<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)
-----------------
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
<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> <C>
COMMON STOCK, $0.01 100,000 $4.75 $475,000 $133.00
</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 theCompany pursuant to the Exchange Act that
are incorporated by reference into the Registration
Statement.
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<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>
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
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)
</TABLE>
<PAGE> 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
<PAGE> 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
<PAGE> 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
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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:
<TABLE>
<CAPTION>
Name Shares Purchase Price
---- ------ --------------
<S> <C> <C>
Thomas Tapia 20,000 $200.00
Robert Hendren 2,000 20.00
</TABLE>
4
<PAGE> 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.
<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
