AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 2002
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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FOREST CITY ENTERPRISES, INC.
(Exact Name of Registrant as Specified in Its Charter)
OHIO 34-0863886
(State or Other (I.R.S. Employer
Jurisdiction Identification Number)
of Incorporation or
Organization)
50 PUBLIC SQUARE
TERMINAL TOWER
SUITE 1100
CLEVELAND, OHIO 44113-2203
(216) 621-6060
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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FOREST CITY STATUTORY AGENT, INC.
50 PUBLIC SQUARE
TERMINAL TOWER
SUITE 1160
CLEVELAND, OHIO 44113-2203
(216) 621-6060
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
Copies to:
DAVID P. PORTER, ESQ.
JONES, DAY, REAVIS & POGUE
901 LAKESIDE AVENUE
CLEVELAND, OHIO 44114
(216) 586-3939
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time as determined by market conditions and other factors, after the
effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(3) FEE(1)(4)
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Debt Securities(5)(13)....................
Preferred Stock, without par
value(6)(13)............................
Depositary Shares(7)(13)..................
Class A Common Stock, par value $.33 1/3
per share(8)(13)........................
Warrants(9)(13)...........................
Stock Purchase Contracts(10)(13)..........
Stock Purchase Units(11)(13)..............
Subscription Rights(12)(13)...............
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Total.............................. $750,000,000 100% $750,000,000(14) $69,000
(Footnotes on following page.)
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(1) Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
constituting a part of this registration statement also relates to
$92,180,000 of the registrant's securities registered under Registration
Statement 333-41437, for which filing fees have been previously paid.
(2) The proposed maximum offering price per unit will be determined from time
to time by the registrant in connection with the issuance by the registrant
of the securities registered hereunder.
(3) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
(4) Calculated pursuant to Rule 457(o) under the Securities Act of 1933.
(5) Subject to note (14) below, there is being registered an indeterminate
principal amount of debt securities.
(6) Subject to note (14) below, there is being registered an indeterminate
number of shares of preferred stock.
(7) Subject to note (14) below, there is being registered an indeterminate
number of depositary shares to be evidenced by depositary receipts issued
pursuant to a deposit agreement. In the event the registrant elects to
offer to the public fractional interests in shares of the preferred stock
registered hereunder, depositary receipts will be distributed to those
persons acquiring such fractional interests, and shares of preferred stock
will be issued to the depositary under the deposit agreement.
(8) Subject to note (14) below, there is being registered an indeterminate
number of shares of class A common stock.
(9) Subject to note (14) below, there is being registered an indeterminate
amount and number of warrants. The warrants may represent the right to
purchase debt securities, preferred stock or class A common stock.
(10) Subject to note (14) below, there is being registered an indeterminate
amount and number of stock purchase contracts. The stock purchase contracts
may represent the obligation to purchase debt securities, preferred stock,
class A common stock or other securities.
(11) Subject to note (14) below, there is being registered an indeterminate
amount and number of stock purchase units. The stock purchase units may
consist of stock purchase contracts together with debt securities,
preferred stock, warrants or debt obligations of third parties' to secure
the holder's obligations under the stock purchase contracts.
(12) Subject to note (14) below, there is being registered an indeterminate
number of subscription rights that may represent the right to purchase debt
securities, preferred stock or class A common stock.
(13) Subject to note (14) below, this registration statement also covers an
indeterminate amount of securities as may be issued in exchange for, or
upon conversion or exercise of, as the case may be, debt securities,
preferred stock, depositary shares, warrants or subscription rights
registered hereunder and an indeterminate amount of securities as may be
issued upon settlement of the stock purchase contracts or stock purchase
units registered hereunder. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder. No
separate consideration will be received for any securities hereunder that
are issued in exchange for, or upon conversion of, as the case may be, debt
securities, preferred stock, depositary shares or warrants.
(14) In no event will the aggregate initial public offering price of all
securities issued from time to time pursuant to the combined prospectus
contained in this registration statement exceed $842,180,000 or the
equivalent thereof in one or more foreign currencies, foreign currency
units or composite currencies. Such amount represents the offering price of
any preferred stock, depositary shares and class A common stock, the
principal amount of any debt securities issued at their stated principal
amount, the issue price rather than the principal amount of any debt
securities issued at an original issued discount, the issue price of any
warrants, the exercise price of any securities issuable upon the exercise
of warrants, the issue price of any securities issued upon settlement of
the stock purchase contracts or stock purchase units, and the issue price
of any securities issuable upon the exercise of subscription rights. The
aggregate principal amount of the debt securities may be increased if any
debt securities are issued at an original issue discount by an amount such
that the offering price to be received by the registrant shall be equal to
the above amount to be registered. Any offering of securities denominated
other than in United States dollars will be treated as the equivalent of
United States dollars based on the exchange rate applicable to the purchase
of such securities at the time of the initial offering.
Pursuant to Rule 429(a) under the Securities Act of 1933, the prospectus
included in this registration statement is a combined prospectus and also
relates to $92,180,000 aggregate amount of securities registered and remaining
unsold under the registrant's Registration Statement on Form S-3 (No.
333-41437), as amended, which was initially filed on December 3, 1997. Pursuant
to Rule 429(b), this registration statement also constitutes a Post-Effective
Amendment No. 1 to Registration Statement No. 333-41437, which post-effective
amendment shall hereafter become effective concurrently with the effectiveness
of this registration statement and in accordance with Section 8(c) of the
Securities Act of 1933. If securities previously registered under that
registration statement are offered and sold before the effective date of this
registration statement, the amount of previously registered securities so sold
will not be included in the prospectus hereunder.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL SECURITIES UNDER THIS REGISTRATION STATEMENT UNTIL THE
REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PRELIMINARY PROSPECTUS IS NOT AN OFFER TO SELL ANY SECURITIES
AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE
OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION. DATED MAY 1, 2002
$842,180,000
FOREST CITY ENTERPRISES, INC.
SENIOR DEBT SECURITIES
SENIOR SUBORDINATED DEBT SECURITIES
JUNIOR SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
CLASS A COMMON STOCK WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
SUBSCRIPTION RIGHTS
Forest City Enterprises, Inc. intends to offer from time to time its
senior debt securities, senior subordinated debt securities, junior subordinated
securities, preferred stock, depositary shares, class A common stock, warrants,
stock purchase contracts, stock purchase units or subscription rights. We may
sell any combination of these securities in one or more offerings with an
aggregate initial offering price of $842,180,000 or the equivalent amount in
other currencies, currency units or composite currencies.
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest. This prospectus may not be used to offer and sell
any securities unless accompanied by a prospectus supplement describing the
method and terms of the offering of those securities being offered.
We may sell the securities directly or to or through underwriters or
dealers, and also to other purchasers or through agents. The names of any
underwriters or agents that are included in a sale of securities to you, and any
applicable commissions or discounts, will be stated in the accompanying
prospectus supplement. In addition, the underwriters, if any, may over-allot a
portion of the securities.
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Our class A common stock, par value $.33 1/3 per share, and our class B
common stock, par value $.33 1/3 per share, are listed on The New York Stock
Exchange under the symbols FCEA and FCEB. The closing prices of our class A
common stock and class B common stock on The New York Stock Exchange on April
30, 2002 were $38.45 and $38.05. None of the other securities that we may offer
under this prospectus are currently publicly traded.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 2002.
TABLE OF CONTENTS
PAGE
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Where You Can Find More Information......................... 2
About This Prospectus....................................... 2
Incorporation of Documents by Reference..................... 2
Forward-Looking Statements.................................. 3
Forest City Enterprises, Inc. .............................. 4
Ratio of Earnings to Fixed Charges.......................... 4
Use of Proceeds............................................. 5
Summary Description of Securities We May Offer.............. 5
Description of Senior Debt Securities We May Offer.......... 6
Description of Subordinated Debt Securities We May Offer.... 14
Description of Preferred Stock We May Offer................. 26
Description of Depositary Shares We May Offer............... 28
Description of Common Stock We May Offer.................... 31
Description of Warrants We May Offer........................ 33
Description of Stock Purchase Contracts and Stock Purchase
Units We May Offer........................................ 35
Description of Subscription Rights We May Offer............. 35
Plan of Distribution........................................ 36
Validity of the Offered Securities.......................... 38
Experts..................................................... 38
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational reporting requirements of the
Securities Exchange Act of 1934. We file reports, proxy statements and other
information with the Securities and Exchange Commission. You can inspect and
copy the reports, proxy statements and other information at the Public Reference
Room of the SEC located at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549. You may obtain information on the operation of the Public Reference Room
by calling the SEC at 1-800-SEC-0330. You can obtain copies of these materials
at prescribed rates from the Public Reference Room of the SEC. The SEC maintains
a web site at http://www.sec.gov that contains reports, proxy and information
statements and other information on a delayed basis regarding registrants,
including us, that file electronically with the SEC. Our class A common stock,
par value $.33 1/3 per share, and our class B common stock, par value $.33 1/3
per share, are listed on The New York Stock Exchange under the symbols FCEA and
FCEB. You can also inspect and copy any reports, proxy statements and other
information that we file with the SEC at the offices of The New York Stock
Exchange located at 20 Broad Street, New York, NY 10005.
ABOUT THIS PROSPECTUS
This document is called a prospectus and is part of a registration
statement that we filed with the SEC using a "shelf" registration or continuous
offering process. Under this shelf process, we may from time to time sell any
combination of the securities described in this prospectus in one or more
offerings with an aggregate initial offering price of $842,180,000 or the
equivalent amount in other currencies, currency units or composite currencies.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement containing specific information about the terms of the securities
being offered. That prospectus supplement may include or incorporate by
reference a detailed and current discussion of any risk factors and will discuss
any special considerations applicable to those securities, including the plan of
distribution. For a more complete understanding of the offering of the
securities, you should refer to the registration statement, including its
exhibits. The prospectus supplement may also add, update or change information
in this prospectus. If there is any inconsistency between the information in
this prospectus and any prospectus supplement, you should rely on the
information in that prospectus supplement together with additional information
described under the headings "Where You Can Find More Information" and
"Incorporation of Documents by Reference."
You should rely only on the information contained or incorporated by
reference in this prospectus and in any prospectus supplement. Neither we, nor
any underwriters or agents, have authorized anyone to provide you with different
information. We are not offering the securities in any state where the offering
is prohibited. You should not assume that the information in this prospectus,
any prospectus supplement, or any document incorporated by reference, is
truthful or complete at any date other than the date mentioned on the cover page
of those documents.
References in the prospectus to the term "we," "us" or "Forest City" or
other similar terms mean Forest City Enterprises, Inc. and its consolidated
subsidiaries, unless we state otherwise or the context indicates otherwise.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information that we file
with the SEC. This allows us to disclose important information to you by
referring you to those documents rather than repeating them in full in this
prospectus. The information incorporated by reference in this prospectus
contains important business and financial information. In addition, information
that we file with the SEC after the date of this prospectus automatically
updates and supersedes the information contained in this prospectus and
incorporated
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filings. We have previously filed the following documents with the SEC (File No.
1-4372) and are incorporating them into this prospectus by reference:
- our Annual Report on Form 10-K for the fiscal year ended January 31,
2002;
- Amendment No. 1 to our Annual Report on Form 10-K/A;
- our Current Report on Form 8-K, dated and filed with the SEC on March 14,
2002;
- our Current Report on Form 8-K, dated March 5, 2002 and filed with the
SEC on March 14, 2002; and
- the description of our class A common stock contained in our registration
statement on Form 10.
Each document or report that we file pursuant to Section 13(a), 13(c), 14
or 15(d) of Exchange Act after the date of this prospectus and until the
offering of the securities terminates will be incorporated by reference into
this prospectus and will be a part of this prospectus from the date of filing of
that document.
You may request a copy of any of these filings (other than an exhibit to
those filings unless we have specifically incorporated that exhibit by reference
into the filing), at no cost, by telephoning or writing to us at the following
phone number and address:
Secretary,
Forest City Enterprises, Inc.
50 Public Square
Terminal Tower
Suite 1100
Cleveland, Ohio 44113-2203
Telephone Number: 216-621-6060
FORWARD-LOOKING STATEMENTS
We may include or incorporate by reference in this prospectus or in an
accompanying prospectus supplement statements that constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Forward-looking statements include, for example, statements relating to
our development activities, business strategy and prospects.
These forward-looking statements are not historical facts but instead
represent only our beliefs regarding future events, many of which, by their
nature, are inherently uncertain and outside of our control. It is possible that
our actual results may differ, possibly materially, from the anticipated results
indicated in these forward-looking statements.
Information regarding important factors that could cause actual results to
differ, perhaps materially, from those in our forward-looking statements are
discussed in our reports filed with the SEC and may be contained under the
caption "Risk Factors" in or incorporated by reference in an accompanying
prospectus supplement.
We disclaim any obligation, other than as may be imposed by law, to update
or revise any forward-looking statement, whether as a result of new information,
future events or otherwise.
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FOREST CITY ENTERPRISES, INC.
Founded in 1920 and publicly traded since 1960, we are principally engaged
in the ownership, development, acquisition and management of commercial and
residential properties in many states and the District of Columbia.
We have a portfolio of assets diversified both geographically and among
property types. We operate our business through four strategic business units:
- the Commercial Group, which owns, develops, acquires and operates
regional malls, specialty/urban retail centers, office buildings, hotels
and mixed-use projects;
- the Residential Group, which owns, develops, acquires, leases and manages
residential rental property, including middle-market apartments in urban
and suburban locations, adaptive re-use developments in urban locations
and supported-living facilities;
- the Land Development Group, which acquires and sells land and developed
lots to residential, commercial and industrial customers and owns and
develops raw land into master-planned communities and mixed-use projects;
and
- the Lumber Trading Group, which operates our lumber wholesaling business.
We are incorporated in the State of Ohio. Our principal executive offices
are located at 50 Public Square, Terminal Tower, Suite 1100, Cleveland, Ohio
44113-2203 and our telephone number is (216) 621-6060.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the periods indicated.
YEARS ENDED JANUARY 31,
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PRO-RATA
FULL CONSOLIDATION(1) CONSOLIDATION(1)
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2002 2001 2000 1999 1998(2)
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Ratio of Earnings to Fixed Charges.............. 1.72x 1.69x 1.59x 1.38x --
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(1) Effective January 31, 2001, we implemented a change in the presentation of
our financial results. Prior to January 31, 2001, we used the pro-rata
method of consolidation to report our partnership investments proportionate
to our share of ownership for each line item of our consolidated financial
statements. In accordance with the Financial Accounting Standards Board's
Emerging Issues Task Force Issue No. 00-1, "Investor Balance Sheet and
Income Statement Display under the Equity Method for Investments in Certain
Partnerships and Other Ventures," we can no longer use the pro-rata
consolidation method for partnerships. Accordingly, partnership investments
that were previously reported on the pro-rata method are now reported as
consolidated at 100%, if deemed under our control, or otherwise on the
equity method of accounting.
