UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
RUBICON FINANCIAL
INCORPORATED
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(Exact
name of Registrant as specified in its
charter)
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Delaware
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13-3349556
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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4100
Newport Place, Suite 600
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Newport
Beach, California 92660
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(Address
of Principal Executive Offices, including ZIP Code)
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Rubicon
Financial Incorporated 2007 Acquisition Stock Plan
Rubicon
Financial Incorporated 2009 Attorneys Compensation
Plan
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(Full
title of the plans)
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Joseph
Mangiapane, Jr.
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4100
Newport Place, Suite 600
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Newport
Beach, California 92660
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(Name
and address of agent for service)
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(949)
798-7220
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(Telephone
number, including area code, of agent for
service)
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Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
(Do not check if a smaller reporting company)
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Smaller
reporting company x
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CALCULATION
OF REGISTRATION FEE
Title
of Securities
to
be Registered
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Amount
of
Shares
to
be Registered
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Proposed
Maximum
Offering
Price
Per
Share(1)
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Proposed
Maximum
Aggregate
Offering
Price(1)
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Amount
of
Registration
Fee
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$0.001
par value common stock
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|
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5,000,000 |
(2)
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$ |
0.11 |
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$ |
550,000 |
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$ |
30.69 |
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$0.001
par value common stock
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200,000 |
(3)
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$ |
0.11 |
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$ |
22,000 |
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$ |
1.23 |
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TOTALS
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|
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5,000,000 |
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$ |
0.11 |
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$ |
572,000 |
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$ |
31.92 |
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This
calculation is made solely for the purposes of determining the
registration fee pursuant to the provisions of Rule 457(c) under the
Securities Act of 1933, as amended, and is calculated on the basis of the
average of the high and low prices reported on the OTC Bulletin Board as
of July 28, 2009.
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These
shares will be issued under the Rubicon Financial Incorporated 2007
Acquisition Stock Plan. This Registration Statement shall be deemed to
include any additional shares that may be issued as a result of a stock
split, stock dividend or other anti-dilution provision.
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These
shares will be issued under the Rubicon Financial Incorporated 2009
Attorneys Compensation Plan. This Registration Statement shall be deemed
to include any additional shares that may be issued as a result of a stock
split, stock dividend or other anti-dilution
provision. |
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the
information about the Rubicon Financial Incorporated
2007 Acquisition Stock Plan (the “Acquisition Plan”) and the Rubicon
Financial Incorporated 2009 Attorneys Compensation Plan (the
“Attorneys Plan”) specified in Part I of this Form S-8 will be sent or given to
eligible participants as specified by the Securities and Exchange Commission
(the “SEC” or “Commission”) Rule 428(b)(1). Such documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II, taken together, constitute prospectuses that meet the requirements of
Section 10(a) of the Securities Act of 1933, as amended. All such documents will
be dated and maintained in a “prospectus file” as required by SEC Rule 428(a)
and will contain the following legend in a conspicuous place as directed by SEC
Rule 428(b)(1):
“This document (or specifically
designated portions of this document) constitutes (constitute) part of a
prospectus covering securities that have been registered under the Securities
Act of 1933.”
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3: Incorporation
of Documents by Reference
The
following documents filed with the Commission by Rubicon Financial Incorporated,
a Delaware corporation (the “Company”), are incorporated in this Registration
Statement on Form S-8 (the “Registration Statement”) by reference:
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1.
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The
Company’s Annual Report on Form 10-K for the year ended December 31,
2008;
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2.
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The
reports of the Company filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the
year ended December 31, 2008;
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3.
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The
Rubicon Financial Incorporated 2007 Acquisition Stock Plan, filed
herewith;
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4.
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The
Rubicon Financial Incorporated 2009 Attorneys Compensation Plan, filed
herewith; and
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5.
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The
description of common stock contained in the Company’s Current Report
on Form 8-K12G3 dated June 13,
2005.
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All documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder have been sold
or which deregisters all of the securities offered then remaining unsold, shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents.
Item
4. Description of Securities.
Class of
Securities being registered pursuant to the Acquisition Plan and Attorneys Plan
are registered securities under Section 12 of the Exchange Act.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Officers, Directors, Employees and
Agents.
Subsection
(a) of Section 145 of the General Corporation Law of the State of
Delaware (the “DGCL”) empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person’s conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interest of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person’s conduct was unlawful.
