Employment Agreement

Amendment to Employment Agreement

 

 

 

 

<DOCUMENT>

<TYPE>EX-10

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<FILENAME>ex10-4.txt

<DESCRIPTION>EXHIBIT 10.4

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                              EMPLOYMENT AGREEMENT

                               (Robert H. Steers)

 

         EMPLOYMENT AGREEMENT (the "Agreement") dated as of ___________, 2004

(the "Effective Date") by and between Cohen & Steers Capital Management, Inc.

(the "Company") and Robert H. Steers (the "Executive").

 

         The Company desires to continue to employ Executive and to enter into

an agreement embodying the terms of such employment; and

 

         Executive desires to continue such employment and enter into such an

agreement.

 

         In consideration of the premises and mutual covenants herein and for

other good and valuable consideration, the parties agree as follows:

 

         1.  Term of Employment. Subject to the provisions of Section 7 of this

Agreement, Executive shall be employed by the Company for a period commencing on

the Effective Date and ending on the third anniversary of the Effective Date

(the "Employment Term") on the terms and subject to the conditions set forth in

this Agreement; provided, however, that commencing with the third anniversary of

the Effective Date and on each anniversary thereof (each an "Extension Date"),

the Employment Term shall be automatically extended for an additional one-year

period, unless the Company or Executive provides the other party hereto 60 days

prior written notice before the next Extension Date that the Employment Term

shall not be so extended.

 

         2.  Position.

 

             a.  During the Employment Term, Executive shall serve as Co-Chief

Executive Officer of Cohen & Steers, Inc. ("Cohen & Steers") and the Company and

Co-Chairman of the Board of Directors of Cohen & Steers (the "Board") and the

Board of Directors of the Company (the "Company Board"). In such positions,

Executive shall have authority commensurate with such positions and such duties,

commensurate with such positions, as shall be determined from time to time by

the Board and the Company Board, as applicable, and Executive shall report

directly to the Board and the Company Board, as applicable.

 

             b.  During the Employment Term, Executive will devote Executive's

full business time and best efforts to the performance of Executive's duties

hereunder and will not engage in any other business, profession or occupation

for compensation or otherwise which would conflict or interfere with the

rendition of such services either directly or indirectly, without the prior

written consent of the Board; provided that nothing herein shall preclude

Executive (x) from managing Executive's personal investments, (y) from

continuing to serve on any board of directors, or as trustee, of any business

corporation or any charitable organization on which Executive serves as of the

Effective Date and which have been previously disclosed to the Company and (z)

subject to the prior approval of the Board (which shall not be unreasonably

withheld), from accepting appointment to or continuing to serve on any board of

directors or trustees of any business corporation or any charitable

organization; provided in each case, and in the aggregate, that such activities

do not conflict or interfere with the performance of Executive's duties

hereunder or conflict with Section 8 of this Agreement.

 

 

 

 

 

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                                                                               2

 

 

         3.  Base Salary. During the Employment Term, the Company shall pay

Executive a base salary at the annual rate of $500,000, payable in regular

installments in accordance with the Company's usual payment practices. Executive

shall be entitled to such increases in Executive's base salary, if any, as may

be determined from time to time in the sole discretion of the Board. Executive's

annual base salary, as in effect from time to time, is hereinafter referred to

as the "Base Salary."

 

         4.  Annual Bonus. With respect to each fiscal year during the

Employment Term, Executive shall be eligible to earn an annual bonus award (an

"Annual Bonus") in such amount, if any, as determined in the sole discretion of

the Compensation Committee of the Board; provided, however, that the Annual

Bonus for each such fiscal year shall be at least $1,000,000 (the "Target Annual

Bonus") and no greater than $5,000,000; provided, further, however, that the

Annual Bonus for fiscal year 2004 shall be $1,000,000.

 

         5.  Benefits.

 

             a.  Employee Benefits. During the Employment Term, Executive shall

be entitled to (i) employee benefits that are no less favorable than those

employee benefits provided to Executive prior to the Effective Date and (ii)

participate in all employee benefit programs of the Company and its affiliates

maintained for the benefit of employees of the Company on a basis which is no

less favorable than is provided to any other executives of the Company

(collectively, the "Employee Benefits").

 

             b.  Tax Gross-Up Payment. If it shall be determined that any

payment to Executive pursuant to this Agreement or any other payment or benefit

from the Company or its affiliates would be subject to the excise tax imposed by

section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then

Executive shall receive a gross-up payment pursuant to Exhibit A attached

hereto.

 

         6.  Business Expenses. During the Employment Term, reasonable business

expenses incurred by Executive in the performance of Executive's duties

hereunder shall be reimbursed by the Company in accordance with Company

policies.