(2) Total fixed charges exceeded our adjusted earnings by $10.0 million for
January 31, 1998. Our earnings, as adjusted, includes income of $15.0
million from a lawsuit settlement related to Toscana, a California apartment
project, and a $39.0 million loss related to the sale of Toscana ($36.0
million) and a partnership interest ($3.0 million), but does not include an
extraordinary gain of $18.0 million related to the sale of Toscana.
To date, we have not issued any shares of preferred stock. Therefore, the
ratio of earnings to combined fixed charges and preferred stock dividends is the
same as the ratio of earnings to fixed charges and is not separately presented.
We believe that we have other earnings from operations, principally from
depreciation and amortization, that are available to cover fixed charges.
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USE OF PROCEEDS
Unless we inform you otherwise in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of securities for general corporate
purposes. These purposes may include, but are not limited to:
- repayment of debt;
- additions to working capital;
- development of new properties;
- capital expenditures; and
- acquisitions.
Until we use the proceeds in this manner, we may temporarily use them to make
short-term investments or to reduce short-term debt.
SUMMARY DESCRIPTION OF SECURITIES WE MAY OFFER
We may use this prospectus to offer the following types of securities.
- Senior debt securities. These debt securities will be unsecured and will
rank equally with all of our other unsubordinated and unsecured debt and
may be convertible into, or exchangeable for, our preferred stock or
class A common stock.
- Senior subordinated debt securities. These debt securities will be
unsecured and will rank equally with all of our other senior subordinated
and unsecured debt and may be convertible into, or exchangeable for, our
preferred stock or class A common stock.
- Junior subordinated debt securities. These debt securities will be
unsecured and will rank equally with all of our other junior subordinated
and unsecured debt and may be convertible into, or exchangeable for, our
preferred stock or class A common stock.
- Preferred stock, without par value. We can offer different series of
preferred stock with different dividend, liquidation, redemption,
conversion and voting rights.
- Depositary Shares. We may issue depositary shares that would each
represent a fraction of a share of preferred stock.
- Class A common stock, par value $.33 1/3 per share.
- Warrants to purchase any of the foregoing securities.
- Stock Purchase Contracts. We may issue stock purchase contracts, which
may represent the right to purchase our debt securities, preferred stock,
class A common stock or other securities.
- Stock Purchase Units. We may issue stock purchase units, which consist of
a stock purchase contract and our debt securities, preferred stock,
warrants or debt obligations of third parties' to secure the holder's
obligations to purchase the securities under the stock purchase
contracts.
- Subscription Rights to purchase any of our debt securities, preferred
stock and class A common stock.
A prospectus supplement will describe the specific types, amounts, prices
and detailed terms of any of these securities.
DESCRIPTION OF SENIOR DEBT SECURITIES WE MAY OFFER
This section describes the general terms and provisions of the senior debt
securities that we may issue separately, upon conversion of preferred stock,
upon exercise of a debt warrant, in connection with a stock purchase contract,
as part of a stock purchase unit or upon exercise of a subscription right from
time to time
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in the form of one or more series of senior debt securities. The applicable
prospectus supplement will describe the specific terms, or modify the general
terms, of the senior debt securities offered through that prospectus supplement
and any special federal income tax consequences of these senior debt securities.
The senior debt securities we may offer will be issued under an indenture,
between us and The Bank of New York, as trustee, unless otherwise indicated in
the applicable prospectus supplement. A copy of the form of our senior debt
indenture has been filed as an exhibit to the registration statement of which
this prospectus is a part and is incorporated by reference into this prospectus.
You should refer to the form of our senior debt indenture for more specific
information. See "Where You Can Find More Information" for information on how to
obtain a copy of the form of our senior debt indenture. The following summaries
of specific provisions of the indenture are not complete and are subject to all
of the provisions of the applicable indenture.
The trustee under the senior debt indenture has two main roles.
- First, the trustee can enforce your rights against us if we default.
There are some limitations on the extent to which the trustee acts on
your behalf, which we describe later under "-- Events of Default" and
"-- Modification and Waiver".
- Second, the trustee performs administrative duties for us, such as
sending you interest payments and notices.
See "-- Relationship With the Trustee" below for more information about the
trustee.
We currently conduct substantially all of our operations through our
subsidiaries. Our ability to pay principal and interest on the senior debt
securities will depend upon the ability of our subsidiaries to distribute their
income to us. Some of our subsidiaries are subject to financial covenants that
may limit or prohibit their ability to make loans, advances, dividends or
distributions to us.
The senior debt securities we may offer will rank equally in right of
payment with all our other existing and future senior unsecured debt, including
our $200.0 million aggregate principal amount of 8.5% senior notes due March 15,
2008 and our guaranty of the borrowings under the Forest City Rental Properties
Corporation, or FCRPC, credit agreement. FCRPC is one of our wholly owned
subsidiaries. The senior debt securities will be effectively subordinated to all
our existing and future senior secured debt, to the extent of the value securing
our senior secured debt.
Although the senior debt securities will be our senior obligations, they
will be effectively subordinated to all existing and future debt and other
liabilities, including trade payables and capital lease obligations, of our
subsidiaries, including the borrowings under the FCRPC credit agreement.
The FCRPC credit agreement prohibits the payment of principal and interest
on any senior debt securities during the existence and continuation of a payment
default under the FCRPC credit agreement or the guaranty. In the event of a
continuing non-payment default, our guaranty prohibits FCRPC from making any
distribution to us except as necessary to pay interest on any senior debt
securities and taxes. Our guaranty will also prohibit our redemption or
defeasance of any of our senior debt securities without the consent of the
lenders under the FCRPC credit agreement.
GENERAL
The applicable prospectus supplement will set forth the price or prices at
which the senior debt securities will be issued and will describe the following
terms of the senior debt securities, if applicable:
- the title and series of the senior debt securities;
- any limit on the aggregate principal amount of the senior debt
securities;
- the identity of the person to whom we will pay any interest on a senior
debt security, if it is any person other than the person in whose name
the senior debt security is registered at the close of business on the
regular record date for the interest payment;
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- the date or dates on which we will pay the principal of the senior debt
securities;
- if the senior debt securities will bear interest, the interest rate or
rates, the date or dates from which the interest will accrue, the
interest payment dates on which we will pay the interest and the regular
record date for the interest payable on any interest payment date;
- the place or places where we will pay the principal of, and any premium
and interest on, the senior debt securities;
- the period or periods within which, the price or prices at which, and the
terms and conditions on which, we may, at our option, redeem the senior
debt securities, in whole or in part;
- our obligation, if any, to repurchase or redeem the senior debt
securities upon the happening of an event or at your option;
- if other than the entire principal amount, the portion of the principal
amount of the senior debt securities that we will pay upon acceleration
of maturity;
- if other than the currency of the United States, the currency, currencies
or currency units in which we will pay the principal of, or any premium
or interest on, the senior debt securities and the manner in which we
will determine the equivalent of the principal amount of the senior debt
securities in the currency of the United States for any purpose;
- if, at our option or your option, we may pay the principal of, or any
premium or interest on, the senior debt securities in one or more
currencies or currency units other than those in which the senior debt
securities are stated to be payable, the currency, currencies or currency
units in which we will pay, at our option or your option, these amounts,
the periods within which and the terms and conditions upon which the
election must be made by us or you, and the amount that we will pay or
the manner in which we will determine the amount;
- if the principal amount payable at the stated maturity of the senior debt
securities will not be determinable as of any one or more dates prior to
the stated maturity, the amount that will be deemed to be the principal
amount as of any date for any purpose;
- that the senior debt securities, in whole or in any specified part, are
defeasible as described below under " -- Defeasance and Discharge" or
" -- Covenant Defeasance," or under both captions;
- whether the principal or interest will be indexed to, or determined by
reference to, one or more securities, commodities, indices or other
financial measure;
- whether the principal or interest may be payable, in whole or in part, in
securities of another issuer;
- whether we may issue the senior debt securities, in whole or in part, in
the form of one or more global securities, and, if so, the depositaries
for the global securities, and, if different from those described below
under "-- Global Securities", any circumstances under which we may
exchange or transfer any global security, in whole or in part, in the
names of persons other than the depositary or its nominee; and
- any addition to or change in the events of default applicable to the
senior debt securities and any change in the right of the trustee or your
rights to declare the principal amount of the senior debt securities due
and payable.
We may sell senior debt securities at a substantial discount to their
principal amount. We will describe any special United States federal income tax
considerations applicable to the senior debt securities sold at an original
issue discount in the applicable prospectus supplement. In addition, we will
describe any special United States federal income tax or other considerations
applicable to any senior debt securities that are denominated in a currency or
currency unit other than United States dollars in the applicable prospectus
supplement.
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CONVERSION RIGHTS
We will set forth in an applicable prospectus supplement whether the senior
debt securities will be convertible into or exchangeable for any other
securities and the terms and conditions upon which a conversion or exchange may
occur, including the initial conversion or exchange price or rate, the
conversion or exchange period and any other additional provisions.
FORM, EXCHANGE AND TRANSFER
We will issue the senior debt securities, if any, of each series only in
fully registered form, without coupons, and, unless otherwise specified in the
applicable prospectus supplement, only in denominations and integral multiples
of $1,000.
At your option, subject to the terms of the senior debt indenture and the
limitations applicable to global securities, senior debt securities of each
series will be exchangeable for other senior debt securities of the same series
of any authorized denomination in the same aggregate principal amount.
Subject to the terms of the senior debt indenture and the limitations
applicable to global securities, you may present senior debt securities for
exchange as provided above or for registration of transfer, if properly endorsed
or with the form of transfer properly endorsed and executed, at the office of
the security registrar or at the office of any transfer agent that we designate.
There will be no service charge for any registration of transfer or exchange of
senior debt securities, but we may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with the transfer or
exchange. The security registrar will effect a transfer or exchange only if it
is satisfied with the documents of title and identity of the person making the
request for the transfer or exchange. We will appoint The Bank of New York as
security registrar, except as otherwise indicated in the applicable prospectus
supplement.
If we redeem the senior debt securities of any series in part, we will not
be required to issue, register the transfer of, or exchange, any senior debt
security of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption and ending at the close
of business on the day of the mailing, or register the transfer of, or exchange,
any senior debt security selected for redemption, in whole or in part, except
the unredeemed portion of any senior debt security being redeemed in part.
GLOBAL SECURITIES
Some or all of the senior debt securities of any series may be represented,
in whole or in part, by one or more global securities that will have an
aggregate principal amount equal to that of the senior debt securities of the
particular series represented by the global securities. Each global security
will be registered in the name of a depositary or its nominee identified in the
applicable prospectus supplement, will be deposited with that depositary or
nominee or a custodian for the depositary or nominee and will bear a legend
regarding the restrictions on exchanges and registration of transfer referred to
below and any other matters as may be provided under the senior debt indenture.
Notwithstanding any provision of the senior debt indenture or any senior
debt security, no global security may be exchanged, in whole or in part, for
senior debt securities registered, and no transfer of a global security, in
whole or in part, may be registered, in the name of any person other than the
depositary for the global security or any nominee of the depositary unless:
- the depositary has notified us that it is unwilling or unable to continue
as depositary for the global security or has ceased to be qualified to
act as a depositary as required by the senior debt indenture;
- an event of default, or an event that with notice or lapse of time, or
both, will become an event of default, with respect to the senior debt
securities represented by the global security has occurred and is
continuing;
- we so request; or
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- other circumstances, if any, in addition to or in lieu of those described
above and as may be described in the applicable prospectus supplement,
exist.
All securities issued in exchange for a global security or any portion of a
global security will be registered in the names that the depositary directs.
As long as the depositary, or its nominee, is the registered holder of a
global security, the depositary or the nominee will be considered the sole owner
and holder of the global security and the series of senior debt securities
represented by the global security for all purposes under that series of senior
debt securities and the senior debt indenture. Except in the limited
circumstances referred to above, owners of beneficial interests in a global
security will not be entitled to have a global security or any series of senior
debt securities represented by the global security registered in their names,
will not receive or be entitled to receive physical delivery of certificated
senior debt securities in exchange for the global security and will not be
considered to be the owners or holders of the global security or any series of
senior debt securities represented by the global security for any purpose under
that series of senior debt securities or the senior debt indenture. All payments
of principal of and any premium and interest on a global security will be made
to the depositary or its nominee, as the case may be, as the holder of the
global security. The laws of some jurisdictions require that some purchasers of
securities take physical delivery of the securities in definitive form. These
laws may impair the ability to transfer beneficial interests in a global
security.
Ownership of beneficial interests in a global security will be limited to
institutions that have accounts with the depositary or its nominee and to
persons that may hold beneficial interests through the depositary's
participants. In connection with the issuance of any global security, the
depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of senior debt securities represented by the global
security to the accounts of its participants. Ownership of beneficial interests
in a global security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the depositary,
with respect to participants' interests, or by any participant, with respect to
interests of persons held by participants on their behalf. Payments, transfers,
exchanges and other matters relating to beneficial interests in a global
security may be subject to various policies and procedures adopted by the
depositary from time to time. None of us, the senior debt trustee or any agent
of ours or the senior debt trustee will have any responsibility or liability for
any aspect of the depositary's or any participant's records relating to, or for
payments made for, beneficial interests in a global security or for maintaining,
supervising or reviewing any records relating to beneficial interests.
Unless otherwise stated in the applicable prospectus supplement, we will
appoint The Depository Trust Company, or DTC, as the depositary for the senior
debt securities.
We understand that neither DTC nor its nominee will consent or vote with
respect to the senior debt securities. We have been advised that under its usual
procedures, DTC will mail an omnibus proxy to us as soon as possible after the
record date. The omnibus proxy assigns consenting or voting rights of DTC's
nominee to those participants to whose accounts the senior debt securities are
credited on the record date identified in a listing attached to the omnibus
proxy.
DTC has advised us that it will take any action permitted to be taken by a
holder of senior debt securities (including the presentation of senior debt
securities for exchange) only at the direction of one or more participants to
whose account with DTC interests in the global security are credited and only in
respect of such portion of the principal amount of the senior debt securities
represented by the global security as to which such participant or participants
has or have given such direction.
DTC has also advised us as follows:
- DTC is a limited purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a clearing
corporation within the meaning of the Uniform Commercial Code, as
amended, and a clearing agency registered pursuant to the provisions of
Section 17A of the Exchange Act;
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- DTC was created to hold securities for its participants and facilitate
the clearance and settlement of securities transactions between
participants through electronic computerized book-entry changes in
accounts of its participants;
- DTC's participants include securities brokers and dealers, banks, trust
companies and clearing corporations and may include certain other
organizations;
- certain participants, or other representatives, together with other
entities, own DTC; and
- indirect access to the DTC system is available to other entities such as
banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on a senior debt security on any interest payment date will be made
to the person in whose name the senior debt security, or one or more predecessor
senior debt securities, is registered at the close of business on the regular
record date for the interest payment.
