As filed with the Securities and Exchange Commission on
December 15, 1997
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
THE MACERICH COMPANY
(Exact name of registrant as specified in its charter)
___________________
Maryland 95-4448705
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
233 Wilshire Boulevard, Suite 700, Santa Monica,
California 90401
(Address of principal executive offices)
THE MACERICH COMPANY DEFERRED COMPENSATION PLAN FOR
SENIOR EXECUTIVES (AS AMENDED AND
RESTATED EFFECTIVE AS OF JANUARY 1, 1997)
(Full title of the plan)
Arthur M. Coppola
President and Chief Executive Officer
233 Wilshire Boulevard, Suite 700, Santa Monica,
California 90401
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service:
(310) 394-5333
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
Deferred $14,000,000 100%<2> $14,000,000<2> $4,242.42
Compensation
Obligations<1>
___________
<FN>
<1> The Deferred Compensation Obligations being registered
are general unsecured obligations of The Macerich Company
to pay deferred compensation in the future to
participating members of a select group of management or
highly compensated employees in accordance with the terms
of The Macerich Company Deferred Compensation Plan for
Senior Executives (As Amended and Restated Effective as
of January 1, 1997).
<2> Estimated solely for the purpose of determining the
registration fee.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant
information) will be sent or given to employees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"). Such documents need not be filed with
the Securities and Exchange Commission either as part of this
Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These
documents, which include the statement of availability
required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3
of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of The Macerich Company (the
"Company") filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 1996;
(b) Quarterly Reports on Form 10-Q for the Company's
quarters ended March 31, June 30, and September 30 of
1997;
(c) Current Report on Form 8-K for an event dated June 20,
1997;
(d) Current Report on Form 8-K, as amended by Form 8-K/A,
for an event dated August 6, 1997; and
(e) The description of the Company's Common Stock
contained in its Registration Statement filed on Form
8-A, dated March 9, 1994, as amended on Form 8-K,
dated August 5, 1994, and any other amendment or
reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), prior
to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into the prospectus and
to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated
by reference herein, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Macerich Company Deferred Compensation Plan for
Senior Executives (As Amended and Restated Effective as of
January 1, 1997) (the "Plan") provides a select group of
management or highly compensated employees (the "Eligible
Employees") of the Company and certain of its subsidiaries
with the opportunity to defer the receipt of certain pre-tax
cash compensation. The obligations of the Company under the
Plan (the "Deferred Compensation Obligations") will be general
unsecured obligations of the Company to pay deferred
compensation in the future to participating Eligible Employees
(the "Participants") in accordance with the terms of the Plan
from the general assets of the Company, and will rank pari
passu with other unsecured and unsubordinated indebtedness of
the Company from time to time outstanding. The Deferred
Compensation Obligations will be denominated and payable in
United States dollars.
Each Participant may elect to defer up to 50% of his
or her salary and/or up to 100% of his or her bonus (reduced
by the amount he or she could have deferred under any 401(k)
plan), if any, payable with respect to a particular Plan Year.
A Participant's salary deferrals are credited to the
Participant's bookkeeping account ("Cash Deferral Account")
maintained under the Plan. Each Participant's Cash Deferral
Account is credited on a monthly basis with a deemed rate of
earnings.
With certain exceptions, Deferred Compensation
Obligations will be paid after the Participant's Payment
Eligibility Date, which is the first day of the month
immediately following the day on which the Participant
terminates employment or dies. The Participant may elect to
receive (i) a cash lump-sum payment payable upon a specified
date before or after the Payment Eligibility Date; (ii) a cash
lump-sum payment payable upon the later of some specified date
or the Payment Eligibility Date; (iii) a specified number of
monthly installments, not to exceed 180, commencing on the
later of a specified date or the Participant's Payment
Eligibility Date.
No amount payable under the Plan shall be subject to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, voluntary or involuntary. Any attempt
to dispose of any rights to benefits payable under the Plan
shall be void.
The Deferred Compensation Obligations are not subject
to redemption, in whole or in part, prior to the individual
payment dates selected by the Participants, except that
Participants may withdraw all or a portion of the value of
their Plan accounts under certain specified circumstances.
However, the Company reserves the right to amend or terminate
the Plan at any time.
The total amount of the Deferred Compensation
Obligations are not determinable because the amount will vary
depending upon the level of participation by Eligible
Employees and the amounts of their salaries and bonuses. The
duration of the Plan is indefinite. The Deferred Compensation
Obligations are not convertible into another security of the
Company. The Deferred Compensation Obligations will not have
the benefit of a negative pledge or any other affirmative or
negative covenant on the part of the Company. Each
Participant will be responsible for acting independently with
respect to, among other things, the giving of notices,
responding to any requests for consents, waivers or amendments
pertaining to the Deferred Compensation Obligations, enforcing
covenants and taking action upon a default by the Company.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The MGCL permits a corporation formed in Maryland to
include in its charter a provision eliminating or limiting the
liability of its directors and officers to the corporation and
its stockholders for money damages except for (i) active and
deliberate dishonesty established by a final judgment as being
material to that cause of action or (ii) actual receipt of an
improper benefit or profit in money, property or services.
The Company's Charter has incorporated such a provision which
limits such liability to the fullest extent permitted by the
MGCL.
The Charter authorizes the Company to indemnify its
present and former officers and directors and to pay or
reimburse reasonable expenses in advance of the final
disposition of the proceeding to the maximum extent permitted
from time to time by the laws of Maryland. The Bylaws of the
Company obligate it to indemnify and advance reasonable
expenses to present and former directors and officers to the
maximum extent permitted by Maryland law. The MGCL permits a
corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a
party by reason of their service in those or other capacities
unless it is established that (i) the act or omission of the
director or officer was material to the matter giving rise to
the proceeding and (a) was committed in bad faith or (b) was
the result of active and deliberate dishonesty, (ii) the
director or officer actually received an improper personal
benefit, or (iii) in the case of any criminal proceeding, the
director or officer had reasonable cause to believe that the
act or omission was unlawful. In addition, the MGCL requires
the Company, as conditions to advancing expenses, to obtain
(a) a written affirmation by the director or officer of his
good faith belief that he has met the standard of conduct
necessary for indemnification by the Company as authorized by
the applicable Bylaws or partnership agreement and (b) a
written statement by him or on his behalf to repay the amount
paid or reimbursed by the Company if it shall ultimately be
determined that the standard of conduct was not met. The MGCL
requires a corporation (unless its charter provides otherwise,
which the Company's Charter does not) to indemnify a director
or officer who has been successful, on the merits or
otherwise, in the defense of any proceeding to which he is
made a party by reason of his service in that capacity.
