-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BqIEFZaSUFR+/0sacez7KcWK0jOta9/otBJkiEIqzQW0HhfnfETbYVeHagzpu14V /qYsuKT+jpv11aP3YQwsIw== /in/edgar/work/20000609/0000950152-00-004611/0000950152-00-004611.txt : 20000919 0000950152-00-004611.hdr.sgml : 20000919 ACCESSION NUMBER: 0000950152-00-004611 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000609 EFFECTIVENESS DATE: 20000609 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FOREST CITY ENTERPRISES INC CENTRAL INDEX KEY: 0000038067 STANDARD INDUSTRIAL CLASSIFICATION: [6512 ] IRS NUMBER: 340863886 STATE OF INCORPORATION: OH FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-38912 FILM NUMBER: 651949 BUSINESS ADDRESS: STREET 1: 1100 TERMINAL TOWER STREET 2: 50 PUBLIC SQ CITY: CLEVELAND STATE: OH ZIP: 44113 BUSINESS PHONE: 216-621-6060 MAIL ADDRESS: STREET 1: 1100 TERMINAL TOWER STREET 2: 50 PUBLIC SQUARE CITY: CLEVLAND STATE: OH ZIP: 44113 S-8 1 0001.txt FOREST CITY ENTERPRISES S-8 1 As filed with the Securities and Exchange Commission on June 9, 2000 Registration No. ________________ - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ---------- FOREST CITY ENTERPRISES, INC. (Exact Name of Registrant as Specified in Its Charter) OHIO 34-0863886 (State or Other Jurisdiction (I.R.S. Employer Identification No.) of Incorporation or Organization) 1100 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113-2203 (Address of Principal Executive Offices Including Zip Code) FOREST CITY ENTERPRISES, INC. DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS (Full Title of the Plan) FCE Statutory Agent, Inc. Terminal Tower, Suite 1100, 50 Public Square Cleveland, Ohio 44113-2203 (Name and Address of Agent For Service) (216) 621-6060 (Telephone Number, Including Area Code, of Agent For Service) CALCULATION OF REGISTRATION FEE
======================================================================================================================== Title of Proposed Maxi- Proposed Maxi- Amount of Securities to Amount to be mum Offering mum Aggregate Registration be Registered Registered (1) Price Per Share (2) Offering Price (2) Fee - ------------------------------------------------------------------------------------------------------------------------ Class A Common $550,000 100% $550,000 $145.20 Shares, Par Value $.33-1/3 per share ========================================================================================================================
(1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities Act"), this Registration Statement also covers such additional Class A Common Shares, Par Value $.33-1/3 per share ("Common Shares"), as may become issuable pursuant to the anti- dilution provisions of the Forest City Enterprises, Inc. Deferred Compensation Plan for Nonemployee Directors (the "Plan"). (2) Estimated solely for calculating the amount of the registration fee. Exhibit Index Appears on Page 6 2 Part II Item 3. Incorporation of Documents by Reference --------------------------------------- The following documents previously filed by Forest City Enterprises, Inc ("Registrant") with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (1) the Annual Report on Form 10-K for the fiscal year ended January 31, 2000; and (2) the description of the Common Shares contained in the Registration Statement filed with the Commission pursuant to Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") for purposes of registering such securities thereunder, and any amendments and reports filed for the purpose of updating that description. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated herein by reference and to be part hereof from the date of filing of such documents. Item 4. Description of Securities ------------------------- Not Applicable. (Class of securities to be offered is registered under Section 12 of the Exchange Act.) Item 5. Interests of Named Experts and Counsel -------------------------------------- Not Applicable. Item 6. Indemnification of Directors and Officers ----------------------------------------- Section 1701.13(E) of the Ohio Revised Code sets forth conditions and limitations concerning indemnification of officers, directors and other persons. Article VI of the Registrant's Code of Regulations, incorporated herein by reference, provides for the indemnification of officers and directors in terms consistent with statutory authority. The Registrant maintains insurance covering certain liabilities of the directors and the elected and appointed officers of the Registrant and its subsidiaries. Item 7. Exemption from Registration Claims ---------------------------------- Not Applicable. Item 8. Exhibits -------- 4.1 Amended Articles of Incorporation of the Registrant adopted as of October 11, 1983, incorporated by reference to Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended October 31, 1983 (File No. 1-4372). 4.2 Certificate of Amendment by Shareholders to Amended Articles of Incorporation of the Registrant dated June 24, 1997, incorporated by reference to as Exhibit 4.14 to the Registrant's Registration Statement on Form S-3 (Registration No. 333-41437). 