-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ETmFUHm0EWjkDbo27YwJMJv5lA9L9cPV+NbGb9oHkCwEu6WpxmhWtlJ+21dRCvHO YydAyKGkrp9fCQLhYNVGAQ== 0000950134-99-007076.txt : 19990812 0000950134-99-007076.hdr.sgml : 19990812 ACCESSION NUMBER: 0000950134-99-007076 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990810 EFFECTIVENESS DATE: 19990810 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RUSHMORE FINANCIAL GROUP INC CENTRAL INDEX KEY: 0000884892 STANDARD INDUSTRIAL CLASSIFICATION: INSURANCE AGENTS BROKERS & SERVICES [6411] IRS NUMBER: 752375969 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-84901 FILM NUMBER: 99683230 BUSINESS ADDRESS: STREET 1: 13355 NOEL RD STREET 2: STE 650 CITY: DALLAS STATE: TX ZIP: 75240 BUSINESS PHONE: 9724506000 MAIL ADDRESS: STREET 1: 13355 NOEL RD STREET 2: STE 650 CITY: DALLAS STATE: TX ZIP: 75240 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on August 10, 1999 Registration No. 33-________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------- RUSHMORE FINANCIAL GROUP, INC. (Exact name of the Company as specified in its charter) TEXAS 75-2375969 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) ----------------- 13355 NOEL RD., SUITE 650 DALLAS, TX 75240 (Address of principal executive offices) ----------------- 1999 STOCK BONUS PLAN ----------------- D. M. RUSTY MOORE, JR. RUSHMORE FINANCIAL GROUP, INC. 13355 NOEL RD., SUITE 650 DALLAS, TX 75240 (Name and address of agent for service) (972)450-6000 (Telephone number, including area code, of agent for service) With copies to: RONALD L. BROWN, ESQ. GLAST, PHILLIPS & MURRAY, P.C. 13355 NOEL ROAD, SUITE 2200 DALLAS, TEXAS 75240 (972)419-8300 CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE (1)(2) REGISTRATION FEE(2) ------------------- ------------- ---------------- ------------------ ------------------- COMMON STOCK, $0.01 100,000 $4.75 $475,000 $133.00
(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 number of additional shares that may be issuable in connection with share splits, share dividends or similar transactions. (2) Estimated pursuant to Rule 457(c) under the Securities Act, solely for the purpose of calculating the registration fee, based on the average of the bid and asked prices for the Company's common stock as reported within five business days prior to the date of this filing. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. * ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. * *The document(s) containing the information specified in Part 1 of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"). Such document(s) are not being filed with the Commission, but constitute (along with the documents incorporated by reference into the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Act. 2 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The following documents previously or concurrently filed by Rushmore Financial Group, Inc. (the "Company") with the Commission are hereby incorporated by reference into this Registration Statement: (a) The Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1998 (the "Annual Report") filed by the Company (SEC File No. 000-24057) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), with the Commission on March 31, 1999. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (a) above. (d) The description of the Company's Common Stock set forth under the caption "Description of Capital Stock" at page 34 of the Company's Registration Statement on Form SB-2, filed with the Commission and effective on February 17, 1998, is hereby incorporated by reference. All documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities them remaining unsold, shall be deemed incorporated by reference into this Registration Statement and to be a part thereof from the date of the filing of such documents. Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus which is a part hereof (the "Prospectus") to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein 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 and the Prospectus. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. In accordance with the Texas Business Corporation Act, Article IV of the Company's Bylaws provides that the Company may advance expenses to and indemnify directors, officers, employees, agents and other persons who may have advanced expenses and be indemnified under applicable law. Section 2.02-1 of the Texas Business Corporation Act permits indemnification of directors and officers of the Company and officers and directors of another corporation, partnership, joint venture, trust, or other enterprise who serve at the request of the Company, against expenses, including attorneys fees, judgments, fines and amounts paid in settlement actually and reasonable incurred by such person in connection with any action, suit or proceeding in which such person is a party by reason of such person being or having been a director or officer of the Company or at the request of the Company, if he conducted himself in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The Company may not indemnify an officer or a director with respect to any 3 4 claim, issue or matter as to which such officer or director 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, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. The extent that an officer or director