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
SENIOR EXECUTIVES (AS AMENDED AND
RESTATED EFFECTIVE AS OF JANUARY 1, 1997)
(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
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
Deferred $14,000,000 100%<2> $14,000,000<2> $4,242.42
Compensation
Obligations<1>
___________
<FN>
<1> The Deferred Compensation Obligations being registered
are general unsecured obligations of The Macerich Company
to pay deferred compensation in the future to
participating members of a select group of management or
highly compensated employees in accordance with the terms
of The Macerich Company Deferred Compensation Plan for
Senior Executives (As Amended and Restated Effective as
of January 1, 1997).
<2> Estimated solely for the purpose of determining the
registration fee.
</FN>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant
information) will be sent or given to employees as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"). Such documents need not be filed with
the Securities and Exchange Commission either as part of this
Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These
documents, which include the statement of availability
required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3
of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of The Macerich Company (the
"Company") filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 1996;
(b) Quarterly Reports on Form 10-Q for the Company's
quarters ended March 31, June 30, and September 30 of
1997;
(c) Current Report on Form 8-K for an event dated June 20,
1997;
(d) Current Report on Form 8-K, as amended by Form 8-K/A,
for an event dated August 6, 1997; and
(e) The description of the Company's Common Stock
contained in its Registration Statement filed on Form
8-A, dated March 9, 1994, as amended on Form 8-K,
dated August 5, 1994, and any other amendment or
reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), prior
to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into the prospectus and
to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated
by reference herein, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Macerich Company Deferred Compensation Plan for
Senior Executives (As Amended and Restated Effective as of
January 1, 1997) (the "Plan") provides a select group of
management or highly compensated employees (the "Eligible
Employees") of the Company and certain of its subsidiaries
with the opportunity to defer the receipt of certain pre-tax
cash compensation. The obligations of the Company under the
Plan (the "Deferred Compensation Obligations") will be general
unsecured obligations of the Company to pay deferred
compensation in the future to participating Eligible Employees
(the "Participants") in accordance with the terms of the Plan
from the general assets of the Company, and will rank pari
passu with other unsecured and unsubordinated indebtedness of
the Company from time to time outstanding. The Deferred
Compensation Obligations will be denominated and payable in
United States dollars.
Each Participant may elect to defer up to 50% of his
or her salary and/or up to 100% of his or her bonus (reduced
by the amount he or she could have deferred under any 401(k)
plan), if any, payable with respect to a particular Plan Year.
A Participant's salary deferrals are credited to the
Participant's bookkeeping account ("Cash Deferral Account")
maintained under the Plan. Each Participant's Cash Deferral
Account is credited on a monthly basis with a deemed rate of
earnings.
With certain exceptions, Deferred Compensation
Obligations will be paid after the Participant's Payment
Eligibility Date, which is the first day of the month
immediately following the day on which the Participant
terminates employment or dies. The Participant may elect to
receive (i) a cash lump-sum payment payable upon a specified
date before or after the Payment Eligibility Date; (ii) a cash
lump-sum payment payable upon the later of some specified date
or the Payment Eligibility Date; (iii) a specified number of
monthly installments, not to exceed 180, commencing on the
later of a specified date or the Participant's Payment
Eligibility Date.
No amount payable under the Plan shall be subject to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, voluntary or involuntary. Any attempt
to dispose of any rights to benefits payable under the Plan
shall be void.
The Deferred Compensation Obligations are not subject
to redemption, in whole or in part, prior to the individual
payment dates selected by the Participants, except that
Participants may withdraw all or a portion of the value of
their Plan accounts under certain specified circumstances.
However, the Company reserves the right to amend or terminate
the Plan at any time.
The total amount of the Deferred Compensation
Obligations are not determinable because the amount will vary
depending upon the level of participation by Eligible
Employees and the amounts of their salaries and bonuses. The
duration of the Plan is indefinite. The Deferred Compensation
Obligations are not convertible into another security of the
Company. The Deferred Compensation Obligations will not have
the benefit of a negative pledge or any other affirmative or
negative covenant on the part of the Company. Each
Participant will be responsible for acting independently with
respect to, among other things, the giving of notices,
responding to any requests for consents, waivers or amendments
pertaining to the Deferred Compensation Obligations, enforcing
covenants and taking action upon a default by the Company.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The MGCL permits a corporation formed in Maryland to
include in its charter a provision eliminating or limiting the
liability of its directors and officers to the corporation and
its stockholders for money damages except for (i) active and
deliberate dishonesty established by a final judgment as being
material to that cause of action or (ii) actual receipt of an
improper benefit or profit in money, property or services.
The Company's Charter has incorporated such a provision which
limits such liability to the fullest extent permitted by the
MGCL.