4.3 Certificate of Amendment by Shareholders to the Amended Articles of Incorporation of the Registrant dated June 16, 1998, incorporated by reference to Exhibit 4.3 to the Registrant's Registration Statement on Form S-8 (Registration No. 333-61925). -2- 3 4.4 Amended Code of Regulations of the Registrant as amended June 14, 1994, (incorporated by reference to Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the fiscal year ended January 31, 1997 (File No. 1-4372). 4.5 The Plan, incorporated by reference to as Exhibit 10.44 to the Registrant's Annual Report on 10-K for the year ended January 31, 1999 (File No. 1-4372). 4.6 Amendment No. 1 to the Plan. 4.7 Amendment No. 2 to the Plan. 23 Consent of Independent Auditors. 24 Power of Attorney. 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; (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; (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 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. (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 in the initial bona fide offering thereof. (c) 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 foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. -3- 4 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 of whether such indemnification by it is against public policy as expressed in the 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 Cleveland, State of Ohio, on June 8th, 2000. FOREST CITY ENTERPRISES, INC. (Registrant) By: /s/ Thomas G. Smith ---------------------------------------- Thomas G. Smith Senior Vice President, Chief Financial Officer and Secretary -4- 5 Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature Title Date --------- ----- ---- * Chief Executive Officer, President and June 8, 2000 - ----------------------------- Director (Principal Executive Officer) Charles A. Ratner /s/ Thomas G. Smith Senior Vice President, Chief Financial June 8, 2000 - ----------------------------- Officer and Secretary Thomas G. Smith (Principal Financial Officer) * Vice President and Corporate Controller June 8, 2000 - ----------------------------- (Principal Accounting Officer) Linda M. Kane * Co-Chairman of the Board and Director June 8, 2000 - ----------------------------- Albert B. Ratner * Co-Chairman of the Board and Director June 8, 2000 - ----------------------------- Samuel H. Miller * Executive Vice President and Director June 8, 2000 - ----------------------------- James A. Ratner * Executive Vice President and Director June 8, 2000 - ----------------------------- Ronald A. Ratner * Executive Vice President and Director June 8, 2000 - ----------------------------- Brian J. Ratner * Director June 8, 2000 - ----------------------------- Deborah Ratner Salzberg * Director June 8, 2000 - ----------------------------- Michael P. Esposito, Jr. * Director June 8, 2000 - ----------------------------- Scott S. Cowen * Director June 8, 2000 - ----------------------------- Jerry V. Jarrett * Director June 8, 2000 - ----------------------------- Joan K. Shafran * Director June 8, 2000 - ----------------------------- Louis Stokes * Director June 8, 2000 - ----------------------------- Stan Ross
* Thomas G. Smith, the undersigned attorney-in-fact, by signing his name hereto, does hereby sign and execute this Registration Statement on behalf of the above indicated officers and directors thereof (constituting a majority of the directors) pursuant to a power of attorney filed with the Securities and Exchange Commission. June 8, 2000 By: /s/ Thomas G. Smith ---------------------- Thomas G. Smith, Attorney-in-Fact -5- 6 EXHIBIT INDEX ------------- 4.1 Amended Articles of Incorporation of the Registrant adopted as of October 11, 1983, incorporated by reference to Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended October 31, 1983 (File No. 1-4273). 4.2 Certificate of Amendment by Shareholders to Amended Articles of Incorporation of the Registrant dated June 24, 1997, incorporated by reference to as Exhibit 4.14 to the Registrant's Registration Statement on Form S-3 (Registration No. 333-41437). 4.3 Certificate of Amendment by Shareholders to the Amended Articles of Incorporation of the Registrant dated June 16, 1998, incorporated by reference to Exhibit 4.3 to the Registrant's Registration Statement on Form S-8 (Registration No. 333-61925) and incorporated herein by reference). 4.4 Amended Code of Regulations of the Registrant as amended June 14, 1994, incorporated by reference to Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the fiscal year ended January 31, 1997 (File No. 1-4372). 4.5 The Plan, incorporated by reference to Exhibit 10.44 to the Registrant's Annual Report on 10-K for the year ended January 31, 1999 (File No. 1-4273). 4.6 Amendment No. 1 to the Plan. 4.7 Amendment No. 2 to the Plan. 23 Consent of Independent Auditors. 