Unless otherwise indicated in the applicable prospectus supplement,
principal of, and any premium and interest on, the senior debt securities of a
particular series will be payable at the office of the paying agent or paying
agents that we may designate from time to time. Any other paying agents that we
initially designate for the senior debt securities of a particular series will
be named in the applicable prospectus supplement. We may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve change in the office through which any paying agent acts, except that we
will be required to maintain a paying agent in each place of payment for the
senior debt securities of a particular series.
All moneys that we deposit with the trustee or pay to a paying agent for
the payment of the principal of, or any premium or interest on, any senior debt
security that remain unclaimed at the end of two years after the principal,
premium or interest has become due and payable will be repaid to us, and the
holder of the senior debt security may look only to us for payment of any
principal, premium or interest.
RESTRICTIVE COVENANTS
Covenants applicable to the senior debt securities will be set forth in the
applicable prospectus supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless otherwise specified in the applicable prospectus supplement, the
senior debt indenture will provide that Forest City Enterprises, Inc. may not
consolidate with, merge into or reorganize with or into, or transfer, convey,
sell, lease or otherwise dispose of all or substantially all of its assets to,
any entity, unless all of the following conditions are met.
- If the successor entity is not Forest City Enterprises, Inc., the
successor entity is organized under the laws of any domestic jurisdiction
and expressly assumes Forest City Enterprises, Inc.'s obligations under
the senior debt indenture.
- Immediately before and after giving effect to the transaction, and
treating any debt that becomes an obligation of ours or the successor
entity as a result of the transaction as having been incurred by us or
the successor entity at the time of the transaction, no event of default,
and no event that, after notice or lapse of time or both, would become an
event of default, has occurred and is continuing.
- Immediately after giving effect to the transaction, the consolidated net
worth (as defined in the senior debt indenture) of Forest City
Enterprises, Inc. or the successor entity is equal to or greater than 90%
of Forest City Enterprises, Inc.'s consolidated net worth immediately
prior to the transaction.
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- Immediately after giving effect to the transaction, and treating any debt
that becomes our obligation as a result of the transaction as having been
incurred by us at the time of the transaction, Forest City Enterprises,
Inc. could incur at least $1.00 of additional debt under specified
financial ratios contained in the senior debt indenture.
- If, as a result of the transaction, our properties or assets would become
subject to a lien or other encumbrance that would not be permitted by the
senior debt indenture, Forest City Enterprises, Inc. or the successor
entity, as the case may be, takes the steps necessary to secure the
senior debt securities equally and ratably with, or prior to, the
indebtedness secured by the lien or other encumbrance.
- Forest City Enterprises, Inc. delivers to the trustee an officers'
certificate and an opinion of counsel, both of which state that the
transaction complies with the terms of the senior debt indenture.
EVENTS OF DEFAULT
Unless otherwise set forth in the applicable prospectus supplement, each of
the following events will constitute an event of default under the senior debt
indenture, if applicable:
- failure to pay principal of, or premium, if any, on, any senior debt
security when due;
- failure to pay any interest on any senior debt security when due that
continues for 30 days;
- failure to perform or observe the covenants in the senior debt indenture,
which may relate to dispositions of assets, mergers, consolidations and
sales of all or substantially all our assets, or a change of control of
the company, as specified in the applicable prospectus supplement;
- failure to perform other covenants in the senior indenture that continues
for 30 days after written notice as provided in the senior debt
indenture;
- a default under any recourse debt by us, individually or in the
aggregate, in excess of $10.0 million, which default (1) constitutes a
failure to pay when due, subject to any applicable grace period, any
portion of the principal of that recourse debt, and (2) results in that
recourse debt becoming or being declared due and payable prior to its
stated maturity;
- a default under any non-recourse debt by us, individually or in the
aggregate, in excess of 20% of the aggregate principal amount of all of
our outstanding non-recourse debt, which default (1) constitutes a
failure to a pay when due, subject to any applicable grace period, any
portion of the principal of that non-recourse debt, or (2) results in
that non-recourse debt becoming or being declared due and payable prior
to its stated maturity;
- the rendering of a final judgment or judgments against us or any
subsidiary that is not subject to appeal in an amount in excess of $10.0
million that remains undischarged or unstayed for a period of 45 days
after the date on which the right to appeal has expired;
- we or any of our significant subsidiaries file for bankruptcy, or other
events in bankruptcy, insolvency or reorganization occur; and
- any other event of default specified in the applicable prospectus
supplement.
Subject to the provisions of the senior debt indenture relating to the
duties of the trustee in case an event of default occurs and is continuing, the
trustee will be under no obligation to exercise any of its rights or powers
under the senior debt indenture at the request or direction of any of the
holders, unless those holders have offered reasonable indemnity to the trustee.
Subject to the provisions of the senior debt indenture relating to the
indemnification of the trustee, the holders of a majority in aggregate principal
amount of the outstanding senior debt securities will have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the trustee or exercising any trust or power conferred on the trustee.
If an event of default, other than an event of default relating to
bankruptcy, insolvency or reorganization, occurs and is continuing, either the
trustee or the holders of at least 25% in aggregate principal amount of a series
of outstanding senior debt securities may accelerate the maturity of all senior
debt securities of that
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series. If an event of default relating to bankruptcy, insolvency or
reorganization occurs, the principal amount of all the senior debt securities,
or, in the case of any original issue discount security or other senior debt
security, a specified amount, will automatically, and without any action by the
trustee or any holder, become immediately due and payable. However, after the
acceleration, but before a judgment or decree based on acceleration, the holders
of a majority in aggregate principal amount of outstanding senior debt
securities of that series may, under specific circumstances, rescind the
acceleration if all events of default, other than the non-payment of accelerated
principal, have been cured or waived as provided in the senior debt indenture.
For a more detailed discussion as to waiver of defaults, see " -- Modification
and Waiver."
No holder of any senior debt security will have any right to institute any
proceeding with respect to the senior debt indenture or for any remedy under the
senior debt indenture unless:
- the holder has previously given to the trustee written notice of a
continuing event of default with respect to that series of senior debt
securities;
- the holders of at least 25% in aggregate principal amount of the
outstanding senior debt securities of the relevant series have made a
written request, and offered reasonable indemnity, to the trustee to
institute the proceeding as trustee;
- the trustee has failed to institute the proceeding within 60 days; and
- the trustee has not received from the holders of a majority in aggregate
principal amount of the outstanding senior debt securities of the
relevant series a direction inconsistent with the holders' request.
However, these limitations do not apply to a suit instituted by a holder of a
senior debt security for enforcement of payment of the principal of, and
premium, if any, or interest on, any senior debt security on or after the
respective due dates expressed in the senior debt security.
We will be required to furnish to the trustee a statement as to our
performance of some of our obligations under the senior debt indenture and as to
any default in our performance.
MODIFICATION AND WAIVER
Unless otherwise set forth in the applicable prospectus supplement, we and
the trustee may modify and amend the senior debt indenture with the consent of
the holders of not less than a majority in aggregate principal amount of any
series of outstanding senior debt securities, and, in some instances, we and the
trustee may modify and amend the senior debt indenture without the consent of
the holders of any series of outstanding senior debt securities. However, we and
the trustee may not modify or amend the senior debt indenture without the
consent of the holder of each outstanding senior debt security affected by the
modification or amendment if the modification or amendment:
- changes the stated maturity of the principal of, or any installment of
interest on, any senior debt security;
- reduces the principal amount of, or the premium or interest on, any
senior debt security;
- changes the place or currency of payment of principal of, or premium or
interest on, any senior debt security;
- impairs the right to institute suit for the enforcement of any payment on
or with respect to any senior debt security;
- reduces the percentage of any series of outstanding senior debt
securities necessary to modify or amend the senior debt indenture;
- reduces the percentage of aggregate principal amount of any series of
outstanding senior debt securities necessary for waiver of compliance
with specified provisions of the senior debt indenture or for waiver of
specified defaults; or
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- modifies any other provisions of the senior debt indenture set forth in
the applicable prospectus supplement relating to the senior debt
securities, except to increase any percentages referred to above or to
provide other provisions of the senior debt indenture cannot be modified
or waived without the consent of the holders.
The holders of a majority in aggregate principal amount of any series of
outstanding senior debt securities may waive our compliance with specified
restrictive provisions of the senior debt indenture. The holders of a majority
in aggregate principal amount of any series of outstanding senior debt
securities may waive any past default under the senior debt indenture with
respect to that series, except a default in the payment of principal, premium,
if any, or interest or any other default specified in the applicable prospectus
supplement.
DEFEASANCE AND DISCHARGE
The senior debt indenture will provide that, upon the exercise of our
option, we will be discharged from all our obligations with respect to any
senior debt securities of a series, except for the following obligations:
- to exchange or register the transfer of senior debt securities;
- to replace stolen, lost or mutilated senior debt securities;
- to maintain paying agencies; and
- to hold moneys for payment in trust, upon our deposit in trust for the
benefit of the holders of the senior debt securities of money or United
States government obligations, or both, in an amount sufficient to pay
the principal of, and any premium and interest on, senior debt securities
of that series on the stated maturity in accordance with the terms of the
senior debt indenture and the senior debt securities of that series.
We may only exercise defeasance or discharge if, among other things, we have
delivered to the trustee an opinion of counsel to the effect that we have
received from, or there has been published by, the Internal Revenue Service a
ruling, or there has been a change in tax law, in either case to the effect that
holders of the senior debt securities of a relevant series will not recognize
gain or loss for federal income tax purposes as a result of the deposit,
defeasance and discharge and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
the deposit, defeasance and discharge were not to occur.
COVENANT DEFEASANCE
The senior debt indenture will provide that, at our option, we may omit to
comply with specified restrictive covenants related to the senior debt
securities of a series, including any that may be described in the applicable
prospectus supplement, and the occurrence of specified events of default related
to the senior debt securities of that series will be deemed not to be or result
in an event of default. We may only exercise this option if we deposit, in trust
for the benefit of the holders of the senior debt securities of that series,
money or United States government obligations, or both, in an amount sufficient
to pay the principal of, and any premium and each installment of interest on,
the senior debt securities of that series on the stated maturity in accordance
with the terms of the senior debt indenture and the senior debt securities of
that series. We also must, among other things, deliver to the trustee an opinion
of counsel to the effect that holders of the senior debt securities of the
relevant series will not recognize gain or loss for federal income tax purposes
as a result of the deposit and defeasance of specified obligations and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if the deposit and defeasance were not to
occur.
If we exercise this option with respect to any senior debt securities of a
series and the senior debt securities of that series are declared due and
payable because of the occurrence of any event of default, the amount of money
and United States government obligations deposited in trust may be insufficient
to pay
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amounts due on the senior debt securities of that series at the time of the
acceleration. In such a case, we would remain liable for the deficiency.
NOTICES
Unless otherwise specified in the applicable prospectus supplement, notices
to the holders of senior debt securities will be given by mail to the addresses
of those holders as they may appear in the security register.
TITLE
Unless otherwise specified in the applicable prospectus supplement, we, the
trustee and any agents of ours or the trustee may treat the person in whose name
a senior debt security is registered as the absolute owner of the senior debt
security, whether or not the senior debt security may be overdue, for the
purpose of making payment and for all other purposes.
RELATIONSHIP WITH THE TRUSTEE
The Bank of New York will be trustee under the senior debt indenture,
unless otherwise indicated in the applicable prospectus supplement. The Bank of
New York is the trustee under the indenture governing our $200.0 million
aggregate principal amount of 8.5% senior notes due March 15, 2008 and is also a
lender to our subsidiaries of nonrecourse project debt.
GOVERNING LAW
The senior debt indenture and the senior debt securities will be governed
by, and construed in accordance with, the law of the State of New York, unless
otherwise indicated in the applicable prospectus supplement.
DESCRIPTION OF SUBORDINATED DEBT SECURITIES WE MAY OFFER
This section describes the general terms and provisions of the subordinated
debt securities that we may issue separately, upon conversion of preferred
stock, upon exercise of a debt warrant, in connection with a stock purchase
contract, as part of a stock purchase unit or upon exercise of a subscription
right from time in the form of one or more series of subordinated debt
securities. The applicable prospectus supplement will describe the specific
terms, or modify the general terms, of the subordinated debt securities offered
through that prospectus supplement and any special federal income tax
consequences of these subordinated debt securities.
The subordinated debt securities we may offer, if any, will be issued under
an indenture, between us and National City Bank, as subordinated trustee, unless
otherwise indicated in the applicable prospectus supplement. Copies of the forms
of our senior subordinated debt indenture and our junior subordinated indenture
have been previously filed with the SEC, are incorporated by reference as
exhibits to the registration statement of which this prospectus is a part and
are incorporated by reference into this prospectus. The senior subordinated
indenture and junior subordinated indenture are sometimes referred to
collectively in this section as the "subordinated indentures." You should refer
to the forms of our subordinated indentures for more specific information. See
"Where You Can Find More Information" for information on how to obtain copies of
the forms of our subordinated indentures. The following summaries of specific
provisions of the subordinated indentures are not complete and are subject to
all of the provisions of the subordinated indentures.
The subordinated trustee under each of the subordinated debt indentures has
two main roles.
- First, the subordinated trustee can enforce your rights against us if we
default. There are some limitations on the extent to which the
subordinated trustee acts on your behalf, which we describe later under
"-- Events of Default" and "-- Modification and Waiver".
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- Second, the subordinated trustee performs administrative duties for us,
such as sending you interest payments and notices.
See "-- Relationship With the Subordinated Trustee" below for more information
about the trustee.
We currently conduct substantially all of our operations through our
subsidiaries. Our ability to pay principal and interest on the subordinated debt
securities will depend on the ability of our subsidiaries to distribute their
income to us. Some of our subsidiaries are subject to financial covenants that
may limit or prohibit their ability to make loans, advances, dividends or
distributions to us.
The junior subordinated debt securities we may offer, if any, will be
subordinated in right of payment to all senior debt, and the senior subordinated
debt securities will be subordinated in right of payment to all senior
indebtedness. For a more detailed discussion of this subordination, see
" -- Subordination of Subordinated Debt Securities." The only senior debt or
senior indebtedness outstanding as of April 30, 2002 is our $200.0 million
aggregate principal amount of 8.5% senior notes due March 15, 2008, our guaranty
of borrowings under the FCRPC credit agreement and our guaranty of $20.4 million
of Franklin Town Towers Associates' Series 2000 Bonds that are due 2026 but
subject to mandatory tender in 2010. Franklin Town Towers Associates is one of
our wholly owned subsidiaries. The holders of subordinated debt securities,
including senior subordinated debt securities, will also be effectively
subordinated to all existing and future debt and other liabilities, including
trade payables and capital lease obligations, of our subsidiaries.