 

         7.  Termination. The Employment Term and Executive's employment

hereunder may be terminated by either party at any time and for any reason;

provided that Executive will be required to give the Company at least 60 days

advance written notice of any resignation of Executive's employment.

Notwithstanding any other provision of this Agreement, the provisions of this

Section 7 shall exclusively govern Executive's rights upon termination of

employment with the Company and its affiliates.

 

             a.  By the Company For Cause or By Executive Resignation Without

Good Reason.

 

           (i) The Employment Term and Executive's employment hereunder may be

terminated by the Company for Cause (as defined below) and shall terminate

automatically upon Executive's resignation without Good Reason (as defined in

Section 7(c)).

 

 

 

 

 

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           (ii) For purposes of this Agreement, "Cause" shall mean (A)

Executive's continued failure substantially to perform the Participant's duties

hereunder (other than as a result of total or partial incapacity due to physical

or mental illness) for a period of 10 days following written notice by the

Company to Executive of such failure, (B) Executive's engagement in conduct

inimical to the interests of the Company or any of its affiliates, including

without limitation, fraud, embezzlement, theft or dishonesty in the course of

Executive's employment hereunder, (C) Executive's commission of, or plea of

guilty or nolo contendere to, (I) a felony or (II) a crime other than a felony,

which involves a breach of trust or fiduciary duty owed to the Company or any of

its affiliates, (D) Executive's disclosure of trade secrets or confidential

information of the Company or any of its affiliates, or (E) Executive's breach

of any agreement with the Company or any of its affiliates in respect of

confidentiality, nondisclosure, non-competition or otherwise.

 

           (iii) If Executive's employment is terminated by the Company for

Cause or if Executive resigns without Good Reason, Executive shall be entitled

to receive:

 

             (A)  the Base Salary through the date of termination;

 

             (B)  any Annual Bonus earned but unpaid as of the date of

         termination for any previously completed fiscal year;

 

             (C)  reimbursement for any unreimbursed business expenses properly

         incurred by Executive in accordance with Company policy prior to the

         date of Executive's termination; and

 

             (D)  such Employee Benefits, if any, as to which Executive may be

         entitled under the employee benefit plans of the Company and its

         affiliates (the amounts described in clauses (A) through (D) hereof

         being referred to as the "Accrued Rights").

 

         In addition, if Executive resigns without Good Reason, Executive and

Executive's spouse and dependents shall be entitled to receive continued

coverage under the medical plans of the Company and its affiliates in which

Executive was participating at the time of such termination for the remainder of

Executive's life, subject to payment by Executive of the same premiums Executive

would have paid during such period of coverage if Executive were an active

employee of the Company and its affiliates (the "Continued Medical Benefits").

Following the termination of Executive's employment by the Company for Cause or

resignation by Executive without Good Reason, except as set forth in Section

5(b), this Section 7(a)(iii) and Section 11(i), Executive shall have no further

rights to any compensation or any other benefits under this Agreement.

 

             b.  Disability or Death.

 

           (i) The Employment Term and Executive's employment hereunder shall

terminate upon Executive's death and may be terminated by the Company if

Executive becomes physically or mentally incapacitated and is therefore unable

for a period of six consecutive months or for an aggregate of nine months in any

24 consecutive month period to perform Executive's duties (such incapacity is

hereinafter referred to as "Disability"). Any question as to

 

 

 

 

 

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the existence of the Disability of Executive as to which Executive and the

Company cannot agree shall be determined in writing by a qualified independent

physician mutually acceptable to Executive and the Company. If Executive and the

Company cannot agree as to a qualified independent physician, each shall appoint

such a physician and those two physicians shall select a third who shall make

such determination in writing. The determination of Disability made in writing

to the Company and Executive shall be final and conclusive for all purposes of

the Agreement.

 

           (ii) Upon termination of Executive's employment hereunder due to

either death or Disability, Executive or Executive's estate (as the case may be)

shall be entitled to receive:

 

             (A)  the Accrued Rights;

 

             (B)  the Continued Medical Benefits, if applicable; and

 

             (C)  a lump sum payment equal to Executive's Target Annual Bonus

         for the fiscal year in which the termination occurs, payable when the

         Annual Bonus would have otherwise been payable had Executive's

         employment not terminated.

 

         Following Executive's termination of employment due to death or

Disability, except as set forth in Section 5(b), this Section 7(b)(ii) and

Section 11(i), Executive shall have no further rights to any compensation or any

other benefits under this Agreement.

 

             c. By the Company Without Cause or Resignation by Executive for

Good Reason.

 

           (i) The Employment Term and Executive's employment hereunder may be

terminated by the Company without Cause (which (x) shall include the Company's

election not to extend the Employment Term pursuant to Section 1 of this

Agreement and (y) shall not include a termination due to death or Disability) or

by Executive's resignation for Good Reason (each, a "Qualifying Termination").

