<PAGE>
As filed with the Securities and Exchange Commission on September 15, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________
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
DURANGO, COLORADO 81301
(Address of Principal Executive Offices) (Zip Code)
___________
1990 NONQUALIFIED STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
OF ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
and
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
FRANCHISEE-OF-THE-YEAR AWARD PROGRAM
(Full title of the Plans)
___________
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) 969-1378
(Telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed maximum Amount
securities Amount maximum aggregate of
to be to be offering price offering registration
registered registered per share (2) price (2) fee
---------- ---------- ------------- --------- ---
<S> <C> <C> <C> <C>
Common Stock
par value $.03 40,000
per share shares (1) $17.875 $715,000.00 $246.55
Common Stock
par value $.03 675
per share shares $17.875 $12,065.63 $4.16
(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(c) on the basis of the average of the high and low
prices for the Common Stock ($17.875) on the Nasdaq National Market on
September 12, 1995, as reported in THE WALL STREET JOURNAL.
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two forms of prospectus prepared in
accordance with Instruction C of Form S-8 relating to reoffers and resales of
restricted securities on a continuous or delayed basis in the future, as
provided by Rule 415 under the Securities Act of 1933. One prospectus
relates to 40,000 shares of Common Stock purchasable pursuant to currently
outstanding and exercisable options previously granted under the 1990
Nonqualified Stock Option Plan for Nonemployee Directors of Rocky Mountain
Chocolate Factory, Inc. (the "Option Prospectus"), and one prospectus relates
to 675 shares of Common Stock previously issued pursuant to the Rocky
Mountain Chocolate Factory, Inc. Franchisee-of-the-Year Award Program (the
"Award Prospectus"). The Option Prospectus and the Award Prospectus are
identical except that they contain different outside front and outside back
cover pages and different descriptions of selling stockholders, contained
under the caption "Selling Stockholders" in each prospectus. The form of
Option Prospectus is included herein and is followed by those pages for use
in the Award Prospectus that differ from the pages in the Option Prospectus.
Each of the pages included herein for use in the Award Prospectus is labeled
"Alternative Page for Award Prospectus."
<PAGE>
40,000 SHARES
[logo]
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
COMMON STOCK
This Prospectus relates to the resale by certain individuals (the "Selling
Stockholders") of an aggregate of 40,000 shares of Common Stock, par value
$.03 per share (the "Shares"), of Rocky Mountain Chocolate Factory, Inc., a
Colorado corporation (the "Company"), issuable to the Selling Stockholders
upon the exercise of options previously granted to them under the 1990
Nonqualified Stock Option Plan for Nonemployee Directors of the Company. The
Shares may be sold from time to time by the Selling Stockholders on the open
market at prevailing market prices, in negotiated transactions or otherwise.
See "Selling Stockholders" and "Plan of Distribution."
The Company's Common Stock is traded on the Nasdaq National Market under the
symbol "RMCF." On September 14, 1995, the last sale price of the Common
Stock as reported by the Nasdaq National Market was $18.25 per share.
SEE "RISK FACTORS," BEGINNING ON PAGE 3 OF THIS PROSPECTUS, FOR A DISCUSSION
OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
___________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The Company will not receive any of the proceeds of sales of the Shares by
the Selling Stockholders. The Company will pay all expenses of registering
the offering of the Shares under the Securities Act of 1933. All other
expenses, including any brokerage fees and commissions and transfer taxes,
will be borne by the Selling Stockholders.
___________
The date of this Prospectus is September 15, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a Registration Statement on Form S-8 under
the Securities Act of 1933 with respect to the shares of Common Stock offered
by this Prospectus. This Prospectus does not contain all the information set
forth in the Registration Statement, certain portions of which are omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the shares offered by this
Prospectus, reference is made to the Registration Statement, including the
exhibits and schedules filed therewith. Statements contained in this
Prospectus regarding the contents of any document referred to herein or
therein are not necessarily complete, and in each instance reference is made
to the copy of such document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference. Copies of the Registration Statement, of which this Prospectus is
a part, together with such exhibits and schedules, may be obtained from the
Commission's principal office in Washington, D.C., upon payment of the
charges prescribed therefor by the Commission.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, and, in accordance therewith,
files reports, proxy statements and other information with the Commission.
