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MACERICH CO filed this Form 10-K on 02/23/2018
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of percentile rank or any other calculations or assessments related to its determination of the vesting percentage.
For the avoidance of doubt, assuming no Change of Control (i.e. the last day of the Performance period is December 31, [2020]), the intent of this Section 4(a) is that (i) the Company’s Total Return will be calculated using as the first input the Share Price on December 31, [2017] and as the last input the Share Price on December 31, [2020], and (ii) each Peer REIT’s Total Return will be calculated in the same manner with respect to the common equity of each such Peer REIT.
(b)    The Committee may, upon consideration of the statistical data for the Peer REITs relative to Peer REIT Total Return for the Performance Period, exercise its reasonable discretion to allow for vesting of Award [2018] LTIP Units (PB) under Section 4(a) on a basis other than a strict mathematical calculation of percentile rank to the extent appropriate in light of the circumstances. By way of illustration, the foregoing would allow the Committee to provide for vesting to occur at a particular level if the Peer REIT Total Return of a number of Peer REITs is clustered within a narrow range such that the effect of the precise calculation of percentile rank would be that vesting would not occur or occur at a lower level. The Committee does not have the discretion to adjust downward the vesting of Award [2018] LTIP Units (PB).
(c)    Any Award [2018] LTIP Units (PB) that do not become vested pursuant to this Section 4 shall, without payment of any consideration by the Partnership, automatically and without notice terminate, be forfeited and be and become null and void as of the end of the Performance Period, and neither the Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such unvested Award [2018] LTIP Units (PB).
5.    Change of Control or Termination of Grantee’s Service Relationship.
(a)    If the Grantee is a party to a Service Agreement, the provisions of Sections 5(b), 5(c), 5(d) and 5(e) below shall govern the vesting of the Grantee’s Award [2018] LTIP Units (PB) exclusively in the event of a Change of Control or termination of the Grantee’s service relationship with the Company or any Subsidiary or affiliate, unless the Service Agreement contains provisions that expressly refer to this Section 5 and provides that those provisions of the Service Agreement shall instead govern the vesting of the Grantee’s Award [2018] LTIP Units (PB). The foregoing sentence will be deemed an amendment to any applicable Service Agreement to the extent required to apply its terms consistently with this Section 5, such that, by way of illustration, any provisions of the Service Agreement with respect to accelerated vesting or payout of the Grantee’s bonus or incentive compensation awards in the event of certain types of terminations of Grantee’s service relationship (such as, for example, termination at the end of the term, termination without Cause by the employer or termination for Good Reason by the employee) shall not be interpreted as requiring that any calculations set forth in Section 4 hereof be performed, or vesting occur with respect to this Award other than as specifically provided in this Section 5. In the event an entity ceases to be a Subsidiary or affiliate of the Company, such action shall be deemed to be a termination of employment of all employees of that entity for purposes of this Agreement, provided that the Committee, in its sole and absolute discretion, may make provision in such circumstances