View:
As filed with the Securities and Exchange Commission on
December 15, 1997.
Registration No. ______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
THE MACERICH COMPANY
(Exact name of registrant as specified in its charter)
___________________
Maryland 95-4448705
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
233 Wilshire Boulevard, Suite 700, Santa Monica,
California 90401
(Address of principal executive offices)
THE MACERICH COMPANY DEFERRED COMPENSATION PLAN FOR
EXECUTIVES (AS AMENDED AND RESTATED EFFECTIVE AS
OF JANUARY 1, 1998)
(Full title of the plan)
Arthur M. Coppola
President and Chief Executive Officer
233 Wilshire Boulevard, Suite 700, Santa Monica,
California 90401
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service:
(310) 394-5333
CALCULATION OF REGISTRATION FEE
THE MACERICH COMPANY
DEFERRED COMPENSATION PLAN
FOR EXECUTIVES
(As Amended and Restated Effective as of January 1, 1998)
THE MACERICH COMPANY
DEFERRED COMPENSATION PLAN
FOR EXECUTIVES
(As Amended and Restated Effective as of January 1, 1998)
TABLE OF CONTENTS
Page
ARTICLE I
TITLE AND DEFINITIONS
1.1 - Title . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 - Definitions . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
PARTICIPATION
2.1 - Participation . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
DEFERRAL ELECTIONS
3.1 - Elections to Defer Compensation . . . . . . . . . . 8
3.2 - Investment Elections. . . . . . . . . . . . . . . . 9
ARTICLE IV
PARTICIPANT ACCOUNTS
4.1 - Deferral Account. . . . . . . . . . . . . . . . . . 13
4.2 - Company Matching Account. . . . . . . . . . . . . . 14
4.3 - Distribution Subaccounts. . . . . . . . . . . . . . 15
ARTICLE V
VESTING
5.1 - Deferral Account. . . . . . . . . . . . . . . . . . 16
5.2 - Company Matching Account. . . . . . . . . . . . . . 16
ARTICLE VI
DISTRIBUTIONS
6.1 - Time and Form of Distribution . . . . . . . . . . . 17
6.2 - Small Benefits. . . . . . . . . . . . . . . . . . . 19
6.3 - Change in Election of Time and Form of Election . . 19
ARTICLE VII
ADJUSTMENT OF PAYMENTS
7.1 - Hardship Distribution . . . . . . . . . . . . . . . 20
7.2 - Acceleration or Deferral of Benefit . . . . . . . . 21
ARTICLE VIII
ADMINISTRATION
8.1 - Members . . . . . . . . . . . . . . . . . . . . . . 22
8.2 - Committee Action. . . . . . . . . . . . . . . . . . 22
8.3 - Powers and Duties of the Committee. . . . . . . . . 23
8.4 - Construction and Interpretation . . . . . . . . . . 24
8.5 - Information . . . . . . . . . . . . . . . . . . . . 25
8.6 - Compensation, Expenses and Indemnity. . . . . . . . 25
8.7 - Quarterly Statements. . . . . . . . . . . . . . . . 26
ARTICLE IX
MISCELLANEOUS
9.1 - Unsecured General Creditor. . . . . . . . . . . . . 27
9.2 - Restriction Against Assignment. . . . . . . . . . . 27
9.3 - Withholding . . . . . . . . . . . . . . . . . . . . 28
9.4 - Amendment, Modification, Suspension or
Termination. . . . . . . . . . . . . . . . . . . . . 29
9.5 - Governing Law . . . . . . . . . . . . . . . . . . . 29
9.6 - Receipt or Release. . . . . . . . . . . . . . . . . 29
9.7 - Payments on Behalf of Persons under Incapacity. . . 30
9.8 - Headings, etc. Not Part of Agreement. . . . . . . . 30
9.9 - Limitation on Participants' Rights. . . . . . . . . 30
ARTICLE X
CLAIMS PROCEDURE
10.1 - Claims Procedure . . . . . . . . . . . . . . . . . 31
THE MACERICH COMPANY
DEFERRED COMPENSATION PLAN
FOR EXECUTIVES
(As Amended and Restated Effective as of January 1, 1998)
This deferred compensation plan (the "Plan") was
originally adopted effective April 1, 1994, by THE MACERICH
COMPANY (the "Company") to provide supplemental retirement
income benefits through deferrals of salary and bonuses.
The Plan is hereby amended and restated in its entirety as
set forth herein, effective January 1, 1998.
ARTICLE I
TITLE AND DEFINITIONS
1.1 - Title.
This Plan shall be known as The Macerich Company
Deferred Compensation Plan for Executives.
1.2 - Definitions.
Whenever the following words and phrases are used
in this Plan, with the first letter capitalized, they shall
have the meanings specified below.
"Account" or "Accounts" shall mean a Participant's
Deferral Account and/or Company Matching Account.