GENERAL
The subordinated indentures will provide that we may issue subordinated
debt securities in separate series from time to time without limitation as to
aggregate principal amount. We may specify a maximum aggregate principal amount
for the subordinated debt securities of any series. The subordinated debt
securities will have terms and provisions that are not inconsistent with the
subordinated indentures, including as to maturity, principal and interest, as we
may determine.
The applicable prospectus supplement will set forth whether the
subordinated debt securities will be senior subordinated debt securities or
junior subordinated debt securities and the price or prices at which we will
issue the subordinated debt securities. The applicable prospectus supplement
will also describe the following terms of the subordinated debt securities, if
applicable:
- the title and series of the subordinated debt securities;
- any limit on the aggregate principal amount of the subordinated debt
securities or the series of which they are a part;
- the identity of the person to whom we will pay any interest on a
subordinated debt security, if it is any person other than the person in
whose name the subordinated debt security is registered at the close of
business on the regular record date for the interest payment;
- the date or dates on which we will pay the principal of the subordinated
debt securities;
- if the subordinated debt securities will bear interest, the interest rate
or rates, the date or dates from which the interest will accrue, the
interest payment dates on which we will pay the interest and the regular
record date for the interest payable on any interest payment date;
- the place or places where we will pay the principal of, and any premium
and interest on, the subordinated debt securities;
- the period or periods within which, the price or prices at which, and the
terms and conditions on which, we may, at our option, redeem the
subordinated debt securities, in whole or in part;
- our obligation, if any, to redeem or purchase the subordinated debt
securities in connection with any sinking fund or similar provision or at
the option of the holder, and the period or periods within which, the
price or prices at which, and the terms and conditions on which, we will
redeem or
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repurchase any of the subordinated debt securities, in whole or in part,
in connection with this obligation;
- the denominations in which we will issue the subordinated debt
securities, if other than denominations and integral multiples of $1,000;
- the index or formula, if any, that we will use to determine the amount of
principal of, or any premium or interest on, the subordinated debt
securities;
- if other than the currency of the United States, the currency, currencies
or currency units in which we will pay the principal of, or any premium
or interest on, the subordinated debt securities and the manner in which
we will determine the equivalent of the principal amount of the
subordinated debt securities in the currency of the United States for any
purpose;
- if, at our option or your option, we may pay the principal of, or any
premium or interest on, the subordinated debt securities in one or more
currencies or currency units other than those in which the subordinated
debt securities are stated to be payable, the currency, currencies or
currency units in which we will pay, at our option or your option, these
amounts, the periods within which and the terms and conditions upon which
the election must be made by us or you, and the amount that we will pay
or the manner in which we will determine the amount;
- if other than the entire principal amount, the portion of the principal
amount of the subordinated debt securities that we will pay upon
acceleration of maturity;
- if the principal amount payable at the stated maturity of the
subordinated debt securities will not be determinable as of any one or
more dates prior to the stated maturity, the amount that will be deemed
to be the principal amount as of any date for any purpose;
- that the subordinated debt securities, in whole or any specified part,
are defeasible under the provisions of the applicable subordinated
indenture described below under " -- Defeasance and Discharge" or
" -- Covenant Defeasance," or under both captions;
- whether the principal or interest will be indexed to, or determined by
reference to, one or more securities, commodities, indices, or other
financial measure;
- whether the principal or interest may be payable, in whole or in part, in
securities of another issuer;
- whether we may issue the subordinated debt securities, in whole or in
part, in the form of one or more global securities, and, if so, the
depositaries for the global securities, and, if different from those
described below under "-- Global Securities", any circumstances under
which we may exchange or transfer any global security, in whole or in
part, for securities in the names of persons other than the depositary or
its nominee; and
- any addition to or change in the events of default applicable to the
subordinated debt securities and any change in the right of the
subordinated trustee or the holders of the subordinated debt securities
to declare the principal amount of the subordinated debt securities due
and payable.
We may sell subordinated debt securities at a substantial discount to their
principal amount. We will describe any special United States federal income tax
considerations applicable to subordinated debt securities sold at an original
issue discount in the applicable prospectus supplement. In addition, we will
describe any special United States federal income tax or other considerations
applicable to any subordinated debt securities that are denominated in a
currency or currency unit other than United States dollars in the applicable
prospectus supplement.
CONVERSION RIGHTS
We will set forth in an applicable prospectus supplement whether the
subordinated debt securities will be convertible into or exchangeable for any
other securities and the terms and conditions upon which a
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conversion or exchange may occur, including the initial conversion or exchange
price or rate, the conversion or exchange period and any other additional
provisions.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the applicable prospectus supplement, the
following provisions will apply to the subordinated debt securities.
SENIOR SUBORDINATED DEBT SECURITIES
The senior subordinated debt indenture may provide that the senior
subordinated debt securities are subordinate in right of payment to the prior
payment in full of all senior indebtedness, which includes our $200.0 million
aggregate principal amount of 8.5% senior notes due March 15, 2008, our guaranty
of the obligations under the FCRPC credit agreement, our guaranty of the
Franklin Town Towers Associates' bonds and any senior debt securities that we
may issue under the senior debt indenture.
The holders of all senior indebtedness outstanding at the time of
acceleration will first be entitled to receive payment in full of all amounts
due on the senior indebtedness before the holders of the senior subordinated
debt securities will be entitled to receive any payment upon the principal of,
or premium, if any, or interest, if any, on the senior subordinated debt
securities in the following circumstances:
- upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors, or any bankruptcy, insolvency, debt restructuring
or similar proceedings in connection with any insolvency or bankruptcy
proceeding of Forest City Enterprises, Inc.;
- (a) in the event and during the continuation of any default in the
payment of principal, premium or interest on any senior indebtedness
beyond any applicable grace period or (b) in the event that any event of
default with respect to any senior indebtedness has occurred and is
continuing, permitting the holders of that senior indebtedness (or a
trustee) to accelerate the maturity of that senior indebtedness, whether
or not the maturity is in fact accelerated (unless, in the case of (a) or
(b), the payment default or event of default has been cured or waived or
ceased to exist and any related acceleration has been rescinded) or (c)
in the event that any judicial proceeding is pending with respect to a
payment default or event of default described in (a) or (b); or
- in the event that any senior subordinated debt securities have been
declared due and payable before their stated maturity.
By reason of this subordination, in the event of liquidation or insolvency,
holders of senior subordinated debt securities may recover less than holders of
senior indebtedness and may recover more than the holders of junior subordinated
debt securities.
For purposes of the subordination provisions, the payment, issuance and
delivery of cash, property or securities, other than stock and some of our
subordinated securities, upon conversion or exchange of a senior subordinated
debt security will be deemed to constitute payment upon the principal of the
senior subordinated debt security.
JUNIOR SUBORDINATED DEBT SECURITIES
The junior subordinated debt indenture may provide that the junior
subordinated debt securities are subordinate in right of payment to the prior
payment in full of all senior debt, which includes any senior subordinated debt
securities that we may issue under the senior subordinated debt indenture.
The holders of all senior debt outstanding at the time of acceleration will
first be entitled to receive payment in full of all amounts due on the senior
debt before the holders of the junior subordinated debt securities will be
entitled to receive any payment upon the principal of, or premium, if any, or
interest, if any, on the junior subordinated debt securities in the following
circumstances:
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- upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors, or any bankruptcy, insolvency, debt restructuring
or similar proceedings in connection with any insolvency or bankruptcy
proceeding of Forest City Enterprises, Inc.;
- (a) in the event and during the continuation of any default in the
payment of principal, premium or interest on any senior debt beyond any
applicable grace period or (b) in the event that any event of default
with respect to any senior debt has occurred and is continuing,
permitting the holders of that senior debt (or a trustee) to accelerate
the maturity of that senior debt, whether or not the maturity is in fact
accelerated (unless, in the case of (a) or (b), the payment default or
event of been cured or waived or ceased to exist and any related
acceleration has been rescinded) or (c) in the event that any judicial
proceeding is pending with respect to a payment default or event of
default described in (a) or (b); or
- in the event that any junior subordinated debt securities have been
declared due and payable before their stated maturity.
By reason of this subordination, in the event of liquidation or insolvency,
holders of junior subordinated debt securities may recover less than holders of
senior debt, including the holders of any senior subordinated debt securities.
For purposes of the subordination provisions, the payment, issuance and
delivery of cash, property or securities, other than stock and some of our
subordinated securities, upon conversion or exchange of a junior subordinated
debt security will be deemed to constitute payment upon the principal of the
junior subordinated debt security.
DEFINITIONS
Unless otherwise indicated in the applicable prospectus supplement, the
following definitions are applicable to the subordinated indentures relating to
the subordinated debt securities. You should refer to the applicable
subordinated indenture for the full definition of each term.
"Debt" means, without duplication, with respect to any person or entity,
whether recourse is to all or a portion of the assets of that person or entity
and whether or not contingent:
- every obligation of that person or entity for money borrowed;
- every obligation of that person or entity evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
- every reimbursement obligation of that person or entity with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of that person or entity;
- every obligation of that person or entity issued or assumed as the
deferred purchase price of property or services;
- all indebtedness of that person or entity, whether incurred on or prior
to the date of the applicable subordinated indenture or incurred later,
for claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity forward contracts, options and swaps
and similar arrangements; and
- every obligation of the type referred to in the foregoing clauses of
another person or entity and all dividends of another person or entity
the payment of which, in either case, that person or entity has
guaranteed or is responsible or liable, directly or indirectly, as
obligor, guarantor or otherwise;
provided that this definition does not include trade accounts payable or accrued
liabilities arising in the ordinary course of business.
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"Senior debt" means the principal of, and premium, if any, and interest if
any, on debt (as defined above), whether incurred on or prior to the date of the
junior subordinated indenture or created later, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that the obligations are not superior in right of payment to the
junior subordinated debt securities or to other debt that is equal with, or
subordinated to, the junior subordinated debt securities. Senior debt will not
include any debt (as defined above) that, when incurred and without respect to
any election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was
without recourse to us, debt to any of our employees, and the junior
subordinated debt securities.
"Senior indebtedness" means the principal of, and premium, if any, and
interest on all indebtedness for borrowed money, whether incurred on or prior to
the date of the senior subordinated indenture or incurred later, excluding (a)
the subordinated debt securities, (b) obligations that by their terms are not
superior in right of payment to the senior subordinated securities or to other
indebtedness that is equal with, or subordinated to, the senior subordinated
securities and (c) any deferrals, renewals or extensions of any indebtedness for
money borrowed. The term "indebtedness for money borrowed" as used in the prior
sentence means any obligation of, or any obligation guaranteed by, Forest City
Enterprises, Inc. for the repayment of borrowed money, whether or not evidenced
by bonds, debentures, notes or other written instruments, and any deferred
obligation for the payment of the purchase price of property or assets.
Neither subordinated indenture limits or prohibits the incurrence of
additional senior debt or senior indebtedness, either of which may include
indebtedness that is senior to the subordinated debt securities, but subordinate
to other obligations of ours. In connection with the future issuances of
securities, the subordinated indentures may be amended or supplemented to limit
the amount of indebtedness incurred by us.
The applicable prospectus supplement may further describe the provisions,
if any, applicable to the subordination of the subordinated debt securities of a
particular series.
FORM, EXCHANGE AND TRANSFER
We will issue the subordinated debt securities, if any, of each series only
in fully registered form, without coupons, and, unless otherwise specified in
the applicable prospectus supplement, only in denominations and integral
multiples of $1,000.
At the option of the holder, subject to the terms of the applicable
subordinated indenture and the limitations applicable to global securities,
subordinated debt securities of each series will be exchangeable for other
subordinated debt securities of the same series of any authorized denomination
in the same aggregate principal amount.
Subject to the terms of the applicable subordinated indenture and the
limitations applicable to global securities, you may present subordinated debt
securities for exchange as provided above or for registration of transfer, if
properly endorsed or with the form of transfer properly endorsed and executed,
at the office of the security registrar or at the office of any transfer agent
that we designate. There will be no service charge for any registration of
transfer or exchange of subordinated debt securities, but we may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection with the transfer or exchange. The security registrar or transfer
agent will effect a transfer or exchange only if it is satisfied with the
documents of title and identity of the person making the request for the
transfer or exchange. We will appoint National City Bank as security registrar,
except as otherwise indicated in the applicable prospectus supplement. Any
transfer agent that we initially designate for any subordinated debt securities
will be named in the applicable prospectus supplement. We may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that we will be required to maintain a transfer agent in each place of
payment for the subordinated debt securities of each series.
If we redeem the subordinated debt securities of any series in part, we
will not be required to issue, register the transfer of, or exchange, any
subordinated debt security of that series during a period beginning at
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the opening of business 15 days before the day of mailing of a notice of
redemption and ending at the close of business on the day of the mailing, or
register the transfer of, or exchange, any subordinated debt security selected
for redemption, in whole or in part, except the unredeemed portion of any
subordinated debt security being redeemed in part.
GLOBAL SECURITIES
Some or all of the subordinated debt securities of any series may be
represented, in whole or in part, by one or more global securities that will
have an aggregate principal amount equal to that of the subordinated debt
securities of the particular series represented by the global securities. Each
global security will be registered in the name of a depositary or its nominee
identified in the applicable prospectus supplement, will be deposited with that
depositary or nominee or a custodian for the depositary or nominee and will bear
a legend regarding the restrictions on exchanges and registration of transfer
referred to below and any other matters as may be provided under the applicable
subordinated indenture.
Notwithstanding any provision of the applicable subordinated indenture or
any subordinated debt security, no global security may be exchanged, in whole or
in part, for subordinated debt securities registered, and no transfer of a
global security, in whole or in part, may be registered, in the name of any
person other than the depositary for the global security or any nominee of the
depositary unless:
- the depositary has notified us that it is unwilling or unable to continue
as depositary for the global security or has ceased to be qualified to
act as a depositary as required by the applicable subordinated indenture;
- an event of default with respect to the subordinated debt securities of a
series represented by the global security has occurred and is continuing;
or
- other circumstances, if any, in addition to or in lieu of those described
above and as may be described in the applicable prospectus supplement,
exist.
All securities issued in exchange for a global security or any portion of a
global security will be registered in the names that the depositary directs.
