Exhibit
10.1


 


SEPARATION


 


AGREEMENT AND RELEASE OF CLAIMS


 


THIS
SEPARATION AGREEMENT AND RELEASE OF CLAIMS (“Agreement”) is made as of March 26,
2010 by Tony Grossi (“Employee” or “You”) concerning your resignation from and
release of claims against The Macerich Company (“Company”) or any of its client
organizations.


 


1.             Recitals.


 


a.             Company and Employee have
reached an amicable and mutual resolution of issues regarding Employee’s
employment which resolution includes your resignation from all employment with
the Company, effective as of April 30, 2010 (the “Separation Date”), in
exchange for the consideration described below from Company.


 


b.             You acknowledge that by this
Agreement you will be agreeing to a general release of all claims arising from
and in any way related to your employment with Company through the date of this
Agreement and in any way related to your employment with Company.


 


In
consideration of the covenants, representations, warranties and releases made
in this Agreement, and for good and sufficient consideration, as detailed
below.


 


2A.          Employment
Relationship with the Company.


 


You will remain an active Company employee through the Separation Date
which is April 30, 2010 (the “Employment Period”).  During the Employment Period, you will continue
to receive your base salary and associated benefits, in accordance with the
Company’s regular and usual payroll and benefits practices and subject to
applicable payroll and benefits deductions.


 


Effective at the close of business on the Separation Date, you are
resigning from all employment with the Company. 
In addition to receiving your base salary and associated benefits
through the Employment Period, you will be paid for any accrued but unused
vacation and personal days.  On the
Separation Date, you will receive your final regular paycheck.  In regard to Profit Sharing/401(k) Plans
and Deferred Compensation Plan, eligibility will terminate effective on the
Separation Date.  Marsha Chappell and
Scott Kingsmore are the respective contacts for additional information under
these Plans.


 


As you are currently enrolled in the Company’s medical and dental
plans, you will have the right to convert to COBRA at your own expense, with the
coverage you currently are enrolled in. 
Your current medical and dental coverage will remain active through the
Separation Date.  If you choose to elect
COBRA conversion, the first date of coverage under COBRA will be May 1,
2010.  COBRA notification (which will
detail your rights, response deadlines, cost, and payment procedures) will be
mailed to you from our third party administrator.  Please keep in mind that if you want coverage
beyond the Separation Date, you must initiate
the enrollment process.  Luisa
Sheldon is the contact for COBRA information.


 

















 


2B.         Consulting
Agreement.


 


Effective at the close of business on the Separation Date, at your
option, you and the Company will enter into a consulting arrangement which will
run for the period of time from the Separation Date through January 31,
2011 pursuant to the terms and conditions set forth in the form of Consulting
Agreement attached hereto as Exhibit A.


 


2C.         Vesting
of Restricted Stock and LTIPs.


 


Even though you are resigning from employment, this agreement confirms
that the Compensation Committee of the Board of Directors has by resolution
approved the continuing vesting of the service-based LTIPs granted to Employee
on March 7, 2008 and the service-based restricted stock units granted to
Employee on March 6, 2009, respectively, on the scheduled dates set forth
in such grants as though you were continuing to be employed by the Company
through such vesting dates and even in the case of your death, disability or
changes to the current Macerich 2003 Comp Equity Incentive Plan.  You acknowledge that you understand that the
LTIPs that were granted to you in January 2007 (all of which have already
vested), and the LTIPs granted to you on March 7, 2008, (2/3 of which have
already vested and 1/3 of which will vest on March 31, 2011) have not “booked
up”, and that until they book up, if ever, they cannot be converted into
regular Macerich OP Units, Macerich stock, or cash.


 


2D.         2010
Bonus.


 


Notwithstanding any contrary provisions of the Company’s annual bonus
plan or otherwise, at the time when annual bonuses are paid to the Company’s
other Executive Officers for the 2010 calendar year, even in the case of death,
disability or changes to the current Macerich 2003 Comp Equity Incentive Plan,
you shall be paid $300,000, which represents a proportionate share of a full
year Target level bonus for 2010.


 


2E.         Consideration.


 


All payments are subject to
normal payroll withholdings applicable to such sums.  The consideration set forth in this Agreement
is in lieu of any and all payments and/or other consideration of any kind which
at any time has been the subject of any prior discussions, representations,
inducements or promises, oral or written, direct or indirect, contingent or
otherwise including, without limitation, future wage and benefit claims.


