EX-10.2






Exhibit 10.2




Forest City Enterprises, Inc.

Executive Short-Term Incentive Plan

(As Amended and Restated as of June 19, 2008)




PREAMBLE


 


The Forest City Enterprises, Inc. Executive Bonus Plan, as amended, is hereby amended and
restated in its entirety as set forth below and renamed the Forest City Enterprises, Inc. Executive
Short-Term Incentive Plan (the “Plan”). The Plan is filed in the Company’s proxy statement for the
annual meeting held on June 19, 2008. The purpose of the Plan is to advance the interests of the
Company and its shareholders and assist the Company in attracting and retaining key employees by
providing annual incentives and financial rewards to such key employees that are intended to be
deductible to the maximum extent possible as “performance-based compensation” within the meaning of
Section 162(m) of the Internal Revenue Code. This Plan is subject to shareholder approval with
respect to amounts that may become payable under the Plan for fiscal year 2008 and thereafter and
shall be null and void and of no further effect if such shareholder approval is not obtained.

 


ARTICLE I

 DEFINITIONS


 



	1.1	 	Award means an annual cash award of incentive compensation pursuant to the Plan.






	1.2	 	Code means the Internal Revenue Code of 1986, as amended.






	1.3	 	Committee means the Compensation Committee of the Board of Directors of the Company,
or their designee consisting of members appointed from time to time by the Board of Directors
of the Company, and shall comprise not less than such number of directors as shall be required
to permit the Plan to satisfy the requirements of Code Section 162(m). The Committee
administering the Plan shall be composed solely of “outside directors” within the meaning of
Code Section 162(m).






	1.4	 	Company means Forest City Enterprises, Inc., an Ohio corporation, or its successors.






	1.5	 	Disability means a total and permanent disability that causes a Participant to be
eligible to receive long term disability benefits from the Company’s Long Term Disability
Plan, or any similar plan or program sponsored by a subsidiary or branch of the Company.






	1.6	 	Key Employees means Board-appointed officers of the Company who are designated by the
Board as “Section 16 officers” and other key employees of the Company and its subsidiaries.






	1.7	 	Participant means a Key Employee who is selected by the Committee to participate in
the Plan.






	1.8	 	Payout Formula means the objective formula established by the Committee for
determining Awards for a Performance Period based on the level of achievement of the
Performance Objectives for the Performance Period.






	1.9	 	Performance Objectives means the measurable performance objective or objectives
established pursuant to the Plan for Participants, which may be described in terms of
Company-wide objectives or objectives that are related to the performance of the individual
Participant or of the subsidiary, division, department, region or function within the Company
or subsidiary in which the Participant is employed, and may be made relative to the
performance of other companies. The Performance Objectives shall be based on specified
levels of or growth in or relative to peer company performance in one or more of the
following criteria: assets (e.g., net asset value); capital (e.g., working capital); cash
flow (e.g., earnings before depreciation, amortization and deferred taxes (“EBDT”), operating
cash flow, total cash flow, cash flow in excess of cost of capital, residual cash flow or
cash flow return on investment); liquidity measures (e.g., total debt ratio or debt-to-EBDT);
margins (e.g., profits divided by revenues, operating margins, gross margins or material
margins divided by revenues); productivity (e.g., productivity improvement); profits (e.g.,
net income, operating income, earnings before taxes (“EBT”), earnings before interest and
taxes (“EBIT”), EBDT, residual or economic earnings, earnings or EBDT per share – these
profitability criteria could be measured subject to GAAP definitions); sales or expenses
(e.g., revenue growth, reduction in expenses, sales and administrative costs divided by sales
or sales and administrative costs divided by profits); and stock price (e.g., stock price
appreciation or total shareholder return). In addition to the returns and ratios mentioned
above, the performance objectives may be based on any other ratios or returns using the
criteria mentioned above, including: economic value added; net asset ratio; debt-to-capital
ratio; working capital divided by sales; and profits or cash flow returns on assets,
designated assets, invested capital, net capital employed or equity (including return on net
assets, return on capital or invested capital, or total return, meaning change in net asset
value plus or minus net cash flow). If the Committee determines that a change in the
business, operations, corporate structure or capital structure of the Company, or the manner
in which it conducts its business, or other events or circumstances render the Performance
Objectives unsuitable, the Committee may in its discretion modify such Performance Objectives
or the related minimum acceptable level of achievement, in whole or in part, as the Committee
deems appropriate and equitable, except if such action would result in the loss of the
otherwise available exemption under Section 162(m) of the Code. In such case, the Committee
shall not make any modification of the Performance Objectives or minimum acceptable level of
achievement.






