<PAGE> 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)
-----------------
1997 STOCK OPTION 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
<TABLE>
<CAPTION>
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)
- ------------------- ------------- ---------------- ------------------ -------------------
<S> <C> <C> <C> <C>
COMMON STOCK, $0.01 500,000 $4.75 $2,375,000 $660.25
</TABLE>
(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.
<PAGE> 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.
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<PAGE> 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.
(c) 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
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cause to believe his conduct was unlawful. The Company may not indemnify an
officer or a director with respect to any 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 the
4
<PAGE> 5
Company pursuant to the Exchange Act that are
incorporated by reference into the Registration
Statement.
(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
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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.
<TABLE>
<CAPTION>
Name Office Date
- ---- ------ ----
<S> <C> <C>
/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.
</TABLE>
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RUSHMORE FINANCIAL GROUP, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 1997 Stock Option 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)
</TABLE>
<PAGE> 1
RUSHMORE FINANCIAL GROUP, INC.
1997 STOCK OPTION PLAN
500,000 SHARES
ARTICLE I
GENERAL
1.1 PURPOSE OF THE PLAN.
The purpose of the Rushmore Financial Group, Inc. 1997 Stock Option
Plan (the "Plan") is to assist Rushmore Financial Group, Inc., a Texas
corporation (the "Company") in securing and retaining key Participants
and agents of outstanding ability by making it possible to offer them
an increased incentive to join or continue in the service of the
Company and to increase their efforts for its welfare through
participation or increased participation in the ownership and growth of
the Company.
1.2 DEFINITIONS.
(a) "Acceleration Event" means any event which in the opinion
of the Board of Directors of the Company is likely to lead to changes
in control of share ownership of the Company, whether or not such
change in control actually occurs.
(b) "Award" means an Option granted to a Key Participant under
the Plan.
(c) "Board of Directors" or "Board" means the Board of
Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the committee referred to in Section
1.3.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Fair Market Value" means the closing price of the shares
on the NASDAQ or other national Securities Exchange on which the Common
Stock is primarily traded on the day on which such value is to be
determined or, if no shares were traded on such day, on the next
preceding day on which shares were traded, as reported by National
Quotation Bureau, Inc. or other national quotation service. If the
shares of Common Stock are traded
<PAGE> 2
in the over-the-counter market, "fair market value" means the closing
"asked" price of the shares in the over-the-counter market on the day
on which such value is to be determined or, if such "asked" price is
not available, the last sales price on such day or, if no shares were
traded on such day, on the next preceding day on which the shares were
traded, as reported by the National Association of Securities Dealers
Automatic Quotation System (NASDAQ) or other national quotation
service. If at any time shares of Common Stock are not traded on an
exchange or in the over-the-counter market, Fair Market Value shall be
the value determined by the Board of Directors or Committee
administering the Plan, taking into consideration those factors
affecting or reflecting value which they deem appropriate.
(h) "Grantee" means a Key Participant to whom an Award is
granted under the Plan.
(i) "Incentive Share" means a share of Common Stock awarded to
a Key Participant under Article VI hereof on such terms as are
determined by the Committee.
(j) "Incentive Share Agreement" means a written agreement in
such form as the Committee shall approve that evidences the terms and
conditions of an award of Incentive Shares hereunder.
(k) "Incentive Stock Option" means an option to purchase
shares of Common Stock which is intended to qualify as an incentive
stock option as defined in Section 422 of the Code.
(l) "Key Participant" means any person, including officers,
directors, agents and consultants who are designated a Key Participant
by the Committee and is or is expected to be primarily responsible for
the management, growth, or supervision of some part or all of the
business of the Company. The power to determine who is and who is not a
Key Participant is reserved solely for the Committee.
(m) "Nonqualified Stock Option" means an option to purchase
shares of Common Stock which is not intended to qualify as an Incentive
Stock Option as defined in Section 422 of the Code.
(n) "Option" means an Incentive Stock Option or a Nonqualified
Stock Option.
(o) "Optionee" means a Key Participant to whom an Option is
granted under the Plan.
(p) "Parent" means any corporation which qualifies as a parent
of a corporation under the definition of "parent corporation" contained
in Section 425(e) of the Code.