 


3A.          Employee’s
Release of All Claims.


 


a.             You make this Agreement on
behalf of yourself and your ancestors, descendants, spouse, dependents, and
your executors, heirs, administrators, assigns and anyone else claiming by,
through or under yourself.


 


b.             In exchange for the
consideration provided to you as described in paragraph 2 above, you hereby
agree to fully release, waive and forever discharge Company and all of Company’s
related, affiliated and client entities (including corporations, limited
liability


 


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companies,
partnerships and joint ventures) and with respect to each of the Company and
its related, affiliated and client entities:


 


i)              their members,
parents, subsidiaries, affiliates, predecessors, successors and associates,
participants, present and former, and each of them, and


 


ii)             their directors, shareholders, partners, officers,
agents, owners, attorneys, servants, employees, trustees, plan administrators,
fiduciaries, representatives and assigns, past and present, and each of them,


 


all
of which together and collectively are hereinafter referred to as (“Company
Releasees”).


 


c.             This full release and
discharge is effective with respect to all claims, promises, causes of action
or similar rights of any type, known or unknown, which you ever had, now have
or may hereafter claim to have had, against the Company Releasees.


 


d.             Without limiting the
generality of the description in subparagraph 3c above, the claims herein
released include, but are not limited to, claims based upon:


 


i)              violations of Title VII of
the Civil Rights Act of 1964;


 


ii)             California statutory or decisional law, including
the state wage and hour law, and state Fair Employment and Housing law
pertaining to employment discrimination, wrongful discharge or breach of public
policy (excepting therefrom, however, claims for indemnity under Labor Code Section 2802);


 


iii)            and all state, federal and local laws as well as
common law for breach of contract, wrongful termination, employment
discrimination, negligent or intentional infliction of emotional distress,
defamation, fraud, concealment, false promise, negligent misrepresentation,
intentional interference with contractual relations, breach of the covenant of
good faith and fair dealing, and misrepresentation;


 


iv)           all non-qualified employee
benefits plans, promises or agreements, and any and all severance plans,
promises, arrangements and representations; and


 


v)            the Age Discrimination in
Employment Act.


 


e.             You hereby agree that no
action, suit or proceeding has been brought or complaint filed or initiated by
you or any executor, heir, administrator or assign of yours in any court, or
with any governmental body or commission with respect to any matter or course
of action based upon any facts that might have occurred prior to the date of
this Agreement whether


 


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known
to you now or discovered by you hereafter, nor have you assigned or transferred
any claim being released hereby or purported to do so.


 


3B.          Covenants
by Employee.


 


a.             Employee shall through and
following the date of this Agreement:


 


i)              Refrain from disparaging,
criticizing or denigrating any Company Releasees;


 


ii)             Refrain from engaging in or
assisting in any litigation against Company relating to anything referring to
or occurring prior to the date of this Agreement unless court ordered to do so;
and


 


iii)            Refrain from ever disclosing
or using any Company Proprietary or Confidential Information, either directly
or indirectly, without the express, written consent of Company.  For purposes of this Agreement, “Confidential
Information” consists of any and all trade secrets as defined by the California
Uniform Trade Secrets Act (California Civil
Code§3426, et. Seq.) and Proprietary Information includes, without
limitation, any information concerning any procedures, operations, techniques,
data, compilations of information, member lists, pay practices, records, costs,
employees, purchasing, sales, salaries, and all other information which is
related to any service or business of Company, other than information which is
generally known in the industry in which Company’s business is conducted or
acquired from public sources all of which Proprietary Information is the
exclusive and valuable property of Company.


 


3C.          Covenants
by Company.


 


a.             Company shall through and following the date of this Agreement, cause its
executive officers to refrain from disparaging, criticizing or denigrating Employee.


 


4A.          Waiver of §
1542 Rights by Employee.


 


You
expressly waive all rights and relinquish all benefits afforded under Section 1542
of the Civil Code of the State of California, which reads as follows:


 


“A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his settlement
with the debtor.”


 


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You
acknowledge that you may have claims which are covered by the terms of this
Agreement which you have not yet discovered. 
You acknowledge that you do intend to release any and all such unknown
or unsuspected claims arising out of your employment by Company and understand
the significance of your waiver of Section 1542.


