circumstances, the closing price (in regular trading) for a share of Common
Stock on the New York Stock Exchange (the “Exchange”)
for the date in question or, if no sales of Common Stock were reported on the
Exchange on that date, the closing price (in regular trading) for a share of
Common Stock on the Exchange for the next preceding day on which sales of
Common Stock were reported on the Exchange. The Committee may, however, provide
with respect to one or more Awards that the Fair Market Value shall equal the
closing price (in regular trading) for a share of Common Stock on the Exchange
on the last trading day preceding the date in question or the average of the
high and low trading prices of a share of Common Stock on the Exchange for the
date in question or the most recent trading day. If the Common Stock is no
longer listed or is no longer actively traded on the Exchange as of the applicable
date, the Fair Market Value of the Common Stock shall be the value as
reasonably determined by the Committee for purposes of the Award in the
circumstances. The Committee also may adopt a different methodology for
determining Fair Market Value with respect to 


 


21

















 


one or more Awards if a different methodology
is necessary or advisable to secure any intended favorable tax, legal or other
treatment for the particular Award(s) (for example, and without limitation,
the Committee may provide that Fair Market Value for purposes of one or more
Awards will be based on an average of closing prices (or the average of high
and low daily trading prices) for a specified period preceding the relevant
date).


 


(v)  “Full-Value Award”
means any Award under this Plan that is not
an Option grant or a SAR grant.


 


(w) “Incentive Stock Option”
means an Option which is intended, as evidenced by its designation, as an
incentive stock option within the meaning of Section 422 of the Code, the
award of which contains such provisions (including but not limited to the
receipt of stockholder approval of this Plan, if the Award is made prior to
such approval) and is made under such circumstances and to such persons as may
be necessary to comply with that section.


 


(x)  “Nonqualified Stock Option”
means an Option that is designated as a Nonqualified Stock Option and shall
include any Option intended as an Incentive Stock Option that fails to meet the
applicable legal requirements thereof. Any Option granted hereunder that is not
designated as an incentive stock option shall be deemed to be designated a
nonqualified stock option under this Plan and not an incentive stock option
under the Code.


 


(y)  “Non-Employee Director”
means a member of the Board of Directors of the Corporation who is not an
officer or employee of the Company.


 


(z)  “Option” means an
option to purchase Common Stock granted under this Plan. The Committee shall
designate any Option granted to an Eligible Person as a Nonqualified Stock
Option or an Incentive Stock Option.


 


(aa)  “Other Eligible Person”
means any individual consultant or advisor who renders or has rendered bona fide services (other than services in
connection with the offering or sale of securities of the Company in a capital
raising transaction or as a market maker or promoter of the Company’s
securities) to the Company, and who is selected to participate in this Plan by
the Committee. An advisor or consultant may be selected as an Other Eligible
Person only if such person’s participation in this Plan would not adversely
affect (1) the Corporation’s eligibility to use Form S-8 to register
under the Securities Act of 1933, as amended, the offering of shares issuable
under this Plan by the Company or (2) the Corporation’s or any Subsidiary’s
compliance with any other laws applicable to transactions or determinations
under this Plan.


 


(bb) “Ownership Limit”
means 9.8% of the lesser of the number or value of the outstanding Equity
Shares of the Corporation, except as otherwise permitted under the charter of
the Corporation.


 


(cc)  “Participant” means
an Eligible Person who has been granted an Award under this Plan.


 


(dd) “Performance Share Award”
means an Award of a right to receive shares of Common Stock under Section 5.1,
or to receive shares of Common Stock or other compensation (including cash)
under Section 5.2, the issuance or payment of which is contingent upon,
among other conditions, the attainment of performance objectives specified by
the Committee.


 


(ee)  “Personal Representative”
means the person or persons who, upon the disability or incompetence of a
Participant, shall have acquired on behalf of the Participant, by legal
proceeding or otherwise, the power to exercise the rights or receive benefits
under this Plan and who shall have become the legal representative of the
Participant.


 


(ff) “Plan” means this 2003
Equity Incentive Plan, as it may be amended from time to time.


 


(gg) “Preferred Stock”
means the Preferred Stock of the Corporation.


 


(hh) “Qualified Termination”
is defined in Section 6.2(c).


 


22

















 


(ii)    “Restricted Shares” or “Restricted
Stock” means shares of Common Stock awarded to a Participant under
this Plan, subject to payment of such consideration, if any, and such
conditions on vesting (which may include, among others, the passage of time,
specified performance objectives or other factors) and such transfer and other
restrictions as are established in or pursuant to this Plan and the related
Award Agreement, for so long as such shares remain unvested under the terms of
the applicable Award Agreement.


 


(jj)    “Retirement” means
retirement with the consent of the Company, from active service as an employee
or officer of the Company or, in the case of a Non-Employee Director, a
retirement or resignation as a director, in each case only on or after
attaining age 55 with 10 or more years of service or after attaining age 65.


