As filed with the Securities and Exchange Commission on December 20, 2004
Registration Statement No. 333 -
___________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
EPOCH HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 20-1938886
_______________________________ ____________________________________
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization
667 Madison Avenue, 2nd Floor
New York, New York 10021
(212) 303-7200
_______________________________________
(Address of Principal Executive Offices)
Epoch Holding Corporation 2004 Omnibus Long-Term
Incentive Compensation Plan
________________________________________________
(Full title of the Plan)
William W. Priest
Chief Executive Officer
667 Madison Avenue, 2nd Floor
New York, New York 10021
_______________________________________
(Name and address of agent for service)
(212) 303-7200
___________________________________________________________
Telephone number, including area code, of agent for service
Copies to:
Alan I. Annex, Esq.
Greenberg Traurig, LLP
200 Park Avenue
New York, New York 10166
(212) 801-9200
(212) 801-6400 (Telecopy)
CALCULATION OF REGISTRATION FEE
Proposed number of Proposed maximum Proposed
Title of securities shares to be offering price maximum aggregate Amount of
to be registered registered (1) per share offering price registration fee
_____________________ __________________ ________________ __________________ ________________
Common Shares, $0.01 3,000,000 (2) $3.30 $1,254.33
par value, underlying
options to be issued
under the Epoch
Holding Corporation
2004 Omnibus Long-Term
Incentive Compensation
Plan
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement shall also cover any
additional shares of Common Stock which become issuable under the
Epoch Holding Corporation 2004 Omnibus Long-Term Incentive
Compensation Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
our outstanding shares of Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(h) of the Securities Act on the basis of
the average of the high and low price of a share of Common Stock as
reported by the Over-the-Counter Bulletin Board on December 17, 2004.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Items 1 and 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 of
the Securities Act of 1933, as amended (the "Securities Act"), and the
introductory Note to Part I of Form S-8.
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b) of the Securities Act. Such documents and the documents
incorporated by reference herein pursuant to Item 3 of Part II hereof,
taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission"), are hereby incorporated by
reference into this registration statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 2004;
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2004;
(c) Registrant's Current Reports on Form 8-K filed on August 17,
2004, September 14, 2004, November 19, 2004, December 7, 2004 and
December 9, 2004; and
(d) Registrant's Proxy Statement on Schedule 14A filed on October 28,
2004
In addition, all documents filed by Epoch with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to
the date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of the filing of such documents with the Commission.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law. Section 145(a) of the Delaware
General Corporation Law provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
the person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person's conduct was
unlawful.
Section 145(b) of the Delaware General Corporation Law states that a
corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which the person shall have been adjudged
to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or 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, the person is
fairly and reasonably entitled to indemnity for such expenses as the
Delaware Court of Chancery or such other court shall deem proper.
Section 145(c) of the Delaware General Corporation Law provides that
to the extent that a present or former director or officer of a corporation
has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in subsections (a) and (b) of Section 145,
or in defense of any claim, issue or matter therein, the person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection therewith.
Section 145(d) of the Delaware General Corporation Law states that any
indemnification under subsections (a) and (b) of Section 145 (unless
ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the present
or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct
set forth in subsections (a) and (b) of Section 145. Such determination
shall be made with respect to a person who is a director or officer at the
time of such determination (1) by a majority vote of the directors who are
not parties to such action, suit or proceeding, even though less than a
quorum, (2) by a committee of such directors designated by majority vote of
such directors, even though less than a quorum, (3) if there are no such
directors, or if such directors so direct, by independent legal counsel in
a written opinion, or (4) by the stockholders.
Section 145(f) of the Delaware General Corporation Law states that the
indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of Section 145 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
Section 145(g) of the Delaware General Corporation Law provides that a
corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by such person in any
such capacity or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against
such liability under the provisions of Section 145.