Subsection
(b) of Section 145 of the DGCL empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys’ fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or 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 of Chancery or such other court shall deem proper.
Subsection (d)
of Section 145 of the DGCL provides that any indemnification under
subsections (a) and (b) of Section 145 (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the present or former director,
officer, employee or agent is proper in the circumstances because the person has
met the applicable standard of conduct set forth in subsections (a)
and (b) of Section 145. Such determination shall be made, with respect
to a person who is a director or officer at the time of such determination,
(1) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (2) by a committee
of such directors designated by the majority vote of such directors, even though
less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or
(4) by the stockholders.
Section 145
of the DGCL further provides that to the extent a present or former director or
officer of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection
therewith and that such expenses may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in Section 145 of the DGCL;
that any indemnification and advancement of expenses provided by, or granted
pursuant to Section 145 shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled; that indemnification provided
by, or granted pursuant to Section 145 shall, unless otherwise provided
when authorized and ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person’s heirs, executors and administrators; and empowers the corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person’s status as such, whether or
not the corporation would have the power to indemnify such person against such
liabilities under Section 145.
The
Company also provides liability insurance for its directors and officers which
provides for coverage against loss from claims made against directors and
officers in their capacity as such, including, subject to certain exceptions,
liabilities under the federal securities laws.
Section 102(b)(7)
of the DGCL provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the liability
of a director (i) for any breach of the director’s duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL, or (iv) for any transaction
from which the director derived an improper personal benefit.
The
directors and officers of the Company are covered by insurance policies
indemnifying them against certain liabilities, including certain liabilities
arising under the Securities Act, which might be incurred by them in such
capacities and against which they cannot be indemnified by the
Company.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Exhibit
No.
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Title
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10.1
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Rubicon
Financial Incorporated 2007 Acquisition Stock Plan (filed
herewith).
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10.2
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Rubicon
Financial Incorporated 2009 Attorneys Compensation Plan (filed
herewith).
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5.1
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Legal
opinion of Law Office of Anthony N. DeMint
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23.1
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Consent
of Law Office of Anthony N. DeMint (included in Exhibit
5.1)
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23.2
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Consent
of Weaver & Martin,
LLC
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Item
9. Undertakings. The undersigned
Company hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement
to:
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(i)
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include
any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii)
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reflect
in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represents a fundamental
change in the information set forth in the registration
statement;
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(iii)
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include
any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change
to such information in this registration
statement.
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Provided,
however, that paragraphs (1)(i) and (1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
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(2)
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That,
for the purpose of determining any liability pursuant to 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 offered at that time shall be deemed to be the
initial bona fide offering
thereof.
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(3)
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To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
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(4)
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The
undersigned hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of registrant’s
annual report pursuant to Section 13(a) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
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(5)
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Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of registrant
pursuant to the foregoing provisions, or otherwise, registrant has been
advised that in the opinion of the Securities and Exchange 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
registrant of expenses incurred or paid by a director, officer or
controlling person of registrant 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, registrant
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 is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies 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 Newport Beach, California,
on July 29, 2009.
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Rubicon
Financial Incorporated
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(Registrant)
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By:
/s/ Joseph Mangiapane, Jr.
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Joseph
Mangiapane, Jr.
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Chief
Executive Officer
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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 dates indicated.
Signature
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Title
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Date
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/s/ Joseph Mangiapane, Jr.
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Chief
Executive Officer, (Principal
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July
29, 2009
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Joseph
Mangiapane, Jr.
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Executive
Officer Principal
Financial
Officer), Chairman
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/s/ Todd Torneo
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Director
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July
29, 2009
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Todd
Torneo
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/s/ Kathleen McPherson
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Director
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July
29, 2009
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Kathleen
McPherson
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INDEX
TO EXHIBITS
Exhibit
No.
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Title
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10.1
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Rubicon
Financial Incorporated 2007 Acquisition Stock Plan (filed
herewith).
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10.2
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Rubicon
Financial Incorporated 2009 Attorneys Compensation Plan (filed
herewith).
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5.1
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Legal
opinion of Law Office of Anthony N. DeMint
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23.1
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Consent
of Law Office of Anthony N. DeMint (included in Exhibit
5.1)
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23.2
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Consent
of Weaver & Martin,
LLC
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