24 Power of Attorney. -6- EX-4.6 2 0002.txt EXHIBIT 4.6 1 Exhibit 4.6 ----------- FIRST AMENDMENT TO ------------------ FOREST CITY ENTERPRISES, INC. ----------------------------- DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS ---------------------------------------------------- This First Amendment to Forest City Enterprises, Inc. Deferred Compensation Plan for Nonemployee Directors (the "First Amendment") is effective as of the 1st day of October, 1999, by Forest City Enterprises, Inc. (the "Company"). WITNESSETH ---------- WHEREAS, the Company established the Forest City Enterprises, Inc. Deferred Compensation Plan for Nonemployee Directors (the "Compensation Plan") effective as of January 1, 1999, as amended, and WHEREAS, the Company desires to amend the Compensation Plan as hereinafter set forth. NOW, THEREFORE, the Compensation Plan is amended as follows: 1. Article II, Section 2, Page 4 of the Compensation Plan is hereby amended by adding the following sentence at the end thereof: Any Participant receiving the Committee's written authorization pursuant to Section 3 of this Article II to defer all or a part of his or her Fee to a date after the Participant's retirement date, or to a date prior to the Participant's retirement date, must deliver an Election Agreement to the Committee at least two (2) years in advance of the date the Participant elects to have the benefit payments commence under the terms of Section 5 of this Article II. 2. Article II, Section 3, Page 4 of the Compensation Plan is hereby amended by deleting the last sentence of this Section. The following revised sentence shall be inserted: Unless the Committee permits (by written authorization) a Participant to elect a deferral period ending earlier or later than the Termination of Service Date described hereafter, the applicable percentage(s) or dollar amount(s) of his or her Fee shall be deferred until the date the Participant ceases to be a Director by death, retirement or Disability or otherwise ceases to be a Director of the Company (the "Termination of Service Date"). This Section 3 of Article II, Page 4 of the Compensation Plan is further amended by adding the following at the end thereof: Notwithstanding the foregoing, the Committee may, in its sole discretion, permit (by written authorization) a Participant to defer the applicable percentage(s) or dollar amount(s) of his or her Fee (a) to a date after the Participant's retirement date, or (b) to a date that precedes the 2 Participant's stated retirement date and that is at least two (2) years after the date of the election, provided the Participant shall timely file an Election Agreement in accordance with Article II, Section 2. The Committee may, in its sole discretion, permit (by written authorization) a Participant to modify or revoke any such election at any time and from time to time by the filing of a later written election with the Committee, provided, however, that any election made -------- ------- less than one year prior to the Participant's Termination of Service Date, or less than two years prior to the date the Participant elects to have the benefit payments commence, shall not be valid, and in such case, payment shall be made in accordance with the latest valid election of the Participant. 3. Article V, Section 3, Subparagraph (a), Page 7 of the Compensation Plan is hereby amended by inserting a comma after the words "irrevocable trust", and adding the following language, "substantially in the form of the Rabbi Trust attached hereto as Exhibit C." 4. This Compensation Plan is hereby amended by adding a form of a Rabbi Trust Agreement (substantially in the form attached hereto as Exhibit C). 5. Except as expressly amended and modified herein, the provisions of the Compensation Plan shall remain in full force and effect. 6. Except to the extent preempted by federal law, this First Amendment shall be governed by and construed in accordance with the laws of the State of Ohio. EXECUTED at Cleveland, Ohio as of October 1, 1999. Forest City Enterprises, Inc. By: -------------------------------------------- Name: Thomas G. Smith Title: Chief Financial Officer, Senior Vice President and Secretary 3 EXHIBIT C --------- RABBI TRUST AGREEMENT UNDER THE FOREST CITY ENTERPRISES, INC. DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS This Rabbi Trust Agreement ("Agreement") made this 1st day of October, by and between Forest City Enterprises, Inc. ("Company") and First Merit ("Trustee"); WHEREAS, Company has adopted the Forest City Enterprises, Inc. Deferred Compensation Plan For Nonemployee Directors effective as of January 1, 1999, as amended (the "Plan"); WHEREAS, Company wishes to establish a trust (hereinafter called "Trust") and to contribute to the Trust assets that shall be held therein, subject to the claims of Company's creditors in the event of Company's Insolvency, as herein defined, until paid to Plan participants and their beneficiaries in such manner and at such times as specified in the Plan; WHEREAS, it is the intention of the parties that this Trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan maintained for the purpose of providing deferred compensation for Nonemployee Directors for purposes of Title I of the Employee Retirement Income