However, under the MGCL, a Maryland corporation may not
indemnify for an adverse judgment in a suit by or in the right
of the corporation. The bylaws also (i) permit the Company to
provide indemnification and advance expenses to a present or
former director or officer who served a predecessor of the
Company in such capacity, and to any employee or agent of the
Company or a predecessor of the Company, (ii) provide that any
indemnification or payment or reimbursement of the expenses
permitted by the applicable bylaws shall be furnished in
accordance with the procedures provided for indemnification
and payment or reimbursement of expenses under Section 2-418
of the MGCL for directors of Maryland corporations and (iii)
permit the Company to provide such other and further
indemnification or payment or reimbursement of expenses as may
be permitted by Section 2-418 of the MGCL for directors of
Maryland corporations.
The Partnership Agreement of the Operating Partnership
also provides for indemnification of the Company and its
officers and directors to the same extent that indemnification
is provided to officers and directors of the Company in the
Charter, and limits the liability of the Company and its
officers and directors to the Operating Partnership and its
partners to the same extent that liability of officers and
directors of the Company is limited under the Charter.
The Company and the Operating Partnership have entered
into indemnification agreements with each of the Company's
officers and directors. The indemnification agreements
require, among other things, that the Company and the
Operating Partnership indemnify the Company's officers and
directors to the fullest extent permitted by law, and advance
to the officers and directors all related reasonable expenses,
subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company and the
Operating Partnership must also indemnify and advance all
expenses incurred by officers and directors seeking to enforce
their rights under the indemnification agreements, and cover
officers and directors under the Company's directors' and
officers' liability insurance. Although this form of
indemnification agreement offers substantially the same scope
of coverage afforded by provisions in the Charter and the
Bylaws of the Company and the Partnership Agreement of the
Operating Partnership, it provides greater assurance to
directors and officers that indemnification will be available,
because, as a contract, it cannot be modified unilaterally in
the future by the Board of Directors, by the stockholders or
by the partners of the Operating Partnership to eliminate the
rights it provides.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities
Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus
any facts or events arising after the effective
date of the Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change
to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new regis-
tration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant
to the provisions described in Item 6 above, or otherwise,
the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Santa Monica,
State of California, on 12/11/97, 1997.
By: /s/ Arthur M. Coppola
Arthur M. Coppola
Its: President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below
constitutes and appoints Arthur M. Coppola, Thomas E. O'Hern
and Richard A. Bayer, and each of them, his true and lawful
attorney-in-fact and agent, with full powers of substitution
and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed below
by the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
/s/ Mace Siegel Chairman of 12/10/97
Mace Siegel the Board
of Directors
/s/ Dana K. Anderson Vice Chairman 12/10/97
Dana K. Anderson of the Board of
Directors and Chief
Operating Officer
/s/ Arthur M. Coppola Director, 12/11/97
Arthur M. Coppola President and
Chief Executive
Officer (Principal
Executive Officer)
/s/ Edward C. Coppola Director, 12/10/97
Edward C. Coppola Executive Vice
President and Director
of Acquisitions
/s/ James S. Cownie Director* 12/10/97
James S. Cownie
/s/ Theodore S. Hochstim Director 12/10/97
Theodore S. Hochstim
/s/ Fred S. Hubbell Director 12/10/97
Fred S. Hubbell
Director ________________
Stanley A. Moore
/s/ William P. Sexton Director* 12/10/97
Dr. William P. Sexton
/s/ Thomas E. O'Hern Senior Vice 12/11/97
Thomas E. O'Hern President, Chief
Financial Officer,
and Treasurer
(Principal Financial
Officer and Principal
Accounting Officer)
________________
*Member of Compensation Committee
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
Exhibit
Sequentially
Number Description Numbered Page
4.1 The Macerich Company Deferred
Compensation Plan for Senior Executives.
4.2 The Macerich Company Deferred
Compensation Plan for Senior Executives
Initial Election Agreement.
4.3 The Macerich Company Deferred
Compensation Plan for Senior Executives
Annual Election Agreement (included
in Exhibit 4.2).
5. Opinion of Ballard Spahr Andrews &
Ingersoll (opinion re legality).
23.1 Consent of Coopers & Lybrand LLP (Consent
of Independent Accountants).
23.2 Consent of Ballard Spahr Andrews &
Ingersoll (included in Exhibit 5).
24. Power of Attorney (included in this
Registration Statement under
"Signatures").
</TABLE>
<PAGE>
THE MACERICH COMPANY
DEFERRED COMPENSATION PLAN FOR SENIOR EXECUTIVES
(As Amended and Restated as of January 1, 1997)
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
TITLE AND DEFINITIONS
1.1 - Title . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 - Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
PARTICIPATION
2.1 - Participation . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
DEFERRAL ELECTIONS
3.1 - Elections to Defer Compensation . . . . . . . . . . 8
3.2 - Investment Elections. . . . . . . . . . . . . . . . 10
ARTICLE IV
PARTICIPANT ACCOUNTS
4.1 - Deferral Account. . . . . . . . . . . . . . . . . . 13
4.2 - Company Matching Account. . . . . . . . . . . . . . 14
4.3 - Distribution Subaccounts. . . . . . . . . . . . . . 15
ARTICLE V
VESTING
5.1 - Deferral Account. . . . . . . . . . . . . . . . . . 17
5.2 - Company Matching Account. . . . . . . . . . . . . . 17
ARTICLE VI
DISTRIBUTIONS
6.1 - Time and Form of Distribution . . . . . . . . . . . 18
6.2 - Small Benefits. . . . . . . . . . . . . . . . . . . 20
6.3 - Change in Election of Time and Form of Election . . 20
ARTICLE VII
ADJUSTMENT OF PAYMENTS
7.1 - Hardship Distribution . . . . . . . . . . . . . . . 21
7.2 - Acceleration or Deferral of Benefit . . . . . . . . 22
ARTICLE VIII
ADMINISTRATION
8.1 - Members . . . . . . . . . . . . . . . . . . . . . . 23
8.2 - Committee Action. . . . . . . . . . . . . . . . . . 23
8.3 - Powers and Duties of the Committee. . . . . . . . . 24
8.4 - Construction and Interpretation . . . . . . . . . . 25
8.5 - Information . . . . . . . . . . . . . . . . . . . . 26
8.6 - Compensation, Expenses and Indemnity. . . . . . . . 26
8.7 - Quarterly Statements. . . . . . . . . . . . . . . . 27
ARTICLE IX
MISCELLANEOUS
9.1 - Unsecured General Creditor. . . . . . . . . . . . . 28
9.2 - Restriction Against Assignment. . . . . . . . . . . 28
9.3 - Withholding . . . . . . . . . . . . . . . . . . . . 29
9.4 - Amendment, Modification, Suspension or Termina-
tion . . . . . . . . . . . . . . . . . . . . . . . . 30
9.5 - Governing Law . . . . . . . . . . . . . . . . . . . 30
9.6 - Receipt or Release. . . . . . . . . . . . . . . . . 30
9.7 - Payments on Behalf of Persons under Incapacity. . . 31
9.8 - Headings, etc. Not Part of Agreement. . . . . . . . 31
9.9 - Limitation on Participants' Rights. . . . . . . . . 31
ARTICLE X
CLAIMS PROCEDURE
10.1 - Claims Procedure . . . . . . . . . . . . . . . . . 32
<PAGE>
THE MACERICH COMPANY
DEFERRED COMPENSATION PLAN FOR SENIOR EXECUTIVES
(As Amended and Restated Effective as of January 1, 1997)
THE MACERICH COMPANY
DEFERRED COMPENSATION PLAN FOR SENIOR EXECUTIVES
(As Amended and Restated Effective as of January 1, 1997)
This deferred compensation plan (the "Plan") was
originally adopted effective April 1, 1994, by THE MACERICH
COMPANY (the "Company") to provide supplemental retirement
income benefits through deferrals of salary and bonuses. The
Plan is hereby amended and restated in its entirety as set
forth herein, effective as of January 1, 1997.
