<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)
-----------------
INCENTIVE 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, $0.01 250,000 $4.75 $1,187,500 $330.15
=======================================================================================================================
</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.
2
<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.
(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
<PAGE> 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 the Company pursuant to the Exchange Act that are
incorporated by reference into the Registration
Statement.
4
<PAGE> 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
<PAGE> 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.
<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>
6
<PAGE> 7
RUSHMORE FINANCIAL GROUP, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 Incentive 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.
RESTATED INCENTIVE STOCK OPTION PLAN
ARTICLE I
GENERAL
1.1 PURPOSE OF THE PLAN.
The purpose of the Rushmore Financial Group, Inc. Restated Incentive Stock
Option Plan (the "Plan") is to assist Rushmore Capital Corporation, a Texas
corporation (the "Company") in securing and retaining key employees or 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 Employee 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 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) 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 Employee to whom an Award is granted under the
Plan.
(i) "Incentive Share" means a share of Common Stock awarded to a Key
Employee under Article VI hereof on such terms as are determined by
the Committee.
<PAGE> 2
(j) "Incentive Stock Option Agreement" means a written agreement in such
form as the Committee or the Board of Directors 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 Employee" means any person, including officers and directors, in
the regular employment of the Company, or as an agent of the Company,
who is designated a Key Employee 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 Employee 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 Employee 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.
(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 two members from the
Board of Directors, none of whom shall 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 Employees 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 250,000 shares of Common Stock. 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
<PAGE> 3
limitation of 250,000 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.
(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. 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 the Optionee may exercise the Option only with respect to
the shares which could have been purchased by the Optionee at the date
of 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. An Optionee's
employment shall be deemed to terminate on the last date for which he
receives a regular wage or salary 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 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 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.
(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.
<PAGE> 4
1.6 STOCK ADJUSTMENT; 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.
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
<PAGE> 5
and conditions of Rule 16b-3 under the Securities Exchange Act of 1934, as in
effect on October 1, 1993 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 Employee under all plans of the Key Employee's employer corporation
and its Parent or Subsidiary corporations and that become exercisable for the
first time by such Key Employee during any calendar year may not exceed
$100,000.
2.3 SERIAL RULE FOR TEN PERCENT SHAREHOLDER.
If at the time an Incentive Stock Option is granted, an employee 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.
<PAGE> 6
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 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 in 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 or the Plan, (c)
extend the period during which Awards may be granted, or (d) change the class
of employees 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.
<PAGE> 7
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 and 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.
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 employee 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 March 3, 1993, subjected to stockholder
approval pursuant to Section 7.1 and shall expire on March 1, 2003. No awards
may be granted under the Plan after March 1, 2003, 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.
/s/ D. M. Moore, Jr.
-----------------------------------
D. M. Moore, Jr., Chairman & CEO
/s/ Jim W. Clark
- ---------------------------------
Jim W. Clark, Secretary
This Incentive Stock Option Plan, adopted and approved by the Board of
Directors March 3, 1993, and ratified by action of the Shareowners January 12,
1994.
<PAGE> 1
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 250,000 shares of common stock, $.01 par value of Rushmore
Financial Group, Inc. pursuant to the Incentive 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 250,000 shares (the
"Shares") of common stock, par value $.01 per share (the "Common Stock"), of
the Company which will be issued pursuant to the Incentive 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
