<PAGE>
As filed with the Securities and Exchange Commission on November 30, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
(Exact name of registrant as specified in its charter)
Colorado 84-0910696
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
265 Turner Drive 81301
Durango, Colorado (Zip Code)
(Address of Principal Executive Offices)
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1990 NONQUALIFIED STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
(Full title of the Plan)
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Lawrence C. Rezentes Copy to:
Vice President - Finance Kenn W. Webb
Rocky Mountain Chocolate Factory, Inc. Thompson & Knight,
265 Turner Drive A Professional Corporation
Durango, Colorado 81301 1700 Pacific Avenue
(Name and address of agent for service) Suite 3300
Dallas, Texas 75201
(970) 259-0554 (214) 969-1700
(Telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed maximum Amount
securities Amount maximum aggregate of
to be to be offering price offering registration
registered (3) registered (1) per share (2) price (2) fee
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Common Stock 40,000 $12.75 $510,000 $175.86
par value $.03 shares
per share
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(1) Pursuant to Rule 416, shares issuable upon any stock split, stock dividend
or similar transaction with respect to these shares are also being registered
hereunder.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
prices for the Common Stock ($12.75) on the Nasdaq National Market on
November 27, 1995, as reported in THE WALL STREET JOURNAL.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended February 28, 1995;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
May 31, 1995 and August 31, 1995; and
(3) The description of the Common Stock contained in the Registration
Statement on Form 8-A of the Company heretofore filed by the Company
with the Commission, including any amendment or report filed for
the purpose of updating such description.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XII of the Company's Articles of Incorporation, as amended,
provides as follows:
The personal liability of a director to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a
director is limited to the full extent provided by Colorado law.
Pursuant to Section 7-108-402 of the Colorado Business Corporation Act, the
Company is prohibited from eliminating or limiting the personal liability of
a director to the Company or to its shareholders for monetary damages for any
breach of the director's duty of loyalty to the Company or to its
shareholders, acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, distributions made
in violation of the Company's Articles of Incorporation or Colorado law, any
transaction from which the director directly or indirectly received an
improper personal benefit or any act occurring before this Article of the
Company's Articles of Incorporation became effective (August 9, 1989).
Article IX of the Company's Bylaws provides that the Company shall
indemnify directors, officers, employees and agents in accordance with
Colorado law. The Bylaws also authorize the Company to purchase and maintain
insurance on behalf of such persons regardless of whether the Company would
have the power to indemnify for the liability insured against.
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Article 109 of the Colorado Business Corporation Act allows a corporation
to indemnify its officers, directors, employees and agents against liability
incurred because such person is or was an officer, director, employee or
agent if such person, (i) conducted himself or herself in good faith; (ii)
reasonably believed, (x) in the case of conduct in an official capacity with
the corporation, that his or conduct was in the best interests of the
corporation (or employee benefit plan, if applicable), or (y) in all other
cases, that his or her conduct was at least not opposed to the corporation's
best interests; and (iii) in the case of any criminal proceeding, such person
had no reasonable cause to believe the conduct was unlawful.
A corporation is prohibited from indemnifying an officer, director,
employee of agent if such person was adjudged liable to the corporation or
was adjudged liable on the basis that he or she derived an improper personal
benefit.
A corporation is required to indemnify an officer, director, employee or
agent if such person was wholly successful, on the merits or otherwise, in
defense of any proceeding to which such person was a party, against
reasonable expenses incurred by him or her in connection with the proceeding.
Article 109 also contains provisions relating to the advancement of
expenses, petitioning the court for indemnification, authorization of
indemnification by disinterested parties and notice to shareholders of
indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement:
5.1 Opinion of Thompson & Knight, A Professional Corporation,
regarding 40,000 shares of Common Stock.
23.1 Consent of Grant Thornton LLP to incorporation of report by
reference.
23.2 Consent of Thompson & Knight, A Professional Corporation
(included in the opinion filed herewith as Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
Item 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this Registration Statement. Notwithstanding the foregoing,
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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 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To 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;
provided, however, that paragraphs (1)(i) and (1)(ii) do 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 this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the 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, the 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 by it 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 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 Durango and State of Colorado on
the 30th day of November, 1995.