ARTICLE I
TITLE AND DEFINITIONS
1.1 - Title.
This Plan shall be known as The Macerich Company
Deferred Compensation Plan for Senior Executives.
1.2 - Definitions.
Whenever the following words and phrases are used in
this Plan, with the first letter capitalized, they shall have
the meanings specified below.
"Account" or "Accounts" shall mean a Participant's
Deferral Account and/or Company Matching Account.
"Beneficiary" means the person or persons, including
a trustee, personal representative or other fiduciary, last
designated in writing by a Participant in accordance with
procedures established by the Committee to receive the
benefits specified hereunder in the event of the Participant's
death. If there is no valid Beneficiary designation in
effect, or if there is no surviving designated Beneficiary,
then the Participant's surviving spouse shall be the Benefi-
ciary. If there is no surviving spouse to receive any
benefits payable in accordance with the preceding sentence,
the duly appointed and currently acting personal representa-
tive of the Participant's estate (which shall include either
the Participant's probate estate or living trust) shall be the
Beneficiary. In any case where there is no such personal
representative of the Participant's estate duly appointed and
acting in that capacity within 90 days after the Participant's
death (or such extended period as the Committee determines is
reasonably necessary to allow such personal representative to
be appointed, but not to exceed 180 days after the Partici-
pant's death), then Beneficiary shall mean the person or
persons who can verify by affidavit or court order to the
satisfaction of the Committee that they are legally entitled
to receive the benefits specified hereunder. In the event any
amount is payable under the Plan to a minor, payment shall not
be made to the minor, but instead be paid (a) to that person's
living parent(s) to act as custodian, (b) if that person's
parents are then divorced, and one parent is the sole custo-
dial parent, to such custodial parent, or (c) if no parent of
that person is then living, to a custodian selected by the
Committee to hold the funds for the minor under the Uniform
Transfers or Gifts to Minors Act in effect in the jurisdiction
in which the minor resides. If no parent is living and the
Committee decides not to select another custodian to hold the
funds for the minor, then payment shall be made to the duly
appointed and currently acting guardian of the estate for the
minor or, if no guardian of the estate for the minor is duly
appointed and currently acting within 60 days after the date
the amount becomes payable, payment shall be deposited with
the court having jurisdiction over the estate of the minor.
"Board of Directors" or "Board" shall mean the Board
of Directors of The Macerich Company.
"Bonus" shall mean any incentive compensation
payable to a Participant in addition to the Participant's
Salary prior to any deferrals under this Plan or any salary
reduction contributions to a plan described in Section 401(k)
of the Code or Section 125 of the Code.
"Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Committee" shall mean the Committee appointed
pursuant to Section 8.1 of this Plan.
"Company" shall mean The Macerich Company, its
subsidiaries and successors and, where the context warrants,
The Macerich Partnership, L.P., Macerich Property Management
Company and Macerich Management Company.
"Company Matching Account" shall mean the bookkeep-
ing account maintained by the Committee for each Participant
that is credited with an amount equal to (1) the Company
Matching Amount, and (2) earnings or losses thereon pursuant
to Section 4.2.
"Company Matching Amount" shall mean an amount equal
to a percentage, determined by the Company in its sole
discretion, of the amount of Compensation deferred under the
Plan for the Plan Year. Notwithstanding the foregoing, for
the Plan Year beginning January 1, 1997, the Company Matching
Amount shall be 25% of the amount of Compensation deferred
under the Plan for the 1997 Plan Year up to a maximum of 5% of
all of the Participant's Compensation for such Plan Year.
"Compensation" shall mean the Salary and Bonus that
the Participant is entitled to for services rendered to the
Company.
"Deferral Account" shall mean the bookkeeping
account maintained by the Committee for each Participant that
is credited with amounts equal to (1) the portion of the
Participant's Salary that he or she elects to defer, (2) the
portion of the Participant's Bonus that he or she elects to
defer, and (3) earnings or losses thereon pursuant to Section
4.1.
"Distribution Subaccounts" shall mean the sub-
accounts of a Participant's Deferral Account and Company
Matching Account relating to Plan Years beginning before
January 1, 1997 established to separately account for deferred
Compensation and Company Matching Accounts (and earnings or
losses thereon) which were subject to different distribution
elections. Effective January 1, 1997, Distribution Subaccoun-
ts shall cease to exist, and the amounts formerly allocated
thereto shall be reallocated and distributed as set forth in
Section 4.3.
"Earnings Rate" shall mean, for each Fund, an amount
equal to the net rate of gain or loss on the assets of such
Fund during a calendar month.
"Effective Date" of this Restatement shall mean
January 1, 1997.
"Eligible Employee" for any Plan Year shall mean
each key executive of the Company designated by the Committee
whose annualized Salary as of September 1 of the previous Plan
Year (or, for employees first hired by the Company after
September 1 but prior to December 31 of the previous Plan
Year, annualized Salary as of the date of hire) is equal to or
greater than $80,000.
"Fund" or "Funds" shall mean one or more of the
investment funds designated in Section 3.2(a).
"Participant" shall mean any Eligible Employee who
elects to defer compensation in accordance with Section 3.1.
"Payment Eligibility Date" shall mean the first day
of the month following the day on which a Participant termi-
nates employment or dies.
"Plan" shall mean The Macerich Company Deferred
Compensation Plan for Senior Executives set forth herein, now
in effect, or as amended from time to time.
"Plan Year" shall mean the 12 consecutive month
period beginning on January 1 each year; provided, however,
that the first Plan Year was a short Plan Year beginning on
April 1, 1994, and ending on December 31, 1994.
"Salary" shall mean the Participant's base pay prior
to any deferrals under this Plan or any salary reduction
contributions to a plan described in Section 401(k) of the
Code or Section 125 of the Code.