"Beneficiary" means the person or persons,
including a trustee, personal representative or other
fiduciary, last designated in writing by a Participant in
accordance with procedures established by the Committee to
receive the benefits specified hereunder in the event of the
Participant's death. If there is no valid Beneficiary
designation in effect, or if there is no surviving
designated Beneficiary, then the Participant's surviving
spouse shall be the Beneficiary. If there is no surviving
spouse to receive any benefits payable in accordance with
the preceding sentence, the duly appointed and currently
acting personal representative of the Participant's estate
(which shall include either the Participant's probate estate
or living trust) shall be the Beneficiary. In any case
where there is no such personal representative of the
Participant's estate duly appointed and acting in that
capacity within 90 days after the Participant's death (or
such extended period as the Committee determines is
reasonably necessary to allow such personal representative
to be appointed, but not to exceed 180 days after the
Participant's death), then Beneficiary shall mean the person
or persons who can verify by affidavit or court order to the
satisfaction of the Committee that they are legally entitled
to receive the benefits specified hereunder. In the event
any amount is payable under the Plan to a minor, payment
shall not be made to the minor, but instead be paid (a) to
that person's living parent(s) to act as custodian, (b) if
that person's parents are then divorced, and one parent is
the sole custodial parent, to such custodial parent, or (c)
if no parent of that person is then living, to a custodian
selected by the Committee to hold the funds for the minor
under the Uniform Transfers or Gifts to Minors Act in effect
in the jurisdiction in which the minor resides. If no
parent is living and the Committee decides not to select
another custodian to hold the funds for the minor, then
payment shall be made to the duly appointed and currently
acting guardian of the estate for the minor or, if no
guardian of the estate for the minor is duly appointed and
currently acting within 60 days after the date the amount
becomes payable, payment shall be deposited with the court
having jurisdiction over the estate of the minor.
"Board of Directors" or "Board" shall mean the
Board of Directors of The Macerich Company.
"Bonus" shall mean any incentive compensation
payable to a Participant in addition to the Participant's
Salary prior to any deferrals under this Plan or any salary
reduction contributions to a plan described in Section
401(k) of the Code or Section 125 of the Code.
"Code" shall mean the Internal Revenue Code of
1986, as amended.
"Committee" shall mean the Committee appointed
pursuant to Section 8.1 of this Plan.
"Company" shall mean The Macerich Company, its
subsidiaries and successors and, where the context warrants,
The Macerich Partnership, L.P., Macerich Property Management
Company and Macerich Management Company.
"Company Matching Account" shall mean the
bookkeeping account maintained by the Committee for each
Participant that is credited with an amount equal to (1) the
Company Matching Amount and (2) earnings or losses thereon
pursuant to Section 4.2.
"Company Matching Amount" shall mean an amount
equal to a percentage, determined by the Company in its sole
discretion, of the amount of Compensation deferred under the
Plan for the Plan Year. Notwithstanding the foregoing, (1)
for the Plan Year beginning April 1, 1994, and ending on
December 31, 1994, the Company Matching Amount shall be 25%
of the Compensation deferred by the Participant, provided
that the Company Matching Amount shall not exceed 4% of the
sum of (a) the Participant's Salary payable for each pay
period in 1994 beginning after May 1, 1994 and (b) the
Participant's Bonus for the 1994 calendar year, and (2) for
the Plan Year beginning January 1, 1997, the Company
Matching Amount shall be 25% of the amount of Compensation
deferred under the Plan for the 1997 Plan Year up to a
maximum of 5% of all of the Participant's Compensation for
the 1997 Plan Year.
"Compensation" shall mean the Salary and Bonus
that the Participant is entitled to for services rendered to
the Company.
"Deferral Account" shall mean the bookkeeping
account maintained by the Committee for each Participant
that is credited with amounts equal to (1) the portion of
the Participant's Salary that he or she elects to defer, (2)
the portion of the Participant's Bonus that he or she elects
to defer, and (3) earnings or losses thereon pursuant to
Section 4.1.
"Distribution Subaccounts" shall mean the
subaccounts of a Participant's Deferral Account and Company
Matching Account relating to Plan Years beginning before
January 1, 1998 established to separately account for
deferred Compensation and Company Matching Accounts (and
earnings or losses thereon) which were subject to different
distribution elections. Effective January 1, 1998,
Distribution Subaccounts shall cease to exist, and the
amounts formerly allocated thereto shall be reallocated and
distributed as set forth in Section 4.3.
"Earnings Rate" shall mean, for each Fund, an
amount equal to the net rate of gain or loss on the assets
of such Fund during a calendar month.
"Effective Date" of this Restatement shall mean
January 1, 1998.
"Eligible Employee" shall mean each key executive
of the Company designated by the Committee who is not
eligible to participate in the Macerich Company Deferred
Compensation Plan for Senior Executives.
"Fund" or "Funds" shall mean one or more of the
investment funds designated in Section 3.2(a).
"Participant" shall mean any Eligible Employee who
elects to defer compensation in accordance with Section 3.1
"Payment Eligibility Date" shall mean the first
day of the month following the day on which a Participant
terminates employment or dies.
"Plan" shall mean The Macerich Company Deferred
Compensation Plan for Executives set forth herein, now in
effect, or as amended from time to time.
"Plan Year" shall mean the 12 consecutive month
period beginning on January 1 each year; provided, however,
that the first Plan Year was a short Plan Year beginning on
April 1, 1994 and ending on December 31, 1994.
"Salary" shall mean the Participant's base pay
prior to any deferrals under this Plan or any salary
reduction contributions to a plan described in Section
401(k) of the Code or Section 125 of the Code.
ARTICLE II
PARTICIPATION
2.1 - Participation.
Participation in the Plan is voluntary. Each
Eligible Employee who was a Participant in the Plan
immediately before the Effective Date shall continue as a
Participant. Any other Eligible Employee shall become a
Participant in the Plan by electing to defer Compensation in
accordance with Section 3.1.
ARTICLE III
DEFERRAL ELECTIONS
3.1 - Elections to Defer Compensation.
