<PAGE>
As filed with the Securities and Exchange Commission on
November 20, 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 AMENDED AND RESTATED 1994 INCENTIVE PLAN
(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
Copy to:
Richard A. Bayer
Secretary and General Counsel
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
Common Stock, 2,500,000(1) $26.78(2) $66,953,125(2) $20,288.83(2)
par value $0.01 shares
per share (1)
(1) This Registration Statement covers, in addition to the
number of shares of Common Stock stated above, options and
other rights to purchase the shares of Common Stock that
may be granted under the Plan, and, pursuant to Rule 416,
an additional indeterminate number of shares which by
reason of certain events specified in the Plan may become
subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low
prices of the Common Stock on November 19, 1997 as reported
on the New York Stock Exchange and as published in the
Western Edition of The Wall Street Journal.
</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 optionees as specified
by Securities and Exchange Commission Rule 428(b)(1). 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.
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 of 1933.
<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 year ended December
31, 1996;
(b) Quarterly Reports on Form 10-Q for the Company's
quarters ended March 31, 1997, June 30, 1997 and
September 30, 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
report 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 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 8. EXHIBITS
See the attached Exhibit Index.
ITEM 9. UNDERTAKINGS
The information and contents of Registration Statement
No. 33-84040 on Form S-8, which was previously filed with
the Securities and Exchange Commission by the Company, is
incorporated herein by reference. Except for required
opinions, consents, signature pages and any information
required in this Registration Statement that is not in the
above mentioned Registration Statement, information required
by Part II to be contained in this Registration Statement is
omitted in accordance with General Instruction E to Form S-8.
<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 November 19, 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.
<TABLE>
<S> <C> <C>
SIGNATURE TITLE DATE
/s/ MACE SIEGEL Chairman of the Board November 19, 1997
Mace Siegel of Directors
/s/ ARTHUR M. COPPOLA Director, President and November 19, 1997
Arthur M. Coppola Chief Executive Officer
(Principal Executive Officer)
/s/ EDWARD C. COPPOLA Director, Executive Vice November 19, 1997
Edward C. Coppola President and Director of
Acquisitions
Director November 19, 1997
James S. Cownie
/s/ THEODORE S. HOCHSTIM Director November 19, 1997
Theodore S. Hochstim
Director November 19, 1997
Fred S. Hubbell
/s/ STANLEY A. MOORE Director November 19, 1997
Stanley A. Moore
/s/ DR. WILLIAM P. SEXTON Director November 19, 1997
Dr. William P. Sexton
/s/ THOMAS E. O'HERN Senior Vice President, Chief November 19, 1997
Financial Officer and Treasurer
(Principal Financial Officer and
Principal Accounting Officer
/s/ DANA K. ANDERSON Director, Vice Chairman of November 19, 1997
Dana K. Anderson the Board of Directors and
Chief Operating Officer
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Description
4.1. The Macerich Company Amended and Restated
1994 Incentive Plan.
4.2 Form of Employee Incentive and Nonqualified
Stock Option Agreement.
4.3 Form of Employee Nonqualified Stock Option
Agreement.
5. Opinion of Ballard Spahr Andrews & Ingersoll
(opinion re legality).
23.1 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").
<PAGE>
THE MACERICH COMPANY
AMENDED AND RESTATED 1994 INCENTIVE PLAN
(AS AMENDED EFFECTIVE APRIL 8, 1997)
<PAGE>
TABLE OF CONTENTS
Page
I. THE PLAN. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purpose. . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Administration and Authorization; Power and
Procedure. . . . . . . . . . . . . . . . . . . . . . 1
1.3 Participation. . . . . . . . . . . . . . . . . . . . 3
1.4 Shares Available for Awards. . . . . . . . . . . . . 3
1.5 Grant of Awards. . . . . . . . . . . . . . . . . . . 4
1.6 Award Period . . . . . . . . . . . . . . . . . . . . 4
1.7 Limitations on Exercise and Vesting of Awards. . . . 4
1.8 Notes to Finance Exercise or Purchase. . . . . . . . 5
1.9 No Transferability of Awards . . . . . . . . . . . . 6
II. EMPLOYEE OPTIONS. . . . . . . . . . . . . . . . . . . . . 6
2.1 Grants . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 Option Price . . . . . . . . . . . . . . . . . . . . 7
2.3 Limitations on Grant and Terms of Incentive Stock
Options. . . . . . . . . . . . . . . . . . . . . . . 7
2.4 Limits on 10% Holders. . . . . . . . . . . . . . . . 8
2.5 Award Changes/Limits on Repricing. . . . . . . . . . 8
2.6 Limitation on Exercise of Option Award.. . . . . . . 9
III. STOCK APPRECIATION RIGHTS.. . . . . . . . . . . . . . . . 9
3.1 Grants . . . . . . . . . . . . . . . . . . . . . . . 9
3.2 Exercise of Stock Appreciation Rights. . . . . . . . 9
3.3 Payment. . . . . . . . . . . . . . . . . . . . . . . 10
IV. RESTRICTED STOCK AWARDS . . . . . . . . . . . . . . . . . 11
4.1 Grants . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Restrictions . . . . . . . . . . . . . . . . . . . . 11
4.3 Return to the Corporation. . . . . . . . . . . . . . 12
V. STOCK BONUSES, OTHER CASH OR STOCK PERFORMANCE-BASED
AWARDS, STOCK UNITS AND DIVIDEND EQUIVALENT RIGHTS. . . . 12
5.1 Grants of Stock Bonuses. . . . . . . . . . . . . . . 12
5.2 Other Performance-Based Awards . . . . . . . . . . . 12
5.3 Stock Units. . . . . . . . . . . . . . . . . . . . . 14
5.4 Dividend Equivalent Rights . . . . . . . . . . . . . 15
VI. OTHER PROVISIONS. . . . . . . . . . . . . . . . . . . . . 15
6.1 Rights of Eligible Persons, Participants and
Beneficiaries. . . . . . . . . . . . . . . . . . . . 15
6.2 Adjustments; Early Termination . . . . . . . . . . . 16
6.3 Termination of Employment; Termination of
Subsidiary Status. . . . . . . . . . . . . . . . . . 17
6.4 Compliance With Laws . . . . . . . . . . . . . . . . 19
6.5 Tax Withholding. . . . . . . . . . . . . . . . . . . 20
6.6 Plan Amendment, Termination and Suspension . . . . . 20
6.7 Privileges of Stock Ownership. . . . . . . . . . . . 21
6.8 Effective Date of This Plan. . . . . . . . . . . . . 21
6.9 Term of This Plan. . . . . . . . . . . . . . . . . . 21
6.10 Governing Law/Construction/Severability. . . . . . . 21
6.11 Captions . . . . . . . . . . . . . . . . . . . . . . 22
6.12 Non-Exclusivity of Plan. . . . . . . . . . . . . . . 22
VII. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 22
7.1 Definitions. . . . . . . . . . . . . . . . . . . . . 22
<PAGE>
THE MACERICH COMPANY
1994 INCENTIVE PLAN
(AS AMENDED EFFECTIVE APRIL 8, 1997)
I. THE PLAN.
1.1 Purpose.
The purpose of this Plan is to promote the success of
the Company and the interests of its stockholders by providing an
additional means through the grant of Awards to attract,
motivate, retain and reward employees, including officers, by
providing them long-term incentives to improve the financial
performance of the Company. "Corporation" means The Macerich
Company, a Maryland corporation, and its successors, and
"Company" means the Corporation and its Subsidiaries,
collectively. These terms and other capitalized terms are
defined in Article VII.
1.2 Administration and Authorization; Power and Procedure.
(a) Committee. This Plan shall be administered by and
all Awards to Eligible Persons shall be authorized by the
Committee. Action of the Committee with respect to the adminis-
tration of this Plan shall be taken pursuant to a majority vote
or by written consent of its members. Where the Committee
authorizes the issuance of shares for consideration other than
money, the Committee shall adopt a resolution which fairly
describes such consideration and states (i) its actual value as
determined by the Committee; or (ii) that the Committee has
determined that the actual value is or will be not less than a
certain sum.
(b) Plan Awards; Interpretation; Powers of Committee.
Subject to the express provisions of this Plan, the Committee
shall have the authority:
(i) to determine the particular Eligible Persons who
will receive Awards;
(ii) to grant, directly or indirectly through its
Subsidiaries, Awards to Eligible Persons, determine the
price at which securities will be offered or awarded and the
amount of securities to be offered or awarded to any of such
persons, and determine the other specific terms and conditions of
such Awards consistent with the express limits of this Plan, and
establish the installments (if any) in which such Awards shall
become exercisable or shall vest, or determine that no delayed
exercisability or vesting is required, and establish the events
of termination or reversion of such Awards;
(iii)to approve the forms of Award Agreements (which
need not be identical either as to type of award or among
Participants);
(iv) to construe and interpret this Plan and any
agreements defining the rights and obligations of the
Company and Participants under this Plan, further define the
terms used in this Plan, and prescribe, amend and rescind
rules and regulations relating to the administration of this
Plan;
(v) to cancel, modify, or waive the Corporation's
rights with respect to, or modify, discontinue, suspend, or
terminate any or all outstanding Awards held by Eligible
Persons, subject to any required consent under Section 6.6;
(vi) to accelerate the exercisability or the vesting of
any Awards under such circumstances as the Committee shall
determine, including a Change in Control Event, or to extend
the exercisability or extend the term of any or all such
outstanding Awards within the term limits on Awards under
Section 1.6; and
(vii)to make all other determinations and take such
other action as contemplated by this Plan or as may be
necessary or advisable for the administration of this Plan
and the effectuation of its purposes.
(c) Binding Determinations. Any action taken by, or
inaction of, the Corporation, any Subsidiary, the Board or the
Committee relating or pursuant to this Plan shall be within the
absolute discretion of that entity or body and shall be conclu-
sive and binding upon all persons. No member of the Board or
Committee, or officer of the Corporation or any Subsidiary, shall
be liable for any such action or inaction of the entity or body,
of another person or, except in circumstances involving bad
faith, of himself or herself. Subject only to compliance with
the express provisions hereof, the Board and Committee may act in
their absolute discretion in matters within their authority
related to this Plan.