 


4B.          Waiver of §
1542 Rights by Company.


 


Company
expressly waives all rights and relinquishs all benefits afforded under Section 1542
of the Civil Code of the State of California, which reads as follows:


 


“A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected his
settlement with the debtor.”


 


Company
acknowledges that it may have claims which are covered by the terms of this
Agreement which it has not yet discovered. 
Company acknowledges that it does intend to release any and all such
unknown or unsuspected claims arising out of your employment by Company and
understands the significance of its waiver of Section 1542.


 


5.             No
Admission of Liability.


 


You
agree that this Agreement and the payment by Company of the consideration
described in Section 2 is not an admission by Company Releasees of any
wrongdoing or liability.  Company
Releasees specifically deny any liability or wrongful acts against you.  The Company agrees that this Agreement and
the covenants you are making described in this Agreement are not an admission
by you of any wrongdoing or liability. 
You specifically deny any liability or wrongful acts against
Company.  The parties have entered into
this Agreement in order to settle all disputes and differences between them,
without admitting liability or wrongdoing by any party.


 


6.             SEC
Requirements.


 


The
Company will be filing a Form 8-K within 4 business days after execution
of this Agreement disclosing the material terms of this Agreement, and in
addition the Company will be filing a copy of this Agreement with the SEC not
later than the date the Company files its next 10-Q.


 


7.             No
Solicitation.


 


You
agree that for a period of twelve months commencing with your termination date,
you will not in any way, directly or indirectly (including through someone else
acting on your recommendation, suggestion, identification or advice) facilitate
or solicit any Company employees to leave its employment.


 


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8.                                      Binding Effect.


 


You
agree that this Agreement is binding upon yourself, your heirs, executors,
administrators, successors and assigns.


 


9.                                      Consequences of Violating this Agreement.


 


You
agree that the Company would be irreparably harmed by any actual or threatened
violation of this Agreement that involves disclosure of the existence, terms,
or amount payable under this Agreement and that the Company will be entitled to
equitable relief prohibiting you from committing any such violation.


 


10.                               Severability.


 


Should
any provision of this Agreement be declared or determined by any court or by an
arbitrator to be illegal or invalid, the validity of the remaining parts, terms
and provisions shall not be affected thereby and the illegal or invalid part,
term or provision shall not be deemed to be a part of this Agreement.


 


11.                               Entire Agreement.


 


You
acknowledge that this Agreement constitutes the entire and exclusive Agreement
between Company and you with respect to the subject matter hereof and that no
other promise, inducement or agreement has been made to you in connection with
the subject matter hereof.  You further
acknowledge that this Agreement is not subject to modifications of any kind,
except for modifications in writing which are signed by both parties.


 


12.                               Governing Law.


 


The
parties agree that this Agreement shall be construed and enforced pursuant to
the laws of the State of California.


 


13.                               Attorney’s Fees.


 


Each
party shall bear its own costs and attorney’s fees in this matter.


 


14.                               Dispute Resolution.


 


If a dispute or claim shall
arise with respect to (i) any of the terms or provisions of this
Agreement, or the performance of any party hereunder, or (ii) matters
relating to this Agreement, then the aggrieved party may, by notice as herein
provided and given no later than the expiration of the statute of limitation
that California state law prescribes for such a claim, require that the dispute
be submitted under the National Rules for Resolution of Employment
Disputes of the American Arbitration Association then if effect.  The written decision of the arbitrator shall
be binding and conclusive on the parties. 
Judgment may be entered in any court having jurisdiction and the parties
consent to the jurisdiction of the Superior Court of Los Angeles County,
California for this purpose.  Any
arbitration undertaken pursuant to the terms of


 


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this Agreement shall occur in Los Angeles County, California unless the
parties mutually agree in writing to some other venue.  Each party will bear its own attorney’s fees
associated with the arbitration.


 


15.                               Voluntary Agreement.


 


You
hereby acknowledge that you have read this Agreement and fully know, understand
and appreciate the contents and effects thereof, and that you execute this
Agreement voluntarily and of your own free will and accord.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  The Macerich Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Bayer

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Executive Vice President and Chief Legal Officer

  



 


I
HEREBY AGREE TO THE TERMS AND CONDITIONS OF THE FOREGOING RELEASE OF CLAIMS.