Security Act of 1974; WHEREAS, it is the intention of Company to make contributions to the Trust to provide itself with a source of funds to assist it in the meeting of its liabilities under the Plan; WHEREAS, it is the intention of Company to make contributions to the Trust to provide itself with a source of funds to assist it in the meeting of its liabilities under the Plan; NOW, THEREFORE, the parties do hereby establish the Trust and agree that the Trust shall be comprised, held and disposed of as follows: Section 1: Establishment of Trust ---------------------- (a) Company hereby deposits with Trustee in trust ten dollars ($10.00), which shall become the principal of the Trust to be held, administered and disposed of by Trustee as provided in this Trust Agreement. (b) The Trust hereby established is revocable by Company; it shall become irrevocable upon the earlier to occur of (i) a Change of Control, as defined in Article I, Section 5 1 4 of the Plan, or (ii) a declaration by the Board of Directors of the Company that a Change of Control is imminent. (c) The Trust is intended to be a grantor trust, of which Company is the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be construed accordingly. (d) The principal of the Trust, and any earnings thereon shall be held separate and apart from other funds of Company and shall be used exclusively for the uses and purposes of Plan participants and general creditors as herein set forth. Plan participants and their beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rights created under the Plan shall be mere unsecured contractual rights of Plan participants and their beneficiaries against Company. Any assets held by the Trust will be subject to the claims of Company's general creditors under federal and state law in the event of Insolvency, as defined in Section 3(a) herein. (e) Upon a Change of Control, Company shall, as soon as possible, but in no event longer than five (5) days following the Change of Control, as defined herein, make an irrevocable contribution to the Trust in an amount that is sufficient to pay each Plan participant or beneficiary the benefits to which Plan participants or their beneficiaries would be entitled pursuant to the terms of the Plan as of the date on which the Change of Control occurred. Section 2: Payments to Plan Participants and Their Beneficiaries ----------------------------------------------------- (a) Following any funding of the Trust in excess of the amount set forth in Section 1(a) hereof, Company shall deliver to Trustee a schedule (the "Payment Schedule") that indicates the amounts payable in respect of each Plan participant (and his or her beneficiaries), that provides a formula or other instructions acceptable to Trustee for determining the amounts so payable, the form in which such amount is to be paid (as provided for or available under the Plan), and the time of commencement for payment of such amounts. Except as otherwise provided herein, Trustee shall make payments to the Plan participants and their beneficiaries in accordance with such Payment Schedule. The Trustee shall make provision for the reporting and withholding of any federal, state or local taxes that may be required to be withheld with respect to the payment of benefits pursuant to the preceding sentence and shall pay amounts withheld to the appropriate taxing authorities or determine that such amounts have been reported, withheld and paid by Company. (b) The entitlement of a Plan participant or his or her beneficiaries to benefits under the Plan shall be determined by Company or such party as it shall designate under the Plan, and any claim for such benefits shall be considered and reviewed under the procedures set out in the Plan. (c) Company may make payment of benefits directly to Plan participants or their beneficiaries as they become due under the terms of the Plan. Company shall notify Trustee 2 5 of its decision to make payment of benefits directly prior to the time amounts are payable to participants or their beneficiaries. In addition, if the principal of the Trust, and any earnings thereon, are not sufficient to make payments of benefits in accordance with the terms of the Plan, Company shall make the balance of each such payment as it falls due. Trustee shall notify Company where principal and earnings are not sufficient. Section 3: Trustee Responsibility Regarding Payments to Trust Beneficiary When ------------------------------------------------------------------- Company Is Insolvent -------------------- (a) Trustee shall cease payment of benefits to Plan participants and their beneficiaries if the Company is Insolvent. Company shall be considered "Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay its debts as they become due, or (ii) Company is subject to a pending proceeding as a debtor under the United States Bankruptcy Code. (b) At all times during the continuance of this Trust, as provided in Section 1(d) hereof, the principal and income of the Trust shall be subject to claims of general creditors of Company under federal and state law as set forth below. 