is successful on the merits or otherwise in defense on the merits or otherwise in defense of any action, suit or proceeding with respect to which such person is entitled to indemnification, or in defense of any claim, issue or matter therein, such person is entitled to be indemnified against expenses, including attorney's fees, actually and reasonably incurred by him in connection therewith. The circumstances under which indemnification is granted in an action brought on behalf of the Company are generally the same as those set forth above; however, expenses incurred by an officer or a director in defending a civil or criminal action, suit or proceeding may be paid by the Company in advance of final disposition upon receipt of an undertaking by or on behalf of such officer or director to repay such amount if it is ultimately determined that such officer or director is not entitled to indemnification by the Company. No director of the Company shall be personally liable to the Company or any of its shareholders for damages for any act or omission in such capacity except to the extent Texas law expressly precludes limitation of such personal liability, which it does when the director is found liable for a breach of duty of loyalty, an act or omission not in good faith that constitutes a breach of duty or intentional misconduct or knowing violation of law, a transaction from which the director received an improper benefit or any other case where liability is provided by statute. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. See the Exhibit Index following the signature page in this Registration Statement, which Exhibit Index is incorporated herein by reference. ITEM 9. UNDERTAKINGS. (a) The undersigned Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement to: (i) include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) reflect in the prospectus any facts or events arising after the effective date of the Registration Statement which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and 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 reelected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration" table in the effective registration statement; and (iii) 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 provisions (i) and (ii) of this undertaking are inapplicable if the information to be filed thereunder is contained in periodic reports filed by theCompany pursuant to the Exchange Act that are incorporated by reference into the Registration Statement. 4 5 (2) That, for the purpose of determining any liability under the Securities Act, 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 post-effective amendment any of the securities being registered which remains unsold at the termination of the offering. (b) 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 Company 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 director, officer or controlling person 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 Company 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 is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. (c) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or 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 this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 5 6 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on July 21, 1999. RUSHMORE FINANCIAL GROUP, INC. By: /s/ D.M. (Rusty) Moore, Jr. ---------------------------------------- D.M. (Rusty) Moore, Jr., President, Chief Executive Officer and Director Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Each person whose signature to the Registration Statement appears below hereby appoints D. M. (Rusty) Moore, Jr., as such person's attorney-in-fact with full power to act alone, with full power of substitution or resubstitution, for such person and in such person's name, place and stead, in any and all capacities to sign on such person's behalf, individually and in the capacities stated below, and to file any and all amendments and post-effective amendments to this Registration Statement, which amendment or amendments may make such changes and additions as such attorney-in-fact may deem necessary or appropriate.
Name Office Date - ---- ------ ---- /s/ D. M. (Rusty) Moore, Jr. President, Chief Executive July 21, 1999 - --------------------------------- Officer and Director D. M. (Rusty) Moore, Jr. (Principal Executive Officer) /s/Robert W. Hendren Executive Vice President and July 21, 1999 - --------------------------------- Chief Financial Officer Robert W. Hendren (Principal Financial and Accounting Officer) /s/ Timothy J. Gardiner Director July 21, 1999 - --------------------------------- Timothy J. Gardiner Director July 21, 1999 - --------------------------------- Mark S. Adler /s/ Gayle C. Tinsley Director July 21, 1999 - --------------------------------- Gayle C. Tinsley /s/ F. E. Mowery Director July 21, 1999 - --------------------------------- F. E. Mowery /s/ William C. Keane Director July 21, 1999 - --------------------------------- William C. Keane /s/ James M. Fehleison Director July 21, 1999 - --------------------------------- James M. Fehleison /s/ James W. Clark Director July 21, 1999 - --------------------------------- James W. Clark /s/ Charles M. Duke, Jr. Director July 21, 1999 - ----------------------------------- Charles M. Duke, Jr.