 

           (ii) For purposes of this Agreement, "Good Reason" shall mean (A) the

failure of the Company to pay or cause to be paid Executive's Base Salary or

Annual Bonus (to the extent earned in accordance with the terms of any

applicable annual bonus or annual incentive arrangement), if any, when due or

(B) any substantial and sustained diminution in Executive's authority or

responsibilities; provided that either of the events described in clauses (A)

and (B) of this Section 7(c)(ii) shall constitute Good Reason only if the

Company fails to cure such event within 30 days after receipt from Executive of

written notice of the event which constitutes Good Reason; provided, further,

that "Good Reason" shall cease to exist for an event on the 60th day following

the later of its occurrence or Executive's knowledge thereof, unless Executive

has given the Company written notice thereof prior to such date.

 

           (iii) If Executive's employment terminates due to a Qualifying

Termination, Executive shall be entitled to receive:

 

             (A)  the Accrued Rights;

 

 

 

 

 

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             (B)  subject to Executive's continued compliance with the

         provisions of Sections 8 and 9 of this Agreement, a lump sum payment

         equal to, (I) if the Qualifying Termination occurs prior to a Change in

         Control (as defined in the Cohen & Steers, Inc. 2004 Stock Incentive

         Plan or any successor plan thereto), two times the sum of Executive's

         Base Salary and Target Annual Bonus and (II) if the Qualifying

         Termination occurs on the date of, or following, a Change in Control,

         three times the sum of Executive's Base Salary and Target Annual Bonus;

         provided that (x) any termination of employment by the Company without

         Cause within six months prior to the occurrence of a Change in Control

         shall be deemed to be a termination of employment on the date of such

         Change in Control and (y) the aggregate amount described in clause (B)

         shall be reduced by the present value of any other cash severance or

         termination benefits payable to Executive under any other plans,

         programs or arrangements of the Company or its affiliates; and

 

             (C)  the Continued Medical Benefits.

 

         Following Executive's termination of employment by the Company due to a

Qualifying Termination, except as set forth in Section 5(b), this Section

7(c)(iii) and Section 11(i), Executive shall have no further rights to any

compensation or any other benefits under this Agreement.

 

             d.  Expiration of Employment Term.

 

           (i) Election Not to Extend the Employment Term. In the event either

party elects not to extend the Employment Term pursuant to Section 1 of this

Agreement, unless Executive's employment is earlier terminated pursuant to

paragraphs (a), (b) or (c) of this Section 7, Executive's termination of

employment hereunder (whether or not Executive continues as an employee of the

Company thereafter) shall be deemed to occur on the close of business on the day

immediately preceding the next scheduled Extension Date. In the event Executive

elects not to extend the Employment Term, Executive shall be entitled to receive

the Accrued Rights and the Continued Medical Benefits. In the event the Company

elects not to extend the Employment Term, such election shall be treated as a

termination by the Company without Cause and Executive shall be entitled to

receive payments and benefits pursuant to Section 7(c)(iii) of this Agreement.

 

         Following such termination of Executive's employment hereunder as a

result of either party's election not to extend the Employment Term, except as

set forth in this Section 7(d)(i) and Section 11(i), Executive shall have no

further rights to any compensation or any other benefits under this Agreement.

 

           (ii) Continued Employment Beyond the Expiration of the Employment

Term. Unless the parties otherwise agree in writing, continuation of Executive's

employment with the Company beyond the expiration of the Employment Term shall

be deemed an employment at-will and shall not be deemed to extend any of the

provisions of this Agreement and Executive's employment may thereafter be

terminated at will by either Executive or the Company; provided that the

provisions of Sections 8, 9 and 10 of this Agreement shall survive any

termination of this Agreement or Executive's termination of employment

hereunder.

 

 

 

 

 

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             e. Notice of Termination. Any purported termination of employment

by the Company or by Executive (other than due to Executive's death) shall be

communicated by written Notice of Termination to the other party hereto in

accordance with Section 11(h) hereof. For purposes of this Agreement, a "Notice

of Termination" shall mean a notice which shall indicate the specific

termination provision in this Agreement relied upon and shall set forth in

reasonable detail the facts and circumstances claimed to provide a basis for

termination of employment under the provision so indicated.

 

             f. Use of Name.

 

           (i) Notwithstanding any other provision of this Agreement or any

other Company policy, upon a termination of Executive's employment for any

reason, subject to Section 7(f)(ii), Executive shall retain the right to use

Executive's name in connection with future business ventures.

 

           (ii) Executive acknowledges and agrees that the Company owns and

shall continue to own exclusively all rights in and to the name and trademark

"COHEN & STEERS", and any name or trademark that contains that combination of

words that may exist now or at any time in the future. Executive covenants that

following termination of Executive's employment, he will not use his name in

conjunction with the name Cohen, or in conjunction with any confusingly similar

name or word.