The Charter authorizes the Company to indemnify its
present and former officers and directors and to pay or
reimburse reasonable expenses in advance of the final
disposition of the proceeding to the maximum extent permitted
from time to time by the laws of Maryland. The Bylaws of the
Company obligate it to indemnify and advance reasonable
expenses to present and former directors and officers to the
maximum extent permitted by Maryland law. The MGCL permits a
corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a
party by reason of their service in those or other capacities
unless it is established that (i) the act or omission of the
director or officer was material to the matter giving rise to
the proceeding and (a) was committed in bad faith or (b) was
the result of active and deliberate dishonesty, (ii) the
director or officer actually received an improper personal
benefit, or (iii) in the case of any criminal proceeding, the
director or officer had reasonable cause to believe that the
act or omission was unlawful. In addition, the MGCL requires
the Company, as conditions to advancing expenses, to obtain
(a) a written affirmation by the director or officer of his
good faith belief that he has met the standard of conduct
necessary for indemnification by the Company as authorized by
the applicable Bylaws or partnership agreement and (b) a
written statement by him or on his behalf to repay the amount
paid or reimbursed by the Company if it shall ultimately be
determined that the standard of conduct was not met. The MGCL
requires a corporation (unless its charter provides otherwise,
which the Company's Charter does not) to indemnify a director
or officer who has been successful, on the merits or
otherwise, in the defense of any proceeding to which he is
made a party by reason of his service in that capacity.
However, under the MGCL, a Maryland corporation may not
indemnify for an adverse judgment in a suit by or in the right
of the corporation. The bylaws also (i) permit the Company to
provide indemnification and advance expenses to a present or
former director or officer who served a predecessor of the
Company in such capacity, and to any employee or agent of the
Company or a predecessor of the Company, (ii) provide that any
indemnification or payment or reimbursement of the expenses
permitted by the applicable bylaws shall be furnished in
accordance with the procedures provided for indemnification
and payment or reimbursement of expenses under Section 2-418
of the MGCL for directors of Maryland corporations and (iii)
permit the Company to provide such other and further
indemnification or payment or reimbursement of expenses as may
be permitted by Section 2-418 of the MGCL for directors of
Maryland corporations.
The Partnership Agreement of the Operating Partnership
also provides for indemnification of the Company and its
officers and directors to the same extent that indemnification
is provided to officers and directors of the Company in the
Charter, and limits the liability of the Company and its
officers and directors to the Operating Partnership and its
partners to the same extent that liability of officers and
directors of the Company is limited under the Charter.
The Company and the Operating Partnership have entered
into indemnification agreements with each of the Company's
officers and directors. The indemnification agreements
require, among other things, that the Company and the
Operating Partnership indemnify the Company's officers and
directors to the fullest extent permitted by law, and advance
to the officers and directors all related reasonable expenses,
subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company and the
Operating Partnership must also indemnify and advance all
expenses incurred by officers and directors seeking to enforce
their rights under the indemnification agreements, and cover
officers and directors under the Company's directors' and
officers' liability insurance. Although this form of
indemnification agreement offers substantially the same scope
of coverage afforded by provisions in the Charter and the
Bylaws of the Company and the Partnership Agreement of the
Operating Partnership, it provides greater assurance to
directors and officers that indemnification will be available,
because, as a contract, it cannot be modified unilaterally in
the future by the Board of Directors, by the stockholders or
by the partners of the Operating Partnership to eliminate the
rights it provides.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities
Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus
any facts or events arising after the effective
date of the Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change
to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new regis-
tration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant
to the provisions described in Item 6 above, or otherwise,
the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Santa Monica,
State of California, on 12/11/97, 1997.
By: /s/ Arthur M. Coppola
Arthur M. Coppola
Its: President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below
constitutes and appoints Arthur M. Coppola, Thomas E. O'Hern
and Richard A. Bayer, and each of them, his true and lawful
attorney-in-fact and agent, with full powers of substitution
and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed below
by the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
/s/ Mace Siegel Chairman of 12/10/97
Mace Siegel the Board
of Directors
/s/ Dana K. Anderson Vice Chairman 12/10/97
Dana K. Anderson of the Board of
Directors and Chief
Operating Officer
/s/ Arthur M. Coppola Director, 12/11/97
Arthur M. Coppola President and
Chief Executive
Officer (Principal
Executive Officer)
/s/ Edward C. Coppola Director, 12/10/97
Edward C. Coppola Executive Vice
President and Director
of Acquisitions
/s/ James S. Cownie Director* 12/10/97
James S. Cownie
/s/ Theodore S. Hochstim Director 12/10/97
Theodore S. Hochstim
/s/ Fred S. Hubbell Director 12/10/97
Fred S. Hubbell
Director ________________
Stanley A. Moore
/s/ William P. Sexton Director* 12/10/97
Dr. William P. Sexton
/s/ Thomas E. O'Hern Senior Vice 12/11/97
Thomas E. O'Hern President, Chief
Financial Officer,
and Treasurer
(Principal Financial
Officer and Principal
Accounting Officer)
________________
*Member of Compensation Committee
EXHIBIT INDEX
Exhibit
Sequentially
Number Description Numbered Page
4.1 The Macerich Company Deferred
Compensation Plan for Senior Executives.
4.2 The Macerich Company Deferred
Compensation Plan for Senior Executives
Initial Election Agreement.
4.3 The Macerich Company Deferred
Compensation Plan for Senior Executives
Annual Election Agreement (included
in Exhibit 4.2).
5. Opinion of Ballard Spahr Andrews &
Ingersoll (opinion re legality).
23.1 Consent of Coopers & Lybrand LLP (Consent
of Independent Accountants).
23.2 Consent of Ballard Spahr Andrews &
Ingersoll (included in Exhibit 5).
24. Power of Attorney (included in this
Registration Statement under
"Signatures").