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 000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, 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.
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
Xxxxxxx X. Xxxxx
Secretary
EMPLOYEE
ACKNOWLEDGED:
THE MACERICH PARTNERSHIP, L.P.
By: The Macerich Company
General Partner
By:____________________
Xxxxxxx X. Xxxxx
Secretary
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__
