MANAGEMENT CONTINUITY AGREEMENT
THIS AGREEMENT is entered into by and between THE MACERICH COMPANY, a Maryland corporation (the "Company") and David J. Contis (the "Executive"), this 15th day of March, 2002.
The Board of Directors of the Company (the "Board") has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued commitment and dedication of the Executive, notwithstanding the possibility or occurrence of a Change of Control (as defined in Appendix A), to encourage the Executive's full attention and dedication to the Company currently and in the event of any impending Change of Control, to encourage the Executive's continued objectivity and impartiality in the evaluation of alternative strategies and continued service after a Change of Control, to provide the Executive with security, compensation and benefits arrangements following termination upon a Change of Control that further these objectives and that are competitive with those of other corporations. In order to accomplish these objectives, the Board has approved the Company's entering into this Agreement.
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions. In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
"1994 Plan" means The Macerich Company Amended and Restated 1994 Incentive Plan, as it may be amended from time to time.
"2000 Plan" means The Macerich Company 2000 Incentive Plan, as it may be amended from time to time.
"Base Salary" means the annual base rate of compensation payable to Executive by the Company as of the Executive's date of termination, before deductions or voluntary deferrals authorized by the Executive or required by law to be withheld from the Executive by the Company. Salary excludes all other extra pay such as overtime, pensions, severance payments, bonuses, stock incentives, living or other allowances, and other perquisites.
"Cause" means that the Company, acting in good faith based upon the information then known to the Company, determines that the Executive has:
(1) failed to perform in a material respect without proper cause his obligations under this Agreement or his written employment agreement, if any;
(2) been convicted of or pled guilty or nolo contendere to a felony;
(3) committed an act of fraud, dishonesty or gross misconduct which is materially injurious to the Company; or
(4) failed to perform his required job duties in a material respect without proper cause.
Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer of the Company or based upon the advice of counsel for the Company shall be conclusively presumed for purposes of this Agreement to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause under (1), (3) or (4) above unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of at least a majority of the entire membership of the Board (excluding the Executive and any relative of the Executive, if the Executive or such relative is a member of the Board) at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is given an opportunity, together with counsel for the Executive, to be heard before the Board), finding that, in the good faith opinion of the Board, the
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