1. The Board of Directors and the Chief Executive Officer of Company shall have the duty to inform Trustee in writing of Company's Insolvency. If a person claiming to be a creditor of Company alleges in writing to Trustee that Company has become Insolvent, Trustee shall determine whether Company is Insolvent and, pending such determination, Trustee shall discontinue payment of benefits to Plan participants or their beneficiaries. 2. Unless Trustee has actual knowledge of Company's Insolvency, or has received notice from Company or a person claiming to be a creditor alleging that Company is Insolvent, Trustee shall have no duty to inquire whether Company is Insolvent. Trustee may in all events rely on such evidence concerning Company's solvency as may be furnished to Trustee and that provides Trustee with a reasonable basis for making a determination concerning Company's solvency. 3. If at any time Trustee has determined that Company is Insolvent, Trustee shall discontinue payments to Plan participants or their beneficiaries and shall hold the assets of the Trust for the benefit of Company's general creditors. Nothing in this Trust Agreement shall in any way diminish any rights of Plan participants or their beneficiaries to pursue their rights as general creditors of Company with respect to benefits due under the Plan or otherwise. 4. Trustee shall resume the payment of benefits to Plan participants or their beneficiaries in accordance with Section 2 of this Trust Agreement only after Trustee has determined that Company is not Insolvent or is no longer Insolvent. 3 6 (c) Provided that there are sufficient assets, if Trustee discontinues the payment of benefits from the Trust pursuant to Section 3(b) hereof and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Plan participants or their beneficiaries under the terms of the Plan for the period of such discontinuance, less the aggregate amount of any payments made to Plan participants or their beneficiaries by Company in lieu of the payments provided for hereunder during any such period of discontinuance. Section 4. Payments to Company ------------------- Except as provided in Section 3 hereof, after the Trust has become irrevocable, Company shall have no right or power to direct Trustee to return to Company or to divert to others any of the Trust assets before all payment of benefits have been made to Plan participants and their beneficiaries pursuant to the terms of the Plan. Section 5. Investment Authority -------------------- Under Company's advisement and direction, Trustee may invest in securities (including stock or rights to acquire stock) or obligations issued by Company. All rights associated with assets of the Trust shall be exercised by Trustee or the person designated by Trustee, and shall in no event be exercisable by or rest with Plan participants, except that voting rights and dividend rights with respect to Trust assets will be exercised by Company. Company shall have the right at any time, and from time to time in its sole discretion, to substitute assets of equal fair market value for any asset held by the Trust. This right is exercisable by Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. Section 6. Disposition of Income --------------------- During the term of this Trust, all income received by the Trust, net of expenses and taxes, shall be accumulated and reinvested. Section 7. Accounting by Trustee --------------------- Following any funding of the Trust in excess of the amount set forth in Section 1(a) hereof, Trustee shall keep accurate and detailed records of all investments, receipts, disbursements, and all other transactions required to be made, including such specific records as shall be agreed upon in writing between Company and Trustee. Within 30 days following the close of each calendar year and within 30 days after the removal or resignation of Trustee, Trustee shall deliver to Company a written account of its administration of the Trust during such year or during the period from the close of the last preceding year to the date of such removal or resignation, setting forth all investments, receipts, disbursements and other transactions effected by it, including a description of all securities and investments purchased and sold with the cost or 4 7 net proceeds of such purchases or sales (accrued interest paid or receivable being shown separately), and showing all cash, securities and other property held in the Trust at the end of such year or as of the date of such removal or resignation, as the case may be. Section 8. Responsibility of Trustee ------------------------- (a) Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, provided, however, that Trustee shall incur no liability to any person for any action taken pursuant to a direction, request or approval given by Company which is contemplated by, and in conformity with, the terms of the Plan or this Trust and is given in writing by Company. In the event of a dispute between Company and a party, Trustee may apply to a court of