 


	
  Date:
  March 26, 2010

  	
  /s/
  Tony Grossi

  	
   

  
	
   

  	
  Tony
  Grossi

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  609
  7th Street, Santa Monica, CA 90401

  	
   

  
	
   

  	
  Address

  	
   

  



 


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EXHIBIT A


 


FORM OF CONSULTING
AGREEMENT


 


CONSULTING AGREEMENT


 


This Consulting Agreement (“Consulting Agreement”) is entered into as
of this 1st day of May, 2010 (the “Effective Date”), by
and between Tony Grossi, an individual (“Consultant”), and The Macerich
Company, a Maryland corporation (the “Company”).  Consultant and the Company agree as follows:


 


I.                                         Engagement


 


The Company hereby engages Consultant and Consultant hereby accepts
such engagement, upon the terms and conditions hereinafter set forth, for the
Consulting Term.  The “Consulting Term”
is the period of time commencing on the Effective Date and ending on the first
to occur of:  (1) January 31,
2011; (2) Consultant’s written notice to the Company that he elects to
terminate the Consulting Term for any reason; or (3) the date that
Consultant materially breaches one of his obligations or agreements under this
Consulting Agreement.


 


A.                                    Performance


 


Consultant shall perform consulting services as requested by the
Company with reasonable notice as to matters with which Consultant is familiar
or about which Consultant has acquired knowledge, expertise, or
experience.  The Company is not obligated
to call upon Consultant to provide any services or any minimum level of
services.


 


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B.                                    Competent Service


 


Consultant agrees to honestly and faithfully conduct himself at all
times during the performance of consulting services for the Company.  Consultant agrees to perform his services in
a diligent and competent manner.


 


II.                                     Compensation


 


In consideration for the services to be provided by Consultant, the
Company will pay Consultant a Consulting Fee of Fifty Six Thousand Dollars ($56,000)
each month (the “Consulting Fee”).  The
Consulting Fee shall be paid for each month in the Consulting Term through and
including the month in which the Consulting Term ends, whether or not
Consultant is called upon to perform services during that month.  No Consulting Fee shall be payable with
respect to any month following the month in which the Consulting Term
ends.  The Consulting Fee for a
particular month shall be paid not later than fifteen days following that
month.  The Company shall have no obligation
to pay or reimburse any expenses incurred by Consultant in performing the
services.


 


III.                                 Termination


 


Upon termination or expiration of the Consulting Term pursuant to Section I,
this Agreement shall terminate without further obligations to or by the
Consultant under this Agreement, other than for payment of Consultant’s
Consulting Fee through the month in which the Consulting Term ends (to the
extent not theretofore paid).


 


IV.                                Relationship


 


A.                                    Independent Contractor


 


Consultant shall operate at all times under this Consulting Agreement
as an independent contractor of the Company.


 


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B.                                    Agency


 


This Consulting Agreement does not authorize Consultant to act as an
agent of the Company or any of its affiliates or to make commitments on behalf
of the Company or any of its affiliates. 
Consultant and the Company intend that an independent contractor
relationship be created by this Consulting Agreement, and nothing herein shall
be construed as creating an employer/employee relationship, partnership, joint
venture, or other business group or concerted action.  Consultant shall at no time hold himself out
as an agent of the Company or any of its affiliates for any purpose, including
reporting to any governmental authority or agency, and shall have no authority
to bind the Company or any of its affiliates to any obligation whatsoever.


 


C.                                    Taxes


 


Consultant and the Company agree that Consultant is not an employee for
state or federal tax purposes. 
Consultant shall be solely responsible for any taxes due as a result of
the payment of any consulting fee or other compensation pursuant to this
Consulting Agreement.  Consultant will
defend and indemnify the Company and each of its affiliates from and against
any tax arising out of Consultant’s failure to pay such taxes with respect to
any such payments.  If the Company
reasonably determines that applicable law requires that taxes should be
withheld from any payments or other compensation and benefits pursuant to this
Consulting Agreement, the Company reserves the right to withhold, as legally
required, and to notify Consultant accordingly.