As long as the depositary, or its nominee, is the registered holder of a
global security, the depositary or the nominee will be considered the sole owner
and holder of the global security and the series of subordinated debt securities
represented by the global security for all purposes under the subordinated debt
securities and the applicable subordinated indenture. Except in the limited
circumstances referred to above, owners of beneficial interests in a global
security will not be entitled to have a global security or any subordinated debt
securities represented by the global security registered in their names, will
not receive or be entitled to receive physical delivery of certificated
subordinated debt securities in exchange for the global security and will not be
considered to be the owners or holders of the global security or any
subordinated debt securities represented by the global security for any purpose
under the subordinated debt securities or the applicable subordinated indenture.
All payments of principal of and any premium and interest on a global security
will be made to the depositary or its nominee, as the case may be, as the holder
of the global security. The laws of some jurisdictions require that some
purchasers of securities take physical delivery of the securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
global security.
Ownership of beneficial interests in a global security will be limited to
institutions that have accounts with the depositary or its nominee and to
persons that may hold beneficial interests through the depositary's
participants. In connection with the issuance of any global security, the
depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of the series of subordinated debt securities
represented by the global security to the accounts of its participants.
Ownership of beneficial interests in a global security will be shown only on,
and the transfer of those ownership interests will be effected only through,
records maintained by the depositary, with respect to participants' interests,
or by any participant, with respect to interests of persons held by participants
on their behalf. Payments, transfers, exchanges and other matters relating to
beneficial interests in a global security may be subject to various
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policies and procedures adopted by the depositary from time to time. None of us,
the subordinated trustee or any agent of ours or the subordinated trustee will
have any responsibility or liability for any aspect of the depositary's or any
participant's records relating to, or for payments made for, beneficial
interests in a global security or for maintaining, supervising or reviewing any
records relating to beneficial interests.
Unless otherwise stated in the applicable prospectus supplement, we will
appoint DTC as the depositary for the subordinated debt securities.
We understand that neither DTC nor its nominee will consent or vote with
respect to the subordinated debt securities. We have been advised that under its
usual procedures, DTC will mail an omnibus proxy to us as soon as possible after
the record date. The omnibus proxy assigns consenting or voting rights of DTC's
nominee to those participants to whose accounts the subordinated debt securities
are credited on the record date identified in a listing attached to the omnibus
proxy.
DTC has advised us that it will take any action permitted to be taken by a
holder of subordinated debt securities (including the presentation of
subordinated debt securities for exchange) only at the direction of one or more
participants to whose account with DTC interests in the global security are
credited and only in respect of such portion of the principal amount of the
subordinated debt securities represented by the global security as to which such
participant or participants has or have given such direction.
DTC has also advised us as follows:
- DTC is a limited purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a clearing
corporation within the meaning of the Uniform Commercial Code, as
amended, and a clearing agency registered pursuant to the provisions of
Section 17A of the Exchange Act;
- DTC was created to hold securities for its participants and facilitate
the clearance and settlement of securities transactions between
participants through electronic computerized book-entry changes in
accounts of its participants;
- DTC's participants include securities brokers and dealers, banks, trust
companies and clearing corporations and may include certain other
organizations;
- certain participants, or other representatives, together with other
entities, own DTC; and
- indirect access to the DTC system is available to other entities such as
banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on a subordinated debt security on any interest payment date will be
made to the person in whose name the subordinated debt security, or one or more
predecessor debt securities, is registered at the close of business on the
regular record date for the interest payment.
Unless otherwise indicated in the applicable prospectus supplement,
principal of, and any premium and interest on, the subordinated debt securities
of a particular series will be payable at the office of the paying agent or
paying agents that we may designate from time to time. Unless otherwise
indicated in the applicable prospectus supplement, the corporate trust office of
the subordinated trustee in The City of New York will be designated as our sole
paying agent for payments with respect to subordinated debt securities of each
series. Any other paying agents that we initially designate for the subordinated
debt securities of a particular series will be named in the applicable
prospectus supplement. We may at any time designate additional paying agents or
rescind the designation of any paying agent or approve change in the office
through which any paying agent acts, except that we will be required to maintain
a paying agent in each place of payment for the subordinated debt securities of
a particular series.
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All moneys that we pay to a paying agent for the payment of the principal
of, or any premium or interest on, any subordinated debt security that remain
unclaimed at the end of two years after the principal, premium or interest has
become due and payable will be repaid to us, and the holder of the subordinated
debt security may look only to us for payment of any principal, premium or
interest.
RESTRICTIVE COVENANTS
We will include covenants specific to a particular series of subordinated
debt securities in the applicable prospectus supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless otherwise specified in the applicable prospectus supplement, the
subordinated indentures will provide that Forest City Enterprises, Inc. may not
consolidate with or merge into, or convey, transfer or lease its properties and
assets substantially as an entirety to, any entity, and may not permit any
entity to merge into, or convey, transfer or lease its properties and assets
substantially as an entirety to Forest City Enterprises, Inc., unless all of the
following conditions are met.
- If the successor entity is not Forest City Enterprises, Inc., the
successor entity is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any domestic
jurisdiction and expressly assumes Forest City Enterprises, Inc.'s
obligations on the subordinated debt securities and under the
subordinated indentures.
- Immediately after giving effect to the transaction, and treating any debt
that becomes our obligation as a result of the transaction as having been
incurred by us at the time of the transaction, no event of default, and
no event that, after notice or lapse of time or both, would become an
event of default, has occurred and is continuing.
- If, as a result of the transaction, the properties or assets of Forest
City Enterprises, Inc. would become subject to a lien or other
encumbrance that would not be permitted by the applicable subordinated
indenture, Forest City Enterprises, Inc. or the successor entity, as the
case may be, takes the steps necessary to secure the subordinated debt
securities equally and ratably with, or prior to, the indebtedness
secured by the lien or other encumbrance.
- Forest City Enterprises, Inc. delivers to the subordinated trustee an
officers' certificate and an opinion of counsel, both of which state that
the transaction complies with the terms of the applicable subordinated
indenture.
EVENTS OF DEFAULT
Unless otherwise set forth in the applicable prospectus supplement, each of
the following will constitute an event of default under the applicable
subordinated indenture with respect to subordinated debt securities of any
series, if applicable:
- failure to pay principal of, or premium, if any, on, any subordinated
debt security of that series when due, whether or not the payment is
prohibited by the subordination provisions of the applicable subordinated
indenture;
- failure to pay any interest on any subordinated debt securities of that
series when due that continues for 30 days, whether or not the payment is
prohibited by the subordination provisions of the applicable subordinated
indenture;
- failure to deposit any sinking fund payment when due on any subordinated
debt security of that series, whether or not the deposit is prohibited by
the subordination provisions of the applicable subordinated indenture;
- failure to perform any other covenant in the applicable subordinated
indenture, other than a covenant included in the applicable subordinated
indenture solely for the benefit of a series other than that
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series, that continues for 60 days after written notice has been given by
the subordinated trustee or the holders of at least 10% in aggregate
principal amount of the outstanding subordinated debt securities of that
series as provided in the applicable indenture;
- a default under any indebtedness for money we borrowed that (1)
constitutes a failure to pay when due, subject to any applicable grace
period, the principal of that indebtedness if that debt has not been
discharged, or (2) results in that indebtedness becoming or being
declared due and payable prior to its stated maturity if that
indebtedness has not been discharged or the acceleration has not been
rescinded, in each case within 10 days after written notice has been
given by the subordinated trustee or the holders of at least 10% in
principal amount of the outstanding subordinated debt securities of that
series as provided in the applicable indenture;
- we or any of our significant subsidiaries file for bankruptcy, or other
events in bankruptcy, insolvency or reorganization occur; and
- any other event of default specified in the applicable prospectus
supplement.
If any event of default, other than an event of default relating to
bankruptcy, insolvency or reorganization, occurs and is continuing, either the
subordinated trustee or the holders of at least 25% in aggregate principal
amount of the outstanding subordinated debt securities of the applicable series,
by notice as provided in the applicable subordinated indenture, may declare the
principal amount of the subordinated debt securities of that series to be due
and payable immediately. If an event of default relating to bankruptcy,
insolvency or reorganization occurs, the principal amount of all the
subordinated debt securities of the applicable series, or, in the case of any
original issue discount security or other subordinated debt security, a
specified amount, will automatically, and without any action by the subordinated
trustee or any holder, become immediately due and payable. However, after the
acceleration, but before a judgment or decree based on acceleration, the holders
of a majority in aggregate principal amount of the outstanding subordinated debt
securities of that series may, under specified circumstances, rescind the
acceleration if all events of default, other than the non-payment of accelerated
principal, or other specified amount, have been cured or waived as provided in
the applicable subordinated indenture. For a more detailed discussion as to
waiver of defaults, see " -- Modification and Waiver."
Subject to the provisions of the applicable subordinated indenture relating
to the duties of the subordinated trustee in case an event of default occurs and
is continuing, the subordinated trustee will be under no obligation to exercise
any of its rights or powers under the applicable subordinated indenture at the
request or direction of any of the holders, unless the holders have offered to
the subordinated trustee reasonable indemnity. Subject to the provisions of the
applicable subordinated indenture relating to the indemnification of the
subordinated trustee, the holders of a majority in aggregate principal amount of
the outstanding subordinated debt securities of any series will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the subordinated trustee or exercising any trust or power conferred
on the subordinated trustee with respect to the subordinated debt securities of
that series.
No holder of a subordinated debt security of any series will have any right
to institute any proceeding with respect to the applicable subordinated
indenture, or for the appointment of a receiver or a trustee, or for any other
remedy thereunder, unless:
- the holder has previously given to the subordinated trustee written
notice of a continuing event of default with respect to the subordinated
debt securities of that series;
- the holders of at least 25% in aggregate principal amount of the
outstanding subordinated debt securities of that series have made a
written request and offered reasonable indemnity to the trustee to
institute the proceeding as trustee;
- the subordinated trustee has failed to institute the proceeding; and
- the subordinated trustee has not received from the holders of a majority
in aggregate principal amount of the outstanding subordinated debt
securities of that series a direction inconsistent with the request
within 60 days after the notice, request and offer.
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However, these limitations do not apply to a suit instituted by a holder of a
subordinated debt security for the enforcement of payment of the principal of or
any premium or interest on such subordinated debt security on or after the
applicable due date specified in the debt security.
We will be required to furnish to the subordinated trustee annually a
statement as to whether or not we, to our knowledge, are in default in the
performance or observance of any of the terms, provisions and conditions of each
subordinated indenture and, if so, specifying all known defaults.
MODIFICATION AND WAIVER
Unless otherwise set forth in the applicable prospectus supplement, we and
the subordinated trustee may modify and amend the applicable subordinated
indenture with the consent of holders of not less than a majority in aggregate
principal amount of any series of outstanding subordinated debt securities, and,
in some instances, we and the subordinated trustee may modify and amend the
subordinated indenture without the consent of the holders of any series of
outstanding subordinated debt securities. However, we and the subordinated
trustee may not modify or amend the subordinated indenture without the consent
of the holder of each outstanding subordinated debt security affected by the
modification or amendment if the modification or amendment:
- changes the stated maturity of the principal of, or any installment of
principal of or interest on, any subordinated debt security;
- reduces the principal amount of, or any premium or interest on, any
subordinated debt security;
- reduces the amount of principal of an original issue discount security or
any other subordinated debt security payable upon acceleration of
maturity;
- changes the place or currency of payment of principal of, or any premium
or interest on, any subordinated debt security;
- impairs the right to institute suit for the enforcement of any payment on
or with respect to any subordinated debt security;
- reduces the percentage of outstanding subordinated debt securities of any
series, the consent of whose holders is required for modification or
amendment of the applicable subordinated indenture;
- reduces the percentage of outstanding subordinated debt securities of any
series necessary for waiver of compliance with specified provisions of
the applicable subordinated indenture or for waiver of specified
defaults;
- modifies the provisions relating to modification and waiver in any other
respect except to increase any required percentage referred to above or
to add to the provisions that cannot be changed or modified without the
consent of the holders; or
- in the case of convertible subordinated debt securities, makes any change
that adversely affects the right to convert any subordinated debt
security, except as permitted by the applicable subordinated indenture,
or decreases the conversion rate or increases the conversion price of any
subordinated debt security.
Each subordinated indenture will provide that the holders of a majority in
aggregate principal amount of the outstanding subordinated debt securities of
any series may waive our compliance with specified restrictive provisions of the
applicable subordinated indenture. The holders of a majority in aggregate
principal amount of the outstanding subordinated debt securities of any series
may waive any past default with respect to that series under the applicable
subordinated indenture, except a default in the payment of principal, premium or
interest and specified covenants and provisions of the applicable subordinated
indenture that cannot be amended without the consent of the holder of each
outstanding subordinated debt security of the affected series.
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DEFEASANCE AND DISCHARGE
The applicable subordinated indenture will provide that, upon the exercise
of our option, we will be discharged from all our obligations with respect to
any subordinated debt securities of a series, including the provisions relating
to subordination, except for the following obligations:
- to exchange or register the transfer of subordinated debt securities;
- to replace stolen, lost or mutilated subordinated debt securities;
- to maintain paying agencies; and
- to hold moneys for payment in trust, upon the deposit in trust for the
benefit of the holders of the subordinated debt securities of money or
United States government obligations, or both, in an amount sufficient to
pay the principal of, and any premium and interest on, the subordinated
debt securities of that series on the stated maturity in accordance with
the terms of the applicable subordinated indenture and the subordinated
debt securities of that series.
We may only exercise defeasance or discharge if, among other things, we have
delivered to the subordinated trustee an opinion of counsel to the effect that
we have received from, or there has been published by, the Internal Revenue
Service a ruling, or there has been a change in tax law, in either case to the
effect that holders of the subordinated debt securities of a relevant series
will not recognize gain or loss for federal income tax purposes as a result of
the deposit, defeasance and discharge and will be subject to federal income tax
on the same amount, in the same manner and at the same times as would have been
the case if the deposit, defeasance and discharge were not to occur.
COVENANT DEFEASANCE
The applicable subordinated indenture will provide that, at our option, we
may omit to comply with specified restrictive covenants related to the
subordinated debt securities of a series, including any that may be described in
the applicable prospectus supplement, and the occurrence of specific events of
default that are described above under " -- Events of Default" and any that may
be described in the applicable prospectus supplement that are related to the
subordinated debt securities, will be deemed not to be or result in an event of
default. If this occurs, the provisions relating to subordination will cease to
be effective with respect to any subordinated debt securities. We may only
exercise this option if we deposit, in trust for the benefit of the holders of
the subordinated debt securities of that series, money or United States
government obligations, or both, in an amount sufficient to pay the principal
of, and any premium and interest on, the subordinated debt securities on the
stated maturity in accordance with the terms of the applicable subordinated
indenture and the subordinated debt securities of that series. We also must,
among other things, deliver to the subordinated trustee an opinion of counsel to
the effect that holders of the subordinated debt securities of the relevant
series will not recognize gain or loss for federal income tax purposes as a
result of the deposit and defeasance of specified obligations and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if the deposit and defeasance were not to
occur.
