As filed with the Securities and Exchange Commission on September 4, 2002.
REGISTRATION STATEMENT NO. 333-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RUBY MINING COMPANY
(Exact name of Registrant as specified in its Charter)
COLORADO 83-0214117
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Securities Centre
3490 Piedmont Road, Suite 304
Atlanta, GA 30305
(404) 231-8500
(Address of Principal Executive Office, including Zip Code)
CONSULTING AGREEMENTS
(Full Title of the Plans)
Mr. Herbert C. Leeming, Chairman and CEO
One Securities Centre
3490 Piedmont Road, Suite 304
Atlanta, GA 30305
(404) 231-8500
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
Robert E. Altenbach, Esq.
Greenberg Traurig, LLP
The Forum
3290 Northside Parkway, NW
Suite 400
Atlanta, Georgia 30327
(678) 553-2100
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
==================================================================================================================
Proposed maximum Proposed maximum
offering price aggregate offering
Title of securities to Amount to be per unit (2) price Amount of
be registered registered (1) registration fee
- -------------------------------------------------------------------------------------------- ---------------------
Common Stock, $0.001
par value 1,450,000 $0.07 $101,500 $9.34
==================================================================================================================
<FN>
(1) Based on 1,450,000 shares issued pursuant to two (2) Consulting Agreements.
(2) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rule 457(c) of the General Rules and Regulations under the
Securities Act of 1933.
</FN>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2 REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part 1 to be contained in the Section 10(a) Prospectus
is omitted from the Registration Statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Ruby Mining Company (the "Company")
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), 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, 2001, filed with the Commission on April 1,
2002;
(b) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 2002, filed with the Commission on May 15, 2002;
(c) The Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 2002, filed with the Commission on August 14, 2002;
and
2
(d) The Company's Current Report on Form 8-K filed with the Commission
on May 21, 2002.
All documents subsequently filed by the Company 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 registered
hereunder have been issued or which deregisters all securities offered then
remaining unsold, shall be deemed incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement, including financial statements, contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superceded for the purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS OR COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Articles of Incorporation eliminate
the liability of Directors to the maximum extent permitted by Colorado law.
Colorado law provides that a corporation's articles of incorporation may contain
a provision eliminating or limiting the personal liability of directors for
monetary damages for breach of their fiduciary duties as Directors, except for
liability: (i) for any breach of their duty of loyalty to the company or its
shareholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 7-108-403 of the Colorado Business Corporation Act; or (iv) for any
transaction from which the director derived an improper personal benefit. The
Company's Articles of Incorporation eliminate the personal liability of
directors to the corporation and to its shareholders for monetary damages to the
fullest extent permitted by this provision of Colorado law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Greenberg Traurig LLP
23.1 Consent of Cherry, Bekaert & Holland, L.L.P.
23.2 Consent of Greenberg Traurig LLP (contained in Exhibit 5.1)
3
99.1 Consulting Agreement with Tracey S. Anderson
99.2 Amendment to Consulting Agreement with Barry S. Kaplan,
original filed as an exhibit to Form S-8 filed September 20,
2001 (SEC File No. 333-69708)
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes that it will:
(a) File, during any period in which it offers or sells securities, a
post-effective amendment to this 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 which,
individually or together, represent a fundamental change in
the information in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a twenty percent (20%) change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) Include any additional or changed material information on
the plan of distribution;
provided, however, that the undertakings set forth in paragraph
(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13(a) or 15(b) of
the Exchange Act that are incorporated by reference in this
Registration Statement;
(b) For determining liability under the Securities Act, treat each
such post-effective amendment as a new registration statement of
the securities offered, and the offering of the securities at that
time to be the initial bona fide offering;
(c) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
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 that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
4
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company 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 the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
[Remainder of page intentionally left blank.]
5
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on June 20, 2002.
RUBY MINING COMPANY
/s/ Herbert C. Leeming
-----------------------------------------
Herbert C. Leeming, Chairman and CEO
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Herbert Leeming his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
/s/ Herbert C. Leeming Chairman, CEO and Director September 3, 2002
- -----------------------------
Herbert C. Leeming
/s/ Murray D. Bradley, Jr. Senior Vice President, Secretary, September 3, 2002
- ----------------------------- Treasurer, Chief Financial and
Murray D. Bradley, Jr. Accounting Officer and Director
/s/ Howard Collingwood Director September 3, 2002
- -----------------------------
Howard Collingwood
/s/ Jay L. Swallen Director September 3, 2002
- -----------------------------
Jay L. Swallen
/s/ James W. Larsen Director September 3, 2002
- -----------------------------
James W. Larsen
6