 

           (iii) For the avoidance of doubt, Executive hereby grants to the

Company a worldwide, non-exclusive, non-transferable, non-sublicensable,

perpetual, royalty-free right and license to use (A) Executive's name, and

initials; and (B) Executive's likeness, photograph, portrait, signature,

autographs and biographical information, solely in connection with the business

of the Company or its affiliates (including, without limitation, businesses

which the Company or its affiliates have specific plans to conduct in the future

and as to which Executive is aware of such planning).

 

         8.  Non-Competition.

 

             a.  Executive acknowledges and recognizes the highly competitive

nature of the business of the Company and its affiliates and accordingly agrees

that, during the Employment Term and for a period of one year following the date

Executive ceases to be employed by the Company due to (x) a termination by the

Company for Cause, (y) a resignation by Executive without Good Reason or (z)

Executive's election not to extend the Employment Term pursuant to Section 1 of

the Agreement, Executive shall not:

 

           (i) other than on behalf of the Company and its affiliates, initiate

contact with, or seek to provide investment advisory services to, (x) during the

period when Executive remains in the employment of the Company and its

affiliates, any person to whom the Company or an affiliate rendered such

services during Executive's employment with the Company and its affiliates and

(y) following Executive's termination of employment with the Company and its

affiliates, any person to whom the Company or an affiliate rendered such

services during the three-year period prior to such termination of employment;

 

 

 

 

 

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           (ii) solicit or seek to induce or actually induce any person who is

employed by the Company or an affiliate during Executive's employment with the

Company and its affiliates, or who becomes employed by the Company or an

affiliate at any time during the three-month period following the termination of

Executive's employment, to discontinue such employment, or hire or employ any

such person;

 

           (iii) directly or indirectly engage in any business that competes

with the business of the Company or its affiliates (including, without

limitation, businesses which the Company or its affiliates have specific plans

to conduct in the future and as to which Executive is aware of such planning)

within the United States or any other country in which the Company or its

affiliates is conducting business at the time of determination (a "Competitive

Business");

 

           (iv) directly or indirectly enter the employ of, or render any

services to, any "person" (as such term is used for purposes of Section 13(d) or

14(d) of the Securities Exchange Act of 1934, as amended, or any successor

thereto) (or any division or controlled or controlling affiliate of any person)

who or which engages in a Competitive Business;

 

           (v) directly or indirectly acquire a financial interest in, or

otherwise become actively involved with, any Competitive Business, directly or

indirectly, as an individual, partner, shareholder, officer, director,

principal, agent, trustee or consultant; provided that nothing herein shall

preclude Executive from directly or indirectly, owning, solely as an investment,

securities of any person engaged in a Competitive Business which are publicly

traded on a national or regional stock exchange or on the over-the-counter

market, if Executive (x) is not a controlling person of, or a member of a group

which controls, such person and (y) does not, directly or indirectly, own 5% or

more of any class of securities of such person; or

 

           (vi) directly or indirectly interfere with, or attempt to interfere

with, business relationships (whether formed before, on or after the date of

this Agreement) between the Company or any of its affiliates and customers,

clients, suppliers, partners, members or investors of the Company or its

affiliates.

 

             b. It is expressly understood and agreed that, although Executive

and the Company consider the restrictions contained in this Section 8 to be

reasonable, if a final judicial determination is made by a court of competent

jurisdiction that the time or territory or any other restriction contained in

this Agreement is an unenforceable restriction against Executive, the provisions

of this Agreement shall not be rendered void but shall be deemed amended to

apply as to such maximum time and territory and to such maximum extent as such

court may judicially determine or indicate to be enforceable. Alternatively, if

any court of competent jurisdiction finds that any restriction contained in this

Agreement is unenforceable, and such restriction cannot be amended so as to make

it enforceable, such finding shall not affect the enforceability of any of the

other restrictions contained herein.

 

         9.  Confidentiality; Intellectual Property.

 

             a.  Confidentiality.

 

           (i) Executive will not at any time (whether during or after

Executive's employment with the Company) (x) retain or use for the benefit,

purposes or account of

 

 

 

 

 

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Executive or any other Person; or (y) disclose, divulge, reveal, communicate,

share, transfer or provide access to any Person outside the Company (other than

its professional advisers who are bound by confidentiality obligations), any

non-public, proprietary or confidential information -- including without

limitation trade secrets, know-how, research and development, software,

databases, inventions, processes, formulae, technology, designs and other

intellectual property, information concerning finances, investments, profits,

pricing, costs, products, services, vendors, customers, clients, partners,

investors, personnel, compensation, recruiting, training, advertising, sales,

marketing, promotions, government and regulatory activities and approvals --

concerning the past, current or future business, activities and operations of

the Company, its subsidiaries or affiliates and/or any third party that has

disclosed or provided any of same to the Company on a confidential basis

("Confidential Information") without the prior written authorization of the

Board.