(d) Reliance on Experts. In making any determination
or in taking or not taking any action under this Plan, the
Committee or the Board, as the case may be, may obtain and may
rely upon the advice of experts, including employees of and
professional advisors to the Corporation. No director, officer
or agent of the Company shall be liable for any such action or
determination taken or made or omitted in good faith.
(e) Delegation. The Committee may delegate
ministerial, non-discretionary functions to individuals who are
officers or employees of the Company.
1.3 Participation.
Awards may be granted by the Committee only to those
persons that the Committee determines to be Eligible Persons. An
Eligible Person who has been granted an Award may, if otherwise
eligible, be granted additional Awards if the Committee shall so
determine subject to the limitations otherwise provided in this
Plan.
1.4 Shares Available for Awards; Share Limits.
Subject to the provisions of Section 6.2, the stock
that may be delivered under this Plan shall be shares of the
Corporation's authorized but unissued Common Stock. The shares
may be delivered for any lawful consideration, but not for less
than the minimum lawful consideration under applicable state law.
(a) Number of Shares. The maximum number of shares of
Common Stock that may be delivered pursuant to Awards granted to
Eligible Persons under this Plan shall not exceed 2,550,000
shares, plus 9.9% of any increase in the total outstanding shares
of the Company after March 31, 1997 (other than an increase as a
result of the issuance of shares under this Plan), subject to
adjustments contemplated by Section 6.2. The Plan share limit
may not contract if shares are reacquired by the Company after an
increase has been made, but neither shall the limit increase if
the reacquired shares are reissued.
(b) Calculation of Available Shares and Replenishment.
Shares subject to outstanding Awards shall be reserved for
issuance. If any Option or other right to acquire shares of
Common Stock under or receive cash or shares in respect of an
Award shall expire or be cancelled or terminated without having
been exercised or paid in full, or any Common Stock subject to a
Restricted Stock Award or other Award shall not vest or be
delivered, the unpurchased, unvested or undelivered shares of
Common Stock subject thereto shall again be available for the
purposes of this Plan, subject only to any applicable limitations
for the preservation of deductibility under Section 162(m) of the
Code.
(c) Provisions for Certain Stock-Based Cash Awards.
The number of stock-related Awards actually paid in cash shall be
determined by reference to the number of shares by which the
value or price of the Award is measured and shall not, together
with the aggregate number of shares theretofore delivered and
shares subject to then outstanding Awards payable in shares (or
alternatively payable in cash or shares) under this Plan, exceed
the aggregate or applicable individual limits of Section 1.4,
subject to adjustments under this Section 1.4 and Section 6.2.
(d) ISO Limit. The maximum number of shares of Common
Stock that may be issued under Incentive Stock Options under the
Plan shall not exceed 1,950,000 shares.
(e) Individual Limits. Notwithstanding anything
contained herein to the contrary, the aggregate number of shares
of Common Stock subject to Options and Stock Appreciation Rights
("SARs") granted during any calendar year to any individual shall
be limited to 300,000, and the maximum individual limit on the
number of shares in the aggregate subject to all stock-related
Awards under this Plan granted during any calendar year shall be
500,000, subject to adjustments under Section 6.2.
(f) Director Limits. The maximum number of shares
that may be issued under Awards under this Plan that are granted
to any director who is not as of the applicable date or dates of
grant an employee or officer shall be 50,000, subject to
adjustments under Section 6.2. Any Award issued to a member of
the Committee shall be subject to approval or ratification by the
Board.
1.5 Grant of Awards.
Subject to the express provisions of this Plan, the
Committee shall determine those individuals who are Eligible
Persons, the number of shares of Common Stock subject to each
Award, the price (if any) to be paid for the shares or the Award
and the other terms of the Award. Each Award shall be evidenced
by an Award Agreement signed by the Corporation and, if required
by the Committee, by the Participant. Each Award shall be
subject to the terms and conditions set forth in this Plan and
such other terms and conditions established by the Committee as
are not inconsistent with the specific provisions of this Plan.
1.6 Award Period.
Any Option, SAR, warrant or similar right shall expire
and any other Award shall either vest or be forfeited not more
than 10 years after the date of grant; provided, however, that
any payment of cash or delivery of stock pursuant to an Award may
be delayed until a future date if specifically authorized by the
Committee in writing.
1.7 Limitations on Exercise and Vesting of Awards.
(a) Provisions for Exercise. Unless the Committee
otherwise provides, once exercisable an Award shall remain
exercisable until the expiration or earlier termination of the
Award. Unless the Committee otherwise provides, Options shall
first become exercisable in three equal annual installments,
commencing on the first anniversary of the Award Date.
(b) Procedure. Any exercisable Award shall be deemed
to be exercised when the Corporation receives written notice of
such exercise from the Participant, together with any required
payment made in accordance with Section 2.2.
(c) Fractional Shares/Minimum Issue. Fractional share
interests shall be disregarded, but may be accumulated. The
Committee, however, may determine in the case of Eligible Persons
that cash, other securities, or other property will be paid or
transferred in lieu of any fractional share interests. No fewer
than 100 shares may be purchased on exercise of any Award at one
time unless the number purchased is the total number at the time
available for purchase under the Award.
1.8 Notes to Finance Exercise or Purchase.
If the Committee, in its sole discretion approves, and
subject to Section 6.4, the Corporation may accept one or more
notes from any Eligible Person (i) in connection with the
exercise, receipt or vesting of any outstanding Award or (ii) in
such other circumstances to facilitate the purchase of stock by
an eligible employee or officer as the Committee determines to be
reasonably expected to benefit the Corporation; provided that any
such note shall be subject to the following terms and conditions:
(a) The principal of the note shall not exceed the
amount required to be paid to the Corporation upon the exercise
or receipt of one or more Awards under this Plan and the note
shall be delivered directly to the Corporation in consideration
of such exercise or receipt.
(b) The initial term of the note shall be determined
by the Committee; provided that the term of the note, including
extensions, shall not exceed ten(10) years.
(c) The note shall provide for full recourse to the
Participant and shall bear interest at a rate determined by the
Committee but not less than the interest rate necessary to avoid
the imputation of interest under the Code.
(d) The unpaid principal balance of the note shall
become due and payable on the 10th business day after Termination
of Employment of the Participant; provided, however, that if a
sale of the shares financed by the note would cause such
Participant to incur liability under Section 16(b) of the
Exchange Act, the unpaid balance shall become due and payable on
the 10th business day after the first day on which a sale of such
shares could have been made without incurring such liability,
assuming for these purposes that there are no other transactions
(or deemed transactions) in securities of this Corporation by the
Participant subsequent to such termination.
(e) In the case of a note issued other than in
connection with the receipt, exercise or vesting of another Award
or in any case if required by the Committee or by applicable law,
(i) the note shall be secured by a pledge of any shares or rights
financed thereby (and such other collateral as may be required by
the Committee), and (ii) the maximum principal amount of the note
may not exceed $1,000,000.
(f) The terms, repayment provisions, and collateral
release provisions of the note and the pledge securing the note
shall conform with applicable rules and regulations of the
Federal Reserve Board as then in effect.
1.9 No Transferability of Awards; Limited Exceptions.
Awards may be exercised only by, and amounts payable or
shares issuable pursuant to an Award shall be paid only to (or
registered only in the name of), the Participant or, if the
Participant has died, the Participant's Beneficiary or, if the
Participant has suffered a Disability, the Participant's Personal
Representative, if any, or if there is none, the Participant, or,
(except in the case of Incentive Stock Options) to the extent
expressly permitted by the Committee and applicable law to such
persons and pursuant to such conditions and procedures as the
Committee may establish. Other than by will or the laws of
descent and distribution or (except in the case of Incentive
Stock Options) as the Committee may otherwise expressly permit,
no right or benefit under this Plan or any Award (other than
shares issued without further restrictions) shall be
transferrable by the Participant or shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge (other than to the Corporation) and
any such attempted action shall be void. The Corporation shall
disregard any attempt at transfer, assignment or other alienation
prohibited by the preceding sentences and shall pay or deliver
such cash or shares of Common Stock in accordance with the
provisions of this Plan. The designation of a Beneficiary for
purposes hereof shall not constitute a transfer for these
purposes.
II. EMPLOYEE OPTIONS.
2.1 Grants.
One or more Options may be granted under this Article
to any Eligible Person. Each Option granted shall be designated
by the Committee in the applicable Award Agreement as either a
Nonqualified Stock Option or an Incentive Stock Option.
Notwithstanding anything contained herein to the contrary,
Incentive Stock Options may be granted only to Eligible Persons
who are employed by the Corporation or a corporation which is
either a direct Subsidiary of the Corporation or an indirect
Subsidiary through an unbroken chain of corporations.
2.2 Option Price.
(a) Pricing Limits. The purchase price per share of
the Common Stock covered by each Option, provided that such price
shall be no less than 100% (110% in the case of an Incentive
Stock Option granted to a Participant described in Section 2.4)
of the Fair Market Value of the Common Stock on the date of
grant. The base price of each stock appreciation right shall be
determined by the Committee at the time of the Award. The base
price of an SAR granted after the grant of an Option may be less
than the Fair Market Value of Common Stock at the date of grant
of the SAR, but if so, may not be less than the Option exercise
price.
(b) Payment Provisions. The purchase price of any
shares purchased on exercise of an Option granted under this
Article shall be paid in full at the time of each purchase in one
or a combination of the following methods: (i) in cash or by
electronic funds transfer; (ii) by certified or cashier's check
payable to the order of the Corporation; (iii) if authorized by
the Committee or specified in the applicable Award Agreement, by
a promissory note of the Participant consistent with the
requirements of Section 1.8; or (iv) by the delivery of shares of
Common Stock of the Corporation already owned by the Participant,
provided, however, that the Committee may in its absolute
discretion limit the Participant's ability to exercise an Award
by delivering such shares, and any shares delivered which were
initially acquired upon exercise of a share option must have been
owned by the Participant at least six months as of the date of
delivery. Shares of Common Stock used to satisfy the exercise
price of an Option shall be valued at their Fair Market Value on
the date of exercise. In addition to the payment methods
described above, the Committee may provide that the Option can be
exercised and payment made by delivering a properly executed
exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Corporation the amount of sale
proceeds necessary to pay the exercise price and, unless other-
wise allowed by the Committee, any applicable tax withholding
under Section 6.5. The Corporation shall not be obligated to
deliver certificates for the shares unless and until it receives
full payment of the exercise price therefor and any related
withholding obligations have been satisfied.