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
By: /s/ Franklin E. Crail
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Franklin E. Crail,
Chairman of the Board of Directors
and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of Rocky Mountain Chocolate Factory, Inc., a Colorado corporation,
which is filing a Registration Statement on Form S-8 with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, hereby constitute and appoint Franklin E. Crail and Lawrence C.
Rezentes, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration
Statement and any or all amendments to the Registration Statement, including
a Prospectus or an amended Prospectus therein, and all other documents in
connection therewith to be filed with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, 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 might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact as agents or any of them, or their 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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- -----
<S> <C> <C>
/s/ Franklin E. Crail Chairman of the Board of Directors, President, November 30, 1995
- ------------------------- Treasurer and Director (principal executive officer)
Franklin E. Crail
/s/ Lawrence C. Rezentes Vice President -- Finance (principal financial and November 30, 1995
- ------------------------- accounting officer)
Lawrence C. Rezentes
/s/ Lee N. Mortenson Director November 30, 1995
- -------------------------
Lee N. Mortenson
/s/ Ralph L. Nafziger Vice President -- Manufacturing and Director November 30, 1995
- -------------------------
Ralph L. Nafziger
/s/ Fred M. Trainor Director November 30, 1995
- -------------------------
Fred M. Trainor
/s/ Gerald A. Kien Director November 30, 1995
- -------------------------
Gerald A. Kien
/s/ Everett A. Sisson Director November 30, 1995
- -------------------------
Everett A. Sisson
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NUMBER EXHIBIT PAGE
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<S> <C> <C>
5.1 Opinion of Thompson & Knight, A Professional
Corporation, regarding 40,000 shares of Common Stock.
23.1 Consent of Grant Thornton LLP to incorporation of
report by reference.
23.2 Consent of Thompson & Knight, A Professional
Corporation (included in the opinion filed herewith as
Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
</TABLE>
<PAGE>
EXHIBIT 5.1
(214) 969-1378
November 30, 1995
Rocky Mountain Chocolate Factory, Inc.
265 Turner Drive
Durango, Colorado 81301
Re: Registration Statement on Form S-8
Dear Sirs and Madams:
We have acted as counsel for Rocky Mountain Chocolate Factory, Inc., a
Colorado corporation (the "Company"), and have acted as such in connection
with the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of 40,000 shares of the Company's Common Stock, $.03 par
value per share (the "Shares"), for issuance under the Company's 1990
Nonqualified Stock Option Plan for Nonemployee Directors (the "Plan").
We have participated in the preparation of the Company's Registration
Statement on Form S-8 (the "Registration Statement"), filed with the
Securities and Exchange Commission, relating to the registration of the
Shares under the Securities Act.
In connection with the foregoing, we have examined the originals or
copies, certified or otherwise authenticated to our satisfaction, of the
Plan, the Registration Statement and such corporate records of the Company,
certificates of officers of the Company, and other instruments and documents
as we have deemed necessary to require as a basis for the opinion hereinafter
expressed. As to various questions of fact material to such opinion, we
have, where relevant facts were not independently established, relied upon
statements of officers of the Company who we believe to be responsible.
Based upon the foregoing and in reliance thereon, we advise you that in
our opinion the Shares, when issued and delivered in accordance with the
provisions of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
THOMPSON & KNIGHT,
A Professional Corporation
By: /s/ Kenn W. Webb
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Kenn W. Webb, Attorney
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 26, 1995 accompanying the financial
statements of Rocky Mountain Chocolate Factory, Inc. appearing in the 1995
Annual Report of the Company to its shareholders included in the Annual Report
on Form 10-K for the year ended February 28, 1995, which are incorporated by
reference in this Registration Statement. We consent to the incorporation by
reference in the Registration Statement of the aforementioned report.
/s/ Grant Thornton LLP
GRANT THORNTON LLP
Dallas, Texas
November 30, 1995