competent jurisdiction to resolve the dispute. (b) Trustee shall have, without exclusion, all powers conferred on Trustees by applicable law, unless expressly provided otherwise herein, provided, however, that if an insurance policy is held as an asset of the Trust, Trustee shall have no power to name a beneficiary of the policy other than the Trust, to assign the policy (as distinct from conversion of the policy to a different form) other than to a successor Trustee, or to loan to any person the proceeds of any borrowing against such policy. (c) However, notwithstanding the provisions of Section 8(b) above, Trustee may loan to Company the proceeds of any borrowing against an insurance policy held as an asset of the Trust. (d) Notwithstanding any powers granted to Trustee pursuant to this Trust Agreement or to applicable law, Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom, within the meaning of section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Internal Revenue Code. Section 9. Compensation and Expenses of Trustee ------------------------------------ Company shall pay all administrative and Trustee's fees and expenses. If not so paid, the fees and expenses shall be paid from the Trust. Section 10. Resignation and Removal of Trustee ---------------------------------- (a) Trustee may resign at any time by written notice to Company, which shall be effective thirty (30) days after receipt of such notice unless Company and Trustee agree otherwise. 5 8 (b) Trustee may be removed by Company on thirty (30) days notice or upon shorter notice accepted by Trustee. (c) Upon resignation or removal of Trustee and appointment of a successor Trustee, all assets shall subsequently be transferred to the successor Trustee. The transfer shall be completed within thirty (30) days after receipt of notice of resignation, removal or transfer, unless Company extends the time limit. (d) If Trustee resigns or is removed, a successor shall be appointed, in accordance with Section 11 hereof, by the effective date of resignation or removal under paragraphs (a) or (b) of this section. If no such appointment has been made, Trustee may apply to a court of competent jurisdiction for appointment of a successor or for instructions. All expenses of Trustee in connection with the proceeding shall be allowed as administrative expenses of the Trust. Section 11. Appointment of Successor ------------------------ If Trustee resigns or is removed in accordance with Section 10(a) or (b) hereof, Company may appoint any third party, such as a bank trust department or other party that may be granted corporate trustee powers under state law, as a successor to replace Trustee upon resignation or removal. The appointment shall be effective when accepted in writing by the new Trustee, who shall have all of the rights and powers of the former Trustee, including ownership rights in the Trust assets. The former Trustee shall execute any instrument necessary or reasonably requested by Company or the successor Trustee to evidence the transfer. Section 12. Amendment or Termination ------------------------ (a) This Trust Agreement may be amended by a written instrument executed by Trustee and Company. Notwithstanding the foregoing, no such amendment shall conflict with the terms of the Plan or shall make the Trust revocable after it has become irrevocable in accordance with Section 1(b) hereof. (b) The Trust shall not terminate until the date on which Plan participants and their beneficiaries are no longer entitled to benefits pursuant to the terms of the Plan unless sooner revoked in accordance with Section 1(b) hereof. Upon termination of the Trust any assets remaining in the Trust shall be returned to Company. (c) Upon written approval of participants or beneficiaries entitled to payment of benefits pursuant to the terms of the Plan, Company may terminate this Trust prior to the time all benefit payments under the Plan have been made. All assets in the Trust at termination shall be returned to Company. Section 13. Miscellaneous ------------- 6 9 (a) Any provision of this Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof. (b) Benefits payable to Plan participants and their beneficiaries under this Trust Agreement may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to attachment, garnishment, levy, execution or other legal or equitable process. (c) This Trust Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. Section 14. Effective Date -------------- The effective date of this Trust Agreement shall be October 1, 1999. FOREST CITY ENTERPRISES, INC. By: ____________________________________ Name: Thomas G. Smith Its: Chief Financial Officer, Senior Vice President and Secretary TRUSTEE By: ____________________________________ Name: ____________________________________ Its: ____________________________________ 7 EX-4.7 3 0003.txt EXHIBIT 4.7 1 Exhibit 4.7 ----------- SECOND AMENDMENT TO THE FOREST CITY ENTERPRISES, INC. DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS ---------------------------------------------------- This Second