2.3 Limitations on Grant and Terms of Incentive Stock
Options.
(a) $100,000 Limit. To the extent that the aggregate
Fair Market Value of stock with respect to which Incentive Stock
Options first become exercisable by a Participant in any calendar
year exceeds $100,000, taking into account both Common Stock
subject to incentive stock options (as defined in Section 422 of
the Code) under this Plan and stock subject to incentive stock
options under all other plans of the Corporation or its
Subsidiaries, if any, such options shall be treated as
Nonqualified Stock Options. For this purpose, the Fair Market
Value of the stock subject to options shall be determined as of
the date the options were awarded. In reducing the number of
options treated as incentive stock options to meet the $100,000
limit, the most recently granted options shall be reduced first.
To the extent a reduction of simultaneously granted options is
necessary to meet the $100,000 limit, the Committee may, in the
manner and to the extent permitted by law, designate which shares
of Common Stock are to be treated as shares acquired pursuant to
the exercise of an Incentive Stock Option.
(b) Option Period. Each Option and all rights
thereunder shall expire no later than 10 years after the Award
Date.
(c) Other Code Limits. There shall be imposed in any
Award Agreement relating to Incentive Stock Options such terms
and conditions as from time to time are required in order that
the Option be an "incentive stock option" as that term is defined
in Section 422 of the Code.
2.4 Limits on 10% Holders.
No Incentive Stock Option may be granted to any person
who, at the time the Option is granted, owns (or is deemed to own
under Section 424(d) of the Code) shares of outstanding Common
Stock possessing more than 10% of the total combined voting power
of all classes of stock of the Corporation or a Subsidiary,
unless the exercise price of such Option is at least 110% of the
Fair Market Value of the stock subject to the Option and such
Option by its terms is not exercisable after the expiration of
five years from the date such Option is granted.
2.5 Award Changes/Limits on Repricing.
Subject to Section 1.4, Section 6.2 and Section 6.6 and
the specific limitations on Awards contained in this Plan, the
Committee from time to time may authorize, generally or in
specific cases only, for the benefit of any Eligible Person any
adjustment in the vesting schedule, the number of shares subject
to, the restrictions upon or the term of, an Award granted under
this Article, by amendment, by substitution, by waiver or by
other legally valid means. Subject to Section 1.4, Section 6.2
and Section 6.6 and the specific limitations on Awards contained
in this Plan, such amendment or other action may, among other
changes, provide for a greater or lesser number of shares subject
to the Award, or provide for a longer or shorter vesting or
exercise period. Subject to Section 6.2 and Section 6.3 and the
specific limitations on Awards contained in this Plan, the
Committee also may reduce the exercise or purchase price of any
or all outstanding Awards as deemed appropriate by the Committee,
provided that the Committee does not reduce the exercise price of
any Option or related SAR to a price below the Fair Market Value
of the Option on the date of its grant.
2.6 Limitation on Exercise of Option Award.
No Participant may receive Common Stock upon exercise
of an Option to the extent that it will cause such person to
Beneficially or Constructively Own Equity Shares in excess of the
Ownership Limit.
In the event that a Participant exercises any portion
of an Option (by tendering the exercise price to the Corporation)
which upon delivery of the Common Stock would cause the holder of
the Option to Beneficially or Constructively Own Equity Shares in
excess of the Ownership Limit, the Corporation shall have the
right to deliver to the Participant, in lieu of Common Stock, a
check or cash in the amount equal to the Fair Market Value of the
Common Stock otherwise deliverable on the date of exercise (minus
any amounts withheld pursuant to Section 6.5).
III. STOCK APPRECIATION RIGHTS.
3.1 Grants.
In its discretion, the Committee may grant to any
Eligible Person SARs concurrently with the grant of Options or
thereafter, including in the circumstances of a Change in Control
Event, on such terms as set forth by the Committee in the Award
Agreement for such Option or such SARs. Unless the Committee
with the consent of the Participant otherwise determines, any SAR
granted in connection with an Incentive Stock Option shall
contain such terms as may be required to comply with the
provisions of Section 422 of the Code and the regulations
promulgated thereunder.
3.2 Exercise of Stock Appreciation Rights.
(a) Exercisability. Unless the Award Agreement or the
Committee otherwise provides, a SAR shall be exercisable at such
time or times, and to the extent, that the related Option shall
be exercisable and only when the Fair Market Value of the stock
subject to the related Option exceeds the Option price of the
related Option.
(b) Effect on Available Shares. To the extent that a
SAR is exercised, the number of shares of Common Stock subject to
the related Option shall be charged against the maximum amount of
Common Stock that may be delivered pursuant to Awards under this
Plan. The number of shares subject to the SAR and the related
Option of the Participant shall also be reduced by such number of
shares.
(c) Non-Proportionate Reduction. If a SAR extends to
less than all the shares covered by the related Option and if a
portion of the related Option is thereafter exercised, the number
of shares subject to the unexercised SAR shall be reduced only if
and to the extent that the remaining number of shares covered by
such related Option is less then the remaining number of shares
subject to such SAR, unless the Committee otherwise provides.
3.3 Payment.
(a) Amount. Unless the Committee otherwise provides,
upon exercise of a SAR and surrender of an exercisable portion of
any related Option to the extent required by Section 3.2, the
Participant shall be entitled to receive, subject to Section 6.5,
payment of an amount determined by multiplying
(i) the difference obtained by subtracting the
exercise price per share of Common Stock under the related
Option from the Fair Market Value of a share of Common Stock
on the date of exercise of the SAR, by
(ii) the number of shares with respect to which
the SAR shall have been exercised.
If an SAR is granted as a Performance Based Award under Section
5.2 without reference to any performance criterion other than
stock price appreciation, the base price shall be not less than
the Fair Market Value at date of grant.
(b) Form of Payment. The Committee, in its sole
discretion, shall determine the form in which payment shall be
made of the amount determined under paragraph (a) above, either
solely in cash, solely in shares of Common Stock (valued at Fair
Market Value on the date of exercise of the SAR), or partly in
such shares and partly in cash, provided that the Committee shall
have determined that such exercise and payment are consistent
with applicable law. If the Committee permits the Participant to
elect to receive cash or shares (or a combination thereof) on
such exercise, any such election shall be subject to such
conditions as the Committee may impose. Notwithstanding anything
contained herein to the contrary, no Participant may receive
Common Stock upon the exercise of a SAR to the extent it will
cause such person to Beneficially or Constructively Own Equity
Shares in excess of the Ownership Limit. In the event that a
Participant exercises any portion of a SAR which upon delivery of
Common Stock would cause such Participant to Beneficially or
Constructively Own Equity Shares in excess of the Ownership
Limit, the Corporation shall have the right, notwithstanding any
election granted to the Participant by the Committee, to deliver
a check or cash to the Participant.
IV. RESTRICTED STOCK AWARDS.
4.1 Grants.
Subject to the Restricted Stock limits set forth in
Section 4.2(e), the Committee may, in its discretion, grant one
or more Restricted Stock Awards to any Eligible Person based upon
such factors (which in the case of any Award to a Section 16
Person shall include but not be limited to the contributions,
responsibilities and other compensation of the person) as the
Committee shall deem relevant in light of the specific terms of
the Award. Each Restricted Stock Award Agreement shall specify
the number of shares of Common Stock to be issued to the
Participant, the date of such issuance, the consideration for
such shares (but not less than the minimum lawful consideration
under applicable state law) by the Participant, the restrictions
imposed on such shares and the conditions of release or lapse of
such restrictions, which may include performance criteria,
continued employment for a specified period of time and/or other
factors. Such restrictions shall not lapse earlier than one year
after the Award Date, except as set forth in Section 6.2 and
Section 6.3 and to the extent the Committee may otherwise
provide. Shares of Restricted Stock may be issued in the form of
book entries or stock certificates, each registered in the name
of the Participant ("Restricted Shares"). Stock certificates or
book entry records evidencing shares of Restricted Stock pending
the lapse of the restrictions shall bear an appropriate reference
to the restrictions imposed hereunder. Restricted Shares shall
be held (if in certificate form) and restricted as to transfer
until the restrictions have lapsed and such shares have vested in
accordance with the provisions of the Award Agreement and this
Plan. Upon issuance of the Restricted Stock Award, the
Participant may be required to provide such further assurance and
documents as the Committee may require to enforce the
restrictions.
4.2 Restrictions.
(a) Performance Vesting. The vesting of shares
pursuant to a Restricted Stock Award may be based solely upon the
continued employment for a specific period of time or the degree
of attainment, over a specified period as may be established by
the Committee, of such measure(s) of the performance of the
Company (or any part thereof) or the Participant's performance,
or upon any combination thereof, as may be established by the
Committee. Performance-based or accelerating Restricted Stock
Awards may also be granted under Section 5.2.
(b) Pre-Vesting Restraints. Except as provided in and
subject to the provisions of Sections 4.1 and 1.9, Restricted
Shares comprising any Restricted Stock Award may not be sold,
assigned, transferred, pledged or otherwise disposed of or
encumbered, either voluntarily or involuntarily, until such
shares have vested.
(c) Dividend and Voting Rights. Unless otherwise
provided in the applicable Award Agreement, a Participant
receiving a Restricted Stock Award shall be entitled to cash
dividend and voting rights for all shares issued even though they
are not vested, provided that all such rights shall terminate
immediately as to any restricted shares which cease to be
eligible for vesting.
(d) Cash Payments. If the Participant shall have paid
cash in connection with the Restricted Stock Award, the Award
Agreement shall specify whether and to what extent such cash
shall be returned (with or without an earnings factor) as to any
restricted shares which cease to be eligible for vesting.
4.3 Return to the Corporation.
Unless the Committee otherwise expressly provides,
Restricted Shares that are subject to restrictions at the time of
Termination of Employment or are subject to other conditions to
vesting that have not been satisfied by the time specified in the
applicable Award Agreement shall not vest and shall be returned
to the Corporation in such manner and on such terms as the
Committee shall therein provide.
