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As filed with the Securities and Exchange Commission on July 24, 1996
Registration No. 333-
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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
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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. EmployerIdentification No.)
of incorporation or organization)
265 Turner Drive
Durango, Colorado 81301
(Address of Principal Executive Offices) (Zip Code)
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FRANCHISEE-OF-THE-YEAR AWARD PROGRAM
(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 325 $8.00 $2,600 $100
par value $.03 shares
per share
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(1) 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 ($8.00) on the Nasdaq National Market on July 19,
1996, 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.*
_____________
* 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 29, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended May
31, 1996; 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 325 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).
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
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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 23rd day of
July, 1996.
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.
SIGNATURE TITLE DATE
/s/ Franklin E. Crail Chairman of the Board July 23, 1996
- -------------------------- of Directors, President,
Franklin E. Crail Treasurer and Director
(principal executive officer)
/s/ Gary S. Hauer Vice President -- July 23, 1996
- -------------------------- Manufacturing and Director
Gary S. Hauer
/s/ Lawrence C. Rezentes Vice President -- Finance July 23, 1996
- -------------------------- (principal financial and
Lawrence C. Rezentes accounting officer)
/s/ Lee N. Mortenson Director July 23, 1996
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Lee N. Mortenson
/s/ Fred M. Trainor Director July 23, 1996
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Fred M. Trainor
/s/ Gerald A. Kien Director July 23, 1996
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Gerald A. Kien
/s/ Everett A. Sisson Director July 23, 1996
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Everett A. Sisson
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INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit Number Exhibit Page
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5.1 Opinion of Thompson & Knight, A Professional
Corporation, regarding 325 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).
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(214) 969-1378
July 23, 1996
Rocky Mountain Chocolate Factory, Inc.
265 Turner Drive Exhibit 5.1
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"), in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of 325 shares of
the Company's Common Stock, $.03 par value per share (the "Shares"), for
issuance under the Company's Franchisee-of-the-Year Award Program (the
"Program").
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 resolutions of
the Company's Board of Directors establishing Program, 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
whom 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 Program, 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 17, 1996 accompanying the financial
statements of Rocky Mountain Chocolate Factory, Inc. appearing in the 1996
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.
/s/ Grant Thornton LLP
Dallas, Texas
July 12, 1996