<PAGE>
ARTICLE II
PARTICIPATION
2.1 - Participation.
Participation in the Plan is voluntary. Each
Eligible Employee who was a Participant in the Plan immediate-
ly before the Effective Date shall continue as a Participant.
Any other Eligible Employee shall become a Participant in the
Plan by electing to defer Compensation in accordance with
Section 3.1.
<PAGE>
ARTICLE III
DEFERRAL ELECTIONS
3.1 - Elections to Defer Compensation.
(a) Elections to Defer. Each Eligible Employee may
elect to defer Compensation for any Plan Year by filing with
the Committee an election that conforms to the requirements of
this Section 3.1, on a form provided by the Committee, no
later than the December 15 immediately preceding such Plan
Year (or such later date that the Committee determines, but in
no event later than December 31). The Committee shall notify
each Eligible Employee of his or her eligibility to partici-
pate in the Plan at least 10 days prior to the time he or she
must file an election for participation. Each participation
election shall signify the portion of the Eligible Employee's
Salary and/or Bonus that he or she elects to defer.
(b) Amount of Deferrals. The amount of Compensa-
tion which an Eligible Employee may elect to defer is as
follows:
(1) Any percentage of Salary up to 50%, which
shall be deferred ratably over the Plan Year;
and/or
(2) Any percentage of Bonus, if any, up to 100%
minus the maximum amount of the Bonus which
the Eligible Employee could have deferred
under any qualified cash or deferred arrange-
ments as described in Section 401(k) of the
Code (a "401(k) Plan") without violating
Section 402(g) of the Code or the maximum
elective contributions permitted under the
terms of the 401(k) Plan.
(c) Effect of Election. An election to defer
Salary for a Plan Year shall apply to all Salary earned during
each pay period beginning in such Plan Year, and an election
to defer Bonuses for a Plan Year shall apply to any Bonus paid
during such Plan Year. Notwithstanding the foregoing, an
Eligible Employee whose initial employment with the Company
commences during a Plan Year may elect to participate in the
Plan during such Plan Year by filing such written application
with the Committee no later than the 30th day following his or
her employment commencement date. Such election shall be
effective with respect to Salary and/or Bonus, as the case may
be, earned after the filing of such election.
(d) Irrevocability. Any election filed pursuant to
this Section 3.1 shall be irrevocable for the Plan Year to
which such election applies.
3.2 - Investment Elections.
(a) At the time of making the first deferral
election described in Section 3.1 which will be effective on
or after January 1, 1997, the Participant shall designate, on
a form provided by the Committee, the Fund or Funds in which
the Participant's deferrals under such election (and any
subsequent deferral elections) and corresponding Company
Matching Amounts will be deemed to be invested for purposes of
determining the amount of earnings or losses to be credited to
the Participant's Accounts. As of January 1, 1997, the Funds
shall be the following:
1. Northwestern Mutual Life Guaranteed Interest
Fund
2. Northwestern Mutual Life Money Market
Portfolio
3. Northwestern Mutual Life Select Bond Portfolio
4. Northwestern Mutual Life High Yield Bond
Portfolio
5. Northwestern Mutual Life Balanced Portfolio
6. Northwestern Mutual Life Index 500 Stock
Portfolio
7. Northwestern Mutual Life Growth & Income Stock
Portfolio
8. Northwestern Mutual Life Growth Stock
Portfolio
9. Northwestern Mutual Life International Equity
Portfolio
10. Northwestern Mutual Life Aggressive Growth
Stock Portfolio
(b) Each Participant who has a balance credited to
his or her Deferral Account or Company Matching Account on
December 31, 1996 may file a written election with the
Committee no later than December 15, 1996 (or such later date
that the Committee determines, but in no event later than
December 31, 1996), specifying the Fund or Funds described in
subsection (a) above that such balances will be deemed to be
invested in as of January 1, 1997 for purposes of determining
the amount of earnings or losses to be credited to the
Accounts after such date. Any amounts in a Participant's
Deferral Account or Company Matching Account on December 31,
1996 with respect to which the Participant does not file an
election at the time specified in the immediately preceding
sentence shall be deemed to be invested in the Northwestern
Mutual Life Money Market Portfolio (the "Money Market Portfo-
lio") unless and until a different election is made pursuant
to Section 3.2(c).
(c) In making the designation pursuant to this
Section 3.2, the Participant must specify, in whole numbers,
the percentage of his or her Deferral Account and Company
Matching Account which shall be deemed to be invested in one
or more of the Funds. A Participant may not choose more than
five of the Funds. Effective as of the end of any calendar
month, a Participant may change the designation made under
this Section 3.2 by filing an election, on a form provided by
the Committee, by the 25th day of such month. If a Partici-
pant fails to elect a Fund under this Section 3.2, he or she
shall be deemed to have elected the Money Market Portfolio.
(d) The Earnings Rate of each Fund shall be used to
determine the amount of earnings or losses to be credited to
the Participant's Accounts under Article IV. The Company
reserves the right to increase or decrease the number of the
Funds listed in Section 3.2(a), as well as the right to
designate other investment funds as the Funds (instead of
those currently listed in Section 3.2(a)) for purposes of this
Plan.
(e) Notwithstanding the Participant's ability to
designate the Funds in which his or her Accounts shall be
deemed to be invested, the Company shall have no obligation to
invest any funds in accordance with any Participant's elec-
tion. A Participant's Accounts shall merely be bookkeeping
entries on the Company's books, and no Participant shall
obtain any interest in any Funds.
<PAGE>
ARTICLE IV
PARTICIPANT ACCOUNTS
4.1 - Deferral Account.
The Committee shall establish and maintain a
Deferral Account for each Participant under the Plan. Each
Participant's Deferral Account shall be divided into separate
subaccounts ("investment fund subaccounts"), each of which
corresponds to an investment fund elected by the Participant
pursuant to Section 3.2. A Participant's Deferral Account
shall be credited as follows:
(a) As of the last date of each month, the Commit-
tee shall credit the investment fund subaccounts of the
Participant's Deferral Account with an amount equal to
Salary deferred by the Participant during each pay period
ending in that month in accordance with the Participant's
election under Section 3.2(a); that is, the portion of
the Participant's deferred Salary that the Participant
has elected to be deemed to be invested in a certain Fund
shall be credited to the investment fund subaccount
corresponding to that Fund;
(b) As of the last day of the month in which the
Bonus or partial Bonus would have been paid, the Commit-
tee shall credit the investment fund subaccounts of the
Participant's Deferral Account with an amount equal to
the portion of the Bonus deferred by the Participant's
election under Section 3.2(a); that is, the portion of
the Participant's deferred Bonus that the Participant has
elected to be deemed to be invested in a particular Fund
shall be credited to the investment fund subaccount
corresponding to that Fund; and
(c) As of the last day of each month, each invest-
ment fund subaccount of a Participant's Deferral Account
shall be credited with earnings or losses in an amount
equal to that determined by multiplying the balance of
such investment fund subaccount as of the last day of the
preceding month by the Earnings Rate for the correspond-
ing Fund.