	1.10	 	Performance Period means a period of time established by the Committee, in its sole
discretion, within which the Performance Objectives relating to an Award are to be achieved.
The Committee may establish different Performance Periods for different Participants, and the
Committee may establish concurrent or overlapping Performance Periods.






	1.11	 	Plan means this Forest City Enterprises, Inc. Executive Short-Term Incentive Plan.






	1.12	 	Retirement means termination of employment with the Company or an affiliated company
when a Participant is age 65 or older with five or more years of continuous service.





ARTICLE II

 ELIGIBILITY AND PARTICIPATION


 


2.1   Eligibility and Participation.     The Committee shall select Key Employees of the
Company who are eligible to receive Awards under the Plan, and who shall be Participants in the
Plan during any Performance Period in which they may earn an Award. A Key Employee who is a
Participant for a given Performance Period is neither guaranteed nor assured of being selected for
participation in any subsequent Performance Period.

 


ARTICLE III 

TERMS OF AWARDS


 


3.1   Awards.     Within 90 days after the commencement of each Performance Period or, if
earlier, by the expiration of 25% of a Performance Period, the Committee will (a) designate one or
more Performance Periods, (b) select the Participants for the Performance Periods, (c) establish
the Performance Objectives for each Participant, and the relative weighting of each Performance
Objective, and (d) determine the Payout Formula for each Participant. The Performance Objectives,
the weighting of the Performance Objectives and the Payout Formulas need not be uniform with
respect to any or all Participants. Participants must achieve the Performance Objectives
established by the Committee in order to receive an Award under the Plan. However, when
establishing the Payout Formula, the Committee may determine, within the time period set forth
above, that only the threshold level relating to a Performance Objective must be achieved for
Awards to be paid under the Plan. Similarly, the Committee may establish a minimum threshold
performance level, a maximum performance level, and one or more intermediate performance levels or
ranges, with target award levels or ranges that will correspond to the respective performance
levels or ranges included in the Payout Formula. Notwithstanding the foregoing, the maximum
aggregate amount payable pursuant to any Awards established for a Participant in any one calendar
year will be $1,500,000.



3.2   Discretionary Adjustment.     The Committee may not increase the amount payable under
the Plan or with respect to an Award pursuant to Section 3.1, but retains the authority to reduce
the amount in its sole discretion based on individual performance or any other reason.



3.3 Certification.     Following the close of each Performance Period and prior to payment
of any amount to any Participant under the Plan, the Committee will certify in writing as to the
attainment of the Performance Objectives and the amount of the Award.



3.4   Form of Payment.   Each Award under the Plan shall be paid in cash or its equivalent.

 


3.5   Timing of Payment.   Payment of Awards will be made following the end of the
Performance Period and after determination of and certification of the Award, but in no event more
than two and one half months after the later of the end of the Performance Period or the calendar
year with respect to which such Award was earned, unless the Participant has submitted an election
to defer receipt of the Award in accordance with the terms and conditions of a deferred
compensation plan approved by the Committee.

 


ARTICLE IV 

NEW HIRES, PROMOTIONS AND TERMINATIONS


 


4.1   New Participants During the Performance Period.     Unless otherwise determined by
the Committee, if an individual is newly hired or promoted during a calendar year into a position
eligible for participation in the Plan, he or she shall be eligible for an Award under the Plan for
the Performance Period, subject to adjustments under Section 3.2 hereof, and prorated for the
portion of the Performance Period following the date of eligibility for the Plan.