Such reports, proxy statements and other information filed by the Company
with the Commission can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and the Commission's following
Regional Offices: Northwestern Atrium Center, 500 West Madison Street, 14th
Floor, Chicago, Illinois 60604 and 7 World Trade Center, 13th Floor, New
York, New York 10048. Copies of such material can also be obtained from the
Public Reference Section of the Commission at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
The Company hereby undertakes to provide without charge to each person to
whom this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents incorporated herein by
reference (not including exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents). Requests for
such copies may be directed to Loresa McCoy, Secretary, Rocky Mountain
Chocolate Factory, Inc., 265 Turner Drive, Durango, Colorado 81301, telephone
number (970) 259-0554.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended May
31, 1995; and
(c) 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 Company with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 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 into this Registration Statement and to be a part hereof from the
date of filing of such documents.
2
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE COMMON STOCK OFFERED HEREBY INVOLVES CERTAIN RISKS. IN
DECIDING WHETHER TO PURCHASE SHARES OF COMMON STOCK OFFERED HEREBY, PROSPECTIVE
INVESTORS SHOULD CAREFULLY CONSIDER ALL OF THE INFORMATION CONTAINED IN THIS
PROSPECTUS, INCLUDING THE FOLLOWING FACTORS THAT MAY AFFECT THE COMPANY'S
CURRENT OPERATIONS AND FUTURE PROSPECTS.
FLUCTUATIONS IN COST AND AVAILABILITY OF INGREDIENTS
Several of the principal ingredients used in the Company's products,
including chocolate and nuts, are subject to significant price fluctuations.
Although cocoa beans, the primary raw material used in the production of
chocolate, are grown commercially in Africa, Brazil and several other
countries around the world, cocoa beans are traded in the commodities market,
and their supply and price are therefore subject to volatility. The Company
believes its principal chocolate supplier purchases most of its beans at
negotiated prices from African growers, often at a premium to commodity
prices. Although the price of chocolate has been relatively stable in recent
years, the supply and price of cocoa beans, and in turn of chocolate, are
affected by many factors, including monetary fluctuations and economic,
political and weather conditions in countries in which cocoa beans are grown.
The Company purchases most of its nut meats from domestic suppliers who
procure their products from growers around the world. The price and supply of
nuts are also affected by many factors, including weather conditions in the
various regions in which the nuts used by the Company are grown. Although the
Company often enters into purchase contracts for these products, significant
or prolonged increases in the prices of chocolate or of one or more types of
nuts, or the unavailability of adequate supplies of chocolate or nuts of the
quality sought by the Company, could have a material adverse effect on the
Company and its results of operations.
LOCATION DEPENDENCY
The Company's expansion plans are critically dependent on the Company's
ability to obtain suitable sites at reasonable occupancy costs for its
franchised and Company-owned stores in the factory outlet, tourist and
regional mall environments that constitute its primary location targets.
There is no assurance that the Company will be able to obtain suitable
locations in these environments at a cost that will allow stores to be
economically viable.
RELIANCE ON FRANCHISEES
The continued growth and success of the Company is dependent in part upon
its ability to attract, retain and contract with qualified franchisees and
the ability of those franchisees to operate their stores successfully and to
promote and develop the Rocky Mountain Chocolate Factory store concept and
its reputation for an enjoyable in-store experience and product quality.
Although the Company has established criteria to evaluate prospective
franchisees and has been successful in attracting franchisees, there can be
no assurance that franchisees will be able to operate successfully Rocky
Mountain Chocolate Factory stores in their franchise areas in a manner
consistent with the Company's concepts and standards.
RAPID EXPANSION; MANAGEMENT OF GROWTH
The number of franchised and Company-owned stores has more than doubled
since the end of fiscal 1992. The Company intends to open at least 17
Company-owned stores and between 25 and 30 franchised stores in fiscal 1996. The
Company is subject to a variety of business risks generally associated with
rapidly growing companies, such as the inability to control costs and achieve
continued profitability during a period of aggressive growth. The Company's
future store expansion will also depend upon a number of factors including,
among others, the cost and availability of suitable sites, the implementation of
enhanced operational and financial systems, the employment and training of
additional management, store staff and other personnel, the negotiation of
acceptable lease and financing terms, its ability to attract franchisees and the
cost-effective and timely opening of stores. There can be no assurance that the
Company will be able to manage its expanding operations effectively or that it
will be able to maintain or
3
<PAGE>
accelerate its growth. Also, there can be no assurance that the Company will
be able to open its planned stores in a timely or cost-effective manner, if
at all.