4.2 - Company Matching Account.
The Committee shall establish and maintain a
separate Company Matching Account for each Participant under
the Plan. Each Participant's Company Matching Account shall
be divided into separate investment fund subaccounts corre-
sponding to the investment funds elected by the Participant
pursuant to Section 3.2. A Participant's Company Matching
Account shall be credited as follows:
(a) As of the last day of each Plan Year or at more
frequent intervals as determined by the Committee, the
Company shall credit the investment fund subaccounts of
the Participant's Company Matching Account with an amount
equal to the Company Matching Amount, if any, applicable
to that Participant; that is, the portion of the Company
Matching Amount, if any, which the Participant elected to
be deemed to be invested in a certain Fund shall be
credited to the corresponding investment fund subaccount;
and
(b) As of the last day of each month, each invest-
ment fund subaccount of a Participant's Company Matching
Amount shall be credited with earnings or losses in an
amount equal to that determined by multiplying the
balance of such investment fund subaccount as of the last
day of the preceding month by the Earnings Rate for the
corresponding Fund selected by the Company pursuant to
Section 3.2(d).
4.3 - Distribution Subaccounts.
Prior to January 1, 1997, each Participant's
Deferral Account and each Participant's Company Matching
Account was divided into Distribution Subaccounts as necessary
to account for the amounts payable under different distribu-
tion options elected by a Participant with respect to compen-
sation deferred for Plan Years beginning before January 1,
1997. Effective January 1, 1997, such Distribution Sub-
accounts shall cease to exist, and the amounts credited to
such Distribution Subaccounts shall be allocated to the
investment subaccounts of each Participant in accordance with
each Participant's investment elections under Section 3.2(b)
or 3.2(c). Notwithstanding any distribution options elected
by a Participant with respect to such Distribution Subaccount-
s, distribution of the amounts so reallocated shall be made in
accordance with the provisions of Article VI as in effect on
or after January 1, 1997.
<PAGE>
ARTICLE V
VESTING
5.1 - Deferral Account.
A Participant's Deferral Account shall at all times
be 100% vested.
5.2 - Company Matching Account.
A Participant's Company Matching Account shall at
all times be 100% vested.
<PAGE>
ARTICLE VI
DISTRIBUTIONS
6.1 - Time and Form of Distribution.
(a) The amount credited to a Participant's Deferral
Account and the amount credited to his or her Company Matching
Account shall be paid to the Participant (or, in the case of
his or her death, Beneficiary) in the form of a cash lump sum
payment on his or her Payment Eligibility Date. Notwithstand-
ing the foregoing, a Participant may elect one of the follow-
ing optional forms of distribution, which election shall not
be effective until one year after such election is filed in
writing with the Committee:
(1) A cash lump sum payable on a specified date
either before or after the Participant's Payment Eligi-
bility Date;
(2) A cash lump sum payable on the later of some
specified date or the Participant's Payment Eligibility
Date;
(3) A specified number of substantially equal
monthly installments (not to exceed 180) commencing on
the later of a specified date or the
Participant's Payment Eligibility Date;
(4) A specified number of payments on specified
dates, not to exceed ten payments, each payment consti-
tuting a specified percentage of the total amount cred-
ited to a Participant's Deferral Account and Company
Matching Account as of the date of each such payment; or
(5) Any other method selected by the Participant
which is approved by the Committee in its sole and
absolute discretion.
(b) The Participant's Accounts shall continue to be
credited monthly with earnings or losses pursuant to Article
IV of the Plan until all amounts credited to his or her
Accounts under the Plan have been distributed.
(c) For all purposes under this Plan, a Participant
shall not be considered terminated from employment if the
Participant remains employed by The Macerich Company, any of
its subsidiaries, The Macerich Partnership, L.P., Macerich
Property Management Company or Macerich Management Company.
(d) In the event of the death of a Participant, the
benefits described in this Section 6.1 shall be paid to the
Participant's Beneficiary in accordance with the Participant's
election hereunder.
6.2 - Small Benefits.
Notwithstanding anything herein contained to the
contrary, if the amount distributable in a form other than a
cash lump sum to a Participant (or to the Beneficiary of a
Participant as a result of the Participant's death) is less
than $10,000, such amount shall be paid in the form of a cash
lump sum to the Participant (or Beneficiary).
6.3 - Change in Election of Time and Form of Election.
A Participant may change his or her distribution
election under Section 6.1 by filing a new election with the
Committee; provided, however, that no such election shall be
effective until one year after such election is filed in
writing with the Committee.
<PAGE>
ARTICLE VII
ADJUSTMENT OF PAYMENTS
7.1 - Hardship Distribution.
(a) Upon written request of a Participant, the
Committee may, in its sole discretion, make a lump sum payment
to a Participant and/or accelerate the payment of installment
payments due to the Participant in order to meet a severe
financial hardship to the Participant resulting from (1) a
sudden and unexpected illness or accident of the Participant
or a dependent of the Participant, (2) loss of the Participan-
t's property due to casualty, or (3) other similar extraordi-
nary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. However, no
payment shall be made under this Section 7.1 to the extent
that a hardship is or may be relieved (1) through reimburse-
ment or compensation by insurance or otherwise, (2) by
liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe
financial hardship, or (3) by cessation of deferrals under the
Plan effective for the next Plan Year. The amount of any
hardship lump sum payment and/or accelerated amount under this
Section 7.1 shall not exceed the lesser of (1) the amount
required to meet the immediate financial need created by such
hardship or (2) the entire amounts credited to the Participan-
t's Accounts. The amount of any such payments shall be
deducted from the amount credited to the Participant's
Accounts, pro rata from among each of the investment subaccou-
nts of the Participant's Deferral Account and Company Matching
Account. The remaining amounts credited to a Participant's
Accounts shall be distributed in accordance with the Parti-
cipant's distribution election.
7.2 - Acceleration or Deferral of Benefit.
Upon the petition of any Participant or Beneficiary,
the Committee may, in its sole discretion, accelerate or defer
the payment of any benefit payable to such Participant or
Beneficiary, the amount of any such acceleration or deferred
benefit to be subject to such actuarial adjustment as the
Committee may determine in its sole discretion.
<PAGE>
ARTICLE VIII
ADMINISTRATION
8.1 - Members.
A Committee shall be appointed by, and serve at the
pleasure of, the Board of Directors. The number of members
comprising the Committee shall be determined by the Board,
which may from time to time vary the number of members. A
member of the Committee may resign by delivering a written
notice of resignation to the Board. The Board may remove any
member by delivering a certified copy of its resolution of
removal to such member. Vacancies in the membership of the
Committee shall be filled promptly by the Board.
