As filed with the Securities and Exchange Commission on September 14, 2004.
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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COHEN & STEERS, INC.
(Exact name of registrant as specified in its charter)
Delaware 14-1904657
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Indentification Number)
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757 Third Avenue
New York, NY 10017
(212) 832-3232
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
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Cohen & Steers, Inc. 2004 Stock Incentive Plan
Cohen & Steers, Inc. 2004 Employee Stock Purchase Plan
(Full Title of the Plan)
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Lawrence B. Stoller, Esq.
Senior Vice President and General Counsel
Cohen & Steers, Inc.
757 Third Avenue
New York, NY 10017
(212) 832-3232
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
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With a copies to:
Vincent Pagano, Jr., Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered(1) registered(2) share(3) price(3) registration fee
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Common stock, $.01 par value 10,000,000 $15.13 $151,300,000 $19,170
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the Cohen &
Steers, Inc. 2004 Employee Stock Purchase Plan described herein.
(2) Covers 9,500,000 shares under the Cohen & Steers, Inc. 2004 Stock Incentive
Plan and 500,000 shares under the Cohen & Steers, Inc. 2004 Employee Stock
Purchase Plan, and an indeterminate number of additional shares which may be
offered and issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(3) Estimated pursuant to Rule 457(h) and 457(c) under the Securities Act,
solely for the purpose of computing the registration fee, based on the average
of the high and low prices of the common stock being registered hereby on the
New York Stock Exchange on September 9, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of the
Registration Statement on Form S-8 (the "Registration Statement") is omitted
from this filing in accordance with the provisions of Rule 428 under the
Securities Act and the introductory note to Part I of the Registration
Statement. The documents containing the information specified in Part I will be
delivered to the participants in the plan covered by this Registration Statement
as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Cohen & Steers, Inc. (the "Company") pursuant
to the Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference in this registration
statement:
(a) The Company's Prospectus filed pursuant to Rule 424(b) of the
Securities Act (Registration No. 333-114027) filed on August 12,
2004 (the "Prospectus") and
(b) The Company's registration statement on Form 8-A (Registration No.
001-32236), filed on June 28, 2004.
All documents that the Company or the Cohen & Steers, Inc. 2004
Employee Stock Purchase Plan subsequently files pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement indicating that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Section 145 of the Delaware
General Corporation Law provides, in summary, that directors and officers of
Delaware corporations are entitled, under certain circumstances, to be
indemnified against all expenses and liabilities (including attorneys' fees)
incurred by them as a result of suits brought against them in their capacity as
a director or officer, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the Company's best interests,
and, with respect to any criminal action or proceeding, if they had no
reasonable cause to believe their conduct was unlawful; provided that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the Company,
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, they are fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper. Any such indemnification may be made by the Company only as authorized
in each specific case upon a determination by the stockholders, disinterested
directors or independent legal counsel that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
The Company's certificate of incorporation and by-laws provide that it
will indemnify its directors and officers to the fullest extent permitted by law
and that no director shall be liable for monetary damages to the Company or its
stockholders for any breach of fiduciary duty, except to the extent provided by
applicable law.
The Company currently maintains liability insurance for its directors
and officers. In connection with the offering, the Company will obtain
additional liability insurance for its directors and officers. Such insurance
would be available to the Company's directors and officers in accordance with
its terms.
Reference is made to the form of purchase agreement filed as Exhibit
1.1 to the Company's Registration Statement on Form S-1 (Registration No.
333-114027) ("Form S-1") for provisions providing that the underwriters and the
Company are obligated under certain circumstances to indemnify the Company's
directors, officers and controlling persons against certain liabilities under
the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
Exhibit
Number Description of Document
4.1 Form of Amended and Restated Certificate of Incorporation of Registrant
(incorporated by reference to Exhibit 3.1 of the Form S-1)
4.2 Form of Amended and Restated By-Laws of Registrant (incorporated by
reference to Exhibit 3.2 of the Form S-1)
4.3 Specimen of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 of the Form S-1)
4.4 Form of Registration Rights Agreement among the Registrant, Martin
Cohen, Robert H. Steers, the Martin Cohen 1998 Family Trust and Robert
H. Steers Family Trust (incorporated by reference to Exhibit 4.2 of the
Form S-1)
5.1 Opinion of Simpson Thacher & Bartlett LLP
10.1 Cohen & Steers, Inc. 2004 Stock Incentive Plan (incorporated by
reference to Exhibit 10.5 of the Form S-1)
10.2 Cohen & Steers, Inc. 2004 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.7 of the Form S-1)
23.1 Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included in the signature page to this registration
statement)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(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 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 20 percent 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 (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 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 hereby 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
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of New York, state of New York on September 14, 2004.
COHEN & STEERS, INC.
By: /s/ Martin Cohen
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Name: Martin Cohen
Title: Co-Chairman, Co-Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Martin Cohen, Robert H. Steers,
Victor M. Gomez and Lawrence B. Stoller, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, in connection with this registration statement, to sign any and all
amendments or supplements to the registration statement, including
post-effective amendments, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and does hereby grant unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on the 14th day of September, 2004.
Signature Title
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/s/ Martin Cohen Co-Chairman, Co-Chief Executive Officer and
------------------------------------------------------ Director
Martin Cohen (Principal Executive Officer)
/s/ Robert H. Steers Co-Chairman, Co-Chief Executive Officer and
------------------------------------------------------ Director
Robert H. Steers (Principal Executive Officer)
/s/ Richard Bruce
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Richard Bruce Director
/s/ Peter L. Rhein
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Peter L. Rhein Director
/s/ Richard P. Simon
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Richard P. Simon Director
/s/ Edmond D. Villani
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Edmond D. Villani Director
/s/ Victor M. Gomez
------------------------------------------------------ Chief Financial Officer
Victor M. Gomez (Principal Financial and Accounting Officer)
Cohen & Steers, Inc. 2004 Employee Stock Purchase Plan. Pursuant to the
requirements of the Securities Act of 1933, the trustees (or other persons who
administer the employee benefit plan) have duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of New York, state of New York, on September 14, 2004.
COHEN & STEERS, INC. 2004 EMPLOYEE
STOCK PURCHASE PLAN
By: /s/ Lawrence B. Stoller
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Name: Lawrence B. Stoller
Title: Delegate of Cohen & Steers, Inc. 2004
Employee Stock Purchase Plan
Administrator