 


(kk)  “Rule 16b-3”
means Rule 16b-3 as promulgated by the Commission pursuant to the Exchange
Act, as amended from time to time.


 


(ll)    “Section 16 Person”
means a person subject to Section 16(a) of the Exchange Act.


 


(mm) “Securities Act” means the Securities Act
of 1933, as amended from time to time.


 


(nn) “Severance Date” means
the date of termination of employment or service as further defined in Section 6.3.


 


(oo) “Stock Appreciation Right”
or “SAR” means a right authorized
under this Plan to receive a number of shares of Common Stock or an amount of
cash, or a combination of shares and cash, the aggregate amount or value of
which is determined by reference to a change in the Fair Market Value of the
Common Stock.


 


(pp) “Stock Bonus” means an
Award of shares of Common Stock granted under this Plan for no consideration
other than past services and without restriction other than such transfer or
other restrictions as the Committee may deem advisable to assure compliance
with law.


 


(qq) “Stock Unit” means a
bookkeeping entry which serves as a unit of measurement relative to a share of
Common Stock for purposes of determining the payment, in Common Stock or cash,
of an Award, including a deferred benefit or right under this Plan. Stock Units
are not outstanding shares and do not entitle a Participant to any dividend,
voting or other rights in respect of any Common Stock represented thereby or
acquirable thereunder. Stock Units, may, however, by express provision in the
applicable Award Agreement, entitle a Participant to dividend equivalent
rights, as defined by the Committee.


 


(rr)   “Subsidiary” means
The Macerich Partnership, L.P., Macerich Management Company, Macerich
Property Management Company, LLC, Westcor Partners, LLC, Macerich
Westcor Management, LLC and Westcor Partners of Colorado, LLC,
Macerich Queens Limited Partnership, Macerich Queens Expansion, LLC, Great
Northern SPE, LLC, Rotterdam Square, LLC, Shoppingtown
Mall, LLC, Wilton Mall, LLC and Macerich Cross County
Security, LLC, or any corporation or other entity controlled (by stock
ownership or otherwise), directly or indirectly by, or under common control
with, the Corporation.


 


(ss)  “Total Disability”
means a “permanent and total disability” within the meaning of Section 22(e)(3) of
the Code and such other disabilities, infirmities, afflictions or conditions as
the Committee by rule may include.


 


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EXHIBIT A


 


PERFORMANCE-BASED BUSINESS CRITERIA


 


Funds From
Operations means Funds from Operations, as defined by The
National Association of Real Estate Investment Trusts at the time of the grant
of an Award, for the applicable period, as reflected in the Corporation’s
periodic financial reports for the period, on an aggregate, diluted and/or per
share basis.


 


Stock
Appreciation means an increase in the price or value of the
Common Stock of the Corporation after the date of grant of an Award and during
the applicable period.


 


Total
Stockholder Return means the aggregate Common Stock price appreciation
and dividends paid (assuming full reinvestment of dividends) during the
applicable period.


 


Occupancy
Gains means increases in the occupancy level (leased and occupied areas) of
malls and freestanding store area (excluding Anchors) (owned at both the
beginning and end of the applicable period) during the period, measured as a
percentage of the gross leasable/occupiable area of such properties, as
reported to the Committee for inclusion in the Corporation’s reports to the SEC
for the applicable period.


 


EBITDA means earnings
before interest, taxes, depreciation and amortization for the applicable period,
as reflected in the Corporation’s financial reports for the applicable period.


 


Total
Revenue Growth means the increase in total revenues after the date
of grant of an Award and during the applicable period, as reflected in the
Corporation’s financial reports for the applicable period.


 


Net Income means net
income as reflected in the Corporation’s financial reports for the applicable
period, on an aggregate, diluted and/or per share basis.


 


Square
Footage Growth means the increase, between the beginning and end
of the applicable period, in the square feet of gross leasable mall and free
standing stores area (excluding Anchors), as reported to the Committee for
inclusion in the Corporation’s reports to the SEC for the applicable period.


 


Sales Per
Square Foot Growth means the increase in the average sales per square
foot of leased space by retailers leasing mall and freestanding stores with
10,000 square feet or less (excluding theaters) that occupied their space
during the entire year or other applicable period over the average sales per
square foot of leased space by such retailers that occupied their space for the
entire preceding year or other preceding applicable period, as reported to the
Committee for inclusion in the Corporation’s reports to the SEC for the
applicable periods.


 


Except as otherwise
expressly provided, all financial terms are used as defined under Generally
Accepted Accounting Principles (GAAP) and all determinations shall be made in
accordance with GAAP, as applied by the Corporation in the preparation of its
periodic reports to stockholders.


 


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