8.2 - Committee Action.
The Plan shall be administered by the Committee.
The Committee shall act at meetings by affirmative vote of a
majority of the members of the Committee. Any action permit-
ted to be taken at a meeting may be taken without a meeting
if, prior to such action, a written consent to the action is
signed by all members of the Committee and such written
consent is filed with the minutes of the proceedings of the
Committee. A member of the Committee shall not vote or act
upon any matter which relates solely to himself or herself as
a Participant. The Chairman or any other member or members of
the Committee designated by the Chairman may execute any
certificate or other written direction on behalf of the
Committee.
8.3 - Powers and Duties of the Committee.
(a) The Committee, on behalf of the Participants
and their Beneficiaries, shall enforce the Plan in accordance
with its terms, shall be charged with the general administra-
tion of the Plan, and shall have all powers necessary to
accomplish its purposes, including, but not by way of limita-
tion, the following:
(1) To determine all questions relating to the
eligibility of employees to participate;
(2) To construe and interpret the terms and
provisions of this Plan;
(3) To compute the Earnings Rate for each
calendar month in accordance with the terms of the Plan;
(4) To compute and certify to the amount and
kind of benefits payable to Participants and their
Beneficiaries;
(5) To maintain all records that may be
necessary for the administration of the Plan;
(6) To provide for the disclosure of all
information and the filing or provision of all reports
and statements to Participants, Beneficiaries or govern-
mental agencies as shall be required by law;
(7) To make and publish such rules for the
regulation of the Plan and procedures for the administra-
tion of the Plan as are not inconsistent with the terms
hereof; and
(8) To appoint a plan administrator or any
other agent, and to delegate to them such powers and
duties in connection with the administration of the Plan
as the Committee may from time to time prescribe.
8.4 - Construction and Interpretation.
The Committee shall have full discretion to construe
and interpret the terms and provisions of this Plan, which
interpretation or construction shall be final and binding on
all parties, including but not limited to the Company and any
Participant or Beneficiary. The Committee shall administer
such terms and provisions in a uniform and nondiscriminatory
manner and in full accordance with any and all laws applicable
to the Plan.
8.5 - Information.
To enable the Committee to perform its functions,
the Company shall supply full and timely information to the
Committee on all matters relating to the Compensation of all
Participants, their death or other cause of termination, and
such other pertinent facts as the Committee may require.
8.6 - Compensation, Expenses and Indemnity.
(a) The members of the Committee shall serve
without compensation for their services hereunder.
(b) The Committee is authorized at the expense of
the Company to employ such legal counsel as it may deem
advisable to assist in the performance of its duties hereun-
der. Expenses and fees in connection with the administration
of the Plan shall be paid by the Company.
(c) To the extent permitted by applicable state
law, the Company shall indemnify and save harmless the
Committee and each member thereof, the Board of Directors and
any delegate of the Committee who is an employee of the
Company against any and all expenses, liabilities and claims,
including legal fees to defend against such liabilities and
claims arising out of their discharge in good faith of
responsibilities under or incident to the Plan, other than
expenses and liabilities arising out of willful misconduct.
This indemnity shall not preclude such further indemnities as
may be available under insurance purchased by the Company or
provided by the Company under any bylaw, agreement or other-
wise, as such indemnities are permitted under state law.
8.7 - Quarterly Statements.
Under procedures established by the Committee, a
Participant shall receive a statement with respect to such
Participant's Accounts as soon as practicable following the
end of each calendar quarter ending on March 31, June 30,
September 30 or December 31.
<PAGE>
ARTICLE IX
MISCELLANEOUS
9.1 - Unsecured General Creditor.
Participants and their Beneficiaries, heirs,
successors, and assigns shall have no legal or equitable
rights, claims, or interest in any specific property or assets
of the Company. No assets of the Company shall be held under
any trust, or held in any way as collateral security for the
fulfilling of the obligations of the Company under this Plan.
Any and all of the Company's assets shall be, and remain, the
general, unpledged, unrestricted assets of the Company. The
Company's obligation under the Plan shall be merely that of an
unfunded and unsecured promise of the Company to pay money in
the future, and the rights of the Participants and Beneficia-
ries shall be no greater than those of unsecured general
creditors.
9.2 - Restriction Against Assignment.
The Company shall pay all amounts payable hereunder
only to the person or persons designated by the Plan and not
to any other person or corporation. No part of a Partici-
pant's Accounts shall be liable for the debts, contracts, or
engagements of any Participant, his or her Beneficiary, or
successors in interest, nor shall a Participant's Accounts be
subject to execution by levy, attachment, or garnishment or by
any other legal or equitable proceeding, nor shall any such
person have any right to alienate, anticipate, commute,
pledge, encumber, or assign any benefits or payments hereunder
in any manner whatsoever. If any Participant, Beneficiary or
successor in interest is adjudicated bankrupt or purports to
anticipate, alienate, sell, transfer, assign, pledge, encumber
or charge any distribution or payment from the Plan, volun-
tarily or involuntarily, the Committee, in its discretion, may
cancel such distribution or payment (or any part thereof) to
or for the benefit of such Participant, Beneficiary or
successor in interest in such manner as the Committee shall
direct.
9.3 - Withholding.
(a) There shall be deducted from each payment made
under the Plan all taxes which are required to be withheld by
the Company in respect to such payment. The Company shall
have the right to reduce any payment by the amount of cash
sufficient to provide the amount of said taxes.
(b) In the event that a Participant defers compen-
sation in excess of the amount required to be withheld for
federal, state or local tax purposes, the Company shall have
the right to reduce any other payments to the Participant by
the amount sufficient to provide the amount of said taxes.
9.4 - Amendment, Modification, Suspension or Termination.
The Company may amend, modify, suspend or terminate
the Plan in whole or in part, except that no amendment,
modification, suspension or termination shall reduce any
amounts allocated previously to a Participant's Accounts. In
the event that this Plan is terminated, the amounts credited
to a Participant's Deferral Account and Company Matching
Account shall be distributed to the Participant or, in the
event of his or her death, to his or her Beneficiary in a lump
sum within thirty (30) days following the date of termination.
The Company reserves the right to change the Funds as de-
scribed in Section 3.2(d).
9.5 - Governing Law.
To the extent not governed by federal law, this Plan
shall be construed, governed and administered in accordance
with the laws of the State of California.
9.6 - Receipt or Release.
Any payment to a Participant or the Participant's
Beneficiary in accordance with the provisions of the Plan
shall, to the extent thereof, be in full satisfaction of all
claims against the Committee and the Company. The Committee
may require such Participant or Beneficiary, as a condition
precedent to such payment, to execute a receipt and release to
such effect.