V. STOCK BONUSES, OTHER CASH OR STOCK PERFORMANCE-BASED AWARDS,
STOCK UNITS AND DIVIDEND EQUIVALENT RIGHTS.
5.1 Grants of Stock Bonuses.
The Committee may grant a Stock Bonus to any Eligible
Person to reward exceptional or special services, contributions
or achievements in the manner and on such terms and conditions
(including any restrictions on such shares) as determined from
time to time by the Committee. The number of shares so awarded
shall be determined by the Committee; provided, however, in no
case may a Stock Bonus be granted to the extent that it will
cause an Eligible Person to Beneficially or Constructively Own
Equity Shares in excess of the Ownership Limit. The Award may be
granted independently or in lieu of a cash bonus.
5.2 Other Performance-Based Awards.
(a) General Provisions. Without limiting the
generality of the foregoing, and in addition to qualifying awards
granted under other provisions of this Plan (i.e. Options or SARs
granted with an exercise price not less than Fair Market Value at
the applicable date of grant for Section 162(m) purposes to
Eligible Persons who are either salaried employees or officers
("Eligible Employees") ("Presumptively Qualifying Awards")), the
Committee may authorize and grant to any Eligible Employee, other
cash or stock-related performance-based awards, including
"performance-based" awards within the meaning of Section 162(m)
of the Code ("Performance-Based Awards"), whether in the form of
restricted stock, stock appreciation rights, performance stock,
phantom stock, stock units, Dividend Equivalent Rights ("DERs"),
or other rights, whether or not related to stock values or
appreciation, and whether payable in cash, Common Stock or a
combination thereof. If the Award (other than a Presumptively
Qualifying Award) is intended as performance-based compensation
under Section 162(m) of the Code, the vesting or payment thereof
will depend on the performance of the Company on a consolidated,
Subsidiary, segment, or division basis with reference to
performance goals relative to one or more of the following
business criteria (the "criterion"): funds from operations,
EBITDA, stock appreciation, total stockholder return, occupancy
gains, and overall square footage growth, each as defined in
Exhibit A. These terms otherwise are used as applied under
generally accepted accounting principles and in the Company's
financial reporting. To qualify Awards as performance-based
under Section 162(m), the applicable business criteria and
specific performance goal or goals ("targets") must be
established and approved by the Committee during the first 90
days of the year (or before one-quarter of the performance
measurement period has elapsed, if such period exceeds one year)
and while the performance relating to such targets remains
substantially uncertain within the meaning thereof. The
applicable performance measurement period may be not less than
one nor (except as provided in Section 1.6) more than 10 years.
(b) Maximum Award. Grants or awards under this
Section 5.2 may be paid in cash or stock or any combination
thereof. In no event shall grants of stock-related Awards made
in any calendar year to any Eligible Employee under this Plan
relate to more than 500,000 shares. In no event shall grants to
any Eligible Employee under this Plan of Awards payable only in
cash and not related to stock provide for payment of more than
(x) the lesser of 200% of base salary as of the beginning of the
applicable performance period or $600,000, times (y) the
applicable number of years (not more than 10) to which the Awards
relate in the performance periods.
(c) Committee Certification. Except as otherwise
permitted to qualify as performance-based compensation under
Section 162(m), before any Performance-Based Award under this
Section 5.2 is paid, the Committee must certify that the
performance standard, target(s), and the other material terms of
the Performance-Based Award were in fact satisfied.
(d) Terms and Conditions of Awards. The Committee
will have discretion to determine the restrictions or other
limitations of the individual Awards under this Section 5.2,
including the authority to reduce Awards, to determine payout
schedules and the extent of vesting or to pay no Awards, in its
sole discretion, if the Committee preserves such authority at the
time of grant by language to this effect in its authorizing
resolutions or otherwise. The Committee may provide that in the
event a Participant terminates employment or service for any one
or more reason during a Plan Year, the Participant shall forfeit
all rights to any Award for the Plan Year.
(e) Adjustments for Material Changes. Performance
goals or other features of an Award may provide that they
(a) shall be adjusted to reflect a change in corporate
capitalization, a corporate transaction (such as a
reorganization, combination, separation, or merger) or a complete
or partial corporate liquidation, or (b) shall be calculated
either without regard for or to reflect any change in accounting
policies or practices affecting the Company and/or the business
criteria or performance goals or targets, or (c) shall be
adjusted for any other circumstance or event, but only to the
extent in each case that such adjustment or determination in
respect of Performance-Based Awards would be consistent with the
requirements of Section 162(m) to qualify as performance-based
compensation.
(f) Section 162(m) Considerations. Options or SARs
granted under this Plan at an exercise price not less than Fair
Market Value at the applicable date of grant, and (except to the
extent an Award becomes vested or payable as a result of a Change
in Control Event) other Qualified Performance-Based Awards
granted under this Section 5.2, shall be interpreted in a manner
consistent with the requirements of Section 162(m) to qualify as
performance-based compensation.
5.3 Stock Units.
(a) Grants. Subject to Section 5.3(d) and such rules
and procedures as the Committee may establish from time to time,
the Committee may, in its discretion, authorize Stock Unit Awards
and permit an Eligible Person to elect to defer or receive in
Stock Units all or a portion of the compensation the Eligible
Person could otherwise elect to defer under any other Company
plan, or in respect of any Award hereunder, or may grant Awards
in the form of Stock Units in lieu of or in addition to any other
Award under this Plan. The specific terms, conditions and
provisions relating to each Stock Unit Award or election,
including the form of payment to be made at or following the
vesting thereof, shall be set forth in or pursuant to the
Participant's Award Agreement in respect thereof.
(b) Other Provisions. The Committee shall determine,
among other terms of a Stock Unit Award, the form of payment of
Stock Units, whether in cash, Common Stock, or other
consideration (including any other Award) or any combination
thereof, and the applicable vesting and payout provisions of the
Award. The Committee in the Award Agreement may permit the
Participant to elect the form and time of payout of vested Stock
Units on such conditions or subject to such procedures as the
Committee may impose.
(c) Stock Units. Each Award Agreement for an Award of
Stock Units shall include the applicable benefit distribution and
termination provisions, which may include elective features, for
such Award and shall specify the form of payment.
(d) Limit on Certain Stock Unit Awards.
Notwithstanding anything contained herein to the contrary, any
Stock Unit Award or Stock Unit Awards which individually or in
the aggregate would constitute an "employee pension benefit plan"
(as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974 ("ERISA")) shall be made only to Eligible
Persons who are members of "a select group of management or
highly compensated employees" (as provided in Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA) of the Company.
5.4 Dividend Equivalent Rights. In its discretion,
the Committee may grant to any Eligible Person DERs concurrently
with the grant of any Option, Restricted Stock, Stock Unit or
other stock-based Award, on such terms as set forth by the
Committee in the Award Agreement. DERs shall be based on all or
part of the amount of dividends declared on shares of Common
Stock and shall be credited as of dividend payment dates, during
the period between the date of grant (or such later date as the
Committee may set) and the date the stock-based Award is
exercised or expires (or such earlier date as the Committee may
set), as determined by the Committee. DERs shall be payable in
cash or shares, or (to the extent permitted by law) may be
subject to such conditions, not inconsistent with Section 162(m)
(in the case of Options or SARs, or other Awards intended to
satisfy its conditions with respect to deductibility), as may be
determined by the Committee.
VI. OTHER PROVISIONS.
6.1 Rights of Eligible Persons, Participants and
Beneficiaries.
(a) Employment Status. Status as an Eligible Person
shall not be construed as a commitment that any Award will be
made under this Plan to an Eligible Person or to Eligible Persons
generally.
(b) No Employment Contract. Nothing contained in this
Plan (or in any other documents related to this Plan or to any
Award) shall confer upon any Eligible Person or other Participant
any right to continue in the employ or other service of the
Company or constitute any contract or agreement of employment or
other service, nor shall interfere in any way with the right of
the Company to change such person's compensation or other
benefits or to terminate the employment of such person, with or
without cause, but nothing contained in this Plan or any document
related hereto shall adversely affect any independent contractual
right of such person without his or her consent thereto.
(c) Plan Not Funded. Awards payable under this Plan
shall be payable in shares or from the general assets of the
Corporation, and (except as provided in Section 1.4(b)) no
special or separate reserve, fund or deposit shall be made to
assure payment of such Awards. No Participant, Beneficiary or
other person shall have any right, title or interest in any fund
or in any specific asset (including shares of Common Stock,
except as expressly otherwise provided) of the Company by reason
of any Award hereunder. Neither the provisions of this Plan (or
of any related documents), nor the creation or adoption of this
Plan, nor any action taken pursuant to the provisions of this
Plan shall create, or be construed to create, a trust of any kind
or a fiduciary relationship between the Company and any
Participant, Beneficiary or other person. To the extent that a
Participant, Beneficiary or other person acquires a right to
receive payment pursuant to any Award hereunder, such right shall
be no greater than the right of any unsecured general creditor of
the Company.
6.2 Adjustments; Early Termination.
(a) Adjustments. If the outstanding shares of Common
Stock are changed into or exchanged for cash, other property or a
different number or kind of shares or securities of the
Corporation, or if additional shares or new or different
securities are distributed with respect to the outstanding shares
of Common Stock, through a reorganization or merger in which the
Corporation is the surviving entity, or through a combination,
consolidation, recapitalization, reclassification, stock split,
stock dividend, reverse stock split, stock consolidation,
dividend or distribution of cash or property to the stockholders
of the Corporation, or if there shall occur any other
extraordinary corporate transaction or event in respect of the
Common Stock or a sale of substantially all the assets of the
Corporation as an entirety which in the judgment of the Committee
materially affects the Common Stock, then the Committee shall, in
such manner and to such extent (if any) as it deems appropriate
and equitable, (i) proportionately adjust any or all of (1) the
number and kind of shares or other consideration that is subject
to or may be delivered under this Plan and pursuant to outstand-
ing Awards, (2) any performance standards appropriate to any
outstanding Awards, and/or (3) the consideration payable with
respect to Awards granted prior to any such change and the price,
if any, paid in connection with Restricted Stock Awards; or
(ii) in the case of an extraordinary dividend or other
distribution, merger, reorganization, consolidation, combination,
sale of assets, split up, exchange or spin off, make provision
for a cash payment or for the substitution or exchange of (1) any
or all outstanding Awards or the cash, securities or property
deliverable to the holder of any or all outstanding Awards, for
(2) cash, property and/or other securities, based upon the
distribution or consideration payable to holders of the Common
Stock of the Corporation upon or in respect of such event;
provided, however, in each case, that with respect to awards of
Incentive Stock Options, no such adjustment shall be made without
the consent of the holder which would cause this Plan to violate
Section 422 or 424(a) of the Code or any successor provisions
thereto. Corresponding adjustments shall be made with respect to
SARs based upon the adjustment made to the Options to which they
relate.