GOVERNMENT REGULATION
The Company is subject to regulation by the Federal Trade Commission and
must comply with certain state laws governing the offer, sale and termination
of franchises and the refusal to renew franchises. Many state laws also
regulate substantive aspects of the franchisor-franchisee relationship by,
for example, requiring the franchisor to deal with its franchisees in good
faith, prohibiting interference with the right of free association among
franchisees and regulating discrimination among franchisees in charges,
royalties or fees. Franchise laws continue to develop and change, and changes
in such laws could impose additional costs and burdens on franchisors. The
Company's failure to obtain approvals to sell franchises and the adoption of
new franchise laws, or changes in existing laws, could have a material
adverse effect on the Company and its results of operations.
Each of the Company-owned and franchised stores is subject to licensing
and regulation by the health, sanitation, safety, building and fire agencies
in the state or municipality where located. Difficulties or failures in
obtaining required licenses or approvals from such agencies could delay or
prevent the opening of a new store. The Company and its franchisees are also
subject to laws governing their relationships with employees, including
minimum wage requirements, overtime, working and safety conditions and
citizenship requirements. Because a significant number of the Company's
employees are paid at rates related to the federal minimum wage, increases in
the minimum wage would increase the Company's labor costs. The failure to
obtain required licenses or approvals, or an increase in the minimum wage
rate, employee benefits costs (including costs associated with mandated
health insurance coverage) or other costs associated with employees, could
have a material adverse effect on the Company and its results of operations.
Companies engaged in the manufacturing, packaging and distribution of
food products are subject to extensive regulation by various governmental
agencies. A finding of a failure to comply with one or more regulations could
result in the imposition of sanctions, including the closing of all or a
portion of the Company's facilities for an indeterminate period of time, and
could have a material adverse effect on the Company and its results of
operations.
COMPETITION
The retailing of confectionery products is highly competitive. The
Company and its franchisees compete with numerous businesses that offer
confectionery products. Many of these competitors have greater name
recognition and financial, marketing and other resources than the Company. In
addition, there is intense competition among retailers for real estate sites,
store personnel and qualified franchisees. Competitive market conditions
could have a material adverse effect on the Company and its results of
operations and its ability to expand successfully.
CONSUMER TASTES AND PREFERENCES
The sale of the Company's products is affected by changes in consumer
tastes and eating habits, including views regarding consumption of chocolate.
Numerous other factors that the Company cannot control, such as economic
conditions, demographic trends, traffic patterns and weather conditions,
influence the sale of the Company's products. Changes in any of these factors
could have a material adverse effect on the Company and its results of
operations.
DEPENDENCE ON SENIOR MANAGEMENT
The Company's success is highly dependent on the skills, experience and
efforts of its senior management. The loss of the services of one or more
members of its senior management could have a material adverse effect on the
Company and its plans for growth. The Company is the beneficiary of key man
life insurance in the amount of $1,000,000 on the life of Franklin E. Crail,
the Company's Chairman of the Board and President; however, there can be no
assurance that such insurance would be adequate to compensate the Company for
the loss of Mr. Crail's services. The Company has not entered into employment
agreements with any member of its senior management.
4
<PAGE>
CONTROL BY EXISTING STOCKHOLDERS
Coronet Insurance Company ("Coronet") and Mr. Crail currently own 53.5%
and 14.9%, respectively, of the outstanding Common Stock of the Company. The
Company has filed a Registration Statement on Form S-1, which was declared
effective by the Commission on September 14, 1995, relating to a public
offering of Common Stock by the Company, Coronet and Mr. Crail. Upon
completion of such public offering, Coronet and Mr. Crail will continue to
own 31.1% and 10.0%, respectively, of the outstanding Common Stock of the
Company (assuming no exercise of the underwriter's over-allotment option).
Coronet and Mr. Crail are likely to continue to have the ability to control
the election of the Company's Board of Directors and, therefore, to control
the Company and its business and affairs, and in some circumstances could
prevent the approval of proposals submitted by other stockholders.
CHANGE IN PRODUCT MIX
The Company believes that approximately 50% of franchised stores'
revenues are generated by sales of products manufactured by and purchased
from the Company, 30% by sales of products made in the stores with
ingredients purchased from the Company or approved suppliers and 20% by sales
of products purchased from approved suppliers for resale in the stores.