9.7 - Payments on Behalf of Persons under Incapacity.
In the event that any amount becomes payable under
the Plan to a person who, in the sole judgment of the Commit-
tee, is considered by reason of physical or mental condition
to be unable to give a valid receipt therefor, the Committee
may direct that such payment be made to any person found by
the Committee, in its sole judgment, to have assumed the care
of such person. Any payment made pursuant to such determina-
tion shall constitute a full release and discharge of the
Committee and the Company.
9.8 - Headings, etc. Not Part of Agreement.
Headings and subheadings in this Plan are inserted
for convenience of reference only and are not to be considered
in the construction of the provisions hereof.
9.9 - Limitation on Participants' Rights.
Participation in this Plan shall not give any
Eligible Employee the right to be retained in the Company's
employ or any right or interest in the Plan other than as
herein provided. The Company reserves the right to dismiss
any Eligible Employee without any liability for any claim
against the Company, except to the extent provided herein.
<PAGE>
ARTICLE X
CLAIMS PROCEDURE
10.1 - Claims Procedure.
(a) Claim. A person who believes that he or she is
being denied a benefit to which he or she is entitled under
this Plan (hereinafter referred to as "Claimant") may file a
written request for such benefit with the Committee, setting
forth his or her claim. The request must be addressed to the
Committee at the Company's then principal place of business.
(b) Claim Decision. Upon receipt of a claim, the
Committee shall advise the Claimant that a reply will be
forthcoming within ninety (90) days and shall, in fact,
deliver such reply within such period. The Committee may,
however, extend the reply period for an additional ninety (90)
days for special circumstances. If the claim is denied in
whole or in part, the Committee shall inform the Claimant in
writing, using language calculated to be understood by the
Claimant, setting forth: (i) the specified reason or reasons
for such denial, (ii) the specific reference to pertinent
provisions of this Plan on which such denial is based, (iii)
a description of any additional material or information
necessary for the Claimant to perfect his or her claim and an
explanation why such material or such information is neces-
sary, (iv) appropriate information as to the steps to be taken
if the Claimant wishes to submit the claim for review, and (v)
the time limits for requesting a review under subsection (c)
below.
(c) Request for Review. Within sixty (60) days after
the receipt by the Claimant of the written opinion described
above, the Claimant may request in writing that the Committee
review its determination. Such request must be addressed to
the Committee at the Company's then principal place of
business. The Claimant or his or her duly authorized repre-
sentative may, but need not, review the pertinent documents
and submit issues and comments in writing for consideration by
the Committee. If the Claimant does not request a review
within such sixty (60) day period, he or she shall be barred
and estopped from challenging the Company's determination.
(d) Review of Decision. Within sixty (60) days after
the Committee's receipt of a request for review, after
considering all materials presented by the Claimant, the
Committee will inform the Claimant in writing, in a manner
calculated to be understood by the Claimant, of its decision
setting forth the specific reasons for the decision and
containing specific references to the pertinent provisions of
this Plan on which the decision is based. If special circum-
stances require that the sixty (60) day time period be
extended, the Committee will so notify the Claimant and will
render the decision as soon as possible, but no later than one
hundred twenty (120) days after receipt of the request for
review.
IN WITNESS WHEREOF, the Company has caused this
document to be executed by its duly authorized officers on
this 11th day of December, 1997.
THE MACERICH COMPANY
By /s/ Richard A. Bayer
___________________________
By /s/ Thomas E. O'Hern
__________________________
<PAGE>
THE MACERICH COMPANY
DEFERRED COMPENSATION PLAN
1998 COMPENSATION DEFERRAL, INVESTMENT AND
DISTRIBUTION ELECTION
INSTRUCTIONS/PURPOSE: This form is for Eligible Employees of
Macerich Company and its subsidiaries and successors (the
"Company") to enroll in The Macerich Company Deferred
Compensation Plan (the "Plan") for calendar year 1998,
and/or to make or change their investment elections for existing
account balances and future deferrals. To make deferral
elections, complete Parts A and B. To make investment
elections, complete Parts A and C. To make distribution elections,
complete Parts A and D. Employees should designate their
beneficiary(ies) on a separate Beneficiary Designation Form.
A. EMPLOYEE INFORMATION
___________________________ _____-_____-_____
Name Social Security Number
B. DEFERRAL ELECTIONS
1. Election to Defer Salary
I elect to defer ___% (any percentage up to 50%) of my
annual salary earned during the 1998 calendar year, commencing
with the first pay period beginning in 1998 and ending with the
last pay period beginning in 1998. I understand that I may not
revoke this election for the 1998 Plan Year and that, in order
to defer any salary for the 1999 Plan Year (beginning on January 1,
1999), I must submit a separate election form on or before
December 24, 1998.
2. Election to Defer Bonus
I elect to defer __% (any percentage up to 50%) of my
bonus (if any) paid during the 1998 Plan Year (reduced by the
amount I could have deferred under any Macerich 401(k) plan).
I understand that I may not revoke this election for the 1998
Plan Year and that, in order to defer any of my bonus for the
1999 Plan Year (beginning on January 1, 1999), I must submit a
separate election form on or before December 24, 1998.
C. INVESTMENT ELECTION (existing account balances and future
deferrals)
I hereby elect to have my existing account balances
and future deferrals deemed to be invested in the following
Northwestern Mutual Life funds or portfolios, according to
the percentages listed below, for purposes of determining the
amount of earnings and losses to be credited to my account.
Any deferrals for which no fund or portfolio is elected will
be deemed to be invested in the Money Market Portfolio. This
investment election must be submitted to the Committee by the
25th of a calendar month to be effective at the end of that month.
Elections submitted after the 25th will be effective at the end
of the following month. Investment elections must total 100%.
No more than five of the funds may be selected.
Type of Fund Percentage of Total Deferral
Guaranteed Interest Fund __________%
Money Market Portfolio __________%
Select Bond Portfolio __________%
High Yield Bond Portfolio __________%
Balanced Portfolio __________%
Index 500 Stock Portfolio __________%
Growth & Income Stock Portfolio __________%
Growth Stock Portfolio __________%
International Equity Portfolio __________%
Aggressive Growth Stock Portfolio __________%
Total 100 %
D. TIMING AND FORM OF PAYMENT
I hereby specify that payment of my deferred
compensation under this election be made or begin as indicated
below.
THIS SUPERSEDES ALL PRIOR ELECTIONS.