 

           (ii) "Confidential Information" shall not include any information

that is (a) generally known to the industry or the public other than as a result

of Executive's breach of this covenant or any breach of other confidentiality

obligations by third parties; (b) made legitimately available to Executive by a

third party without breach of any confidentiality obligation; or (c) required by

law to be disclosed; provided that Executive shall give prompt written notice to

the Company of such requirement, disclose no more information than is so

required, and cooperate with any attempts by the Company to obtain a protective

order or similar treatment.

 

           (iii) Except as required by law, Executive will not disclose to

anyone, other than Executive's immediate family and legal or financial advisors,

the existence or contents of this Agreement; provided that Executive may

disclose to any prospective future employer the provisions of Sections 8 and 9

of this Agreement provided they agree to maintain the confidentiality of such

terms.

 

           (iv) Upon termination of Executive's employment with the Company for

any reason, Executive shall (x) cease and not thereafter commence use of any

Confidential Information or intellectual property (including without limitation,

any patent, invention, copyright, trade secret, trademark, trade name, logo,

domain name or other source indicator) owned or used by the Company, its

subsidiaries or affiliates; (y) immediately destroy, delete, or return to the

Company, at the Company's option, all originals and copies in any form or medium

(including memoranda, books, papers, plans, computer files, letters and other

data) in Executive's possession or control (including any of the foregoing

stored or located in Executive's office, home, laptop or other computer, whether

or not Company property) that contain Confidential Information or otherwise

relate to the business of the Company, its affiliates and subsidiaries, except

that Executive may retain only those portions of any personal notes, notebooks

and diaries that do not contain any Confidential Information; and (z) notify and

fully cooperate with the Company regarding the delivery or destruction of any

other Confidential Information of which Executive is or becomes aware.

 

             b.  Intellectual Property.

 

           (i) If Executive has created, invented, designed, developed,

contributed to or improved any works of authorship, inventions, intellectual

property, materials, documents or other work product (including without

limitation, research, reports, software, databases, systems,

 

 

 

 

 

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applications, presentations, textual works, content, or audiovisual materials)

("Works"), either alone or with third parties, prior to Executive's employment

by the Company, that are relevant to or implicated by such employment ("Prior

Works"), Executive hereby grants the Company a perpetual, non-exclusive,

royalty-free, worldwide, assignable, sublicensable license under all rights and

intellectual property rights (including rights under patent, industrial

property, copyright, trademark, trade secret, unfair competition and related

laws) therein for all purposes in connection with the Company's current and

future business.

 

           (ii) If Executive creates, invents, designs, develops, contributes to

or improves any Works, either alone or with third parties, at any time during

Executive's employment by the Company and within the scope of such employment

and/or with the use of any the Company resources ("Company Works"), Executive

shall promptly and fully disclose same to the Company and hereby irrevocably

assigns, transfers and conveys, to the maximum extent permitted by applicable

law, all rights and intellectual property rights therein (including rights under

patent, industrial property, copyright, trademark, trade secret, unfair

competition and related laws) to the Company to the extent ownership of any such

rights does not vest originally in the Company.

 

           (iii) Executive agrees to keep and maintain adequate and current

written records (in the form of notes, sketches, drawings, and any other form or

media requested by the Company) of all Company Works. The records will be

available to and remain the sole property and intellectual property of the

Company at all times.

 

           (iv) Executive shall take all requested actions and execute all

requested documents (including any licenses or assignments required by a

government contract) at the Company's expense (but without further remuneration)

to assist the Company in validating, maintaining, protecting, enforcing,

perfecting, recording, patenting or registering any of the Company's rights in

the Prior Works and Company Works. If the Company is unable for any other reason

to secure Executive's signature on any document for this purpose, then Executive

hereby irrevocably designates and appoints the Company and its duly authorized

officers and agents as Executive's agent and attorney in fact, to act for and in

Executive's behalf and stead to execute any documents and to do all other

lawfully permitted acts in connection with the foregoing.

 

           (v) Executive shall not improperly use for the benefit of, bring to

any premises of, divulge, disclose, communicate, reveal, transfer or provide

access to, or share with the Company any confidential, proprietary or non-public

information or intellectual property relating to a former employer or other

third party without the prior written permission of such third party. Executive

hereby indemnifies, holds harmless and agrees to defend the Company and its

officers, directors, partners, employees, agents and representatives from any

breach of the foregoing covenant. Executive shall comply with all relevant

policies and guidelines of the Company, including regarding the protection of

confidential information and intellectual property and potential conflicts of

interest. Executive acknowledges that the Company may amend any such policies

and guidelines from time to time, and that Executive remains at all times bound

by their most current version.