Franchisees' sales of products manufactured by the Company generate higher
revenues to the Company than sales of store-made or other products. A
significant decrease in the amount of products franchisees purchase from the
Company, therefore, could adversely affect the Company's total revenues and
results of operations. Such a decrease could result from franchisees'
decisions to sell more store-made products or products purchased from third
party suppliers.
IMPACT OF INFLATION
Inflationary factors such as increases in the costs of ingredients and
labor directly affect the Company's operations. Most of the Company's leases
provide for cost-of-living adjustments and require it to pay taxes, insurance
and maintenance expenses, all of which are subject to inflation.
Additionally, the Company's future lease costs for new facilities may reflect
potentially escalating costs of real estate and construction. There is no
assurance that the Company will be able to pass on its increased costs to its
customers.
FLUCTUATIONS OF QUARTERLY RESULTS
The Company's sales and earnings are seasonal, with significantly higher
sales and earnings occurring during the Christmas and summer vacation seasons
than at other times of the year, which causes fluctuations in the Company's
quarterly results of operations. In addition, quarterly results have been,
and in the future are likely to be, affected by the timing of new store
openings and the sale of franchises. Because of the seasonality of the
Company's business and the impact of new store openings and sales of
franchises, results for any quarter are not necessarily indicative of the
results that may be achieved in other quarters or for a full fiscal year.
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial amounts of Common Stock of the Company in the public
market could adversely affect the market price for the Common Stock. Upon
completion of the public offering referred to under the heading "Control by
Existing Stockholders" above, the Company will have outstanding 2,957,499
shares of Common Stock (not including 50,625 shares subject to an
underwriter's over-allotment option or 263,000 shares issuable upon the
exercise of options under the Company's stock option plans, of which options
covering 173,000 shares are currently exercisable). The executive officers
and directors of the Company and Coronet, who in the aggregate will
beneficially own 1,379,622 shares of Common Stock upon completion of such
offering, have agreed not to sell any Common Stock without the prior written
consent of the underwriter for a period of 180 days following the offering.
Upon expiration of such restrictions, the executive officers and directors of
the Company and Coronet will be free to sell the shares beneficially owned by
them, subject to compliance with Rule 144 under the Securities Act of 1933,
as amended (the "Securities Act"). In addition, Coronet, which will own
921,257 shares of Common Stock after completion of such offering, has the
right to demand that the Company file further registration statements under
the Securities Act covering the sale of all or any part of its Common Stock
holdings.
5
<PAGE>
THE COMPANY
Rocky Mountain Chocolate Factory, Inc. is a leading developer, franchisor
and operator of retail chocolate stores. The Company manufactures an
extensive line of premium chocolate candies and other confectionery products
from its own proprietary recipes for sale at its franchised and Company-owned
stores. As of July 31, 1995, there were 165 Rocky Mountain Chocolate Factory
stores, including 138 franchised stores and 27 Company-owned stores operating
in 34 states, Canada and Bermuda.
The Company believes its principal competitive strengths lie in its name
recognition; its reputation for the quality, variety and taste of its
products; the special ambiance of its stores; its knowledge and experience in
applying criteria for selection of new store locations; its expertise in
manufacturing, merchandising and marketing of chocolate candy products; and
the control and training infrastructures it has implemented to assure
consistent customer service and execution of successful practices and
techniques at its franchised and Company-owned stores. In addition, the
Company believes it derives a competitive strength by manufacturing its own
products, through which the Company can better maintain its high product
quality standards, offer proprietary products, manage costs, control
production and shipment schedules and potentially pursue new or
under-utilized distribution channels.
Rocky Mountain Chocolate Factory stores' distinctive country Victorian
decor creates an enjoyable and inviting atmosphere. The average store size is
approximately 1,000 square feet. Each store features over 100 types of
premium chocolates and more than 15 varieties of fudge, as well as brittles,
truffles, caramel apples, chocolate sauces and boxed chocolates. Unlike most
other chocolate stores, Rocky Mountain Chocolate Factory stores prepare many
products on-site daily with fresh ingredients. Customers can observe store
personnel make fudge from start to finish, including the mixing of
ingredients in old-fashioned copper kettles and the cooling of the fudge on
large marble tables. Brittles, truffles, caramel apples and other items are
also prepared in the stores. The Company believes the in-store preparation
and aroma of its products enhance the ambiance of its stores, are fun and
entertaining for its customers and convey an image of freshness and homemade
quality.