7 INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION - ----------- ----------- 4.1 1999 Stock Bonus Plan 5.1 Opinion of Glast, Phillips, & Murray, P.C. 23.1 Consent of KPMG LLP 23.2 Consent of Cheshier & Fuller, L.L.P. 23.3 Consent of Glast, Phillips, & Murray, P.C. (included in Exhibit 5.1) 24.1 Power of Attorney (included on Signature Page to the Registration Statement)
EX-4.1 2 1999 STOCK BONUS PLAN 1 RUSHMORE FINANCIAL GROUP, INC. 1999 STOCK BONUS PLAN ARTICLE I GENERAL 1.1 PURPOSE OF THE PLAN. The purpose of the Rushmore Financial Group, Inc., 1999 Stock Bonus Plan (the "Plan") is to assist Rushmore Financial Group, Inc., a Texas corporation (the "Company") in securing and retaining key persons of outstanding ability to serve the Company as key employees and exclusive agents by making it possible to offer them shares of registered common stock in order to conserve the Company's cash and thereby increase their efforts for the Company's welfare through participation or increased participation in the ownership and growth of the Company. 1.2 DEFINITIONS. (a) "Award" means a grant of shares to a Participant under the Plan. (b) "Board of Directors" or "Board" means the Board of Directors of the Company. (c) "Code" means the Internal Revenue Code of 1986, as amended. (d) "Common Stock" means the Common Stock of the Company. (e) "Grantee" means a Participant to whom an Award is granted under the Plan. (f) "Participant" means any person who is designated a Participant and is or is expected to be instrumental in promoting the business of the Company. (g) "Term" means the period during which a particular option may be exercised as determined by the Committee and as provided in the option agreement. 1.3 ADMINISTRATION OF THE PLAN. The Plan shall be administered by the Board of Directors. The Board shall have the power to interpret and apply the Plan and to make regulations for carrying out its purpose. More particularly, the Board shall determine which Participants shall be granted shares and the terms of such grants. Determinations by the Board under the Plan (including, without 2 Rushmore Financial Group, Inc. August 4, 1999 Page Two limitation, determinations of the person to receive Awards, the form, amount and timing of such Awards, and the terms and provisions of such Awards and the agreements evidencing same) need not be uniform and may be made by it selectively among persons who receive, or are eligible to receive, Awards under the Plan, whether or not such persons are similarly situated. 1.4 SHARES SUBJECT TO THE PLAN. The total number of shares that may be issued to Consultants under the Plan shall not exceed 100,000 shares of Common Stock. Shares issued pursuant to the Plan may be either unissued shares of Common Stock or reacquired shares of Common Stock held in treasury. 1.5 TERMS AND CONDITIONS OF AWARDS. All Awards shall be evidenced by agreements in such form as the Board of Directors shall approve from time to time subject to the provisions of Article II and Article III, as appropriate, and the following provisions: (a) Grant Price. The grant price of Common Stock shall be any amount determined by the Board of Directors to be fair and reasonable in order to provide the inducement and incentive envisioned by this Plan. (b) Grantee. Awards of Common Stock may be made only to individuals who render bona fide services to the Company as an employee, independent agent or other person approved by the Board of Directors. No Awards may be made as compensation for any efforts of such persons to raise capital for the Company. (c) Regulation. The Common Stock subject to the Plan shall be registered with the Securities and Exchange Commission under a Form S-8 registration statement. (d) Taxation. Shares of Common Stock issued under the Plan will be taxable to the Grantees, and the Company will provide each Grantee with a Form 1099 to report such issuance. (e) Additional Provisions. Each award agreement may contain such other terms and conditions not inconsistent with the provisions of the Plan, including the payment of cash amounts, as the Board of Directors may deem appropriate from time to time. 2 3 Rushmore Financial Group, Inc. August 4, 1999 Page Three 1.6 COMPLIANCE WITH RULE 16b-3. It is intended that the provisions of the Plan and any Award shall comply in all respects with the terms and conditions of Rule 16b-3 under the Securities Exchange Act of 1934, as in effect on May 1, 1999 and as amended, or any successor provisions, as it relates to persons subject to the reporting requirements of Section 16(a) of such Act. To the extent that any provision hereof is found not to be in compliance with such rule as it relates to such Act, such provision shall be deemed to be modified so as to be in compliance with such rule, or if such modification is not possible, shall be deemed to be null and void, as it relates to such Grantee. ARTICLE II ADDITIONAL PROVISIONS 2.1 BOARD APPROVAL. The Plan has been approved by the unanimous consent of the Board of Directors of the Company. Shareholder approval is not required. 