(a) Elections to Defer. Each Eligible Employee
may elect to defer Compensation for any Plan Year by filing
with the Committee an election that conforms to the
requirements of this Section 3.1, on a form provided by the
Committee, no later than the December 15 immediately
preceding such Plan Year (or such later date that the
Committee determines, but in no event later than Decem-
ber 31). The Committee shall notify each Eligible Employee
of his or her eligibility to participate in the Plan at
least 10 days prior to the time he or she must file an
election for participation. Each participation election
shall signify the portion of the Eligible Employee's Salary
and/or Bonus that he or she elects to defer.
(b) Amount of Deferrals. The amount of Compensa-
tion which an Eligible Employee may elect to defer is as
follows:
(1) Any percentage of Salary up to 50%, which
shall be deferred ratably over the Plan Year;
and/or
(2) Any percentage of Bonus, if any, up to 100%
minus the maximum amount of the Bonus which
the Eligible Employee could have deferred
under any qualified cash or deferred
arrangements as described in Section 401(k)
of the Code (a "401(k) Plan") without
violating Section 402(g) of the Code or the
maximum elective contributions permitted
under the terms of the 401(k) Plan.
(c) Effect of Election. An election to defer
Salary for a Plan Year shall apply to all Salary earned
during each pay period beginning in such Plan Year, and an
election to defer Bonuses for a Plan Year shall apply to any
Bonus paid during such Plan Year. Notwithstanding the
foregoing, an Eligible Employee whose initial employment
with the Company commences during a Plan Year may elect to
participate in the Plan during such Plan Year by filing such
written application with the Committee no later than the
30th day following his or her employment commencement date.
Such election shall be effective with respect to Salary
and/or Bonus, as the case may be, earned after the filing of
such election.
(d) Irrevocability. Any election filed pursuant
to this Section 3.1 shall be irrevocable for the Plan Year
to which such election applies.
3.2 - Investment Elections.
(a) At the time of making the first deferral
election described in Section 3.1 which will be effective on
or after January 1, 1998, the Participant shall designate,
on a form provided by the Committee, the Fund or Funds in
which the Participant's deferrals under such election (and
any subsequent deferral elections) and corresponding Company
Matching Amounts will be deemed to be invested for purposes
of determining the amount of earnings or losses to be
credited to the Participant's Accounts. As of January 1,
1998, the Funds shall be the following:
1. Northwestern Mutual Life Guaranteed Interest
Fund
2. Northwestern Mutual Life Money Market
Portfolio
3. Northwestern Mutual Life Select Bond
Portfolio
4. Northwestern Mutual Life High Yield Bond
Portfolio
5. Northwestern Mutual Life Balanced Portfolio
6. Northwestern Mutual Life Index 500 Stock
Portfolio
7. Northwestern Mutual Life Growth & Income
Stock Portfolio
8. Northwestern Mutual Life Growth Stock
Portfolio
9. Northwestern Mutual Life International Equity
Portfolio
10. Northwestern Mutual Life Aggressive Growth
Stock Portfolio
(b) Each Participant who has a balance credited
to his or her Deferral Account or Company Matching Account
on December 31, 1997 may file a written election with the
Committee no later than December 15, 1997 (or such later
date that the Committee determines, but in no event later
than December 31, 1997) specifying the Fund or Funds
described in subsection (a) above that such balances will be
deemed to be invested in as of January 1, 1998 for purposes
of determining the amount of earnings or losses to be
credited to the Accounts after such date. Any amounts in a
Participant's Deferral Account or Company Matching Account
on December 31, 1997 with respect to which the Participant
does not file an election at the time specified in the
immediately preceding sentence shall be deemed to be
invested in the Northwestern Mutual Life Money Market
Portfolio (the "Money Market Portfolio") unless and until a
different election is made pursuant to Section 3.2(c).
(c) In making the designation pursuant to this
Section 3.2, the Participant must specify, in whole numbers,
the percentage of his or her Deferral Account and Company
Matching Account which shall be deemed to be invested in one
or more of the Funds. A Participant may not choose more
than five of the Funds. Effective as of the end of any
calendar month, a Participant may change the designation
made under this Section 3.2 by filing an election, on a form
provided by the Committee, by the 25th day of such month.
If a Participant fails to elect a Fund under this Section
3.2, he or she shall be deemed to have elected the Money
Market Portfolio.
(d) The Earnings Rate of each Fund shall be used
to determine the amount of earnings or losses to be credited
to the Participant's Accounts under Article IV. The Company
reserves the right to increase or decrease the number of the
Funds listed in Section 3.2(a), as well as the right to
designate other investment funds as the Funds (instead of
those currently listed in Section 3.2(a)) for purposes of
this Plan.
(e) Notwithstanding the Participant's ability to
designate the Funds in which his or her Accounts shall be
deemed to be invested, the Company shall have no obligation
to invest any funds in accordance with any Participant's
election. A Participant's Accounts shall merely be
bookkeeping entries on the Company's books, and no
Participant shall obtain any interest in any Funds.
ARTICLE IV
PARTICIPANT ACCOUNTS
4.1 - Deferral Account.