 

 

 

 

 

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             c.  The provisions of Sections 8 and 9 shall survive the

termination of Executive's employment for any reason.

 

         10.  Specific Performance. Executive acknowledges and agrees that the

Company's remedies at law for a breach or threatened breach of any of the

provisions of Section 8 or Section 9 would be inadequate and the Company would

suffer irreparable damages as a result of such breach or threatened breach. In

recognition of this fact, Executive agrees that, in the event of such a breach

or threatened breach, in addition to any remedies at law, the Company, without

posting any bond, shall be entitled to cease making any payments or providing

any benefit otherwise required by this Agreement and obtain equitable relief in

the form of specific performance, temporary restraining order, temporary or

permanent injunction or any other equitable remedy which may then be available.

 

         11.  Miscellaneous.

 

             a.  Governing Law. This Agreement shall be governed by and

construed in accordance with the laws of the State of New York, without regard

to conflicts of laws principles thereof.

 

             b.  Entire Agreement/Amendments. This Agreement contains the entire

understanding of the parties with respect to the employment of Executive by the

Company. There are no restrictions, agreements, promises, warranties, covenants

or undertakings between the parties with respect to the subject matter herein

other than those expressly set forth herein. This Agreement may not be altered,

modified, or amended except by written instrument signed by the parties hereto.

 

             c.  No Waiver. The failure of a party to insist upon strict

adherence to any term of this Agreement on any occasion shall not be considered

a waiver of such party's rights or deprive such party of the right thereafter to

insist upon strict adherence to that term or any other term of this Agreement.

 

             d.  Severability. In the event that any one or more of the

provisions of this Agreement shall be or become invalid, illegal or

unenforceable in any respect, the validity, legality and enforceability of the

remaining provisions of this Agreement shall not be affected thereby.

 

             e.  Assignment. This Agreement, and all of Executive's rights and

duties hereunder, shall not be assignable or delegable by Executive. Any

purported assignment or delegation by Executive in violation of the foregoing

shall be null and void ab initio and of no force and effect. This Agreement may

be assigned by the Company to a person or entity which is an affiliate or a

successor in interest to substantially all of the business operations of the

Company. Upon such assignment, the rights and obligations of the Company

hereunder shall become the rights and obligations of such affiliate or successor

person or entity.

 

            f.  Set Off/No Mitigation. The Company's obligation to pay

Executive the amounts provided and to make the arrangements provided hereunder

shall be subject to set-off, counterclaim or recoupment of amounts owed by

Executive to the Company or

 

 

 

 

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                                                                              11

 

 

its affiliates. Executive shall not be required to mitigate the amount of any

payment provided for pursuant to this Agreement by seeking other employment.

 

             g.  Successors; Binding Agreement. This Agreement shall inure to

the benefit of and be binding upon personal or legal representatives, executors,

administrators, successors, heirs, distributees, devisees and legatees.

 

             h.  Notice. For the purpose of this Agreement, notices and all

other communications provided for in the Agreement shall be in writing and shall

be deemed to have been duly given when delivered by hand or overnight courier or

three days after it has been mailed by United States registered mail, return

receipt requested, postage prepaid, addressed to the respective addresses set

forth below in this Agreement, or to such other address as either party may have

furnished to the other in writing in accordance herewith, except that notice of

change of address shall be effective only upon receipt.

 

         If to the Company:

 

         757 Third Avenue

         New York, New York 10017

 

         Attention:  General Counsel

 

         If to Executive:

 

         To the most recent address of Executive set forth in the personnel

         records of the Company.

 

             i.  Legal Fees and Expenses. The Company agrees to pay all legal

fees and expenses which Executive may reasonably incur as a result of any

contest by the Company or Executive of the validity or enforceability of, or

liability under, any provision of this Agreement if Executive prevails in

substantially all material respects on the issues presented for resolution.

 

             j.  Executive Representation. Executive hereby represents to the

Company that the execution and delivery of this Agreement by Executive and the

Company and the performance by Executive of Executive's duties hereunder shall

not constitute a breach of, or otherwise contravene, the terms of any employment

agreement or other agreement or policy to which Executive is a party or

otherwise bound.

 

             k.  Prior Agreements. This Agreement supersedes all prior

agreements and understandings (including verbal agreements) between Executive

and the Company and/or its affiliates regarding the terms and conditions of

Executive's employment with the Company and/or its affiliates.

 

             l.  Cooperation. Executive shall provide Executive's reasonable

cooperation in connection with any action or proceeding (or any appeal from any

action or proceeding) which relates to events occurring during Executive's

employment hereunder. This provision shall survive any termination of this

Agreement.