Section 145(j) of the Delaware General Corporation Law states that the
indemnification and advancement of expenses provided by, or granted
pursuant to, Section 145 shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Certificate of Incorporation. The Registrant's certificate of
incorporation incorporated by reference as Exhibit 3.1 hereto provides that
a director of the Registrant shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law or (iv) for any transaction from which the director
derived any improper personal benefit.
Bylaws. The Registrant's bylaws incorporated by reference as Exhibit
3.2 hereto provide for the indemnification of the officers and directors of
the Registrant to the fullest extent permitted by the Delaware General
Corporation law. The Registrant's amended and restated bylaws provide that
the Registrant shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or as it may be amended,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he,
or a person for whom he is the legal representative, is or was a director
or officer of the Registrant or, while a director or officer of the
Registrant, is or was serving at the request of the Registrant as a
director, officer, employee or agent of another entity, including service
with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonably incurred by
such person. The Registrant's amended and restated bylaws provide that the
Registrant shall indemnify any such person in connection with a proceeding
commenced by such person only if the commencement of such proceeding was
authorized by the board of directors of the Registrant, except for the
commencement of an action by such person to recover the unpaid amount of a
claim for indemnification or advancement of expenses that is not paid in
full within thirty (30) days after receipt by the Registrant.
Insurance. The Registrant maintains directors and officers liability
insurance, which covers directors and officers of the Registrant against
certain claims or liabilities arising out of the performance of their
duties.
Indemnification Agreements. The Registrant has entered into
indemnification agreements with its officers and directors.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, or persons
controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in such Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
See "Exhibit Index" on page II-7 below.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement;
. To include any prospectus required by Section 10(a) (3) of the
Securities Act;
. 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 froth in the "Calculation of Registration
Fee" table in the effective registration statement; and
. 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) and (a) (2) do not apply if 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
Exchange Act that are incorporated by reference in the registration
statement.
. That, for the purpose of determining any liability under the
Securities Act, each 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.
. 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.
. That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual
report pursuant to Section 13 (a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 this 20th day of December, 2004.
EPOCH HOLDING CORPORATION
By: /s/ William W. Priest
____________________________
WILLIAM W. PRIEST
Chief Executive Officer
____________________
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William W. Priest and Mark E.
Wilson, and each or any one 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, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, and any other regulatory authority, granting 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 substitutes, may
lawfully do or cause to be done by virtue hereof.
____________________
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
/s/ William W. Priest Chief Executive Officer December 20, 2004
_____________________ (Principal Executive Officer)
William W. Priest
/s/ Mark E. Wilson Chief Financial Officer December 20, 2004
__________________
Mark E. Wilson (Principal Financial Officer)
/s/ Allan R. Tessler Chairman of the Board December 20, 2004
____________________
Allan R. Tessler
/s/ Jeffrey L. Berenson Director December 20, 2004
_______________________
Jeffrey L. Berenson
/s/ Peter A. Flaherty Director December 20, 2004
______________________
Peter A. Flaherty
/s/ Eugene M. Freedman Director December 20, 2004
______________________
Eugene M. Freedman
/s/ David R. Markin Director December 20, 2004
___________________
David R. Markin
EXHIBIT INDEX
Exhibit
Number Description
_______ ___________
3.1 Certificate of Incorporation (filed as an exhibit to Current Report
on Form 8-K filed with the Commission on December 7, 2004, and
incorporated herein by reference).
3.2 Bylaws (filed as an exhibit to Current Report on Form 8-K filed with
the Commission on December 7, 2004, and incorporated herein by
reference).
4.1 Form of certificate representing shares of common stock.*
5.1 Opinion of Greenberg Traurig, LLP.*
10.1 Form of 2004 Omnibus Long-Term Incentive Compensation Plan (filed as
an exhibit to Current Report on Form 8-K filed with the Commission
on November 19, 2004, and incorporated herein by reference).
23.1 Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1).*
23.2 Consent of CF & Co., L.L.P.*
24.1 Power of Attorney (contained on the signature page hereof).*
____________________________________
(*) Filed herewith electronically.