(q) "Subsidiary" means any corporation which qualifies as a
subsidiary of a corporation under the definition of "subsidiary
corporation" contained in Section 425(f) of the Code.
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(r) "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 Compensation Committee (the
"Committee") appointed by the Board of Directors consisting of at least
one member from the Board of Directors, who shall not be eligible to
participate in the Plan. In the absence of an appointment of a
Committee, the Board shall serve as the Committee. No person while a
member of the Committee shall be eligible to participate in the Plan.
Subject to the control of the Board, and without limiting the control
over decisions described in Section 1.7, the Committee shall have the
power to interpret and apply the Plan and to make regulations for
carrying out its purpose. More particularly, the Committee shall
determine which Key Participants shall be granted Options and the terms
of such grants. When granting Options, the Committee shall designate
the Option as either an Incentive Stock Option or a Nonqualified Stock
Option. Determinations by the Committee under the Plan (including,
without 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. In serving on the Committee, members thereof
shall be considered to be acting in their capacity as members of the
Board of Directors and shall be entitled to all rights of
indemnification provided by the Bylaws of the Company or otherwise to
members of the Board of Directors.
1.4 SHARES SUBJECT TO THE PLAN.
The total number of shares that may be purchased pursuant to Options
under the Plan shall not exceed 500,000 shares of Common Stock. (The
Original Plan called for 1,000,000 shares, which was reduced to 500,000
in connection with a one-for-two reverse split in 1997.) Shares subject
to the Options which terminate or expire prior to exercise shall be
available for future Awards under the Plan without again being charged
against the limitation of 500,000 shares set forth above. 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 OPTIONS.
All Options shall be evidenced by agreements in such form as the
Committee shall approve from time to time subject to the provisions of
Article II and Article III, as appropriate, and the following
provisions:
(a) Exercise Price. The exercise price of the Option shall not
be less than the Fair Market Value (as determined by the Committee) of
the Common Stock at the time the Option is granted.
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(b) Exercise. The Committee shall determine whether the Option
shall be exercisable in full at any time during the Term or in
cumulative or noncumulative installments during the Term.
(c) Termination of Employment or Contractor Relationship. An
Optionee's Option shall expire on the expiration of the Term specified
in Section 2.1 or 3.1 as the case may be, or upon the occurrence of
such events as are specified in the agreement. In the event of exercise
of the Option after termination of employment or contractor
relationship, the Optionee may exercise the Option only with respect to
the shares which could have been purchased by the Optionee at the date
of such termination. However, the Committee may, but is not required
to, waive any requirements made pursuant to Section 1.5(b) so that some
or all of the shares subject to the Option may be exercised within the
time limitation described in this subsection. An Optionee's employment
or contractor relationship shall be deemed to terminate on the last
date for which he receives a regular wage, salary or contract payment.
Whether military, government or other service or other leave of absence
shall constitute a termination of employment shall be determined in
each case by the Committee at its discretion, and any determination by
the Committee shall be final and conclusive. A termination of
employment or contractor relationship shall not occur where the
Optionee transfers from the Company to one of its Subsidiaries or
transfers from a Subsidiary to the Company.
(d) Death or Disability. Upon termination of an Optionee's
employment or contractor relationship by reason of death or disability
(as determined by the Committee consistent with the definition of
Section 422(c)(7) of the Code), the Option shall expire on the earlier
of the expiration of (i) the date specified in the Option which in no
event shall be later than 12 months after the date of such termination,
or (ii) the Term specified in Section 2.1 or 3.1 as the case may be.
The Optionee or his successor in interest, as the case may be, may
exercise the Option only as to the shares that could have been
purchased by the Optionee at the date of his termination of employment.
However, the Committee may, but is not required to, waive any
requirements made pursuant to Section 1.5(b) so that some or all of the
shares subject to the Option may be exercised within the time
limitation described in this subsection.
(e) Payment. Payment for shares as to which an Option is
exercised shall be made in such manner and at such time or times as
shall be provided in the option agreement, including cash, Common Stock
of the Company which was previously acquired by the Optionee, or any
combination thereof. The Fair Market Value of the surrendered Common
Stock as of the date of exercise shall be determined in valuing Common
Stock used in payment for Options.
(f) Nontransferability. No Option granted under the Plan shall
be transferable other than by will or by the laws of descent and
distribution. During the lifetime of the Optionee, an Option shall be
exercisable only by the Optionee.