The Committee shall establish and maintain a
Deferral Account for each Participant under the Plan. Each
Participant's Deferral Account shall be divided into
separate subaccounts ("investment fund subaccounts"), each
of which corresponds to an investment fund elected by the
Participant pursuant to Section 3.2. A Participant's
Deferral Account shall be credited as follows:
(a) As of the last date of each month, the
Committee shall credit the investment fund subaccounts
of the Participant's Deferral Account with an amount
equal to Salary deferred by the Participant during each
pay period ending in that month in accordance with the
Participant's election under Section 3.2(a); that is,
the portion of the Participant's deferred Salary that
the Participant has elected to be deemed to be invested
in a certain Fund shall be credited to the investment
fund subaccount corresponding to that Fund;
(b) As of the last day of the month in which the
Bonus or partial Bonus would have been paid, the
Committee shall credit the investment fund subaccounts
of the Participant's Deferral Account with an amount
equal to the portion of the Bonus deferred by the
Participant's election under Section 3.2(a); that is,
the portion of the Participant's deferred Bonus that
the Participant has elected to be deemed to be invested
in a particular Fund shall be credited to the
investment fund subaccount corresponding to that Fund;
and
(c) As of the last day of each month, each
investment fund subaccount of a Participant's Deferral
Account shall be credited with earnings or losses in an
amount equal to that determined by multiplying the
balance of such investment fund subaccount as of the
last day of the preceding month by the Earnings Rate
for the corresponding Fund.
4.2 - Company Matching Account.
The Committee shall establish and maintain a
separate Company Matching Account for each Participant under
the Plan. Each Participant's Company Matching Account shall
be divided into separate investment fund subaccounts
corresponding to the investment funds elected by the
Participant pursuant to Section 3.2. A Participant's
Company Matching Account shall be credited as follows:
(a) As of the last day of each Plan Year or at
more frequent intervals as determined by the Committee,
the Company shall credit the investment fund
subaccounts of the Participant's Company Matching
Account with an amount equal to the Company Matching
Amount, if any, applicable to that Participant; that
is, the portion of the Company Matching Amount, if any,
which the Participant elected to be deemed to be
invested in a certain Fund shall be credited to the
corresponding investment fund subaccount; and
(b) As of the last day of each month, each
investment fund subaccount of a Participant's Company
Matching Amount shall be credited with earnings or
losses in an amount equal to that determined by
multiplying the balance of such investment fund
subaccount as of the last day of the preceding month by
the Earnings Rate for the corresponding Fund.
4.3 - Distribution Subaccounts.
Prior to January 1, 1998, each Participant's
Deferral Account and each Participant's Company Matching
Account was divided into Distribution Subaccounts as
necessary to account for the amounts payable under different
distribution options elected by a Participant with respect
to compensation deferred for Plan Years beginning on or
before January 1, 1998. Effective January 1, 1998, such
Distribution Subaccounts shall cease to exist, and the
amounts credited to such Distribution Subaccounts shall be
allocated to the investment subaccounts of each Participant
in accordance with each Participant's investment elections
under Section 3.2(b) or 3.2(c). Notwithstanding any
distribution options elected by a Participant with respect
to such Distribution Subaccounts, distribution of the
amounts so reallocated shall be made in accordance with the
provisions of Article VI as in effect on or after January 1,
1998.
ARTICLE V
VESTING
5.1 - Deferral Account.
A Participant's Deferral Account shall at all
times be 100% vested.
5.2 - Company Matching Account.
A Participant's Company Matching Account shall at
all times be 100% vested.
ARTICLE VI
DISTRIBUTIONS
6.1 - Time and Form of Distribution.
(a) The amount credited to a Participant's
Deferral Account and the amount credited to his or her
Company Matching Account shall be paid to the Participant
(or, in the case of his or her death, Beneficiary) in the
form of a cash lump sum payment on his or her Payment
Eligibility Date. Notwithstanding the foregoing, a
Participant may elect one of the following optional forms of
distribution, which election shall not be effective until
one year after such election is filed in writing with the
Committee:
(1) A cash lump sum payable on a specified
date either before or after the Participant's
Payment Eligibility Date;
(2) A cash lump sum payable on the later of
some specified date or the Participant's Payment
Eligibility Date;
(3) A specified number of substantially
equal monthly installments (not to exceed 180)
commencing on the later of a specified date or the
Participant's Payment Eligibility Date;
(4) A specified number of payments on
specified dates, not to exceed ten payments, each
payment constituting a specified percentage of the
total amount credited to a Participant's Deferral
Account and Company Matching Account as of the
date of each such payment; or
(5) Any other method selected by the
Participant which is approved by the Committee in
its sole and absolute discretion.
(b) The Participant's Accounts shall continue to
be credited monthly with earnings or losses pursuant to
Article IV of the Plan until all amounts credited to
his or her Accounts under the Plan have been
distributed.
(c) For all purposes under this Plan, a
Participant shall not be considered terminated from
employment if the Participant remains employed by The
Macerich Company, any of its subsidiaries, The Macerich
Partnership, L.P., Macerich Property Management Company
or Macerich Management Company.
(d) In the event of the death of a Participant,
the benefits described in this Section 6.1 shall be
paid to the Participant's Beneficiary in accordance
with the Participant's election hereunder.
6.2 - Small Benefits.
Notwithstanding anything herein contained to the
contrary, if the amount distributable in a form other than a
cash lump sum to a Participant (or to the Beneficiary of a
Participant as a result of the Participant's death) is less
than $10,000, such amount shall be paid in the form of a
cash lump sum to the Participant (or Beneficiary).
6.3 - Change in Election of Time and Form of Election.
A Participant may change his or her distribution
election under Section 6.1 by filing a new election with the
Committee; provided, however, that no such election shall be
effective until one year after such election is filed in
writing with the Committee.
ARTICLE VII
ADJUSTMENT OF PAYMENTS
7.1 - Hardship Distribution.