 


D.                                    Workers’ Compensation and
Unemployment Insurance


 


Consultant is not entitled to workers’ compensation benefits or
unemployment compensation benefits provided by the Company.  Consultant shall be solely responsible for
the payment of his workers’ compensation, unemployment compensation, and other
such payments.  The Company will not pay
for workers’ compensation for Consultant. 
The Company will not 


 


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contribute to a state unemployment fund for
Consultant.  The Company will not pay the
federal unemployment tax for Consultant.


 


E.                                      Benefits


 


Consultant shall not be entitled to participate in any vacation,
medical, retirement, or other health and welfare or fringe benefit plan of the
Company by virtue of this Consulting Agreement, and Consultant shall not make
claim of entitlement any such employee plan, program or benefit on the basis of
this Consulting Agreement.   Nothing in
this Consulting Agreement is intended, however, to supersede or otherwise
affect Consultant’s rights to continued medical, dental or group health or life
insurance coverage following his termination of employment with the Company
pursuant to COBRA.


 


V.                                    Non-Disparagement


 


Consultant agrees that he will not at any time during the Consulting
Term, (1) directly or indirectly, make or ratify any statement, public or
private, oral or written, to any person that denigrates or disparages, either
professionally or personally, the Company, any of its subsidiaries or
affiliates, or any of their respective directors, officers, or employees,
successors or products, past and present, or (2) make any statement or
engage in any conduct that has the purpose (or which a reasonable person
reasonably should have known would likely have the effect) of disrupting the
business of the Company or any of its subsidiaries or affiliates.


 


VI.                                Miscellaneous


 


A.                                    Successors


 


This Consulting Agreement is personal to each of Consultant and the
Company and shall not, without the prior written consent of the other, be
assignable by either of them.


 


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B.                                    Waiver and Modification


 


No waiver of any breach of any term or provision of this Consulting
Agreement shall be construed to be, nor shall be, a waiver of any other breach
of this Consulting Agreement.  No waiver
shall be binding unless in writing and signed by the party waiving the
breach.  This Consulting Agreement may
not be amended or modified other than by a written agreement executed by
Consultant and an authorized officer of the Company.


 


C.                                    Complete Agreement


 


This Consulting Agreement constitutes and contains the entire agreement
and final understanding concerning Consultant’s consulting relationship with
the Company and its affiliates, and the other subject matters addressed herein
between the parties, and it supersedes and replaces all prior negotiations and
all agreements proposed or otherwise, whether written or oral, concerning the
subject matters hereof provided, however, that Consultant’s confidentiality,
proprietary information, trade secret and similar obligations under any
existing agreement with the Company shall continue.


 


D.                                    Severability


 


If any provision of this Consulting Agreement or the application
thereof is held invalid, the invalidity shall not affect other provisions or
applications of the Consulting Agreement which can be given effect without the
invalid provisions or applications and to this end the provisions of this
Consulting Agreement are declared to be severable.


 


E.                                      Choice of Law


 


This Consulting Agreement shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with, and
governed by, the laws of the State of California without regard to principles
of conflict of laws.


 


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F.                                      Advice of Counsel


 


In entering this Consulting Agreement, the parties represent that they
have relied upon the advice of their attorneys, who are attorneys of their own
choice, and that the terms of this Consulting Agreement have been completely
read and explained to them by their attorneys, and that those terms are fully
understood and voluntarily accepted by them. 
Each party has cooperated in the drafting and preparation of this
Consulting Agreement.  Hence, in any
construction to be made of this Consulting Agreement, the same shall not be
construed against any party on the basis that the party was the drafter.


 


G.                                    Counterparts


 


This Consulting Agreement may be executed in counterparts, and each
counterpart, when executed, shall have the efficacy of a signed original.  Photographic copies of such signed
counterparts may be used in lieu of the originals for any purpose.


 


H.                                    Headings


 


The section headings contained in this Consulting Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Consulting Agreement.


 


I have read the foregoing Consulting Agreement and I accept and agree
to the provisions it contains and hereby execute it voluntarily with full
understanding of its consequences.


 


EXECUTED this          day of                       ,
2010, in the State of California, with the effective date as set forth above.


 


	
   

  	
  CONSULTANT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tony
  Grossi

  



 


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EXECUTED this          day of                       ,
2010, in the state of California, with the effective date as set forth above.


 


	
   

  	
  THE COMPANY

  
	
   

  	
   

  
	
   

  	
  THE MACERICH COMPANY, A
  MARYLAND CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its: 

  	
   

  



 


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