% of Total Payment Made or Payments Begin
% Payable promptly following my termination of
employment (for any reason including death,
retirement or voluntary resignation)
% A cash lump sum payable promptly upon the later
of my termination of employment for any
reason or ____________________ [fill in date]
% ________________ [any number up to 120] monthly
installments beginning on the first day of the
month following the later of my termination of
employment for any reason or _________________
[fill in date]
% On ______________________ date
(must not be any sooner than 1/1/99)
% On ______________________ date (must
not be any sooner than 1/1/99)
% On ______________________ date (must
not be any sooner than 1/1/99)
% On ______________________ date (must
not be any sooner than 1/1/99)
100% Total (must equal 100%)
ACKNOWLEDGMENT
I acknowledge that I have read and am familiar with
the terms of the Plan, and that I have elected to defer
Compensation subject to all conditions and restrictions set
forth in the Plan. I understand that (1) I may not withdraw
or take loans against any amounts I elect to defer (with the
exception of a hardship distribution permitted by the Committee);
(2) I may not retroactively change my decision to participate
in the Plan for calendar year 1998; (3) all amounts credited
to my accounts under the Plan will be paid to me (or my
beneficiary) following my termination of employment with the
Company, unless I file a timely Optional Distribution Election;
(4) I assume all risk, and the Company is not responsible, for
the investment performance of the Funds I have selected; (5)
my accounts shall merely be bookkeeping entries on the
Company's books, and I shall not obtain any interest in any
Funds selected by the Committee; and (6) my right to receive
benefits under the Plan is not secured in any way. Also,
I understand the investment elections made on this form will
remain in effect until I make a change.
____________________ __________________________
Date Participant's Signature
TO DEFER COMPENSATION FOR 1998, A PARTICIPANT MUST FILE
THIS FORM WITH THE PLAN'S ADMINISTRATIVE COMMITTEE BY
DECEMBER 31, 1997.
<PAGE>
FILE NUMBER
858110
December 12, 1997
The Macerich Company
233 Wilshire Boulevard, Suite 700
Santa Monica, California 90401
Re: The Macerich Company Deferred Compensation Plan
for Senior Executives (As Amended and
Restated Effective as of January 1, 1997)
Registration Statement on Form S-8
dated December 15, 1997
Ladies and Gentlemen:
We have served as Maryland counsel to The Macerich
Company, a Maryland corporation (the "Company"), in connection
with certain matters of Maryland law arising out of the
registration of $14,000,000 of Deferred Compensation Obligations
(the "Obligations") of the Company covered by the above-
referenced Registration Statement (the "Registration Statement"),
under the Securities Act of 1933, as amended (the "1933 Act").
The Obligations are to be issued by the Company pursuant to The
Macerich Company Deferred Compensation Plan for Senior Executives
(As Amended and Restated Effective as of January 1, 1997) (the
"Plan"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Registration Statement.
In connection with our representation of the Company,
and as a basis for the opinion hereinafter set forth, we have
examined originals, or copies certified or otherwise identified
to our satisfaction, of the following documents (hereinafter
collectively referred to as the "Documents"):
1. The Registration Statement, filed with the
Securities and Exchange Commission (the "Commission"), pursuant
to the 1933 Act, and the related form of prospectus in the form
in which it will be sent or given to employees of the Company in
accordance with Rule 428(b)(1) under the 1933 Act;
2. The charter of the Company (the "Charter"),
certified as of a recent date by the State Department of
Assessments and Taxation of Maryland (the "SDAT");
3. The Bylaws of the Company, certified as of a
recent date by its Secretary;
4. Resolutions adopted by the Board of Directors of
the Company relating to (i) the approval of the Plan and (ii) the
issuance and registration of the Obligations, certified as of a
recent date by the Secretary of the Company;
5. A certificate of the SDAT as to the good standing
of the Company, dated as of a recent date;
6. A certificate executed by Richard A. Bayer,
Secretary and General Counsel of the Company, dated December 11,
1997;
7. The Plan; and
8. Such other documents and matters as we have deemed
necessary or appropriate to express the opinion set forth in this
letter, subject to the assumptions, limitations and
qualifications stated herein.
In expressing the opinion set forth below, we have
assumed, and so far as is known to us there are no facts
inconsistent with, the following:
1. Each of the parties (other than the Company)
executing any of the Documents has duly and validly executed and
delivered each of the Documents to which such party is a
signatory, and such party's obligations set forth therein are
legal, valid and binding and are enforceable in accordance with
all stated terms.
2. Each individual executing any of the Documents on
behalf of a party (other than the Company) is duly authorized to
do so.
3. Each individual executing any of the Documents,
whether on behalf of such individual or another person, is
legally competent to do so.
4. All Documents submitted to us as originals are
authentic. All Documents submitted to us as certified or
photostatic copies conform to the original documents. All
signatures on all such Documents are genuine. All public records
reviewed or relied upon by us or on our behalf are true and
complete. All statements and information contained in the
Documents are true and complete. There are no oral or written
modifications or amendments to the Documents, or waiver of any of
the provisions of the Documents, by action or omission of the
parties or otherwise.
The phrase "known to us" is limited to the actual
knowledge, without independent inquiry, of the lawyers at our
firm who have performed legal services in connection with the
issuance of this opinion.
Based upon the foregoing, and subject to the
assumptions, limitations and qualifications stated herein, it is
our opinion that:
1. The Company is a corporation duly incorporated and
existing under and by virtue of the laws of the State of Maryland
and is in good standing with the SDAT.
2. The Company has duly authorized the execution,
delivery and performance of the Plan and, when the Committee has
authorized and determined the term of Obligations in accordance
with the Plan and the Resolutions, the Obligations will be
validly issued securities of the Company and constitute the
legally binding obligations of the Company.
The foregoing opinion is limited to the substantive
laws of the State of Maryland and we do not express any opinion
herein concerning any other law. We express no opinion as to
compliance with the securities (or "blue sky") laws or the real
estate syndication laws of the State of Maryland.
We assume no obligation to supplement this opinion if
any applicable law changes after the date hereof or if we become
aware of any fact that might change the opinion expressed herein
after the date hereof.
This opinion is being furnished to you solely for
submission to the Securities and Exchange Commission as an
exhibit to the Registration Statement and, accordingly, may not
be relied upon by, quoted in any manner to, or delivered to any
other person or entity.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of the name
of our firm therein. In giving this consent, we do not admit
that we are within the category of persons whose consent is
required by Section 7 of the 1933 Act.
Very truly yours,
/s/ BALLARD SPAHR ANDREWS & INGERSOLL
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of The Macerich Company on Form S-8 (and the related
prospectus), pertaining to The Macerich Company Deferred
Compensation Plan for Senior Executives (As Amended and Restated
Effective as of January 1, 1997), of our report dated March 14,
1997, on our audits of the consolidated financial statements and
financial statement schedule of The Macerich Company as of
December 31, 1996 and 1995, and for the years then ended and the
period March 16, 1994 through December 31, 1994 and the combined
financial statements of Macerich Predecessor Affiliates for the
period January 1, 1994 through March 15, 1994, which report is
included in the Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
Los Angeles, California
December 11, 1997
<PAGE>
