Exhibit 10.2
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This Amended and Restated Employment Agreement
(the “Agreement”) is entered into by and among The
Macerich Company, a Maryland corporation and The Macerich
Partnership, L.P., a Delaware partnership (collectively, the
“Company”), and Tony Grossi (“Employee”),
as of the 19th day of December, 2008. This Agreement amends
and restates the Employment Agreement by and among the Company and
Employee dated as of the 1st day of November, 2006.
I.
EMPLOYMENT.
The Company hereby employs Employee
and Employee hereby accepts such employment, upon the terms and
conditions hereinafter set forth.
II.
TERM .
The initial term of Employee’s
employment pursuant to this Agreement commenced on January 8,
2007, and shall end on December 31, 2009. Upon the
expiration of such term, this Agreement will lapse and have no
further force or effect and Employee shall become an “at
will” employee in accordance with the Company’s
customary practices; provided , however , and
notwithstanding such at-will status, the severance provisions of
Section V.D.3.b. shall survive the specified term of the
Agreement and be fully enforceable during the period
January 1, 2010 through December 31, 2011.
III.
DUTIES .
A.
Employee shall serve during the course of his employment as
Executive Vice President, Chief Operating Officer & Chief
Economist, and shall have such other duties and responsibilities as
the Board of Directors of the Company, or its President &
Chief Executive Officer, shall determine from time to time.
In addition, Employee will be responsible for extensive travel
throughout the United States to acquaint himself with the Company,
meet with personnel, and visit all relevant and competitive
properties.
B.
Employee agrees to devote substantially all of his work day, energy
and ability to the business of the Company. Nothing herein
shall prevent Employee from investing in real estate for his own
account or from becoming a partner or a stockholder in any
corporation, partnership or other venture not in competition with
the business of the Company or in competition with any present or
future affiliate of the Company.
C.
Employee hereby acknowledges and agrees that, except as above
contemplated, the engagement of Employee by the Company under this
Agreement is exclusive to the Company, and he shall not render
services to any other entity for compensation or otherwise without
the prior written consent of the Company.
IV.
COMPENSATION .
A.
Salary . The Company will pay to Employee a base
salary at the rate, which became effective March 2, 2008, of
$600,000 per year. Such salary shall be earned monthly and
shall be payable biweekly in periodic installments in accordance
with the Company’s customary practices. Amounts payable
shall be reduced by standard withholding and other authorized
deductions. The Company will review Employee’s salary
at least annually. The Company may in its discretion increase
Employee’s salary but it may not reduce it during the term of
this Agreement.
B.
Bonus and Incentive Compensation . Employee shall be
entitled to participate in all annual bonus, incentive, stock
incentive, LTIP, savings and retirement plans, practices, policies
and programs applicable generally to other Executive Officers of
the Company. Bonus and incentive plan awards will be based on
success in achieving personal goals and objectives and Company
performance.
C.
Welfare Benefit Plans . Employee and/or his family, as
the case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company (including, without
limitation, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable
generally to other Executive Officers of the Company.
D.
Expenses . In addition, Employee shall be entitled to
receive prompt reimbursement for all reasonable employment expenses
incurred by him in accordance with the policies, practices and
procedures as in effect generally with respect to other Executive
Officers of the Company.
E.
Fringe Benefits . Employee shall be entitled to fringe
benefits in accordance with the plans, practices, programs and
policies as in effect generally with respect to other Executive
Officers of the Company.
F.
Vacation . Employee shall be entitled to at least 4
weeks of paid vacation in accordance with the plans, policies,
programs and practices as in effect generally with respect to other
Executive Officers of the Company.
G.
The Company reserves the right to modify, suspend or discontinue
any and all of the above plans, practices, policies and programs at
any time without recourse by Employee so long as such action is
taken generally with respect to other Executive Officers and does
not single out Employee.
V.
TERMINATION.
A.
Death or Disability . Employee’s employment
shall terminate automatically upon Employee’s death. If
the Company determines in good faith that the Disability of
Employee has occurred (pursuant to the definition of Disability set
forth below), it may give to Employee written notice of its
intention to terminate Employee’s employment. In such
event, Employee’s employment with the Company shall terminate
effective on the 30th day after receipt of such
2
notice by Employee, provided that, within
the 30 days after such receipt, Employee shall not have returned to
full-time performance of his duties. For purposes of this
Agreement, “Disability” shall mean the absence of
Employee from his 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
Employee or his legal representative (such agreement as to
acceptability not to be withheld unreasonably).
“Incapacity” as used herein shall be limited only to a
condition that substantially prevents Employee from performing his
duties hereunder.
B.
Cause . During the term of this Agreement, the Company
may terminate Employee’s employment for Cause.
“Cause” shall mean a termination of employment of the
Employee by the Company due to (a) the commission by the
Employee of an act of fraud or embezzlement against the Company;
(b) the conviction of the Employee in a court of law, or
guilty plea or no contest plea, to a felony charge; (c) the
willful misconduct of the Employee which is reasonably likely to
result in injury or financial loss to the Company; (d) the
willful failure of the Employee to render services to the Company,
which failure amounts to material neglect of the Employee’s
duties and does not result from physical illness, injury or
incapacity, and which failure is not cured promptly after adequate
notice of such failure and a reasonably detailed explanation in
writing has been presented by the Company to the Employee; or
(e) any other material breach of this Agreement, which breach
is not cured, if curable, within 30 days after a written notice of
such breach is delivered to the Employee.
C.
Termination by the Company Without Cause . The Company
may terminate Employee’s employment at any time during the
term of this Agreement without Cause and without prior
notice. Any such termination without Cause shall trigger the
Company’s obligations under Section V.D.3.
below.
D.
Obligations of the Company Upon Termination .
1.
Death or Disability . If Employee’s employment
is terminated by reason of Employee’s death or Disability
during the term of this Agreement (as in effect on the date of
Employee’s termination of employment), the Company shall pay
to Employee (or, in the case of his death, his surviving spouse or,
if there is no surviving spouse, his estate) in a lump sum in cash
within 30 days of the date of termination, an amount equal to the
product of Employee’s annual base salary multiplied by a
fraction, the numerator of which shall be the number of whole
months remaining in the term of this Agreement (as in effect on the
date of Employee’s termination of employment) and the
denominator of which is 12.
2.
Cause . If Employee’s employment is terminated
by the Company pursuant to Section V-B, this Agreement shall
terminate without further obligations to Employee other than for
(a) payment of the sum of Employee’s annual base salary
through the date of termination and any accrued vacation pay to the
extent not theretofore paid, which shall be paid to Employee or his
estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the date of termination; (b) payment of any vested
compensation previously deferred by Employee (together with any
accrued interest or earnings thereon), which shall be paid to
Employee or his estate or beneficiary pursuant to terms of the plan
or agreement under which such compensation was deferred; and
(c) payment to