 


4.2   Retirement, Disability or Death.     Unless otherwise determined by the Committee, a
Participant who terminates employment with the Company during a Performance Period due to
Retirement, Disability or death shall be eligible to receive an Award, subject to adjustments under
Section 3.2 hereof, and prorated for the portion of the Performance Period prior to termination of
employment. Awards payable in the event of death shall be paid to the Participant’s estate.



4.3   Termination of Employment.     If a Participant terminates employment with the
Company for a reason other than Retirement, Disability or death, unless otherwise determined by the
Committee, no Award shall be payable with respect to the Performance Period in which such
termination occurs.



ARTICLE V 

MISCELLANEOUS


 


5.1   Withholding Taxes.     The Company shall have the right to make payment of Awards net
of any applicable federal, state and local taxes required to be withheld, or to require the
Participant to pay such withholding taxes. If the Participant fails to make such tax payments as
required, the Company shall, to the extent permitted by law, have the right to deduct any such
taxes from any payment of any kind otherwise due to such Participant or to take such other action
as may be necessary to satisfy such withholding obligations.

 


5.2   Nontransferability.     No Award may be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, including assignment pursuant to a domestic relations order,
during the time in which the requirement of continued employment or attainment of performance
objectives has not been achieved. Each Award shall be paid during the Participant’s lifetime only
to the Participant, or, if permissible under applicable law, to the Participant’s legal
representatives. No Award shall, prior to receipt thereof by the Participant, be in any manner
liable for or subject to the debts, contracts, liabilities, or torts of the Participant.

 


5.3   Administration.     The Committee shall administer the Plan, interpret the terms of
the Plan, amend and rescind rules relating to the Plan, and determine the rights and obligations of
Participants under the Plan. The Committee may delegate any of its authority as it solely
determines. In administering the Plan, the Committee may at its option employ compensation
consultants, accountants and counsel and other persons to assist or render advice to the Committee,
all at the expense of the Company. All decisions of the Committee shall be final and binding upon
all parties including the Company, its shareholders, and the Participants. The provisions of this
Plan are intended to ensure that all Awards granted hereunder qualify for the exemption from the
limitation on deductibility imposed by Section 162(m) of the Code that is set forth in
Section 162(m)(4)(C) of the Code, and this Plan shall be interpreted and operated consistent with
that intention.

 


5.4   Severability.     If any provisions of the Plan or any Award is or becomes or is
deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the Plan or
any Award under any law deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended
without, in the determination of the Committee, materially altering the purpose or intent of the
Plan or the Award, such provision will be stricken as to such jurisdiction, and the remainder of
the Plan or Award shall remain in full force and effect.

 


5.5   No Fund Created.     Neither the Plan nor any Award shall create or be construed to
create a trust or separate fund of any kind or a fiduciary relationship between the Company and a
Participant or any other person. To the extent that any person acquires a right to receive payments
from the Company pursuant to an Award, such right shall be no greater than the right of any
unsecured general creditor of the Company.

 


5.6   Employment at Will.     Neither the adoption of the Plan, eligibility of any person
to participate, nor payment of an Award to a Participant shall be construed to confer upon any
person a right to be continued in the employ of the Company. The Company expressly reserves the
right to discharge any Participant whenever in the sole discretion of the Company its interest may
so require.

 


5.7   Amendment or Termination of the Plan.     The Board of Directors of the Company
reserves the right to amend or terminate the Plan at any time with respect to future Awards to
Participants. Amendments to the Plan will require shareholder approval to the extent required to
comply with applicable law, including the exemption under Code Section 162(m).

 


5.8   Non-Exclusivity of the Plan.     Neither the adoption of the Plan by the Board of
Directors nor the submission of the Plan to shareholders of the Company for approval shall be
construed as creating any limitations on the power of the Board of Directors or the Committee to
adopt such other incentive arrangements as either may deem desirable, including, without
limitation, cash or equity-based compensation arrangements, either tied to performance or
otherwise.



5.9 Successors. All obligations of the Company under the Plan shall be binding on any
successor to the Company, whether the existence of such successor is the result of a direct or
indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business
or assets of the Company.