If we exercise this option with respect to any subordinated debt securities
of a series and the subordinated debt securities are declared due and payable
because of the occurrence of any event of default, the amount of money and
United States government obligations so deposited in trust may be insufficient
to pay amounts due on the subordinated debt securities at the time of their
respective stated maturities but is not sufficient to pay amounts due on the
subordinated debt securities of that series at the time of the acceleration. In
such a case, we would remain liable for the deficiency.
NOTICES
Unless otherwise set forth in the applicable prospectus supplement, notices
to the holders of subordinated debt securities will be given by mail to the
addresses of those holders as they may appear in the security register.
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TITLE
Unless otherwise set forth in the applicable prospectus supplement, we, the
subordinated trustee and any agents of ours or the subordinated trustee may
treat the person in whose name a subordinated debt security is registered as the
absolute owner of the subordinated debt security, whether or not the
subordinated debt security may be overdue, for the purpose of making payment and
for all other purposes.
RELATIONSHIPS WITH THE SUBORDINATED TRUSTEE
National City Bank will be the subordinated trustee under the senior
subordinated indenture and the junior subordinated indenture, unless otherwise
indicated in the applicable prospectus supplement. National City Bank is also a
lender under the FCRPC credit agreement and is, and likely will be in the
future, a lender with respect to individual projects of our subsidiaries.
GOVERNING LAW
The subordinated indentures and the subordinated debt securities will be
governed by, and construed in accordance with, the law of the State of New York,
unless otherwise indicated in the applicable prospectus supplement.
DESCRIPTION OF PREFERRED STOCK WE MAY OFFER
This section describes the general terms and provisions of the preferred
stock that we may issue separately, upon conversion of a senior debt security,
upon conversion of a subordinated debt security, upon exercise of an equity
warrant, in connection with a stock purchase contract, as part of a stock
purchase unit or upon exercise of a subscription right. The applicable
prospectus supplement will describe the specific terms, or modify the general
terms, of any shares of preferred stock offered through that prospectus
supplement and any special federal income tax consequences of those shares of
preferred stock. We will file an amendment to our amended articles of
incorporation that contains the terms of each series of preferred stock each
time we issue a new series of preferred stock. This amendment will establish the
number of shares included in a designated series and fix the designation,
powers, privileges, preferences and rights of the shares of each series as well
as any applicable qualifications, limitations or restrictions, including any
dividend, redemption, liquidation, sinking fund and conversion rights. The
description set forth below is not complete and is subject to the amendments to
our amended articles of incorporation fixing the preferences, limitations and
relative rights of a particular series of preferred stock. You should refer to
these amendments for specific information on the preferred stock. See "Where You
Can Find More Information" for information on how to obtain copies of amendments
to our amended articles of incorporation.
GENERAL
Under our amended articles of incorporation, our board of directors is
authorized to issue up to 5,000,000 shares of preferred stock, without par
value, in multiple series without the approval of shareholders with any
designation, powers, privileges, preferences and rights, as well as any
applicable qualifications, limitations or restrictions, as may be fixed by the
board of directors.
The preferred stock we may offer, if any, will have the dividend,
redemption, liquidation, sinking fund and conversion rights set forth below
unless otherwise provided in the applicable prospectus supplement. You should
refer to the applicable prospectus supplement relating to the particular series
of preferred stock offered by that prospectus supplement for specific terms,
which may include:
- the designation and authorized number of shares of each series;
- the title and liquidation preference per share;
- the number of shares offered;
- the price at which the shares of each series will be issued;
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- the dividend rate, if any, the dates on which we will pay dividends and
the dates from which dividends will commence to accumulate;
- any redemption or sinking fund provisions of each series;
- any conversion or exchange rights; and
- any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions of each
series.
The shares of preferred stock will be, when issued, fully paid and
nonassessable. Unless otherwise specified in the applicable prospectus
supplement, each series will rank on a parity as to dividends and distributions
in the event of a liquidation with each other series of preferred stock and, in
all cases, will be senior to our class A common stock and our class B common
stock.
DIVIDEND RIGHTS
Unless otherwise set forth in the applicable prospectus supplement, holders
of preferred stock of each series will be entitled to receive, when, as and if
declared by our board of directors, out of our assets legally available for the
payment of dividends, cash dividends at the rates and on the dates as set forth
in the applicable prospectus supplement. Holders of preferred stock will be
entitled to receive dividends in preference to and in priority over dividends on
common stock and may be cumulative or non-cumulative as determined by our board
of directors. We will generally be able to pay dividends and distribute assets
to holders of our preferred stock only if we have satisfied our obligations on
our debt that is then due and payable.
If the applicable prospectus supplement so provides, as long as any shares
of preferred stock are outstanding, no dividends will be declared or paid or any
distributions be made on our class A or class B common stock unless the accrued
dividends on each series of preferred stock have been declared and paid.
Each series of preferred stock will be entitled to dividends as described
in the applicable prospectus supplement. Different series of preferred stock may
be entitled to dividends at different dividend rates or based upon different
methods of determination. Except as provided in the applicable prospectus
supplement, no series of preferred stock will be entitled to participate in our
earnings or assets.
RIGHTS UPON LIQUIDATION
Upon any dissolution, liquidation or "winding up" of Forest City
Enterprises, Inc., the holders of each series of preferred stock will be
entitled to receive out of its assets, whether from capital, surplus or
earnings, and before any distribution of any assets is made on class A common
stock or class B common stock, the amount per share fixed by the board of
directors for that series of preferred stock, as reflected in the applicable
prospectus supplement, plus unpaid dividends, if any, to the date fixed for
distribution. Unless otherwise indicated in the applicable prospectus
supplement, holders of preferred stock will be entitled to no further
participation in any distribution made in conjunction with any dissolution,
liquidation or "winding up."
REDEMPTION
A series of preferred stock may be redeemable, in whole or in part, at our
option, and may be subject to mandatory redemption in connection with a sinking
fund. The terms, times, redemption prices and types of consideration of the
redemption will be set forth in the applicable prospectus supplement. The
applicable prospectus supplement will also specify the number of shares of the
series that we will redeem in each year commencing after a specified date, at a
specified redemption price per share, together with an amount equal to any
accrued and unpaid dividends to the date of redemption.
If, after giving notice of redemption to the holders of a series of
preferred stock, we deposit with a designated bank funds sufficient to redeem
the series of preferred stock, then from and after the deposit, all shares
called for redemption will no longer be outstanding for any purpose, other than
the right to receive the
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redemption price and the right, if applicable, to convert the shares of
preferred stock into our class A common stock or other securities prior to the
date fixed for redemption.
Except as indicated in the applicable prospectus supplement, the preferred
stock is not subject to any mandatory redemption at the option of the holder.
SINKING FUND
The applicable prospectus supplement for any series of preferred stock will
state the terms, if any, of a sinking fund for the purchase or redemption of
that series.
CONVERSION RIGHTS
The applicable prospectus supplement for any series of preferred stock will
state the terms, if any, on which shares of that series are convertible into
shares of class A common stock or, if applicable, other securities. Unless
otherwise indicated in the applicable prospectus supplement, the preferred stock
will have no preemptive rights.
VOTING RIGHTS
Under ordinary circumstances, the holders of preferred stock have no voting
rights except as required by law. However, if dividends on the preferred stock
are in arrears for an aggregate of six quarterly dividends, the holders of the
preferred stock, voting as a class, will become entitled to elect two directors
until the time as the arrearages are paid and current dividends paid or declared
and funded. The applicable prospectus supplement may provide additional voting
rights for holders of preferred stock.
TRANSFER AGENT AND REGISTRAR
We will select the transfer agent, registrar and dividend disbursement
agent for a series of preferred stock, and each one will be described in the
applicable prospectus supplement. The registrar for shares of preferred stock
will send notices to shareholders of any meetings at which holders of preferred
stock have the right to vote on any matter.
DESCRIPTION OF DEPOSITARY SHARES WE MAY OFFER
We may, at our option, elect to offer fractional shares of preferred stock
rather than full shares of preferred stock. If we do elect to offer fractional
shares of preferred stock, we will issue depositary shares that each represent a
fraction of a share of a particular series of preferred stock. This section
describes the general terms and provisions of the depositary shares that we may
issue. The applicable prospectus supplement will describe the specific terms, or
modify the general terms, of any depositary shares offered through that
prospectus supplement and any special federal income tax consequences of those
depositary shares. A copy of the form of a deposit agreement between us and a
depositary has been previously filed with the SEC, is incorporated by reference
as an exhibit to the registration statement of which this prospectus is a part
and is incorporated by reference into the prospectus. See "Where You Can Find
More Information" for information on how to obtain a copy of the form of deposit
agreement. The following summaries of specific provisions of the deposit
agreement are not complete and are subject to all of the provisions of the
deposit agreement, including the definitions in the deposit agreement of
specified terms, and, with respect to any particular depositary shares, to the
description of the terms included in the applicable prospectus supplement.
GENERAL
The shares of any series of preferred stock represented by depositary
shares will be deposited under a deposit agreement between us and a depositary
named in the applicable prospectus supplement. Subject to the terms of the
deposit agreement, each owner of a depositary share will be entitled, in
proportion to the applicable fraction of a share of preferred stock represented
by the depositary share, to all the rights and
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preferences of the preferred stock represented by the depositary shares,
including dividend, voting, redemption, subscription and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under
the deposit agreement. Depositary receipts will be distributed to those persons
purchasing the fractional shares of preferred stock in accordance with the terms
of the offering. Pending the preparation of definitive depositary receipts, the
depositary may, upon our written order, issue temporary depositary receipts
substantially identical to, and entitling the holders to all the rights
pertaining to, definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared thereafter without unreasonable
delay, and temporary depositary receipts will be exchangeable for definitive
depositary receipts at our expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received on the preferred stock to the record holders of
depositary shares relating to the preferred stock in proportion to the number of
the depositary shares owned by the holders of the depositary shares. The
depositary will distribute only the amount, however, as can be distributed
without attributing to any holder of depositary shares a fraction of one cent,
and the balance not so distributed will be held by the depositary, without
liability for interest thereon, and will be added to and treated as part of the
sum next received by the depositary for distribution to record holders of
depositary shares.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares
entitled to the distribution, in amounts as are, as nearly as practicable, in
proportion to the number of depositary shares owned by each holder, unless the
depositary determines that it is not feasible to make the distribution. In that
case, the depositary may, with our approval, adopt any method that it deems
equitable and practical, including the sale of the property and the distribution
of the net proceeds from the sale to the holders of depositary shares.
The deposit agreement will also contain provisions relating to the manner
in which any subscription or similar rights we offer to holders of the preferred
stock will be made available to the holders of depositary shares.
WITHDRAWAL OF PREFERRED STOCK
Unless the related depositary shares have previously been called for
redemption, the holder of the depositary shares may receive the number of whole
shares of the related series of preferred stock and any money or other property
represented by the depositary shares after surrendering the depositary receipts
at the corporate trust office of the depositary, paying taxes, charges and fees
provided for in the deposit agreement and complying with any other requirements
of the deposit agreement. Holders of depositary shares making these withdrawals
will be entitled to receive whole shares of the related series of preferred
stock on the basis set forth in the applicable prospectus supplement for the
series of preferred stock, but holders of whole shares of the preferred stock
will not be entitled to receive depositary shares at a later time in exchange
for whole shares of preferred stock. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the number of
depositary shares representing the number of whole shares of the related series
of preferred stock to be withdrawn, the depositary will deliver to the holder at
the same time a new depositary receipt evidencing the excess number of
depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If we redeem a series of preferred stock represented by depositary shares,
the depositary will redeem the depositary shares from the proceeds it receives
from the redemption, in whole or in part, of the series of preferred stock held
by the depositary in accordance with the terms of the deposit agreement.
Whenever we redeem shares of preferred stock held by the depositary, the
depositary will redeem, as of the same redemption date, the number of depositary
shares representing shares of preferred stock so redeemed. If fewer than all the
depositary shares are to be redeemed, the depositary shares to be redeemed will
be selected by
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lot or pro rata as may be determined by the depositary or by any other method
that may be determined by the depositary to be equitable.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be outstanding, and all rights of the holders of the
depositary shares will cease, except the right to receive the money, securities
or other property payable upon redemption and any money, securities, or other
property to which the holders of the depositary shares were entitled upon
redemption. To receive this money, securities or property, the holder must
surrender the depositary receipts evidencing the depositary shares to the
depositary.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series of
preferred stock are entitled to vote, the depositary will mail the information
contained in the notice of meeting to the record holders of the depositary
shares relating to the applicable series of preferred stock. Each record holder
of the depositary shares on the record date for that series of preferred stock
will be entitled to instruct the depositary as to the exercise of the voting
rights pertaining to the amount of whole shares of that series of preferred
stock represented by the holder's depositary shares. The depositary will
attempt, as practicable, to vote the amount of whole shares of that series of
preferred stock represented by the depositary shares in accordance with each
holder's instructions. We will agree to take all reasonable action that may be
deemed necessary by the depositary in order to enable the depositary to do so.
The depositary will abstain from voting shares of the preferred stock to the
extent that it does not receive specific instructions from the holder of
depositary shares representing that series of preferred stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
We and the depositary may amend the form of depositary receipt evidencing
the depositary shares and any provision of the deposit agreement at any time.
However, any amendment that materially and adversely alters the rights of the
holders of depositary shares will not be effective unless the amendment has been
approved by the holders of at least a majority of the affected depositary shares
then outstanding under the deposit agreement. We or the depositary may terminate
the deposit agreement only if:
- all outstanding depositary shares under the deposit agreement have been
redeemed; or
- there has been a final distribution on the preferred stock in connection
with any liquidation, dissolution or winding up of Forest City
Enterprises, Inc. and the distribution has been distributed to the
holders of depositary receipts.
CHARGES AND EXPENSES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges of
the depositary in connection with the initial deposit of the preferred stock,
any redemption of the preferred stock at our option and any withdrawals of
preferred stock by the holders of depositary shares. Holders of depositary
receipts will pay all other transfer and other taxes and governmental charges
and any other charges as may be expressly provided in the deposit agreement to
be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to us notice of its
election to do so, and we may at any time remove the depositary. Any resignation
or removal of the depositary will take effect upon the appointment of a
successor depositary and its acceptance of the appointment as provided in the
deposit agreement. The successor depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50.0 million.
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MISCELLANEOUS
We will deliver, at our expense, all notices and reports required by law,
by the rules of any national securities exchange upon which the preferred stock,
the depositary shares or the depositary receipts are listed or by our amended
articles of incorporation to be furnished to the record holders of preferred
stock.