2.2 COMPLIANCE WITH OTHER LAWS AND REGULATIONS. The Plan and the obligation of the Company to sell and deliver shares under the Plan, shall be subject to all applicable Federal and state laws, rules, and regulations and to such approvals by any government or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for shares of Common Stock prior to (a) the listing of such shares on any stock exchange on which the Common Stock may then be listed and (b) the completion of any registration or qualification or exemption of such shares under any Federal or state law, or any ruling or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable. 2.3 AMENDMENTS. The Board of Directors may discontinue the Plan at any time, and may amend it from time to time. Other than as expressly permitted under the Plan, no outstanding Award may be revoked or altered in a manner unfavorable to the Grantee without the consent of the Grantee. 2.4 WITHHOLDING. Whenever the Company proposes or is required to issue or transfer shares of Common Stock under the Plan, the Company shall have the right to require the Grantee to remit to the 3 4 Rushmore Financial Group, Inc. August 4, 1999 Page Four Company an amount sufficient to satisfy any Federal, state or local withholding tax liability in such form as the Company may determine or accept in its sole discretion, including payment by surrender or retention of shares of Common Stock prior to the delivery of any certificate or certificates for such shares. 2.5 EFFECTIVE DATE; DURATION. The Plan shall become effective as of June 1, 1999 pursuant to Board of Director approval received effective such date and shall expire on April 30, 2009. ARTICLE III AWARDS Subject to all of the terms and provisions of the Plan, the Board has granted Awards to the following persons in the following amounts:
Name Shares Purchase Price ---- ------ -------------- Thomas Tapia 20,000 $200.00 Robert Hendren 2,000 20.00
4 EX-5.1 3 OPINION/CONSENT OF GLAST, PHILLIPS & MURRARY, P.C. 1 EXHIBIT 5.1 [GLAST, PHILLIPS & MURRAY LETTERHEAD] August 4, 1999 Rushmore Financial Group, Inc. 13355 Noel Rd., Suite 650 Dallas, Texas 75240 Re: Form S-8 Registration Statement relating to the registration of 100,000 shares of common stock, $.01 par value of Rushmore Financial Group, Inc. pursuant to the 1999 Stock Bonus Plan. Gentlemen: We are acting as counsel for Rushmore Financial Group, Inc., a Texas corporation (the "Company"), in connection with the filing under the Securities Act of 1933, as amended, of a Registration Statement for the Company on Form S-8 filed with the Securities and Exchange Commission ("SEC") (the "Registration Statement"), covering an aggregate of 100,000 shares (the "Shares") of common stock, par value $.01 per share (the "Common Stock"), of the Company which will be issued pursuant to the 1999 Stock Bonus Plan. In that connection, we have examined the Form S-8 Registration Statement in the form to be filed with the SEC. We have also examined and are familiar with the originals or authenticated copies of all corporate or other documents, records and instruments that we have deemed necessary or appropriate to enable us to render the opinion expressed below. We have assumed that all signatures on all documents presented to us are genuine, that all documents submitted to us as originals are accurate and complete, that all documents submitted to us as copies are true and correct copies of the originals thereof, that all information submitted to us was accurate and complete and that all persons executing and delivering originals or copies of documents examined by us were competent to execute and deliver such documents. In addition, we have assumed that the Shares will not be issued for consideration equal to less than the par value thereof and that the form of consideration to be received by the Company for the Shares will be lawful consideration under the Texas Business Corporation Act. 2 Rushmore Financial Group, Inc. August 4, 1999 Page Two Based on the foregoing and having due regard for the legal considerations we deem relevant, we are of the opinion that the Shares, or any portion thereof, when issued as described in the Registration Statement, will be validly issued by the Company, fully paid and nonassessable. This opinion is limited in all respects to the laws of the United States of America and the State of Texas. This opinion may be filed as an exhibit to the Registration Statement. Sincerely, GLAST, PHILLIPS & MURRAY, P.C. /s/ Glast, Phillips & Murray EX-23.1 4 CONSENT OF KPMG LLP 1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors Rushmore Financial Group, Inc. We consent to incorporation by reference into the registration statement on Form S-8 of Rushmore Financial Group, Inc. of our report dated March 17, 1999, relating to the consolidated balance sheet of Rushmore Financial Group, Inc.and subsidiaries as of December 31, 1998 and the related consolidated statements of income, shareholders' equity, and cash flows for the years ended December 31, 1998 and 1997, which report appears in the December 31, 1998 annual report on Form 10-KSB of Rushmore Financial Group, Inc. /s/ KPMG LLP Dallas, Texas August 4, 1999 EX-23.2 5 CONSENT OF CHESHIER & FULLER, L.L.P. 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT The Board of Directors Rushmore Financial Group, Inc. We consent to incorporation by reference into the registration statement on Form S-8 of Rushmore Financial Group, Inc. of our report dated January 15, 1999, relating to the statement of financial condition of Rushmore Securities Corporation as of December 31, 1998 and the related consolidated statements of income, shareholders' equity, and cash flows for the years ended December 31, 1998 and 1997, which report appears in the December 31, 1998 annual report on Form 10-KSB of Rushmore Financial Group, Inc. /s/ CHESHIER & FULLER, L.L.P. Dallas, Texas August 4, 1999 -----END PRIVACY-ENHANCED MESSAGE-----