The Company opened its first Rocky Mountain Chocolate Factory store in
1981 and at the end of fiscal 1992 had a total of 72 stores, most of which
were franchised. Over the last three years, the Company has more than doubled
the total number of stores. The Company's expansion strategy is to balance
growth of Company-owned and franchised stores by increasing its emphasis on
Company-owned store expansion. Company-owned stores have certain advantages
to the Company over franchised stores, including a greater potential economic
return to the Company. In the fiscal year ending February 29, 1996, the
Company expects to open between 25 and 30 new franchised stores and at least
17 new Company-owned stores.
The Company's site selection strategy is to locate its stores in tourist
areas and shopping environments, such as factory outlet and regional malls,
with a high level of foot traffic. A variety of additional factors are
analyzed in the site selection process, including tenant mix, visibility,
attractiveness, accessibility and occupancy costs.
The Company has developed, and will soon test, a new store concept, which
it believes may allow it to further expand its presence in its existing
market environments, particularly regional malls. The new store concept will
operate under a different name and offer a different line of candies than the
Company's existing concept.
The Company was founded in 1981 and was incorporated as a Colorado
corporation in 1982. The Company's principal executive offices are located at
265 Turner Drive, Durango, Colorado 81301, and its telephone number is (970)
259-0554.
6
<PAGE>
SELLING STOCKHOLDERS
The following persons may offer and sell pursuant to this Prospectus the
number of Shares set forth opposite their names below, all of which Shares
are purchasable by such persons pursuant to currently exercisable options
previously granted to them under the Company's 1990 Nonqualified Stock Option
Plan for Nonemployee Directors of the Company (the "Plan"):
<TABLE>
<CAPTION>
NAME OF SELLING STOCKHOLDER NUMBER OF SHARES
--------------------------- ----------------
<S> <C>
Clyde Wm. Engle 10,000
Lee N. Mortenson 10,000
Gerald M. Tierney, Jr. 10,000
Fred M. Trainor 10,000
</TABLE>
Mr. Mortenson and Mr. Trainor are currently directors of the Company.
Mr. Mortenson has served as a director since 1987, and Mr. Trainor has served
as a director since 1992. Mr. Engle and Mr. Tierney are former directors of
the Company, and each served on the Board of Directors from 1987 until August
1995. Each of the Selling Stockholders was granted an option to purchase
10,000 shares of Common Stock under the Plan in connection with his election
as a director. None of the Selling Stockholders owns any shares of Common
Stock other than those purchasable pursuant to such options, as indicated
above.
Mr. Engle may be deemed to be a beneficial owner of shares of Common
Stock held by Coronet. As of August 25, 1995, Coronet owned 1,421,257
shares, representing 53.5% of the total outstanding shares of Common Stock.
The Company has filed a Registration Statement on Form S-1, which was
declared effective by the Commission on September 14, 1995, relating to a
public offering of an aggregate of 900,000 shares of Common Stock (excluding
shares subject an underwriter's over-allotment option), of which 300,000
shares will be sold by the Company, 500,000 shares will be sold by Coronet
and 100,000 shares will be sold by Franklin E. Crail, Chairman of the Board
and President of the Company. Upon completion of such offering, Coronet will
own 921,257 shares of Common Stock, or 31.1% of the total outstanding shares
of Common Stock.
Mr. Engle is Chairman of the Board of Coronet, and Mr. Mortenson is
President and a director of Coronet, and each is a director and officer of
certain affiliated corporations of Coronet. Mr. Engle and Mr. Mortenson are
directors of Normandy Insurance Agency, Inc., the 100% parent of Coronet.
Mr. Engle is also Chairman of the Board and Chief Executive Officer, and Mr.
Mortenson is President, Chief Operating and a director, of Telco Capital
Corporation, an indirect parent of Coronet. Mr. Tierney is Senior Vice
President and General Counsel of Telco Capital Corporation.
7
<PAGE>
PLAN OF DISTRIBUTION
The Selling Stockholders may sell the Shares from time to time in
transactions on the open market, in negotiated transactions or otherwise, at
market prices prevailing at the time of sale, at prices related to such
market prices or at negotiated prices.
Sales of the Shares may be made pursuant to this Prospectus to or through
broker-dealers, who may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders or from the
purchasers of the Shares for whom such broker-dealers may act as agent or to
whom they may sell as principal, or both, which compensation as to any
broker-dealer may be in excess of customary commissions. The Selling
Stockholders and any broker-dealers or other persons acting on their behalf
in connection with the sale of the Shares may be deemed to be "underwriters"
within the meaning of the Securities Act, and any commissions received by
them and any profit realized by them on the resale of the Shares as
principals may be deemed to be underwriting commissions within the meaning of
the Securities Act.