As provided in the deposit agreement, neither we nor the depositary will be
liable if prevented or delayed by law or any other circumstance beyond our or
its control in performing obligations under the deposit agreement. Our
obligations and those of the depositary under the deposit agreement will be
limited to performance in good faith of the duties thereunder. The depositary
will not be obligated to prosecute or defend any legal proceeding on any
depositary shares or preferred stock unless satisfactory indemnity is furnished.
We and the depositary may rely upon written advice of counsel or accountants, or
upon information provided by persons presenting preferred stock for deposit,
holders of depositary receipts or other persons believed to be competent and on
documents believed to be genuine.
DESCRIPTION OF COMMON STOCK WE MAY OFFER
This section describes the general terms and provisions of the shares of
class A common stock that we may issue separately, upon conversion of a senior
debt security, upon conversion of a subordinated debt security, upon conversion
of preferred stock, upon exercise of an equity warrant, in connection with a
stock purchase contract, as part of a stock purchase unit or upon exercise of a
subscription right. The description set forth below of the class A common stock
and class B common stock is not complete and is subject to our amended articles
of incorporation. You should refer to our amended articles of incorporation for
specific information on our class A common stock. See "Where You Can Find More
Information" for information on how to obtain a copy of our amended articles of
incorporation.
Our amended articles of incorporation authorize the issuance of 96,000,000
shares of class A common stock, of which, at March 1, 2002, 35,469,771 shares
were issued, 322,694 shares were held in treasury and 35,147,077 shares were
outstanding and were held of record by 753 shareholders, and 36,000,000 shares
of class B common stock, convertible on a share-for-share basis into class A
common stock, of which, at March 1, 2002, 14,756,057 shares were issued, 417,150
shares were held in treasury and 14,338,907 shares were outstanding and were
held of record by 572 shareholders.
GENERAL
Except as described below, the shares of class A common stock and the
shares of class B common stock are in all respects identical. The holders of
class A common stock and class B common stock are entitled to participate in any
dividend, reclassification, merger, consolidation, reorganization,
recapitalization, liquidation, dissolution or winding up of the affairs of the
company, share-for-share, without priority or other distinction between classes.
Both the class A and class B common stock are listed on The New York Stock
Exchange. As of March 1, 2002, class A common stock accounted for approximately
71% of the total number of shares of common stock outstanding.
DIVIDENDS
Our board of directors is not required to declare a regular cash dividend
in any fiscal year. The class A common stock and class B common stock will
participate equally on a share-for-share basis in any and all cash and non-cash
dividends paid. No cash dividend can be paid on a class of common stock until
provision is made for payment of a dividend of at least an equal amount on a
share-for-share basis on the other class of common stock. If our board of
directors determines to declare any stock dividend with respect to either class
of common stock, it must at the same time declare a proportionate stock dividend
with respect to the other class of common stock. If the shares of either class
of common stock are combined or subdivided, the shares of the other class of
common stock must be combined or subdivided in an equivalent manner. In the
discretion of our board of directors, dividends payable in class A common stock
may be paid with respect to
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shares of either class of common stock, but dividends payable in class B common
stock may be paid only with respect to shares of class B common stock.
VOTING RIGHTS
The holders of the class A common stock, voting as a separate class, are
entitled to elect 25% of the directors rounded up to the nearest whole number.
All other directors are elected by the holders of the class B common stock
voting as a separate class. Cumulative voting for the election of directors is
provided by Ohio law if notice in writing is given by any shareholder to the
president, a vice president or the secretary not less than 48 hours before the
time fixed for the holding of the meeting that the shareholder desires
cumulative voting with respect to the election of directors by a class of
shareholders to which he belongs, and if an announcement of the giving of the
notice is made upon the convening of the meeting by the chairman or secretary or
by or on behalf of the shareholder giving the notice, each holder of shares of
that class will have the right to accumulate the voting power as he possesses at
the election with respect to shares of that class. If this occurs, each holder
of shares of class A common stock or class B common stock, as the case may be,
will have as many votes as equal the number of shares of that class of common
stock owned by him multiplied by the number of directors to be elected by the
holders of that class of common stock. These votes may be distributed among the
total number of directors to be elected by the holders of that class of common
stock or distributed among any lesser number, in the proportion as the holder
may desire.
In the event that the number of outstanding shares of class A common stock
is, as of the record date for any shareholder meeting at which directors will be
elected, less than 10% of the combined outstanding shares of class A and class B
common stock, then the holders of class A common stock will not have the right
to elect 25% of the directors. If this occurs, the holders of the class A common
stock and the holders of the class B common stock would vote together as a
single class in the election of all directors, with each class A share having
one vote and each class B share having ten votes.
Further, in the event that the number of outstanding shares of class B
common stock as of the above-mentioned record date is less than 500,000 shares,
the holders of class B common stock will lose their rights to elect 75% of the
directors. If this occurs, the holders of the class A common stock would
continue to vote as a separate class to elect 25% of the directors rounded up to
the nearest whole number, and the holders of the class A and class B common
stock would vote together as a single class in the election of the remaining
directors, with each class A share having one vote and each class B share having
ten votes.
The holders of class A common stock and the holders of class B common stock
are entitled to vote as separate classes:
- for the election of directors;
- to amend our amended articles of incorporation or our code of regulations
or approve a merger or consolidation of us with or into another
corporation if the amendment, merger or consolidation would adversely
affect the rights of the particular class; and
- on all matters as to which class voting may be required by applicable
Ohio law.
The holders of the class A common stock vote together with the holders of the
class B common stock as a single class on all matters which are submitted to
shareholder vote, except as discussed above. When all holders of our shares vote
as a single class, each class A share has one vote and each class B share has
ten votes.
CONVERSION
Holders of shares of class B common stock are entitled to convert, at any
time and at their election, each share of class B common stock into one share of
class A common stock. Shares of class A common stock are not convertible into
any security of ours.
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OTHER TERMS
Our shareholders have no preemptive or other rights to subscribe for
additional shares of our voting securities, except for the conversion rights of
class B common stock described above and conversion rights of subordinated debt
securities and preferred stock, if any. Upon any liquidation, dissolution or
winding up of Forest City, the assets legally available for distribution to
holders of all classes of common stock are distributable ratably among the
holders of the shares of all classes of common stock outstanding at the time. No
class of common stock is subject to redemption.
TRANSFER AGENT
National City Bank, Cleveland, Ohio, currently serves as transfer agent for
our common stock.
DESCRIPTION OF WARRANTS WE MAY OFFER
GENERAL DESCRIPTION OF WARRANTS
This section describes the general terms and provisions of the warrants we
may issue for the purchase of senior debt securities, subordinated debt
securities, class A common stock or preferred stock. We may issue warrants
independently or together with other securities offered by any prospectus
supplement and may attach warrants to those securities. Each series of warrants
will be issued under a separate warrant agreement to be entered into between us
and a bank or trust company, as warrant agent, all as set forth in the
applicable prospectus supplement relating to the particular issue of the
warrants. The warrant agent will act solely as our agent in connection with
warrant certificates evidencing the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of certificates
evidencing warrants or beneficial owners of warrants. A copy of the form of a
warrant agreement has been filed with the SEC as an exhibit to the registration
statement of which this prospectus is a part and is incorporated by reference
into this prospectus. See "Where You Can Find More Information" for information
on how to obtain a copy of the form of warrant agreement.
DEBT WARRANTS
The applicable prospectus supplement relating to a particular issue of
warrants to issue debt securities will describe the terms of those warrants,
including the following, if applicable:
- the title of the warrants;
- the offering price for the warrants, if any;
- the aggregate number of the warrants;
- the designation and terms of the debt securities purchasable upon
exercise of the warrants;
- the designation and terms of the debt securities that the warrants are
issued with and the number of warrants issued with each debt security;
- the date from and after which the warrants and any debt securities issued
with them will be separately transferable;
- the principal amount of debt securities that may be purchased upon
exercise of a warrant and the price at which the debt securities may be
purchased upon exercise;
- the dates on which the right to exercise the warrants will commence and
expire;
- the minimum or maximum amount of the warrants that may be exercised at
any one time;
- whether the warrants represented by the warrant certificates or debt
securities that may be issued upon exercise of the warrants will be
issued in registered or bearer form;
- information relating to book-entry procedures, if any;
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- the currency or currency units in which the offering price, if any, and
the exercise price are payable;
- a discussion of material United States federal income tax considerations;
- anti-dilution provisions of the warrants, if any;
- redemption or call provisions, if any, applicable to the warrants;
- any additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants; and
- any other information we think is important about the warrants.
EQUITY WARRANTS
The applicable prospectus supplement relating to a particular issue of
warrants to issue shares of preferred stock, shares of class A common stock, or
other securities will describe the terms of those warrants, including the
following, if applicable:
- the title of the warrants;
- the offering price for the warrants, if any;
- the aggregate number of the warrants;
- the designation and terms of the securities that may be purchased upon
exercise of the warrants;
- the designation and terms of the securities that the warrants are issued
with and the number of warrants issued with each security;
- the date from and after which the warrants and any securities issued with
the warrants will be separately transferable;
- the number of securities that may be purchased upon exercise of a warrant
and the price at which the securities may be purchased upon exercise;
- the dates on which the right to exercise the warrants will commence and
expire;
- the minimum or maximum amount of the warrants that may be exercised at
any one time;
- the currency or currency units in which the offering price, if any, and
the exercise price are payable;
- a discussion of material United States federal income tax considerations;
- anti-dilution provisions of the warrants, if any;
- redemption or call provisions, if any, applicable to the warrants;
- any additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants; and
- any other information we think is important about the warrants.
EXERCISE OF WARRANTS
Each warrant will entitle the holder of the warrant to purchase at the
exercise price set forth in the applicable prospectus supplement the principal
amount of debt securities or applicable number of securities being offered.
Holders may exercise warrants at any time up to the close of business on the
expiration date set forth in the applicable prospectus supplement. After the
close of business on the expiration date, unexercised warrants are void. Holders
may exercise warrants as set forth in the prospectus supplement relating to the
warrants being offered.
Until a holder exercises the warrants to purchase our securities, the
holder will not have any rights as a holder of the securities by virtue of
ownership of warrants.
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DESCRIPTION OF STOCK PURCHASE CONTRACTS AND
STOCK PURCHASE UNITS WE MAY OFFER
We may issue stock purchase contracts, including contracts obligating
holders to purchase from us, and obligating us to sell to the holders, a
specified number of shares of our class A common stock or other securities at a
future date or dates, which we refer to in this prospectus as "stock purchase
contracts." The price per share of the securities and the number of shares of
the securities may be fixed at the time the stock purchase contracts are issued
or may be determined by a specific reference to a formula set forth in the stock
purchase contracts. The stock purchase contracts may be issued separately or as
part of stock purchase units consisting of (1) a stock purchase contract and (2)
debt securities, preferred stock, warrants or debt obligations of third parties,
including United States Treasury securities, to secure the holder's obligations
to purchase our securities under the stock purchase contracts, which we refer to
in this prospectus as "stock purchase units." The stock purchase contracts may
require holders to secure their obligations under the stock purchase contracts
in a specified manner. The stock purchase contracts also may require us to make
periodic payments to the holders of the stock purchase units or vice versa, and
these payments may be unsecured or prefunded on some basis.
The applicable prospectus supplement will describe the terms of any stock
purchase contracts or stock purchase units. Any special federal income tax
considerations applicable to the stock purchase contracts and the stock purchase
units may also be discussed in the applicable prospectus supplement. A copy of
the form of a stock purchase contract has been filed with the SEC as an exhibit
to the registration statement of which this prospectus is a part and is
incorporated by reference into this prospectus. See "Where You Can Find More
Information" for information on how to obtain a copy of the form of stock
purchase contract.
DESCRIPTION OF SUBSCRIPTION RIGHTS WE MAY OFFER
We may issue to our shareholders subscription rights to purchase our senior
debt securities, subordinated debt securities, preferred stock, depositary
shares or class A common stock. These subscription rights may be issued
independently or together with any other security offered by this prospectus and
may or may not be transferable by the shareholder receiving the rights in the
rights offering. In connection with any rights offering, we may enter into a
standby underwriting agreement with one or more underwriters pursuant to which
the underwriter will purchase any securities that remain unsubscribed for upon
completion of the rights offering.
The applicable prospectus supplement relating to any subscription rights
will describe the terms of the offered subscription rights, including, where
applicable, the following:
- the exercise price for the subscription rights;
- the number of subscription rights issued to each shareholder;
- the extent to which the subscription rights are transferable;
- any other terms of the subscription rights, including terms, procedures
and limitations relating to the exchange and exercise of the subscription
rights;
- the date on which the right to exercise the subscription rights will
commence, and the date on which the right will expire;
- the extent to which the subscription rights include an over-subscription
privilege with respect to unsubscribed securities; and
- the material terms of any standby underwriting arrangement entered into
by us in connection with the subscription rights offering.
35
PLAN OF DISTRIBUTION
We may sell the offered securities in and outside the United States:
- through underwriters or dealers;
- directly to purchasers, including our affiliates and shareholders, in a
rights offering;
- through agents;
- through brokers or dealers as part of, or in connection with, derivative
transactions; or
- through a combination of any of these methods.
The applicable prospectus supplement will include the following
information:
- the terms of the offering;
- the names of any underwriters, brokers, dealers or agents participating
in the offering;
- the name or names of any managing underwriter or underwriters;
- the purchase price or initial public offering price of the securities;
- the net proceeds from the sale of the securities;
- any delayed delivery arrangements;
- any underwriting discounts, commissions and other items constituting
underwriters' compensation;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any commissions paid to agents.
SALE THROUGH UNDERWRITERS OR DEALERS
If underwriters are used in the sale, the underwriters will acquire the
securities for their own account for resale to the public, either on a
firm-commitment or best-efforts basis. The underwriters may resell the
securities from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the applicable prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to specified conditions,
and the underwriters will be obligated to purchase all the offered securities if
they purchase any of them. The underwriters may change from time to time any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers.
If we offer securities in a subscription rights offering to our existing
security holders, we may enter into a standby underwriting agreement with
dealers, acting as standby underwriters. We may pay the standby underwriters a
commitment fee for the securities they commit to purchase on a standby basis. If
we do not enter into a standby underwriting arrangement, we may retain a
dealer-manager to manage a subscription rights offering for us.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include over-allotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities
sold for their account may be reclaimed by the syndicate if the offered
securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the
market price of the offered securities, which may be higher than the price that
might otherwise prevail in the open market. If commenced, the underwriters may
discontinue these activities at any time.
