This Employee Benefits Plan Agreement involves
Title: AMENDMENT NUMBER 1 TO THE MACERICH COMPANY 2005 DEFERRED COMPENSATION PLAN FOR EXECUTIVES
Industry: Real Estate Operations Sector: Services
AMENDMENT NUMBER 1
THE MACERICH COMPANY
2005 DEFERRED COMPENSATION PLAN
WHEREAS , The Macerich Company (the “Company”) has established and maintains The Macerich Company 2005 Deferred Compensation Plan for Executives (the “Plan”) to provide supplemental retirement income benefits through deferrals of salary and bonuses for certain Key Employees (as defined in the Plan); and
WHEREAS , the Plan is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986 (the “Code”), and Section 9.4 of the Plan provides for the amendment of the Plan to ensure such compliance and to add provisions that so comply; and
WHEREAS , Treasury Regulations and Internal Revenue Service guidance promulgated since the adoption of the Plan necessitate and allow certain amendments to the Plan in order to maintain compliance with Section 409A of the Code; and
WHEREAS , the Company has determined that it is appropriate and desirable to amend the Plan in a manner that complies with such regulations and guidance.
NOW, THEREFORE , the Plan is hereby amended as set forth below, effective January 1, 2009, or such other date or dates as may be specified below.
TITLE AND DEFINITIONS
1. Section 1.2 of the Plan is amended by changing the definition of “Company Matching Amount” to read as follows:
“Company Matching Amount” shall mean an amount equal to a percentage, determined by the Company in its sole discretion no later than the December 31 immediately preceding a Plan Year, of the amount of Compensation deferred under the Plan for the Plan Year.
2. Section 3.1(a) of the Plan is amended in its entirety, effective from the inception of the Plan, to read as follows:
(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 December 31) in which the
Compensation is to be earned. Notwithstanding the foregoing, an Eligible Employee who is a participant in the Prior Plan may make such election on such form under this Plan with respect to the Eligible Employee’s Bonus earned for service in 2004 and payable in 2005 no later than December 15, 2004 (or such later date that the Committee determines, but in no event later than December 31, 2004). 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 or Bonus, as applicable, that he or she elects to defer.
3. Subsection (e) is hereby added to Section 3.1 of the Plan to read as follows:
(e) Hardship Withdrawal Cancellation of Election . Notwithstanding the foregoing, in the event that an Eligible Employee who has elected to defer Compensation for a Plan Year pursuant to this Section 3.1 receives a hardship withdrawal during such Plan Year from a 401(k) Plan maintained by the Company, the Eligible Employee’s election to defer Compensation hereu