(a) Upon written request of a Participant, the
Committee may, in its sole discretion, make a lump sum
payment to a Participant and/or accelerate the payment of
installment payments due to the Participant in order to meet
a severe financial hardship to the Participant resulting
from (1) a sudden and unexpected illness or accident of the
Participant or a dependent of the Participant, (2) loss of
the Participant's property due to casualty or (3) other
similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the
Participant. However, no payment shall be made under this
Section 7.1 to the extent that a hardship is or may be
relieved (1) through reimbursement or compensation by
insurance or otherwise, (2) by liquidation of the
Participant's assets, to the extent the liquidation of such
assets would not itself cause severe financial hardship, or
(3) by cessation of deferrals under the Plan effective for
the next Plan Year. The amount of any hardship lump sum
payment and/or accelerated amount under this Section 7.1
shall not exceed the lesser of (1) the amount required to
meet the immediate financial need created by such hardship
or (2) the entire amounts credited to the Participant's
Accounts. The amount of any such payments shall be deducted
from the amount credited to the Participant's Accounts, pro
rata from among each of the investment subaccounts of the
Participant's Deferral Account and Company Matching Account.
The remaining amounts credited to a Participant's Accounts
shall be distributed in accordance with the Participant's
distribution election.
7.2 - Acceleration or Deferral of Benefit.
Upon the petition of any Participant or
Beneficiary, the Committee may, in its sole discretion,
accelerate or defer the payment of any benefit payable to
such Participant or Beneficiary, the amount of any such
acceleration or deferred benefit to be subject to such
actuarial adjustment as the Committee may determine in its
sole discretion.
ARTICLE VIII
ADMINISTRATION
8.1 - Members.
A Committee shall be appointed by, and serve at
the pleasure of, the Board of Directors. The number of
members comprising the Committee shall be determined by the
Board, which may from time to time vary the number of
members. A member of the Committee may resign by delivering
a written notice of resignation to the Board. The Board may
remove any member by delivering a certified copy of its
resolution of removal to such member. Vacancies in the
membership of the Committee shall be filled promptly by the
Board.
8.2 - Committee Action.
The Plan shall be administered by the Committee.
The Committee shall act at meetings by affirmative vote of a
majority of the members of the Committee. Any action
permitted to be taken at a meeting may be taken without a
meeting if, prior to such action, a written consent to the
action is signed by all members of the Committee and such
written consent is filed with the minutes of the proceedings
of the Committee. A member of the Committee shall not vote
or act upon any matter which relates solely to himself or
herself as a Participant. The Chairman or any other member
or members of the Committee designated by the Chairman may
execute any certificate or other written direction on behalf
of the Committee.
8.3 - Powers and Duties of the Committee.
(a) The Committee, on behalf of the Participants
and their Beneficiaries, shall enforce the Plan in
accordance with its terms, shall be charged with the general
administration of the Plan, and shall have all powers
necessary to accomplish its purposes, including, but not by
way of limitation, the following:
(1) To determine all questions relating to
the eligibility of employees to participate;
(2) To construe and interpret the terms and
provisions of this Plan;
(3) To compute the Earnings Rate for each
calendar month in accordance with the terms of the
Plan;
(4) To compute and certify to the amount and
kind of benefits payable to Participants and their
Beneficiaries;
(5) To maintain all records that may be
necessary for the administration of the Plan;
(6) To provide for the disclosure of all
information and the filing or provision of all reports
and statements to Participants, Beneficiaries or
governmental agencies as shall be required by law;
(7) To make and publish such rules for the
regulation of the Plan and procedures for the
administration of the Plan as are not inconsistent with
the terms hereof; and
(8) To appoint a plan administrator or any
other agent, and to delegate to them such powers and
duties in connection with the administration of the
Plan as the Committee may from time to time prescribe.
8.4 - Construction and Interpretation.
The Committee shall have full discretion to
construe and interpret the terms and provisions of this
Plan, which interpretation or construction shall be final
and binding on all parties, including but not limited to the
Company and any Participant or Beneficiary. The Committee
shall administer such terms and provisions in a uniform and
nondiscriminatory manner and in full accordance with any and
all laws applicable to the Plan.
8.5 - Information.
To enable the Committee to perform its functions,
the Company shall supply full and timely information to the
Committee on all matters relating to the Compensation of all
Participants, their death or other cause of termination, and
such other pertinent facts as the Committee may require.
8.6 - Compensation, Expenses and Indemnity.
(a) The members of the Committee shall serve
without compensation for their services hereunder.
(b) The Committee is authorized at the expense of
the Company to employ such legal counsel as it may deem
advisable to assist in the performance of its duties
hereunder. Expenses and fees in connection with the
administration of the Plan shall be paid by the Company.
(c) To the extent permitted by applicable state
law, the Company shall indemnify and save harmless the
Committee and each member thereof, the Board of Directors
and any delegate of the Committee who is an employee of the
Company against any and all expenses, liabilities and
claims, including legal fees to defend against such
liabilities and claims arising out of their discharge in
good faith of responsibilities under or incident to the
Plan, other than expenses and liabilities arising out of
willful misconduct. This indemnity shall not preclude such
further indemnities as may be available under insurance
purchased by the Company or provided by the Company under
any bylaw, agreement or otherwise, as such indemnities are
permitted under state law.
8.7 - Quarterly Statements.
Under procedures established by the Committee, a
Participant shall receive a statement with respect to such
Participant's Accounts as soon as practicable following the
end of each calendar quarter ending on March 31, June 30,
September 30 or December 31.
ARTICLE IX
MISCELLANEOUS
9.1 - Unsecured General Creditor.