Amendment to the Forest City Enterprises, Inc. Deferred Compensation Plan for Nonemployee Directors (the "Plan") is effective as of March 10, 2000. WHEREAS, Forest City Enterprises, Inc. (the "Company") maintains the Plan, and WHEREAS, the Company desires to amend the Plan, effective as of March 10, 2000, as hereinafter set forth. NOW, THEREFORE, the Plan is hereby amended as follows: 1. Section 1 of Article I of the Plan is hereby amended in its entirety to read as follows: "1. `Account' shall mean the bookkeeping account(s) maintained by the Committee on behalf of each Participant pursuant to Section 4 of Article II that is credited with Fees which are deferred by a Participant, and the gains, losses, interest and other earnings on such amounts as determined in accordance with Section 4 of Article II." 2. Article I of the Plan is hereby amended by inserting the following new Section immediately following Section 4 thereof: "4A. `Class A Common Shares' shall mean the Class A Common Shares of the Company, or any security into which such shares may be changed, as determined by the Committee in its sole discretion, (i) in the event of a change in the outstanding Class A Common Shares or in the capital structure of the Company by reason of any share dividend, share split, reverse share split, recapitalization, reorganization, merger, consolidation, combination, exchange or other relevant change in the capitalization of the Company or (ii) in the event of any change in applicable laws or any change in circumstances which results in or would result in any substantial dilution or enlargement of the rights of any Participant in the Plan or which otherwise warrants equitable adjustment because it interferes with the intended operation of the Plan." 3. Section 4 of Article II of the Plan is hereby amended in its entirety to read as follows: "4. Accounts; Earnings. Fees that a Participant elects to defer shall be treated as if they were set aside in an Account on the date the Fees would otherwise have been paid to the Participant. (i) Such Account will be credited with gains, losses, interest and other earnings based on investment directions made by the Participant, in accordance with investment deferral crediting options and procedures established by the -9- 2 Committee which shall, unless otherwise permitted by the Committee, limit the number of such investment direction changes to one (1) in any calendar year. The Committee specifically retains the right in its sole discretion to change the investment deferral crediting options and procedures from time to time. Unless otherwise specified by the Committee, the investments in which a Participant's Account may be deemed invested are (a) an interest bearing obligation specified by the Committee from time to time and (b) with respect to Fees credited to his or her Account after June 1, 2000, Class A Common Shares. Any dividends deemed payable with respect to Class A Common Shares that are deemed credited to a Participant's Account shall be credited to the Participant's Account and shall be deemed reinvested in Class A Common Shares. (ii) By electing to defer any amount pursuant to the Plan, each Participant shall thereby acknowledge and agree that the Company is not and shall not be required to make any investment in connection with the Plan, nor is it required to follow the Participant's investment directions in any actual investment it may make or acquire in connection with the Plan. Any amounts credited to a Participant's Account with respect to which a Participant does not provide investment direction shall be credited with gains, losses, interest and other earnings as if such amounts were invested in an investment option to be selected by the Committee in its sole discretion. Each Participant shall be 100% vested in the entire amount credited to his or her Account at all times." 4. Section 5(i) of Article II of the Plan is hereby amended in its entirety to read as follows: "(i) The amount of a Participant's Account attributable to deferral of Fees (and gains, losses, interest and other earnings thereon) shall be paid to the Participant in a lump sum or in a number of annual installments (not in excess of fifteen (15) installments) as designated by the Participant in the Election Agreement. Distributions shall be made in cash or in Class A Common Shares (with fractional shares paid in cash), or any combination thereof, as elected by the Participant, provided, however, that Class A Common -------- ------- Shares shall only be distributable with respect to that portion of a Participant's Account that is deemed invested in such shares at the time of distribution. The lump sum payment or the first annual installment, as the case may be, shall be made as soon as practicable following the end of the period of deferral as specified in Section 3 of this Article. In the event that the Account is paid in installments, the amount of each installment shall be equal to the quotient obtained by dividing the Participant's Account balance as of the date of such installment payment by the number of installment payments remaining to be made to or in respect of such Participant at the time of the calculation. In the event that the Account is paid in installments, the amount credited to the Participant's Account remaining unpaid shall continue to be credited with gains, losses, interest and other earnings as provided in Section 4 of this Article." 