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(g) Additional Provisions. Each option agreement may contain
such other terms and conditions not inconsistent with the provisions of
the Plan, including the award of cash amounts, as the Committee may
deem appropriate from time to time.
1.6 STOCK ADJUSTMENTS; MERGERS.
(a) Generally. Notwithstanding Section 1.4, in the event the
outstanding shares are increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities
of the Company or of any other corporation by reason of any merger,
sale of stock, consolidation, liquidation, recapitalization,
reclassification, stock split up, combination of shares, stock
dividend, or transaction having similar effect, the total number of
shares set forth in Section 1.4 shall be proportionately and
appropriately adjusted by the Committee.
(b) Options. Following a transaction described in subsection
(a) above, if the Company continues in existence, the number and kind
of shares that are subject to any Option and the option price per share
shall be proportionately and appropriately adjusted without any change
in the aggregate price to be paid therefor upon exercise of the Option.
If the Company will not remain in existence or substantially all of its
voting Common Stock and Common Stock will be purchased by a single
purchaser or group of purchasers acting together, then the Committee
may (i) declare that all Options shall terminate 30 days after the
Committee gives written notice to all Optionee's of their immediate
right to exercise all Options then outstanding (without regard to
limitations on exercise otherwise contained in the Options), or (ii)
notify all Optionee's that all Options granted under the Plan shall
apply with appropriate adjustments as determined by the Committee to
the securities of the successor corporation to which holders of the
numbers of shares subject to such Options would have been entitled, or
(iii) take action that is some combination of aspects of (i) and (ii).
The determination by the Committee as to the terms of any of the
foregoing adjustments shall be conclusive and binding. Any fractional
shares resulting from any of the foregoing adjustments under this
section shall be disregarded and eliminated.
1.7 ACCELERATION EVENT.
If an Acceleration Event occurs in the opinion of the Board of
Directors, based on circumstances known to it, the Board of Directors
may direct the Committee to declare that any or all Options granted
under the Plan shall become exercisable immediately notwithstanding the
provisions of the respective agreements granting any such Awards.
1.8 NOTIFICATION OF EXERCISE.
Options shall be exercised by written notice directed to the Secretary
of the Company at the principal executive offices of the Company. Such
written notice shall be accompanied by any payment required pursuant to
Section 1.5(e). Exercise by an Optionee's heir or the representative of
his estate shall be accompanied by evidence of his authority to so act
in form reasonably satisfactory to the Company.
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1.9 MODIFICATION, EXTENSION AND RENEWAL OF AWARDS.
Subject to the terms and conditions and within the limitations of the
Plan, the Committee may modify, extend or renew outstanding Awards or
accept the surrender of outstanding Awards (to the extent not
theretofore exercised) granted under the Plan or under any other plan
of the Company or a Subsidiary, and authorize the granting of new
Awards pursuant to the Plan in substitution therefor, and the
substituted Awards may bear such different or additional terms and
conditions as the Committee shall deem appropriate within the
limitations of the Plan. Notwithstanding the foregoing, however, no
modification of an Award shall, without the consent of the Grantee
holding the Award, adversely affect the rights or obligations of such
Grantee.
1.10. 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 April 1,
1997 and as amended, or any successor provisions, as it relates to
persons subject to the reporting requirements of Section 16(a) of such
Act. Any agreement granting an Award shall contain such provisions as
are necessary or appropriate to assure such compliance. 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
INCENTIVE STOCK OPTIONS
2.1 TERMS OF INCENTIVE STOCK OPTIONS.
Each Incentive Stock Option granted under the Plan shall be exercisable
only during a Term fixed by the Committee; provided, however, that the
Term shall end no later than 10 years after the date the Incentive
Stock Option is granted.
2.2 LIMITATION ON OPTIONS.
The aggregate Fair Market Value of Common Stock (determined at the time
the Incentive Stock Option is granted) subject to Incentive Stock
Options granted to a Key Participant under all plans of the Key
Participant's employer corporation and its Parent or Subsidiary
corporations and that become exercisable for the first time by such Key
Participant during any calendar year may not exceed $100,000.
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2.3 SPECIAL RULE FOR TEN PERCENT SHAREHOLDER.