The Selling Stockholders may sell all or part of the Shares owned by them
from time to time, and no period of time has been specified within which
offers and sales of the Shares must be made.
The Company will not receive the proceeds of any sales of the Shares by
the Selling Stockholders. The Company will pay all expenses of registering
the offering of the Shares under the Securities Act. All other expenses
incurred in connection with the offering or sale of the Shares, including any
fees or commissions payable to broker-dealers or other persons and any
transfer taxes, will be borne by the Selling Stockholders.
EXPERTS
The financial statements of the Company at February 28, 1994 and 1995,
and for each of the years in the three-year period ended February 28, 1995,
incorporated by reference in this Prospectus, have been incorporated herein
in reliance on the reports of Grant Thornton LLP, independent certified
public accountants, upon the authority of said firm as experts in auditing
and accounting.
8
<PAGE>
===============================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH ANY OFFERING MADE HEREBY OTHER THAN THOSE
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO
PURCHASE, ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN
OFFER TO, OR A SOLICITATION OF, ANY PERSON IN ANY JURISDICTION WHERE SUCH AN
OFFER OR SOLICITATION WOULD BE UNLAWFUL. BROKERS OR DEALERS SHOULD ASCERTAIN
THE EXISTENCE OF AN EXEMPTION FROM REGISTRATION OR SHOULD EFFECTUATE SUCH
REGISTRATION IN CONNECTION WITH THE OFFER AND SALE OF THE SHARES. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR SINCE THE DATE OF ANY
DOCUMENTS INCORPORATED HEREIN BY REFERENCE, OR THAT THE INFORMATION CONTAINED
HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR
THEREOF.
___________
TABLE OF CONTENTS
Available Information.................................................... 2
Incorporation of Documents by Reference.................................. 2
Risk Factors............................................................. 3
The Company.............................................................. 6
Selling Stockholders..................................................... 7
Plan of Distribution..................................................... 8
Experts.................................................................. 8
===============================================================================
===============================================================================
40,000 SHARES
[logo]
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
COMMON STOCK
______________________________
P R O S P E C T U S
______________________________
September 15, 1995
===============================================================================
<PAGE>
[ALTERNATIVE PAGE FOR AWARD PROSPECTUS]
675 Shares
[logo]
Rocky Mountain Chocolate Factory, Inc.
Common Stock
This Prospectus relates to the resale by certain individuals (the "Selling
Stockholders") of an aggregate of 675 shares of Common Stock, par value $.03 per
share (the "Shares"), of Rocky Mountain Chocolate Factory, Inc., a Colorado
corporation (the "Company"), all of which were issued as bonuses to such persons
pursuant to the Rocky Mountain Chocolate Factory, Inc. Franchisee-of-the-Year
Award Program. The Shares may be sold from time to time by the Selling
Stockholders on the open market at prevailing market prices, in negotiated
transactions or otherwise. See "Selling Stockholders" and "Plan of
Distribution."
The Company's Common Stock is traded on the Nasdaq National Market under the
symbol "RMCF." On September 14, 1995, the last sale price of the Common Stock
as reported by the Nasdaq National Market was $18.25 per share.
SEE "RISK FACTORS," BEGINNING ON PAGE 3 OF THIS PROSPECTUS, FOR A DISCUSSION OF
CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
___________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Company will not receive any of the proceeds of sales of the Shares by the
Selling Stockholders. The Company will pay all expenses of registering the
offering of the Shares under the Securities Act of 1933. All other expenses,
including any brokerage fees and commissions and transfer taxes, will be borne
by the Selling Stockholders.
___________
The date of this Prospectus is September 15, 1995.
<PAGE>
[ALTERNATIVE PAGE FOR AWARD PROSPECTUS]
SELLING STOCKHOLDERS
The following persons may offer and sell pursuant to this Prospectus the
number of Shares set forth opposite their names below, all of which Shares were
issued as bonuses to such persons pursuant to the Rocky Mountain Chocolate
Factory, Inc. Franchisee-of-the-Year Award Program:
NAME OF SELLING STOCKHOLDER NUMBER OF SHARES
--------------------------- ----------------
Chuck and Ann Henle 400
Charles and Candice Taranto 150
Don and Patricia Marsh 125
Each of the Selling Stockholders is a franchisee of the Company. None of
the Selling Stockholders owns any shares of Common Stock other than those
indicated above.