 

 

 

 

 

<PAGE>

 

 

                                                                              12

 

 

             m.  Withholding Taxes. The Company may withhold from any amounts

payable under this Agreement such Federal, state and local taxes as may be

required to be withheld pursuant to any applicable law or regulation.

 

             n.  Counterparts. This Agreement may be signed in counterparts,

each of which shall be an original, with the same effect as if the signatures

thereto and hereto were upon the same instrument.

 

         IN WITNESS WHEREOF, the parties hereto have duly executed this

Agreement as of the day and year first above written.

 

 

                                     COHEN & STEERS CAPITAL MANAGEMENT, INC.

 

                                     By:

                                         ----------------------------------

 

                                     Title:

                                            -------------------------------

 

 

 

 

                                      -------------------------------------

                                      Robert H. Steers

 

 

 

 

 

<PAGE>

 

 

 

                                                                       EXHIBIT A

 

                                Gross-Up Payment

                                ----------------

 

         In the event the provisions of Section 5(b) of the Agreement to which

this Exhibit A is a part shall become applicable, then the following provisions

shall apply:

 

         (a) If it shall be determined that any amount, right or benefit paid,

distributed or treated as paid or distributed by the Company or any of its

affiliates to or for Executive's benefit (other than any amounts payable

pursuant to this Exhibit A) (a "Payment") would be subject to the excise tax

imposed by Section 4999 of the Code, or any interest or penalties are incurred

by Executive with respect to such excise tax (such excise tax, together with any

such interest and penalties, collectively, the "Excise Tax"), then Executive

shall be entitled to receive an additional payment (a "Gross-Up Payment") equal

to the amount necessary such that after payment by Executive of all federal,

state and local taxes (including any interest or penalties imposed with respect

to such taxes), including, without limitation, any income taxes (and any

interest and penalties imposed with respect thereto) and the Excise Tax imposed

upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment

equal to the Excise Tax imposed upon the Payments.

 

         (b) All determinations required to be made under this Exhibit A,

including whether and when a Gross-Up Payment is required, the amount of such

Gross-Up Payment and the assumptions to be utilized in arriving at such

determination, shall be made by the Company's independent auditors (the

"Auditor"). The Auditor shall provide detailed supporting calculations to both

the Company and Executive within 15 business days of the receipt of notice from

Executive or the Company that there has been a Payment, or such earlier time as

is requested by the Company. All fees and expenses of the Auditor shall be paid

by the Company. Any Gross-Up Payment, as determined pursuant to this Exhibit A,

shall be paid by the Company to Executive (or to the Internal Revenue Service or

other applicable taxing authority on Executive's behalf) within five days of the

receipt of the Auditor's determination. All determinations made by the Auditor

shall be binding upon the Company and Executive; provided that following any

payment of a Gross-Up Payment to Executive (or to the Internal Revenue Service

or other applicable taxing authority on Executive's behalf), the Company may

require Executive to sue for a refund of all or any portion of the Excise Taxes

paid on Executive's behalf, in which event the provisions of paragraph (c) below

shall apply. As a result of uncertainty regarding the application of Section

4999 of the Code hereunder, it is possible that the Internal Revenue Service may

assert that Excise Taxes are due that were not included in the Auditor's

calculation of the Gross-Up Payments (an "Underpayment"). In the event that the

Company exhausts its remedies pursuant to this Exhibit A and Executive

thereafter is required to make a payment of any Excise Tax, the Auditor shall

determine the amount of the Underpayment that has occurred and any additional

Gross-Up Payments that are due as a result thereof shall be promptly paid by the

Company to Executive (or to the Internal Revenue Service or other applicable

taxing authority on Executive's behalf).

 

         (c) Executive shall notify the Company in writing of any claim by the

Internal Revenue Service that, if successful, would require the payment by the

Company of the Gross-Up Payment. Such notification shall be given as soon as

practicable but no later than ten business

 

 

 

 

 

<PAGE>

 

 

                                                                               2

 

 

days after Executive receives written notification of such claim and shall

apprise the Company of the nature of such claim and the date on which such claim

is requested to be paid. Executive shall not pay such claim prior to the

expiration of the 30-day period following the date on which Executive gives such

notice to the Company (or such shorter period ending on the date that any

payment of taxes with respect to such claim is due). If the Company notifies

Executive in writing prior to the expiration of such period that it desires to

contest such claim, Executive shall: (i) give the Company all information

reasonably requested by the Company relating to such claim; (ii) take such

action in connection with contesting such claim as the Company shall reasonably

request in writing from time to time, including, without limitation, accepting

legal representation with respect to such claim by an attorney reasonably

selected by the Company and ceasing all efforts to contest such claim; (iii)