Participants and their Beneficiaries, heirs,
successors, and assigns shall have no legal or equitable
rights, claims, or interest in any specific property or
assets of the Company. No assets of the Company shall be
held under any trust, or held in any way as collateral
security for the fulfilling of the obligations of the
Company under this Plan. Any and all of the Company's
assets shall be, and remain, the general, unpledged,
unrestricted assets of the Company. The Company's
obligation under the Plan shall be merely that of an
unfunded and unsecured promise of the Company to pay money
in the future, and the rights of the Participants and
Beneficiaries shall be no greater than those of unsecured
general creditors.
9.2 - Restriction Against Assignment.
The Company shall pay all amounts payable
hereunder only to the person or persons designated by the
Plan and not to any other person or corporation. No part of
a Participant's Accounts shall be liable for the debts,
contracts, or engagements of any Participant, his or her
Beneficiary, or successors in interest, nor shall a
Participant's Accounts be subject to execution by levy,
attachment, or garnishment or by any other legal or
equitable proceeding, nor shall any such person have any
right to alienate, anticipate, commute, pledge, encumber, or
assign any benefits or payments hereunder in any manner
whatsoever. If any Participant, Beneficiary or successor in
interest is adjudicated bankrupt or purports to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge
any distribution or payment from the Plan, voluntarily or
involuntarily, the Committee, in its discretion, may cancel
such distribution or payment (or any part thereof) to or for
the benefit of such Participant, Beneficiary or successor in
interest in such manner as the Committee shall direct.
9.3 - Withholding.
(a) There shall be deducted from each payment
made under the Plan all taxes which are required to be
withheld by the Company in respect to such payment. The
Company shall have the right to reduce any payment by the
amount of cash sufficient to provide the amount of said
taxes.
(b) In the event that a Participant defers
compensation in excess of the amount required to be withheld
for federal, state or local tax purposes, the Company shall
have the right to reduce any other payments to the
Participant by the amount sufficient to provide the amount
of said taxes.
9.4 - Amendment, Modification, Suspension or Termination.
The Company may amend, modify, suspend or
terminate the Plan in whole or in part, except that no
amendment, modification, suspension or termination shall
reduce any amounts allocated previously to a Participant's
Accounts. In the event that this Plan is terminated, the
amounts credited to a Participant's Deferral Account and
Company Matching Account shall be distributed to the
Participant or, in the event of his or her death, to his or
her Beneficiary in a lump sum within thirty (30) days
following the date of termination. The Company reserves the
right to change the Funds as described in Section 3.2(d).
9.5 - Governing Law.
To the extent not governed by federal law, this
Plan shall be construed, governed and administered in
accordance with the laws of the State of California.
9.6 - Receipt or Release.
Any payment to a Participant or the Participant's
Beneficiary in accordance with the provisions of the Plan
shall, to the extent thereof, be in full satisfaction of all
claims against the Committee and the Company. The Committee
may require such Participant or Beneficiary, as a condition
precedent to such payment, to execute a receipt and release
to such effect.
9.7 - Payments on Behalf of Persons under Incapacity.
In the event that any amount becomes payable under
the Plan to a person who, in the sole judgment of the
Committee, is considered by reason of physical or mental
condition to be unable to give a valid receipt therefor, the
Committee may direct that such payment be made to any person
found by the Committee, in its sole judgment, to have
assumed the care of such person. Any payment made pursuant
to such determination shall constitute a full release and
discharge of the Committee and the Company.
9.8 - Headings, etc. Not Part of Agreement.
Headings and subheadings in this Plan are inserted
for convenience of reference only and are not to be
considered in the construction of the provisions hereof.
9.9 - Limitation on Participants' Rights.
Participation in this Plan shall not give any
Eligible Employee the right to be retained in the Company's
employ or any right or interest in the Plan other than as
herein provided. The Company reserves the right to dismiss
any Eligible Employee without any liability for any claim
against the Company, except to the extent provided herein.
ARTICLE X
CLAIMS PROCEDURE
10.1 - Claims Procedure.
(a) Claim. A person who believes that he or she is
being denied a benefit to which he or she is entitled under
this Plan (hereinafter referred to as "Claimant") may file a
written request for such benefit with the Committee, setting
forth his or her claim. The request must be addressed to
the Committee at the Company's then principal place of
business.
(b) Claim Decision. Upon receipt of a claim, the
Committee shall advise the Claimant that a reply will be
forthcoming within ninety (90) days and shall, in fact,
deliver such reply within such period. The Committee may,
however, extend the reply period for an additional ninety
(90) days for special circumstances. If the claim is denied
in whole or in part, the Committee shall inform the Claimant
in writing, using language calculated to be understood by
the Claimant, setting forth: (i) the specified reason or
reasons for such denial, (ii) the specific reference to
pertinent provisions of this Plan on which such denial is
based, (iii) a description of any additional material or
information necessary for the Claimant to perfect his or her
claim and an explanation why such material or such
information is necessary, (iv) appropriate information as to
the steps to be taken if the Claimant wishes to submit the
claim for review, and (v) the time limits for requesting a
review under subsection (c) below.
(c) Request for Review. Within sixty (60) days after
the receipt by the Claimant of the written opinion described
above, the Claimant may request in writing that the
Committee review its determination. Such request must be
addressed to the Committee at the Company's then principal
place of business. The Claimant or his or her duly
authorized representative may, but need not, review the
pertinent documents and submit issues and comments in
writing for consideration by the Committee. If the Claimant
does not request a review within such sixty (60) day period,
he or she shall be barred and estopped from challenging the
Company's determination.