A-7
<PAGE>
[ALTERNATIVE PAGE FOR AWARD PROSPECTUS]
===============================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH ANY OFFERING MADE HEREBY OTHER THAN THOSE
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO PURCHASE, ANY
SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO, OR A
SOLICITATION OF, ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR
SOLICITATION WOULD BE UNLAWFUL. BROKERS OR DEALERS SHOULD ASCERTAIN THE
EXISTENCE OF AN EXEMPTION FROM REGISTRATION OR SHOULD EFFECTUATE SUCH
REGISTRATION IN CONNECTION WITH THE OFFER AND SALE OF THE SHARES. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR SINCE THE DATE OF ANY DOCUMENTS
INCORPORATED HEREIN BY REFERENCE, OR THAT THE INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THEREOF.
___________
TABLE OF CONTENTS
Available Information.................................................. 2
Incorporation of Documents by Reference................................ 2
Risk Factors........................................................... 3
The Company............................................................ 6
Selling Stockholders................................................... 7
Plan of Distribution................................................... 8
Experts................................................................ 8
===============================================================================
===============================================================================
675 Shares
[logo]
Rocky Mountain
Chocolate Factory, Inc.
Common Stock
______________________________
P R O S P E C T U S
______________________________
September 15, 1995
===============================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The information required by this item is set forth under the heading
"Incorporation of Documents by Reference" in the Prospectus included as Part
I of this Registration Statement and is incorporated by reference in answer
to this Item 3.
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.
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.
II-1
<PAGE>
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.
The shares of Common Stock registered for reoffer and resale pursuant to
this Registration Statement include (a) 40,000 shares that are purchasable by
Selling Stockholders pursuant to currently exercisable options granted under
the 1990 Nonqualified Stock Option Plan for Nonemployee Directors of the
Company (the "Plan") and (b) 675 shares that were awarded to Selling
Stockholders as bonuses under the Company's "Franchisee-of-the-Year" Award
Program. The issuance of such shares of Common Stock by the Company is
exempt from registration under the Securities Act of 1933, pursuant to
Section 4(2) of such Act and the rules and regulations promulgated
thereunder. The Plan provides for the grant of options only to nonemployee
directors of the Company, who have knowledge of and access to information
regarding the Company, and the aggregate number of shares issuable under the
Plan and the Award Program is small in relation to the number of outstanding
shares of Common Stock of the Company. Each of the certificates representing
the Company's Common Stock issued as described in this paragraph contains or
will contain a restrictive legend, as appropriate, and no underwriter
participated or will participate in the transactions.
Item 8. EXHIBITS.
The following document is filed as an exhibit to this Registration
Statement:
23.1 Consent of Grant Thornton LLP.
II-2
<PAGE>
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, 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.
II-3
<PAGE>
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 15th day of September, 1995.
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
By: /S/ FRANKLIN E. CRAIL
------------------------------------------
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, September 15, 1995
------------------------ Treasurer and Director (principal executive
Franklin E. Crail officer)
/S/ LAWRENCE C. REZENTES Vice President - Finance (principal financial September 15, 1995
------------------------ and accounting officer)
Lawrence C. Rezentes
/S/ LEE N. MORTENSON
------------------------ Director September 15, 1995
Lee N. Mortenson
/S/ RALPH L. NAFZIGER
----------------------- Vice President - Manufacturing and Director September 15, 1995
Ralph L. Nafziger
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ FRED M. TRAINOR
----------------------- Director September 15, 1995
Fred M. Trainor
/S/ GERALD A. KIEN
----------------------- Director September 15, 1995
Gerald A. Kien
/S/ EVERETT A. SISSON
----------------------- Director September 15, 1995
Everett A. Sisson
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT
23.1 Consent of Grant Thornton LLP.
<PAGE>
EXHIBIT 23.1
AUDITORS' CONSENT
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 on Form 10-K, which is incorporated by reference in this
Registration Statement. We consent to the incorporation by reference in the
Registration Statement of the aforementioned report, and to the use of our
name as it appears under the caption "Experts".
/s/ GRANT THORNTON LLP
-----------------------
Grant Thornton LLP
Dallas, Texas
September 12, 1995