cooperate with the Company in good faith in order to effectively contest such

claim; and (iv) permit the Company to participate in any proceeding relating to

such claim; provided, however, that the Company shall bear and pay directly all

reasonable costs and expenses (including additional interest and penalties)

incurred in connection with such contest and shall indemnify and hold Executive

harmless, on an after-tax basis, from any Excise Tax or income tax (including

interest and penalties with respect thereto) imposed as a result of such

representation and payment of costs and expense. Without limiting the foregoing

provisions of this Exhibit A, the Company shall control all proceedings taken in

connection with such contest and, at its sole option, may pursue or forego any

and all administrative appeals, proceedings, hearings and conferences with the

taxing authority in respect of such claim and may, at its sole option, either

direct Executive to pay the tax claimed and sue for a refund or contest the

claim in any permissible manner, and Executive agrees to prosecute such contest

to a determination before any administrative tribunal, in a court of initial

jurisdiction and in one or more appellate courts, as the Company shall determine

and direct; provided, however, that if the Company directs Executive to pay such

claim and sue for a refund, the Company shall advance the amount of such payment

to Executive, on an interest-free basis, and shall indemnify and hold Executive

harmless, on an after-tax basis, from any Excise Tax or income tax (including

interest or penalties with respect thereto) imposed with respect to such advance

or with respect to any imputed income with respect to such advance; and further

provided that any extension of the statute of limitations relating to payment of

taxes for Executive's taxable year with respect to which such contested amount

is claimed to be due is limited solely to such contested amount. Furthermore,

the Company's control of the contest shall be limited to issues with respect to

which a Gross-Up Payment would be payable hereunder and Executive shall be

entitled to settle or contest, as the case may be, any other issue raised by the

Internal Revenue Service or any other taxing authority.

 

         (d) If, after Executive's receipt of an amount advanced by the Company

pursuant to this Exhibit A, Executive becomes entitled to receive any refund

with respect to such claim, Executive shall promptly pay to the Company the

amount of such refund (together with any interest paid or credited thereon after

taxes applicable thereto). If, after Executive's receipt of an amount advanced

by the Company pursuant to this Exhibit A, a determination is made that

Executive shall not be entitled to any refund with respect to such claim and the

Company does not notify Executive in writing of its intent to contest such

denial of refund prior to the expiration of 30 days after the Company's receipt

of notice of such determination, then such advance shall be forgiven and shall

not be required to be repaid and the amount of such advance shall offset, to the

extent thereof, the amount of Gross-Up Payment required to be paid.

 

 

 

</TEXT>

</DOCUMENT>

 

 

 

 

EX-10.12 3 dex1012.htm AMENDMENT TO EMPLOYMENT AGREEMENT

Exhibit 10.12

Amendment To Employment Agreement

Amendment, dated February 27, 2008 (the “Amendment”), to the Employment Agreement, dated August 9, 2004 (the “Agreement”), by and between Cohen & Steers Capital Management, Inc. (the “Company”) and Robert H. Steers (the “Executive”).

WHEREAS, the parties hereto desire to amend the Agreement as hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained in the Agreement, as amended, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Amendment to Paragraph 4 of the Agreement. Paragraph 4 of the Agreement is hereby deleted in its entirety and replaced with the following:

“4. Annual Bonus. With respect to each fiscal year during the Employment Term, Executive shall be eligible to earn an annual bonus award (an “Annual Bonus”) in such amount, if any, as determined in the sole discretion of the Compensation Committee of the Board.”

2. Amendment to Paragraph 7(b)(ii)(C) of the Agreement. Paragraph 7(b)(ii)(C) of the Agreement is hereby deleted in its entirety and replaced with the following:

“(C) a lump sum payment equal to $1,000,000 (the “Target Annual Bonus”) for the fiscal year in which the termination occurs, payable when the Annual Bonus would have otherwise been payable had Executive’s employment not terminated.”

3. Addition to Paragraph 11 of the Agreement. The Agreement shall be amended by adding the following new Paragraph 11(o):

“o. Section 409A. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and will be interpreted in a manner intended to comply with Section 409A of the Code. Notwithstanding anything herein to the contrary, (i) if at the time of Executive’s separation from service with the Company, Executive is a “specified employee” as defined in Section 409A of the Code (and any related regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) until the date that is six months following Executive’s separation from service (or the earliest date as is permitted under Section 409A of the Code) and (ii) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Company, that does not cause such an accelerated or additional tax. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Section 409A of the Code.”

4. No Other Amendments. Except as specifically amended in this Amendment, the Agreement is unmodified and remains in full force and effect.


IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date first above written.

 

Cohen & Steers Capital Management, Inc.

By:

 

/s/ Francis C. Poli

Name:

 

Francis C. Poli

Title:

 

Executive Vice President and General Counsel

 

/s/ Robert H. Steers

Robert H. Steers