36
Some or all of the securities that we offer though this prospectus may be
new issues of securities with no established trading market. Any underwriters to
whom we sell our securities for public offering and sale may make a market in
those securities, but they will not be obligated to do so and they may
discontinue any market making at any time without notice. Accordingly, we cannot
assure you of the liquidity of, or continued trading markets for, any securities
that we offer.
If dealers are used in the sale of securities, we will sell the securities
to them as principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. We will include
in the applicable prospectus supplement the names of the dealers and the terms
of the transaction.
DIRECT SALES AND SALES THROUGH AGENTS
We may sell the securities directly. In this case, no underwriters or
agents would be involved. We may also sell the securities through agents
designated from time to time. In the applicable prospectus supplement, we will
name any agent involved in the offer or sale of the offered securities, and we
will describe any commissions payable to the agent. Unless we inform you
otherwise in the applicable prospectus supplement, any agent will agree to use
its reasonable best efforts to solicit purchases for the period of its
appointment.
We may sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act
with respect to any sale of those securities. We will describe the terms of any
sales of these securities in the applicable prospectus supplement.
REMARKETING ARRANGEMENTS
Offered securities may also be offered and sold, if so indicated in the
applicable prospectus supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more remarketing firms, acting as principals for their
own accounts or as agents for us. Any remarketing firm will be identified and
the terms of its agreements, if any, with us and its compensation will be
described in the applicable prospectus supplement.
DELAYED DELIVERY CONTRACTS
If we so indicate in the applicable prospectus supplement, we may authorize
agents, underwriters or dealers to solicit offers from specified types of
institutions to purchase securities from us at the public offering price under
delayed delivery contracts. These contracts would provide for payment and
delivery on a specified date in the future. The contracts would be subject only
to those conditions described in the applicable prospectus supplement. The
applicable prospectus supplement will describe the commission payable for
solicitation of those contracts.
DERIVATIVE TRANSACTIONS
We may sell securities as part of, or in connection with, our entering into
a derivative transaction with a financial institution. The financial institution
may hedge its position by making sales of securities covered by this prospectus.
GENERAL INFORMATION
We may have agreements with the agents, dealers, underwriters and
remarketing firms to indemnify them against specified civil liabilities,
including liabilities under the Securities Act of 1933, or to contribute with
respect to payments that the agents, dealers, underwriters or remarketing firms
may be required to make. Agents, dealers, underwriters and remarketing firms may
be customers of, engage in transactions with or perform services for us in the
ordinary course of their businesses.
37
AT-THE-MARKET OFFERINGS
We may offer our securities into an existing trading market on the terms
described in the applicable prospectus supplement. Underwriters and dealers who
may participate in any at-the-market offerings include Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and McDonald Investments Inc.
VALIDITY OF THE OFFERED SECURITIES
Various legal matters incident to the validity of the securities offered by
the applicable prospectus supplement are subject to the opinions of William M.
Warren, Senior Vice President, General Counsel and Assistant Secretary of Forest
City and Jones, Day, Reavis & Pogue, Cleveland, Ohio. As of March 1, 2002, Mr.
Warren owns, together with his spouse, 2,926 shares of class A common stock and
has been granted options to purchase 48,600 shares of class A common stock. Mr.
Warren also owns approximately $20,000 of our 8.5% senior notes due 2008. In
addition, counsel that will be named in the applicable prospectus supplement
will pass upon the validity of any securities offered under the applicable
prospectus supplement for any underwriters or agents. Counsel to the
underwriters or agents may, in some instances, rely as to specific matters of
Ohio law upon the opinion of Jones, Day, Reavis & Pogue.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended January 31, 2002
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
38
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are estimated as follows:
Securities and Exchange Commission Registration Fee......... $ 69,000
Trustee's Fees and Expenses*................................ 15,000
Transfer Agent and Registrar Fees*.......................... 15,000
Legal Fees and Expenses*.................................... 50,000
Accounting Fees and Expenses*............................... 20,000
Printing Expenses*.......................................... 30,000
Miscellaneous*.............................................. 10,000
--------
Total..................................................... $209,000
---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Ohio law, Ohio corporations are authorized to indemnify directors,
officers, employees, and agents within prescribed limits and must indemnify them
under certain circumstances. Ohio law does not provide statutory authorization
for a corporation to indemnify directors, officers, employees and agents for
settlements, fines or judgments in the context of derivative suits. However, it
provides that directors (but not officers, employees and agents) are entitled to
mandatory advancement of expenses, including attorneys' fees, incurred in
defending any action, including derivative actions, brought against the
director, provided that the director agrees to cooperate with the corporation
concerning the matter and to repay the amount advanced if it is proved by clear
and convincing evidence that his act or failure to act was done with deliberate
intent to cause injury to the corporation or with reckless disregard to the
corporation's best interests.
Ohio law does not authorize payment of judgments to a director, officer,
employee or agent after a finding of negligence or misconduct in a derivative
suit absent a court order. Indemnification is permitted, however, to the extent
such person succeeds on the merits. In all other cases, if a director, officer,
employee or agent acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, indemnification
is discretionary except as otherwise provided by a corporation's articles, code
of regulations or by contract except with respect to the advancement of expenses
of directors.
Under Ohio law, a director is not liable for monetary damages unless it is
proved by clear and convincing evidence that his action or failure to act was
undertaken with deliberate intent to cause injury to the corporation or with
reckless disregard for the best interests of the corporation. There is, however,
no comparable provision limiting the liability of officers, employees or agents
of a corporation. The statutory right to indemnification is not exclusive in
Ohio, and Ohio corporations may, among other things, procure insurance for such
persons.
Our code of regulations provides that we shall indemnify any person made or
threatened to be made a party to any action, suit or proceeding, other than an
action by us or in our right, by reason of the fact that he is or was our
director, trustee, officer, employee or agent or of any other bank, corporation,
partnership, trust or other enterprise for which he was serving as a director,
officer or employee at the request of us, against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
our best interest, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Under the terms of our directors' and officers' liability and company
reimbursement insurance policy, our directors and officers are insured against
certain liabilities, including liabilities arising under the Securities Act of
1933.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
1.1 Form of Underwriting Agreement for Debt Securities,
incorporated by reference to Exhibit 1.1 to the Registrant's
Registration Statement on Form S-3 (No. 333-22695).
1.2 Form of Underwriting Agreement for Preferred Stock and
Depositary Shares, incorporated by reference to Exhibit 1.2
to the Registrant's Registration Statement on Form S-3 (No.
333-22695).
1.3 Form of Underwriting Agreement for Class A Common Stock,
incorporated by reference to Exhibit 1.3 to the Registrant's
Registration Statement on Form S-3 (No. 333-22695).
3.1 Amended Articles of Incorporation of the Registrant,
incorporated by reference to Exhibit 3.1 to the Registrant's
Form 10-Q for the quarter ended October 31, 1983 (File No.
1-4372).
3.2 Code of Regulations of the Registrant, incorporated by
reference to Exhibit 3.2 to the Registrant's Form 10-K for
the fiscal year ended January 31, 1997 (File No. 1-4372).
3.3 Certificate of Amendment by Shareholders to the Articles of
Incorporation of the Registrant dated June 24, 1997,
incorporated by reference to Exhibit 4.14 to the
Registrant's Registration Statement on Form S-3 (No.
333-41437)
3.4 Certificate of Amendment by Shareholders to the Articles of
Incorporation of the Registrant dated June 16, 1998,
incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-8 (No. 333-61925)
4.1 Form of Senior Indenture between the Registrant and The Bank
of New York, as Trustee thereunder.
4.2 Form of Senior Subordinated Indenture between the Registrant
and National City Bank, as Trustee thereunder, incorporated
by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-3 (No. 333-22695).
4.3 Form of Junior Subordinated Indenture between the Registrant
and National City Bank, as Trustee thereunder, incorporated
by reference to Exhibit 4.2 to the Registrant's Registration
Statement on Form S-3 (No. 333-22695).
4.4 Form of Deposit Agreement, including form of Depositary
Receipt, incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-3 (No.
333-22695).
4.5 Form of Warrant Agreement.
4.6 Form of Stock Purchase Contract.
4.7 Form of Pledge Agreement.
4.8 Credit Agreement, dated as of March 5, 2002, by and among
Forest City Rental Properties Corporation, the banks named
therein, KeyBank National Association, as administrative
agent, and National City Bank, as syndication agent,
incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8-K, dated March 5, 2002 (File No.
1-4372).
4.9 Guaranty of Payment of Debt, dated as of March 5, 2002, by
and among Forest City Enterprises, Inc., the banks named
therein, KeyBank National Association, as administrative
agent, and National City Bank, as syndication agent,
incorporated by reference to Exhibit 10.2 to the
Registrant's Form 8-K, dated March 5, 2002 (File No.
1-4372).
5.1 Opinion of General Counsel of the Registrant.
12.1 Computation of Ratio of Earnings to Fixed Charges,
incorporated by reference to Exhibit 12.1 to the
Registrant's Form 10-K for the fiscal year ended January 31,
2002 (File No. 1-4372).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of General Counsel of the Registrant (contained in
Exhibit 5.1).
24.1 Powers of Attorney.
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as Trustee under the
Senior Indenture.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of National City Bank, as Trustee under the
Senior Subordinated Indenture.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of National City Bank, as Trustee under the
Junior Subordinated Indenture.
ITEM 17. 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;
(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.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective 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 (1)(i) and (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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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 determined to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange Commission,
such indemnification is against public policy as expressed in the 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
II-3
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 Act and
will be governed by the final adjudication of such issue.
II-4
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, the State of Ohio, on May 1, 2002.
FOREST CITY ENTERPRISES, INC.
By: /s/ CHARLES A. RATNER
------------------------------------
Name: Charles A. Ratner
Title: President and Chief Executive
Officer
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 dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* Co-Chairman of the Board and May 1, 2002
------------------------------------------------ Director
Albert B. Ratner
* Co-Chairman of the Board, Treasurer May 1, 2002
------------------------------------------------ and Director
Samuel H. Miller
/s/ CHARLES A. RATNER President, Chief Executive Officer May 1, 2002
------------------------------------------------ and Director (Principal Executive
Charles A. Ratner Officer)
* Executive Vice President, Chief May 1, 2002
------------------------------------------------ Financial Officer and Secretary
Thomas G. Smith (Principal Financial Officer)
* Vice President and Corporate May 1, 2002
------------------------------------------------ Controller (Principal Accounting
Linda M. Kane Officer)
* Executive Vice President and May 1, 2002
------------------------------------------------ Director
James A. Ratner
* Executive Vice President and May 1, 2002
------------------------------------------------ Director
Ronald A. Ratner
* Executive Vice President and May 1, 2002
------------------------------------------------ Director
Brian J. Ratner
* Director May 1, 2002
------------------------------------------------
Deborah Ratner Salzberg
* Director May 1, 2002
------------------------------------------------
Joan K. Shafran
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SIGNATURE TITLE DATE
--------- ----- ----
* Director May 1, 2002
------------------------------------------------
Michael P. Esposito, Jr
* Director May 1, 2002
------------------------------------------------
Jerry V. Jarrett
* Director May 1, 2002
------------------------------------------------
Scott S. Cowen
* Director May 1, 2002
------------------------------------------------
Louis Stokes
* Director May 1, 2002
------------------------------------------------
Stan Ross
* The undersigned, pursuant to a Power of Attorney executed by each of the
directors and officers identified above and filed with the Securities and
Exchange Commission, by signing his name hereto, does hereby sign and execute
this registration statement on behalf of each of the persons noted above, in
the capacities indicated.
By: /s/ CHARLES A. RATNER May 1, 2002
------------------------------------------
Charles A. Ratner, Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
1.1 Form of Underwriting Agreement for Debt Securities,
incorporated by reference to Exhibit 1.1 to the Registrant's
Registration Statement on Form S-3 (No. 333-22695).
1.2 Form of Underwriting Agreement for Preferred Stock and
Depositary Shares, incorporated by reference to Exhibit 1.2
to the Registrant's Registration Statement on Form S-3 (No.
333-22695).
1.3 Form of Underwriting Agreement for Class A Common Stock,
incorporated by reference to Exhibit 1.3 to the Registrant's
Registration Statement on Form S-3 (No. 333-22695).
3.1 Amended Articles of Incorporation of the Registrant,
incorporated by reference to Exhibit 3.1 to the Registrant's
Form 10-Q for the quarter ended October 31, 1983 (File No.
1-4372).
3.2 Code of Regulations of the Registrant, incorporated by
reference to Exhibit 3.2 to the Registrant's Form 10-K for
the fiscal year ended January 31, 1997 (File No. 1-4372).
3.3 Certificate of Amendment by Shareholders to the Articles of
Incorporation of the Registrant dated June 24, 1997,
incorporated by reference to Exhibit 4.14 to the
Registrant's Registration Statement on Form S-3 (No.
333-41437)
3.4 Certificate of Amendment by Shareholders to the Articles of
Incorporation of the Registrant dated June 16, 1998,
incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-8 (No. 333-61925)
4.1 Form of Senior Indenture between the Registrant and The Bank
of New York, as Trustee thereunder.
4.2 Form of Senior Subordinated Indenture between the Registrant
and National City Bank, as Trustee thereunder, incorporated
by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-3 (No. 333-22695).
4.3 Form of Junior Subordinated Indenture between the Registrant
and National City Bank, as Trustee thereunder, incorporated
by reference to Exhibit 4.2 to the Registrant's Registration
Statement on Form S-3 (No. 333-22695).
4.4 Form of Deposit Agreement, including form of Depositary
Receipt, incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-3 (No.
333-22695).
4.5 Form of Warrant Agreement.
4.6 Form of Stock Purchase Contract.
4.7 Form of Pledge Agreement.
4.8 Credit Agreement, dated as of March 5, 2002, by and among
Forest City Rental Properties Corporation, the banks named
therein, KeyBank National Association, as administrative
agent, and National City Bank, as syndication agent,
incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8-K, dated March 5, 2002 (File No.
1-4372).
4.9 Guaranty of Payment of Debt, dated as of March 5, 2002, by
and among Forest City Enterprises, Inc., the banks named
therein, KeyBank National Association, as administrative
agent, and National City Bank, as syndication agent,
incorporated by reference to Exhibit 10.2 to the
Registrant's Form 8-K, dated March 5, 2002 (File No.
1-4372).
5.1 Opinion of General Counsel of the Registrant.
12.1 Computation of Ratio of Earnings to Fixed Charges,
incorporated by reference to Exhibit 12.1 to the
Registrant's Form 10-K for the fiscal year ended January 31,
2002 (File No. 1-4372).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of General Counsel of the Registrant (contained in
Exhibit 5.1).
24.1 Powers of Attorney.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as Trustee under the
Senior Indenture.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of National City Bank, as Trustee under the
Senior Subordinated Indenture.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of National City Bank, as Trustee under the
Junior Subordinated Indenture.
II-7