If at the time an Incentive Stock Option is granted, an participant or
owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of his employer corporation or of
its Parent or any of its Subsidiaries, as determined using the
attribution rules of Section 425(d) of the Code, then the terms of the
Incentive Stock Option shall specify that the option price shall be at
least 110% of the Fair Market Value of the stock subject to the
Incentive Stock Option and such Incentive Stock Option shall not be
exercisable after the expiration of five years from the date such
Incentive Stock Option is granted.
2.4 INTERPRETATION.
In interpreting this Article II of the Plan and the provisions of
individual option agreements, the Committee and the Board shall be
governed by the principles and requirements of Sections 421, 422 and
425 of the Code, and applicable Treasury Regulations.
ARTICLE III
NONQUALIFIED STOCK OPTIONS
3.1 TERMS AND CONDITIONS OF OPTIONS.
In addition to the requirements of Section 1.5, each Nonqualified Stock
Option granted under the Plan shall be exercisable only during a Term
fixed by the Committee.
3.2 SECTION 83(b) ELECTION.
The Company recognizes that certain persons who receive Nonqualified
Stock Options may be subject to restrictions regarding their right to
trade Common Stock under applicable securities laws. Such may cause
Optionee's exercising such Options not to be taxable under the
provisions of Section 83(c) of the Code. Accordingly, Optionee's
exercising such Nonqualified Stock Options may consider making an
election to be taxed upon exercise of the Option under Section 83(b) of
the Code and to effect such election will file such election with the
Internal Revenue Service within thirty (30) days of exercise of the
Option and otherwise in accordance with applicable Treasury
Regulations.
ARTICLE IV
ADDITIONAL PROVISIONS
4.1 STOCKHOLDER APPROVAL.
The Plan shall be submitted for the approval of the stockholders of the
Company at the first annual meeting of stockholders held subsequent to
the adoption of the Plan and in all events
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within one year of its approval by the Board of Directors. If at said
meeting the stockholders of the Company do not approve the Plan, the
Plan shall terminate.
4.2 COMPLIANCE WITH OTHER LAWS AND REGULATIONS.
The Plan, the grant and exercise of Options hereunder, and the
obligation of the Company to sell and deliver shares under such
Options, 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.
4.3 AMENDMENTS.
The Board of Directors may discontinue the Plan at any time, and may
amend it from time to time, but no amendment, without approval by
stockholders, may (a) increase the total number of shares which may be
issued under the Plan or to any individual under the Plan, (b) reduce
the Option price for shares which may be purchased pursuant to Options
under Articles II or III of the Plan, (c) extend the period during
which Awards may be granted, or (d) change the class of Participants to
whom Awards may be granted, except as provided in Section 1.6. 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.
4.4 NO RIGHTS AS SHAREHOLDER.
No Grantee shall have any rights as a shareholder with respect to any
share subject to his or her Option prior to the date of issuance to him
or her of a certificate or certificates for such shares.
4.5 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 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.
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4.6 CONTINUED EMPLOYMENT NOT PRESUMED.
This Plan and any document describing this Plan and the grant of any
Award hereunder shall not give any Optionee or other Participant a
right to continued employment or directorship by the Company or its
Subsidiaries or affect the right of the Company or its Subsidiaries to
terminate the employment or directorship of any such person with or
without cause.
4.7 EFFECTIVE DATE; DURATION.
The Plan shall become effective as of April 5, 1997 pursuant to Board
of Director approval received on such date and shall expire on April 5,
2007. No Awards may be granted under the Plan after April 5, 2007, but
Awards granted on or before that date may be exercised according to the
terms of the related agreements and shall continue to be governed by
and interpreted consistent with the terms hereof.
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EXHIBIT 5.1
[GLAST, PHILLIPS & MURRAY LETTERHEAD]
August 4, 1999
Rushmore Financial Group, Inc.
13355 Noel Road, Suite 650
Dallas, Texas 75240
Re: Form S-8 Registration Statement relating to the registration of
500,000 shares of common stock, $.01 par value of Rushmore
Financial Group, Inc. pursuant to the 1997 Stock Option 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 500,000 shares (the "Shares") of common
stock, par value $.01 per share (the "Common Stock"), of the Company which will
be issued pursuant to the 1997 Stock Option 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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