(b) Possible Early Termination of Awards. If any
Award or other right to acquire Common Stock has not been
exercised or has not become vested or exercisable prior to (i) a
dissolution of the Corporation or (ii) a reorganization event
described in Section 6.2(a) that the Corporation does not survive
and no provision has been made for the substitution, exchange or
other settlement of such Award, such Award shall thereupon
terminate.
(c) Limitation on Award Adjustments. To the extent
required in the case of an Award intended as a Performance-Based
Award for purposes of Section 162(m), the Committee shall have no
discretion (i) to increase the amount of compensation or the
number of shares that would otherwise be due upon the attainment
of the applicable performance goal or the exercise of the option
or SAR or (ii) to waive the achievement of any applicable
performance goal as a condition to receiving a benefit or right
under an Award.
6.3 Termination of Employment; Termination of Subsidiary
Status.
Any Award to the extent not exercised shall terminate
and become null and void upon a Termination of Employment of the
Participant, except as set forth in subsections (a) through (e)
below or as otherwise expressly provided by the Committee.
Notwithstanding anything contained in this Section to the
contrary, all Awards shall be subject to earlier termination
pursuant to or as contemplated by Section 1.6 and Section 6.2 of
this Plan. Unless the Committee otherwise provides, any and all
rights to an Award, to the extent not exercised or vested, shall
expire immediately upon a Termination of Employment of the
Participant for cause, of which the Committee (in the case of any
dispute about cause) shall be the sole judge.
(a) Nonqualified Stock Options. Unless the Committee
otherwise expressly provides in the Award Agreement:
(i) If the Participant's employment by the
Company terminates by reason other than death, Disability or
cause, or by reason of a Subsidiary ceasing to be a
Subsidiary, then the Participant shall have three months
after the date of Termination of Employment to exercise any
Nonqualified Stock Option to the extent that it was
exercisable on such date;
(ii) If the Participant's employment by the
Company terminates by reason of a Disability, or if
Participant suffers a Disability within three months of a
Termination of Employment under subsection (i) above, then
the Participant or Participant's Personal Representative, as
the case may be, shall have twelve months after the date of
Disability (or, if earlier, Termination of Employment) to
exercise any Nonqualified Stock Option to the extent that it
was exercisable on such date; and
(iii)If the Participant dies while in the employ
of the Company, or within three months after a Termination
of Employment under subsection (i) or (ii) above, then the
Participant's Beneficiary may exercise, at any time within
twelve months after the Participant's Termination of
Employment, any Nonqualified Stock Option to the extent that
it was exercisable on the date of the Participant's
Termination of Employment);
provided, however, that in no event shall the Option be exercised
after the expiration of its term or its earlier termination under
any other provisions of the Plan.
(b) Incentive Stock Options. Unless the Committee
otherwise expressly provides in the Award Agreement:
(i) If the Participant's employment by the
Company terminates by reason other than death, Disability or
cause, or by reason of a Subsidiary ceasing to be a
Subsidiary, then the Participant shall have three months
after the date of Termination of Employment to exercise any
Incentive Stock Option to the extent that it was exercisable
on such date;
(ii) If the Participant's employment by the
Company terminates by reason of a Disability, or if
Participant suffers a Disability within three months of a
Termination of Employment under subsection (i) above, then
the Participant or Participant's Personal Representative, as
the case may be, shall have twelve months after the date of
Disability (or, if earlier, Termination of Employment) to
exercise any Incentive Stock Option to the extent that it
was exercisable on such date; and
(iii)If the Participant dies while in the employ
of the Company, or within three months after a Termination
of Employment under subsection (i) or (ii) above, then the
Participant's Beneficiary may exercise, at any time within
twelve months after the Participant's Termination of
Employment, any Incentive Stock Option to the extent that it
was exercisable on the date of the Participant's Termination
of Employment);
provided, however, that in no event shall the Option be exercised
after the expiration of its term or its earlier termination under
other provision of this Plan.
(c) Stock Appreciation Rights. Each SAR shall have
the same termination provisions and exercisability periods as the
Option to which it relates. The exercisability period of a SAR
shall not exceed that provided in the related Award Agreement,
and the SAR shall expire at the end of such exercisability
period.
(d) Other Awards. The Committee shall establish in
respect of each other Award granted hereunder the Participant's
rights and benefits (if any) in the event of a Termination of
Employment and in so doing may make distinctions based upon,
among other factions, the cause of termination and the nature of
the Award.
(e) Extension of Exercise. Notwithstanding the
foregoing provisions but subject to Section 6.2, in the event of,
or in anticipation of, a Termination of Employment with the
Company, the Committee may, in its discretion, increase the
portion of the Award available to the Participant (or
Participant's Beneficiary or Personal Representative, as the case
may be) or extend the exercisability period upon such terms as
the Committee shall determine.
6.4 Compliance With Laws.
This Plan, the granting and vesting of Awards under
this Plan and the offer, issuance and delivery of shares of
Common Stock and/or the payment of money under this Plan or under
Awards granted hereunder are subject to compliance with all
applicable federal and state laws, rules and regulations
(including but not limited to state and federal securities law
and federal margin requirements) and to such approvals by any
listing, agency or any regulatory or governmental authority as
may, in the opinion of counsel for the Corporation, be necessary
or advisable in connection therewith. Any securities delivered
under this Plan shall be subject to such restrictions, and the
person acquiring such securities shall, if requested by the
Corporation, provide such assurances and representations to the
Corporation as the Corporation may deem necessary or desirable to
assure compliance with all applicable legal requirements.
6.5 Tax Withholding.
Upon any exercise, vesting, or payment of any Award or
upon the disposition of shares of Common Stock acquired pursuant
to the exercise of an Incentive Stock Option prior to
satisfaction of the holding period requirements of Section 422 of
the Code, the Company shall have the right at its option to
(i) require the Participant (or the Participant's Personal
Representative or Beneficiary, as the case may be) to pay or
provide for payment of the amount of any taxes which the Company
may be required to withhold with respect to such transaction or
(ii) deduct from any amount payable the amount of any taxes which
the Company may be required to withhold with respect to such cash
amount. In any case where a tax is required to be withheld in
connection with the delivery of shares of Common Stock under this
Plan, the Committee may permit the Participant to elect, pursuant
to such rules and subject to such conditions as the Committee may
establish, to have the Corporation reduce the number of shares to
be delivered by (or otherwise reacquire) the appropriate number
of shares valued at their then Fair Market Value, to satisfy such
withholding obligation.
6.6 Plan Amendment, Termination and Suspension.
(a) Board or Committee Authorization. The Board may,
at any time, terminate or, from time to time, amend, modify or
suspend this Plan, in whole or in part. No Awards may be granted
during any suspension of this Plan or after termination of this
Plan, but the Committee shall retain jurisdiction as to Awards
then outstanding in accordance with the terms of this Plan.
(b) Stockholder Approval. Any amendment to this Plan
shall be subject to stockholder approval to the extent then
required under Sections 422 and 424 of the Code or any other
applicable law, or deemed necessary or advisable by the Board.
(c) Amendments to Awards. Without limiting any other
express authority of the Committee under but subject to the
express limits of this Plan (including Section 6.2(c)), the Board
or the Committee, by agreement or resolution, may waive
conditions of or limitations on Awards to Eligible Persons that
the Committee in the prior exercise of its discretion has
imposed, without the consent of a Participant, and may make other
changes to the terms and conditions of Awards that do not affect,
in any manner materially adverse to the Employee Participant, his
or her rights and benefits under an Award.
(d) Limitations on Amendments to Plan and Awards. No
amendment, suspension or termination of this Plan or change of or
affecting any outstanding Award shall, without written consent of
the Participant, affect in any manner materially adverse to the
Participant any rights or benefits of the Participant or
obligations of the Corporation under any Award granted under this
Plan prior to the effective date of such change. Changes
contemplated by Section 6.2 shall not be deemed to constitute
changes or amendments for purposes of this Section 6.6.
6.7 Privileges of Stock Ownership.
Except as otherwise expressly authorized by the
Committee or this Plan, a Participant shall not be entitled to
any privilege of stock ownership as to any shares of Common Stock
not actually delivered to and held of record by him or her. No
adjustment will be made for dividends or other rights as a
stockholder for which a record date is prior to such date of
delivery.
6.8 Effective Date of This Plan.
The effective date of this Plan was March 4, 1994.
Amendments effective April 8, 1997 were approved by the Board,
subject to approval of stockholders, and did not adversely affect
any award holder's rights or benefits under this Plan.
6.9 Term of This Plan.
No Award shall be granted after March 3, 2004 (the
"Termination Date"). Unless otherwise expressly provided in this
Plan or in an applicable Award Agreement, any Award theretofore
granted may extend beyond such date, and all authority of the
Committee with respect to Awards hereunder, including its
authority to amend an Award, shall continue during any suspension
of this Plan and in respect of outstanding Awards on such
Termination Date.
6.10 Governing Law/Construction/Severability.
(a) Choice of Law. This Plan, the Awards, all
documents evidencing Awards and all other related documents shall
be governed by, and construed in accordance with the laws of the
State of Maryland.
(b) Severability. If any non-essential provision
shall be held by a court of competent jurisdiction to be invalid
and unenforceable, the remaining provisions of this Plan shall
continue in effect.
(c) Plan Construction; Bifurcation. Notwithstanding
anything to the contrary in this Plan, the provisions of this
Plan may at any time be bifurcated by the Board or the Committee
in any manner so that certain provisions of any Award Agreement
(or this Plan) intended (or required in order) to satisfy the
applicable requirements of Rule 16b-3 or to qualify for exemption
from the limit on deductibility under Section 162(m) (to the
extent permitted thereby) are applicable only to persons subject
to those provisions and to those Awards to those persons intended
to satisfy the requirements of the applicable rule or rules
thereunder.