5. Section 6 of Article II of the Plan is hereby amended by (i) deleting the phrase "lump sum amount" where it appears in the fourth sentence therein and substituting therefor the phrase "lump sum 3 amount in cash" and (ii) deleting the phrase "lump sum" where it appears in the fifth sentence therein and substituting therefor the phrase "lump sum amount in cash". 6. Section 7 of Article II of the Plan is hereby amended by (i) deleting the phrase "lump sum" where it appears therein and substituting therefor the phrase "lump sum amount in cash". 7. Section 8 of Article II of the Plan is hereby amended by adding the following at the end thereof: "(iii) Amounts payable under paragraphs (i) and (ii) of this Section 8 of Article II shall only be payable in cash, and shall not be payable in Class A Common Shares." 8. Except as expressly amended and modified herein, the provisions of the Plan shall remain in full force and effect. 9. Except to the extent preempted by federal law, this Amendment shall be governed by and construed in accordance with the laws of the State of Ohio. EXECUTED at Cleveland, Ohio as of May 19, 2000. FOREST CITY ENTERPRISES, INC. By: ----------------------------- Name: ----------------------------- Title: ----------------------------- EX-23 4 0004.txt EXHIBIT 23 1 Exhibit 23 CONSENT OF INDEPENDENT AUDITORS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 11, 2000 relating to the financial statements which appears in the 1999 Annual Report to Shareholders of Forest City Enterprises, Inc., which is incorporated by reference in Forest City Enterprises, Inc.'s Annual Report on Form 10-K for the year ended January 31, 2000. We also consent to the incorporation by reference of our report dated March 11, 2000 relating to the financial statement schedules, which appears in such Annual Report on Form 10-K. /s/ PricewaterhouseCoopers LLP Cleveland, Ohio June 6, 2000 EX-24 5 0005.txt EXHIBIT 24 1 Exhibit 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of Forest City Enterprises, Inc., an Ohio corporation ("the Company"), hereby constitutes and appoints Charles A. Ratner, Thomas G. Smith and William M. Warren, and each of them, as true and lawful attorney or attorneys-in-fact for the undersigned, with full power of substitution and revocation, for him or her and in his or her name, place and stead, to sign on his or her behalf as an officer or director of the Company a Registration Statement or Registration Statements on Form S-8 pursuant to the Securities Act of 1933 concerning certain Common Shares of the Company to be offered in connection with the Company's Deferred Compensation Plan for Nonemployee Directors, and to sign any and all amendments or post-effective amendments to such Registration Statement(s), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission or any state regulatory authority, granting unto said attorney or attorneys-in-fact, and each of them, 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 they might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original with respect to the person executing it. IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 10th day of March, 2000. /s/ Charles A. Ratner /s/ Brian J. Ratner - -------------------------------------------------- ---------------------------- Charles A. Ratner Brian J. Ratner Chief Executive Officer, President and Director Director (Principal Executive Officer) /s/ Thomas G. Smith /s/ Deborah Ratner Salzberg - -------------------------------------------------- ---------------------------- Thomas G. Smith Deborah Ratner Salzberg Senior Vice President, Chief Financial Officer Director and Secretary (Principal Financial Officer) /s/ Linda M. Kane /s/ Michael P. Esposito, Jr. - -------------------------------------------------- ---------------------------- Linda M. Kane Michael P. Esposito, Jr. Vice President and Corporate Controller Director (Principal Accounting Officer) /s/ Albert B. Ratner /s/ Scott S. Cowen - -------------------------------------------------- ---------------------------- Albert B. Ratner Scott S. Cowen Director Director /s/ Samuel H. Miller /s/ Jerry V. Jarrett - -------------------------------------------------- ---------------------------- Samuel H. Miller Jerry V. Jarrett Director Director /s/ James A. Ratner /s/ Stan Ross - -------------------------------------------------- ---------------------------- James A. Ratner Stan Ross Director Director /s/ Ronald A. Ratner /s/ Joan K. Shafran - -------------------------------------------------- ---------------------------- Ronald A. Ratner Joan K. Shafran Director Director /s/ Louis Stokes ---------------------------- Louis Stokes Director -----END PRIVACY-ENHANCED MESSAGE-----