(d) Review of Decision. Within sixty (60) days after
the Committee's receipt of a request for review, after
considering all materials presented by the Claimant, the
Committee will inform the Claimant in writing, in a manner
calculated to be understood by the Claimant, of its decision
setting forth the specific reasons for the decision and
containing specific references to the pertinent provisions
of this Plan on which the decision is based. If special
circumstances require that the sixty (60) day time period be
extended, the Committee will so notify the Claimant and will
render the decision as soon as possible, but no later than
one hundred twenty (120) days after receipt of the request
for review.
IN WITNESS WHEREOF, the Company has caused this
document to be executed by its duly authorized officers on
this 11th day of December, 1997.
THE MACERICH COMPANY
By /s/ Richard A. Bayer
___________________________
By /s/ Thomas E. O'Hern
___________________________
THE MACERICH COMPANY
DEFERRED COMPENSATION PLAN
1998 COMPENSATION DEFERRAL, INVESTMENT AND
DISTRIBUTION ELECTION
INSTRUCTIONS/PURPOSE: This form is for Eligible Employees of
Macerich Company and its subsidiaries and successors (the
"Company") to enroll in The Macerich Company Deferred
Compensation Plan (the "Plan") for calendar year 1998,
and/or to make or change their investment elections for existing
account balances and future deferrals. To make deferral
elections, complete Parts A and B. To make investment
elections, complete Parts A and C. To make distribution elections,
complete Parts A and D. Employees should designate their
beneficiary(ies) on a separate Beneficiary Designation Form.
A. EMPLOYEE INFORMATION
___________________________ _____-_____-_____
Name Social Security Number
B. DEFERRAL ELECTIONS
1. Election to Defer Salary
I elect to defer ___% (any percentage up to 50%) of my
annual salary earned during the 1998 calendar year, commencing
with the first pay period beginning in 1998 and ending with the
last pay period beginning in 1998. I understand that I may not
revoke this election for the 1998 Plan Year and that, in order
to defer any salary for the 1999 Plan Year (beginning on January 1,
1999), I must submit a separate election form on or before
December 24, 1998.
2. Election to Defer Bonus
I elect to defer __% (any percentage up to 50%) of my
bonus (if any) paid during the 1998 Plan Year (reduced by the
amount I could have deferred under any Macerich 401(k) plan).
I understand that I may not revoke this election for the 1998
Plan Year and that, in order to defer any of my bonus for the
1999 Plan Year (beginning on January 1, 1999), I must submit a
separate election form on or before December 24, 1998.
C. INVESTMENT ELECTION (existing account balances and
future deferrals)
I hereby elect to have my existing account balances
and future deferrals deemed to be invested in the following
Northwestern Mutual Life funds or portfolios, according to
the percentages listed below, for purposes of determining the
amount of earnings and losses to be credited to my account.
Any deferrals for which no fund or portfolio is elected will
be deemed to be invested in the Money Market Portfolio. This
investment election must be submitted to the Committee by the
25th of a calendar month to be effective at the end of that month.
Elections submitted after the 25th will be effective at the end
of the following month. Investment elections must total 100%.
No more than five of the funds may be selected.
Type of Fund Percentage of Total Deferral
Guaranteed Interest Fund __________%
Money Market Portfolio __________%
Select Bond Portfolio __________%
High Yield Bond Portfolio __________%
Balanced Portfolio __________%
Index 500 Stock Portfolio __________%
Growth & Income Stock Portfolio __________%
Growth Stock Portfolio __________%
International Equity Portfolio __________%
Aggressive Growth Stock Portfolio __________%
Total 100 %
D. TIMING AND FORM OF PAYMENT
I hereby specify that payment of my deferred
compensation under this election be made or begin as indicated
below.
THIS SUPERSEDES ALL PRIOR ELECTIONS.
% of Total Payment Made or Payments Begin
% Payable promptly following my termination of
employment (for any reason including death,
retirement or voluntary resignation)
% A cash lump sum payable promptly upon the later
of my termination of employment for any
reason or ____________________ [fill in date]
% ________________ [any number up to 120] monthly
installments beginning on the first day of the
month following the later of my termination of
employment for any reason or _________________
[fill in date]
% On ______________________ date
(must not be any sooner than 1/1/99)
% On ______________________ date (must
not be any sooner than 1/1/99)
% On ______________________ date (must
not be any sooner than 1/1/99)
% On ______________________ date (must
not be any sooner than 1/1/99)
100% Total (must equal 100%)
ACKNOWLEDGMENT
I acknowledge that I have read and am familiar with
the terms of the Plan, and that I have elected to defer
Compensation subject to all conditions and restrictions set
forth in the Plan. I understand that (1) I may not withdraw
or take loans against any amounts I elect to defer (with the
exception of a hardship distribution permitted by the Committee);
(2) I may not retroactively change my decision to participate
in the Plan for calendar year 1998; (3) all amounts credited
to my accounts under the Plan will be paid to me (or my
beneficiary) following my termination of employment with the
Company, unless I file a timely Optional Distribution Election;
(4) I assume all risk, and the Company is not responsible, for
the investment performance of the Funds I have selected; (5)
my accounts shall merely be bookkeeping entries on the
Company's books, and I shall not obtain any interest in any
Funds selected by the Committee; and (6) my right to receive
benefits under the Plan is not secured in any way. Also,
I understand the investment elections made on this form will
remain in effect until I make a change.