6.11 Captions.
Captions and headings are given to the sections and
subsections of this Plan solely as a convenience to facilitate
reference. Such headings shall not be deemed in any way material
or relevant to the construction or interpretation of this Plan or
any provision thereof.
6.12 Non-Exclusivity of Plan.
Nothing in this Plan shall limit or be deemed to limit
the authority of the Board or the Committee to grant awards or
authorize any other compensation, with or without reference to
the Common Stock, under any other plan or authority.
VII. DEFINITIONS.
7.1 Definitions.
(a) "Award" shall mean an award of any Option, SAR,
Stock Unit, Restricted Stock, Stock Bonus, DER, or any combina-
tion thereof, whether alternative or cumulative, authorized by
and granted under this Plan.
(b) "Award Agreement" shall mean any writing setting
forth the terms of an Award that has been authorized by the
Committee.
(c) "Award Date" shall mean the date upon which the
Committee took the action granting an Award or such later date as
the Committee designates as the Award Date at the time of the
Award.
(d) "Award Period" shall mean the period beginning on
an Award Date and ending on the expiration date of such Award.
(e) "Beneficial Ownership" shall mean ownership of
Equity Shares by a person who would be treated as an owner of
such shares either directly or indirectly through the application
of Section 544 of the Code, as modified by Section 856(h)(1)(B)
of the Code. The terms "Beneficial Owner," "Beneficially Owns"
and "Beneficially Owned" shall have correlative meanings.
(f) "Beneficiary" shall mean the person, persons,
trust or trusts entitled by will or the laws of descent and
distribution to receive the benefits specified in the Award
Agreement and under this Plan in the event of a Participant's
death, and shall mean the Participant's executor or administrator
if no other Beneficiary is identified and able to act under the
circumstances.
(g) "Board" shall mean the Board of Directors of the
Corporation.
"Change in Control Event" shall mean any of the
following:
(1) Approval by the stockholders of the Corporation of
the dissolution or liquidation of the Corporation;
(2) Approval by the stockholders of the Corporation of
an agreement to merge or consolidate, or otherwise
reorganize, with or into one or more entities that are not
Subsidiaries or other affiliates, as a result of which less
than 50% of the outstanding voting securities of the
surviving or resulting entity immediately after the
reorganization are, or will be, owned, directly or
indirectly, by stockholders or other affiliates of the
Corporation immediately before such reorganization (assuming
for purposes of such determination that there is no change
in the record ownership of the Corporation's securities from
the record date for such approval until such reorganization
but including in such determination any securities of the
other parties to such reorganization held by affiliates of
the Corporation);
(3) Approval by the stockholders of the Corporation of
the sale of substantially all of the Corporation's business
and/or assets to a person or entity which is not a
Subsidiary or other affiliate; or
(4) Any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Corporation
representing more than 20% of the combined voting power of
the Corporation's then outstanding securities entitled to
then vote generally in the election of directors of the
Corporation.
(i) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
(j) "Commission" shall mean the Securities and
Exchange Commission.
(k) "Committee" shall mean a committee appointed by
the Board to administer this Plan, which committee shall be
comprised of at least two Board members or such greater number of
directors as may be required under applicable law, each of whom,
during such time as one or more Participants may be subject to
Section 16 of the Exchange Act, shall be a Disinterested
Director.
(l) "Common Stock" shall mean the Common Stock of the
Corporation and such other securities or property as may become
the subject of Awards, or become subject to Awards, pursuant to
an adjustment made under Section 6.2 of this Plan.
(m) "Company" shall mean, collectively, The Macerich
Company and its Subsidiaries, and shall mean, individually, any
one of them, as the context requires.
(n) "Constructive Ownership" shall mean ownership of
Equity Shares by a person who would be treated as an owner of
such shares either directly or indirectly through the application
of Section 318 of the Code, as modified by Section 856(d)(5) of
the Code. The terms "Constructive Owner," "Constructive Owns"
and "Constructively Owned" shall have correlative meanings.
(o) "Corporation" shall mean The Macerich Company, a
Maryland corporation, and its successors.
(p) "Deferred Stock Award" shall mean a deferred
payment award payable in Common Stock or cash or other
consideration, as determined by the Committee, based on Stock
Units credited to a Participant's Stock Unit Account.
(q) "Disability" shall mean, in the case of an
Incentive Stock Option, a "permanent and total disability" within
the meaning of Section 22(e)(3) of the Code and, in the case of
all other Awards, such other disabilities, infirmities,
afflictions or conditions as the Committee by rule may include.
(r) "Disinterested Director" shall mean (unless the
Board otherwise determines) a member of the Board who is a Non-
Employee Director as defined in Rule 16b-3 and an "outside
director" as defined in regulations under Section 162(m) of the
Code, as each may be amended from time to time.
(s) "Dividend Equivalent Right" shall mean a right
authorized under Section 5.4 of this Plan.
(t) "Eligible Person" shall mean an officer (whether
or not an employee), an employee of the Company, a director of
the Company or any other person (including a significant agent or
consultant) who performs substantial services for the Company,
all as determined by the Committee in its discretion, except as
otherwise limited for purposes of Sections 5.2 and 5.3.
(u) "Equity Shares" shall mean shares that are either
Common Stock or Preferred Stock.
(v) "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
(w) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
(x) "Fair Market Value" on any date shall mean the
closing price of the stock on the Composite Tape, as published in
the Western Edition of The Wall Street Journal, of the principal
securities exchange or market on which the stock is so listed,
admitted to trade, or quoted on such date, or, if there is no
trading of the stock on such date, then the closing price of the
stock as quoted on such Composite Tape on the next preceding date
on which there was trading in such shares; provided, however, if
the stock is not so listed, admitted or quoted, the Committee may
designate such other exchange, market or source of data as it
deems appropriate for determining such value for purposes of this
Plan.
(y) "Incentive Stock Option" shall mean an Option
which is designated as an incentive stock option within the
meaning of Section 422 of the Code and which contains such
provisions as are necessary to comply with that section.
(z) "Nonqualified Stock Option" shall mean an Option
that is designated as a Nonqualified Option and shall include any
Option intended as an Incentive Option that fails to meet the
applicable legal requirements thereof. Any Option granted
hereunder that is not designated as an Incentive Stock Option
shall be deemed to be designated a Nonqualified Stock Option
under this Plan and not an Incentive Share Option under the Code.
(aa) "Option" shall mean an option to purchase Common
Stock under this Plan. The Committee shall designate any Option
granted to an Eligible Person as a Nonqualified Stock Option or
an Incentive Stock Option.
(ab) "Ownership Limit" shall mean 9.8% of the value of
the outstanding Equity Shares of the Corporation.
(ac) "Participant" shall mean an Eligible Person who
has been granted an Award under this Plan.
(ad) "Personal Representative" shall mean the person or
persons who, upon the disability or incompetence of a
Participant, shall have acquired on behalf of the Participant, by
legal proceeding or otherwise, the power to exercise the rights
or receive benefits under this Plan by virtue of having become
the legal representative of the Participant.
(ae) "Plan" shall mean The Macerich Company 1994 Stock
Incentive Plan, as amended, renamed and restated effective April
8, 1997.
(af) "Preferred Stock" shall mean the Preferred Stock
of the Corporation.
(ag) "Qualified Performance-Based Award" shall mean a
performance-based award under this Plan that is intended to
satisfy the requirements of Section 162(m) of the Code in respect
of performance-based compensation, the payment of which is
contingent upon attainment of performance objectives specified by
the Committee in respect of the business criteria specified in
Section 5.2, and the issuance or vesting of which may be subject
to other restrictions or conditions.
(ah) "Restricted Stock" shall mean shares of Common
Stock awarded to a Participant pursuant to Article IV.
(ai) "Rule 16b-3" shall mean Rule 16b-3 as promulgated
by the Commission pursuant to the Exchange Act as in effect on
November 1, 1996, or any successor provision, as amended from
time to time.
(aj) "Section 16 Person" shall mean a person subject to
Section 16(a) of the Exchange Act.
(ak) "Section 162(m)" shall mean Section 162(m) of the
Code and the regulations and interpretations of the Internal
Revenue Service thereunder, as amended from time to time.
(al) "Securities Act" shall mean the Securities Act of
1933, as amended from time to time.
(am) "Stock Appreciation Right" shall mean a right
authorized under Article III of this Plan.
(an) "Stock Bonus" shall mean an Award of shares of
Common Stock for no consideration other than past services
(subject to Section 6.4) that includes such restrictions (if any)
as the Committee may deem advisable to assure compliance with law
or satisfaction of other conditions it may impose.
(ao) "Stock Unit" shall mean a non-voting unit of
measurement which is deemed for bookkeeping purposes to be
equivalent to one outstanding share of Common Stock of the
Company (subject to adjustment) solely for purposes of this Plan.
(ap) "Stock Unit Account" shall mean the bookkeeping
account maintained by the Company on behalf of each Participant
which is credited with Stock Units in accordance with Section
5.3(c) and which is payable in cash, stock and/or other
consideration as the Committee may determine.
(aq) "Subsidiary" shall mean The Macerich Partnership,
L.P., a Delaware limited partnership, The Macerich Management
Company, The Macerich Property Management Company, both
California corporations, or any corporation or other entity a
majority of whose outstanding voting stock or voting power is
beneficially owned directly or indirectly by the Corporation.
(ar) "Termination of Employment" shall mean any
termination of the Participant's employment with the Company; if
an entity ceases to be a Subsidiary, a Termination of Employment
shall be deemed to have occurred with respect to each employee of
such Subsidiary who does not continue as an employee of another
entity owned, controlled by or under common control with the
Company. The Committee may provide generally or on a case-by-
case basis on such conditions as it deems appropriate that a
Termination of Employment does not occur if a person's status as
an employee terminates but his or her services continue as an
officer or other person who would be eligible to participate in
the Plan as an Other Eligible Person.
<PAGE>
EXHIBIT A
PERFORMANCE-BASED BUSINESS CRITERIA
Funds From Operations means Funds from Operations, as
defined by The National Association of Real Estate Investment
Trusts at the time of the grant of an Award, for the applicable
period, as reflected in the Corporation's periodic financial
reports for the period.
Stock Appreciation means an increase in the price or
value of the Common Stock of the Corporation after the date of
grant of an Award and during the applicable period.
Total Stockholder Return means the aggregate Common
Stock price appreciation and dividends paid (assuming full
reinvestment of dividends) during the applicable period.
Occupancy Gains means increases in the occupancy level
(leased and occupied areas) of malls and freestanding store area
(excluding Anchors) (owned at both the beginning and end of the
applicable period) during the period, measured as a percentage of
the gross leasable/occupiable area of such properties, as
reported to the Committee for inclusion in the Corporation's
reports to the SEC for the applicable period.
EBITDA means earnings before interest, taxes,
depreciation and amortization for the applicable period, as
reflected in the Corporation's financial reports for the
applicable period.
Overall Square Footage Growth means the increase,
between the beginning and end of the applicable period, in the
total square feet of gross leasable mall and free standing stores
area (excluding Anchors), as reported to the Committee for
inclusion in the Corporation's reports to the SEC for the
applicable period.
Except as otherwise expressly provided, all financial
terms are used as defined under Generally Accepted Accounting
Principles (GAAP) and all determinations shall be made in
accordance with GAAP, as applied by the Corporation in the
preparation of its periodic reports to stockholders.
<PAGE>
EMPLOYEE INCENTIVE AND NONQUALIFIED
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the day of
, 199__, between The Macerich Company, a Maryland corporation
(the "Corporation") and __________ (the "Employee").
W I T N E S S E T H
WHEREAS, as of this date, the Employee is an
employee of The Macerich Partnership, L.P. (the "Operating
Partnership" or the "Employer"); and
WHEREAS, pursuant to The Macerich Company 1994
Stock Incentive Plan (the "Plan"), the Corporation has granted to
the Employee effective as of this date (the "Award Date") an
option to purchase all or any part of _________ authorized but
unissued shares of Common Stock, $.01 par value, of the
Corporation upon the terms and conditions set forth herein and in
the Plan.
NOW, THEREFORE, in consideration of the mutual
promises and covenants made herein and the mutual benefits to be
derived herefrom, the parties agree as follows:
1. Defined Terms. Capitalized terms used
herein and not otherwise defined herein shall have the meaning
assigned to such terms in the Plan.
2. Grant of Option. This Agreement
evidences the Corporation's grant to the Employee of the right
and option to purchase, on the terms and conditions set forth
herein and in the Plan, all or any part of an aggregate ________
of shares of the Common Stock at the price of $ per
share (the "Option"), exercisable from time to time, subject to
the provisions of this Agreement and the Plan, prior to the close
of business on the day before the tenth anniversary of the Award
Date (the "Expiration Date"). Such price equals the Fair Market
Value of the Corporation's Common Stock as of the Award Date. It
is the intent of the Corporation that this Option constitute an
incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") with
respect to _______ of the shares subject to the Option and a
nonqualified stock option with respect to the remainder of the
shares subject to the Option.
3. Exercisability of Option. Except as
earlier permitted by or pursuant to the Plan or by resolution of
the Committee adopted after the date hereof, no shares may be
purchased by exercise of the Option until the expiration of six
months after the Award Date. The Option may be exercised in
installments as to one-third of the aggregate number of shares
set forth in Section 2 hereof (subject to adjustment) on and
after the first anniversary of the Award Date and as to an
additional one-third of such aggregate number of such shares
(subject to adjustment) on each of the second and third
anniversaries of the Award Date.
To the extent the Employee does not in any year
purchase all or any part of the shares to which the Employee is
entitled, the Employee has the right cumulatively thereafter to
purchase any shares not so purchased and such right shall
continue until the option terminates or expires. Fractional
share interests shall be disregarded, but may be cumulated. No
fewer than 100 shares may be purchased at any one time, unless
the number purchased is the total number at the time available
for purchase under the Option.
4. Method of Exercise of Option. The Option
shall be exercisable by the delivery to the Corporation of a
written notice stating the number of shares to be purchased
pursuant to the Option and accompanied by payment made in
accordance with and in a form permitted in Section 2.2(b) of the
Plan for the full purchase price of the shares to be purchased,
subject to such further limitations and rules or procedures as
the Committee may from time to time establish as to any non-cash
payment and as to the tax withholding requirements of Section 6.5
of the Plan. Shares delivered in payment of the exercise price
must have been owned by Employee for at least six months prior to
the exercise. In addition, the Employee (or the Employee's
Beneficiary or Personal Representative) shall furnish any written
statements required pursuant to Section 6.4 of the Plan.
5. Effect of Termination of Employment or
Death; Change in Subsidiary Status. The Option and all other
rights hereunder, to the extent not exercised, shall terminate
and become null and void at such time as the Employee ceases to
be employed by either the Corporation or any Subsidiary, except
that
(a) if employment terminates by
reason other than by death, Disability or Cause, or
employment terminates because a Subsidiary ceases to be a
Subsidiary, or if, following a Change in Control Event,
the Employee terminates his employment for Good Reason,
then the Employee may at any time within a period of
three months after the date of termination of
employment exercise the Option to the extent the Option
was exercisable at such date;
(b) if employment terminates by
reason of a Disability, or if the Employee suffers a
Disability within three months after a termination of
employment under subsection (a) above, then the Employee
or the Employee's Personal Representative, as the case
may be, shall have twelve months after the date of
Disability (or, if earlier, the termination of
employment) to exercise the Option to the extent that it
was exercisable on the date of termination;
(c) if employment terminates because
of the Employee's death or the Employee dies within three
months after a termination of employment under
subsection (a) or (b) above, then the Employee's
Beneficiary may exercise, at any time within twelve
months after the Employee's termination of employment,
the Option to the extent that it was exercisable on the
date of the Employee's termination of employment;
provided, however, that in no event may the Option be exercised
by anyone under this Section or otherwise after the Expiration
Date. Following the expiration of the exercise periods set forth
in Section 5(a), (b) and (c), as the case may be, or the
Expiration Date, whichever first occurs, the Option shall
terminate. As used in this Agreement, "Disability" shall mean
(1) a "permanent and total disability" within the meaning of
Section 22(e)(3) of the Code, (2) the absence of Employee from
his or her duties with the Company on a full-time basis for a
period of nine months as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by
a physician selected by the Company or its insurers and
acceptable to the Employee or the Employee's legal representative
(such agreement as to acceptability not to be withheld
unreasonably), or (3) such other disabilities, infirmities,
afflictions or conditions as the Committee by rule may include.
"Incapacity" as used in this Agreement shall be limited only to a
condition that substantially prevents the Employee from
performing his or her duties. "Cause" as used in this Agreement
shall mean that the Company, acting in good faith based upon the
information then known to the Company, determines that the
Employee has: (1) failed to perform required job duties in a
material respect without proper cause, (2) been convicted of a
felony, or (3) committed an act of fraud, dishonesty or gross
misconduct which is injurious to the Company. "Good Reason" as
used in this Agreement shall mean (1) a materially adverse and
significant change in the Employee's position, duties,
responsibilities, or status with the Company, (2) a change in the
Employee's office location to a point more than 50 miles from the
Employee's office immediately prior to a Change in Control, (3)
the taking of any action following a Change in Control by the
Company and the Operating Partnership to eliminate benefit plans
without providing reasonable substitutes therefor, to reduce
benefits thereunder or to substantially diminish the aggregate
value of incentive awards or other fringe benefits, (4) any
reduction in the Employee's base salary, or (5) any material
breach by the Company and the Operating Partnership of the
written employment contract with Employee, if any.
6. Termination of Option Under Certain
Events. Notwithstanding the foregoing provisions of this
Agreement, the Committee retains the right to terminate the
Option under Section 6.2(b) of the Plan to the extent the Option
has not been exercised or deemed exercised prior to an event or
transaction which the Corporation does not survive.
7. Limitation on Exercise of Option. The
Employee will not be entitled to receive Common Stock upon
exercise of the Option to the extent that it will cause the
Employee to Beneficially or Constructively Own Equity Shares in
excess of the Ownership Limit. If the Employee exercises any
portion of this Option which upon delivery of the Common Stock
would cause the Employee to Beneficially or Constructively Own
Equity Shares in excess of the Ownership Limit, the Corporation
has the right to deliver to the Employee, in lieu of Common
Stock, a check or cash in the amount equal to the Fair Market
Value of the Common Stock otherwise deliverable on the date of
exercise (minus any amounts withheld pursuant to Section 6.5 of
the Plan).
8. Non-Transferability of Option. The
Option and any other rights of the Employee under this Agreement
or the Plan are nontransferable as provided in Section 1.9 of the
Plan.
9. Notices. Any notice to be given under
the terms of this Agreement shall be in writing and addressed to
the Corporation at its principal office located at 233 Wilshire
Boulevard, Suite 700, Santa Monica, California 90401, to the
attention of the Corporate Secretary and to the Employee at the
address given beneath the Employee's signature hereto, or at such
other address as either party may hereafter designate in writing
to the other.
10. Plan. The Option and all rights of the
Employee thereunder are subject to, and the Employee agrees to be
bound by, all of the terms and conditions of the provisions of
the Plan, incorporated herein by this reference, to the extent
such provisions are applicable to options granted to Eligible
Employees. The Employee acknowledges receipt of a copy of the
Plan, which is made a part hereof by this reference, and agrees
to be bound by the terms thereof. Unless otherwise expressly
provided in other Sections of this Agreement, provisions of the
Plan that confer discretionary authority on the Committee do not
(and shall not be deemed to) create any rights in the Employee
unless such rights are expressly set forth herein or are
otherwise in the sole discretion of the Committee so conferred by
appropriate action of the Committee under the Plan after the date
hereof.
11. Notice of Disposition. The Employee
agrees to notify the Corporation of any sale or other disposition
of any shares of Common Stock received upon exercise of the
option, if such sale or disposition occurs within two years after
the Award Date or within one year after the date of such
exercise.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused
this Agreement to be executed on its behalf by a duly authorized
officer and the Employee has hereunto set his or her hand.
THE CORPORATION
The Macerich Company
a Maryland corporation
By
Richard A. Bayer
Secretary
EMPLOYEE
ACKNOWLEDGED:
THE MACERICH PARTNERSHIP, L.P.