____________________ __________________________
Date Participant's Signature
TO DEFER COMPENSATION FOR 1998, A PARTICIPANT MUST FILE
THIS FORM WITH THE PLAN'S ADMINISTRATIVE COMMITTEE BY
DECEMBER 31, 1997.
FILE NUMBER
858110
December 12, 1997
The Macerich Company
233 Wilshire Boulevard, Suite 700
Santa Monica, California 90401
Re: The Macerich Company Deferred Compensation Plan
for Executives (As Amended and Restated
Effective as of January 1, 1998)
Registration Statement on Form S-8
dated December 15, 1997
Ladies and Gentlemen:
We have served as Maryland counsel to The Macerich
Company, a Maryland corporation (the "Company"), in connection
with certain matters of Maryland law arising out of the
registration of $10,000,000 of Deferred Compensation Obligations
(the "Obligations") of the Company covered by the above-
referenced Registration Statement (the "Registration Statement"),
under the Securities Act of 1933, as amended (the "1933 Act").
The Obligations are to be issued by the Company pursuant to The
Macerich Company Deferred Compensation Plan for Executives (As
Amended and Restated Effective as of January 1, 1997) (the
"Plan"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Registration Statement.
In connection with our representation of the Company,
and as a basis for the opinion hereinafter set forth, we have
examined originals, or copies certified or otherwise identified
to our satisfaction, of the following documents (hereinafter
collectively referred to as the "Documents"):
1. The Registration Statement, filed with the
Securities and Exchange Commission (the "Commission"), pursuant
to the 1933 Act, and the related form of prospectus in the form
in which it will be sent or given to employees of the Company in
accordance with Rule 428(b)(1) under the 1933 Act;
2. The charter of the Company (the "Charter"),
certified as of a recent date by the State Department of
Assessments and Taxation of Maryland (the "SDAT");
3. The Bylaws of the Company, certified as of a
recent date by its Secretary;
4. Resolutions adopted by the Board of Directors of
the Company relating to (i) the approval of the Plan and (ii) the
issuance and registration of the Obligations, certified as of a
recent date by the Secretary of the Company;
5. A certificate of the SDAT as to the good standing
of the Company, dated as of a recent date;
6. A certificate executed by Richard A. Bayer,
Secretary and General Counsel of the Company, dated December 11,
1997;
7. The Plan; and
8. Such other documents and matters as we have deemed
necessary or appropriate to express the opinion set forth in this
letter, subject to the assumptions, limitations and
qualifications stated herein.
In expressing the opinion set forth below, we have
assumed, and so far as is known to us there are no facts
inconsistent with, the following:
1. Each of the parties (other than the Company)
executing any of the Documents has duly and validly executed and
delivered each of the Documents to which such party is a
signatory, and such party's obligations set forth therein are
legal, valid and binding and are enforceable in accordance with
all stated terms.
2. Each individual executing any of the Documents on
behalf of a party (other than the Company) is duly authorized to
do so.
3. Each individual executing any of the Documents,
whether on behalf of such individual or another person, is
legally competent to do so.
4. All Documents submitted to us as originals are
authentic. All Documents submitted to us as certified or
photostatic copies conform to the original documents. All
signatures on all such Documents are genuine. All public records
reviewed or relied upon by us or on our behalf are true and
complete. All statements and information contained in the
Documents are true and complete. There are no oral or written
modifications or amendments to the Documents, or waiver of any of
the provisions of the Documents, by action or omission of the
parties or otherwise.
The phrase "known to us" is limited to the actual
knowledge, without independent inquiry, of the lawyers at our
firm who have performed legal services in connection with the
issuance of this opinion.
Based upon the foregoing, and subject to the
assumptions, limitations and qualifications stated herein, it is
our opinion that:
1. The Company is a corporation duly incorporated and
existing under and by virtue of the laws of the State of Maryland
and is in good standing with the SDAT.
2. The Company has duly authorized the execution,
delivery and performance of the Plan and, when the Committee has
authorized and determined the term of Obligations in accordance
with the Plan and the Resolutions, the Obligations will be
validly issued securities of the Company and constitute the
legally binding obligations of the Company.
The foregoing opinion is limited to the substantive
laws of the State of Maryland and we do not express any opinion
herein concerning any other law. We express no opinion as to
compliance with the securities (or "blue sky") laws or the real
estate syndication laws of the State of Maryland.
We assume no obligation to supplement this opinion if
any applicable law changes after the date hereof or if we become
aware of any fact that might change the opinion expressed herein
after the date hereof.
This opinion is being furnished to you solely for
submission to the Securities and Exchange Commission as an
exhibit to the Registration Statement and, accordingly, may not
be relied upon by, quoted in any manner to, or delivered to any
other person or entity.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of the name
of our firm therein. In giving this consent, we do not admit
that we are within the category of persons whose consent is
required by Section 7 of the 1933 Act.
Very truly yours,
/s/ BALLARD SPAHR ANDREWS & INGERSOLL
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of The Macerich Company on Form S-8 (and the related
prospectus), pertaining to The Macerich Company Deferred
Compensation Plan for Executives (As Amended and Restated
Effective as of January 1, 1998), of our report dated March 14,
1997, on our audits of the consolidated financial statements and
financial statement schedule of The Macerich Company as of
December 31, 1996 and 1995, and for the years then ended and the
period March 16, 1994 through December 31, 1994 and the combined
financial statements of Macerich Predecessor Affiliates for the
period January 1, 1994 through March 15, 1994, which report is
included in the Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
Los Angeles, California
December 11, 1997