By: The Macerich Company
General Partner
By:____________________
Richard A. Bayer
Secretary
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the
foregoing Nonqualified Stock Option Agreement by The Macerich
Company, I, , the spouse of the Employee herein
named, do hereby join with my spouse in executing the foregoing
Employee Incentive and Nonqualified Stock Option Agreement and do
hereby agree to be bound by all of the terms and provisions
thereof and of the Plan.
Date of Execution: __________, 199__
<PAGE>
EMPLOYEE NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the day of
, 199_, between The Macerich Company, a Maryland corporation
(the "Corporation") and (the "Employee").
W I T N E S S E T H
WHEREAS, pursuant to The Macerich Company 1994
Stock Incentive Plan (the "Plan"), the Corporation has granted to
the Employee effective as of the day of , 199__
(the "Award Date") an option to purchase all or any part of
authorized but unissued shares of Common Stock, $.01 par value,
of the Corporation upon the terms and conditions set forth herein
and in the Plan.
NOW, THEREFORE, in consideration of the mutual
promises and covenants made herein and the mutual benefits to be
derived herefrom, the parties agree as follows:
1. Defined Terms. Capitalized terms used
herein and not otherwise defined herein shall have the meaning
assigned to such terms in the Plan.
2. Grant of Option. This Agreement
evidences the Corporation's grant to the Employee of the right
and option to purchase, on the terms and conditions set forth
herein and in the Plan, all or any part of an aggregate
of shares of the Common Stock at the price of $ per
share (the "Option"), exercisable from time to time, subject to
the provisions of this Agreement and the Plan, prior to the close
of business on the day before the tenth anniversary of the Award
Date (the "Expiration Date"). Such price equals the Fair Market
Value of the Corporation's Common Stock as of the Award Date.
3. Exercisability of Option. Except as
earlier permitted by or pursuant to the Plan or by resolution of
the Committee adopted after the date hereof, no shares may be
purchased by exercise of the Option until the expiration of six
months after the Award Date. The Option may be exercised in
installments as to one-third of the aggregate number of shares
set forth in Section 2 hereof (subject to adjustment) on and
after the first anniversary of the Award Date and as to an
additional one-third of such aggregate number of such shares
(subject to adjustment) on each of the second and third
anniversaries of the Award Date.
To the extent the Employee does not in any year
purchase all or any part of the shares to which the Employee is
entitled, the Employee has the right cumulatively thereafter to
purchase any shares not so purchased and such right shall
continue until the option terminates or expires. Fractional
share interests shall be disregarded, but may be cumulated. No
fewer than 100 shares may be purchased at any one time, unless
the number purchased is the total number at the time available
for purchase under the Option.
4. Limitation on Exercise of Option. In the
event the Employee is granted incentive stock options (whether
under this Award Agreement or any other incentive stock option
agreement) and the aggregate fair market value (determined as of
the respective dates of grant of such options) of the Common
Stock with respect to which such options are first exercisable in
any calendar year exceeds $100,000, the most recently granted
options shall be treated as nonqualified stock options to the
extent of the excess. In addition, in the case of simultaneously
granted options, the Corporation may, in the manner and to the
extent permitted by law, designate which shares are to be treated
as stock acquired pursuant to the exercise of an incentive stock
option.
5. Method of Exercise of Option. The Option
shall be exercisable by the delivery to the Corporation of a
written notice stating the number of shares to be purchased
pursuant to the Option and accompanied by payment made in
accordance with and in a form permitted in Section 2.2(b) of the
Plan for the full purchase price of the shares to be purchased,
subject to such further limitations and rules or procedures as
the Committee may from time to time establish as to any non-cash
payment and as to the tax withholding requirements of Section 6.5
of the Plan. Shares delivered in payment of the exercise price
must have been owned by Employee for at least six months prior to
the exercise. In addition, the Employee (or the Employee's
Beneficiary or Personal Representative) shall furnish any written
statements required pursuant to Section 6.4 of the Plan.
6. Effect of Termination of Employment or
Death; Change in Subsidiary Status. The Option and all other
rights hereunder, to the extent not exercised, shall terminate
and become null and void at such time as the Employee ceases to
be employed by either the Corporation or any Subsidiary, except
that
(a) if the Employee terminates by
reason other than by death, Disability or cause, or by
reason of a Subsidiary ceasing to be a Subsidiary, the
Employee may at any time within a period of three
months after the date of Termination of Employment
exercise the Option to the extent the Option was
exercisable at such date;
(b) if the Employee terminates by
reason of a Disability, or if the Employee suffers a
Disability within three months of a Termination of
Employment under subsection (a) above, then the Employee
or the Employee's Personal Representative, as the case
may be, shall have twelve months after the date of
Disability (or, if earlier, Termination of Employment) to
exercise the Option to the extent that it was exercisable
on such date;
(c) if the Employee dies prior to a
Termination of Employment, or within three months after
a Termination of Employment under subsection (a) or (b)
above, then the Employee's Beneficiary may exercise, at
any time within twelve months after the Employee's
Termination of Employment, the Option to the extent
that it was exercisable on the date of the Employee's
Termination of Employment;
provided, however, that in no event may the Option be exercised
by anyone under this Section or otherwise after the Expiration
Date.
7. Termination of Option Under Certain
Events. As permitted by Section 6.2(b) of the Plan, the
Committee retains the right to terminate the Option to the extent
not previously exercised upon an event or transaction which the
Corporation does not survive.
8. Limitation on Exercise of Option. The
Employee may not receive Common Stock upon exercise of the Option
to the extent that it will cause the Employee to Beneficially or
Constructively Own Equity Shares in excess of the Ownership
Limit. In the event that the Employee exercises any portion of
this Option which upon delivery of the Common Stock would cause
the Employee to Beneficially or Constructively Own Equity Shares
in excess of the Ownership Limit, the Corporation has the right
to deliver to the Employee, in lieu of Common Stock, a check or
cash in the amount equal to the Fair Market Value of the Common
Stock otherwise deliverable on the date of exercise (minus any
amounts withheld pursuant to Section 6.5 of the Plan).
9. Non-Transferability of Option. The
Option and any other rights of the Employee under this Agreement
or the Plan are nontransferable as provided in Section 1.9 of the
Plan.
10. Notices. Any notice to be given under
the terms of this Agreement shall be in writing and addressed to
the Corporation at its principal office located at 233 Wilshire
Boulevard, Suite 700, Santa Monica, California 90401, to the
attention of the Corporate Secretary and to the Employee at the
address given beneath the Employee's signature hereto, or at such
other address as either party may hereafter designate in writing
to the other.
11. Plan. The Option and all rights of the
Employee thereunder are subject to, and the Employee agrees to be
bound by, all of the terms and conditions of the provisions of
the Plan, incorporated herein by this reference, to the extent
such provisions are applicable to options granted to Eligible
Employees. The Employee acknowledges receipt of a copy of the
Plan, which is made a part hereof by this reference, and agrees
to be bound by the terms thereof. Unless otherwise expressly
provided in other Sections of this Agreement, provisions of the
Plan that confer discretionary authority on the Committee do not
(and shall not be deemed to) create any rights in the Employee
unless such rights are expressly set forth herein or are
otherwise in the sole discretion of the Committee so conferred by
appropriate action of the Committee under the Plan after the date
hereof.
12. Notice of Disposition. The Employee
agrees to notify the Corporation of any sale or other disposition
of any shares of Common Stock received upon exercise of the
option, if such sale or disposition occurs within two years after
the Award Date or within one year after the date of such
exercise.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused
this Agreement to be executed on its behalf by a duly authorized
officer and the Employee has hereunto set his or her hand.
THE CORPORATION
The Macerich Company
a Maryland corporation
By
Richard A. Bayer
Secretary
EMPLOYEE
<PAGE>
CONSENT OF SPOUSE
In consideration of the execution of the
foregoing Incentive and Nonqualified Stock Option Agreement by
The Macerich Company, I, , the spouse of the
Employee herein named, do hereby join with my spouse in executing
the foregoing Incentive and Nonqualified Stock Option Agreement
and do hereby agree to be bound by all of the terms and
provisions thereof and of the Plan.
Date of Execution: ________ __, 199__
<PAGE>
FILE NUMBER
858110
November 5, 1997
The Macerich Company
233 Wilshire Boulevard, Suite 700
Santa Monica, California 90401
Re: Registration Statement on Form S-8
dated November 20, 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 2,500,000 shares (the "Shares") of Common Stock,
$.01 par value per share, of the Company ("Common Stock") covered
by the above-referenced Registration Statement (the "Registration
Statement"), under the Securities Act of 1933, as amended (the
"1933 Act"). The Shares are to be issued by the Company pursuant
to the Company's Amended and Restated 1994 Incentive Plan (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 Shares, certified as of a recent
date by the Secretary of the Company;
5. Resolutions adopted by the stockholders of the
Company relating to the approval of the Plan, certified as of a
recent date by the Secretary of the Company;
6. A specimen of the certificate evidencing a share
of Common Stock, certified as of a recent date by the Secretary
of the Company;
7. A certificate of the SDAT as to the good standing
of the Company, dated as of a recent date;
8. A certificate executed by Richard A. Bayer,
Secretary and General Counsel of the Company, dated November 3,
1997;
9. The Plan; and
10. 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.
5. The Shares will not be issued in violation of any
restriction or limitation contained in Article Eighth of the
Charter.
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 Shares have been duly authorized for issuance
pursuant to the Plan and, when and if issued and delivered
against payment therefor in the manner described in the Plan,
will be (assuming that the sum of (i) all shares of Common Stock
issued as of the date hereof, (ii) any shares of Common Stock
issued between the date hereof and any date on which the Shares
are actually issued (not including the Shares) and (iii) the
Shares will not exceed the total number of shares of Common Stock
that the Company is authorized to issue) validly issued, fully
paid and nonassessable.
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 (other than O'Melveny & Myers LLP, counsel
to the Company who may refer to this opinion in its opinion,
dated November 5, 1997, to the New York Stock Exchange, Inc.)
without, in each instance, our prior written consent.
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
<PAGE>
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 Amended and
Restated 1994 Incentive Plan, 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
November 20, 1997
<PAGE>
