As filed with the Securities and Exchange Commission on August 24, 2015

 

Registration No. 333-



 

UNITED STATES
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)

 

Delaware

 

47-1535633

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification Number)

     

 

265 Turner Drive
Durango, CO 81303

(Address of Principal Executive Offices, Including Zip Code)

 

ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. 401(K) PLAN

(Full title of the plan)

 

Bryan J. Merryman
Chief Operating Officer/Chief Financial Officer
Rocky Mountain Chocolate Factory, Inc.

265 Turner Drive
Durango, Colorado 81303
(Name and address of agent for service)

 

(970) 259-0554

(Telephone number, including area code, of agent for service)


Copies to:

 

Sonny Allison

Perkins Coie LLP

1900 Sixteenth Street, Suite 1400

Denver, Colorado 80202

(303) 291-2300

 


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   ☐

     

Accelerated filer   ☐

Non-accelerated filer ☐ (Do not check if a smaller reporting company)

 

Smaller reporting company   ☒


CALCULATION OF REGISTRATION FEE

         

Title of Securities to Be Registered (1)

Amount to Be

Registered (2)

Proposed

Maximum

Offering Price

Per Share (3)

Proposed Maximum

Aggregate Offering

Price (3)

Amount of

Registration

Fee (3)

Common Stock, $0.001 par value

250,000

$12.38

$3,095,000

$359.64

 

 
 

 

  

 

(1)

Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein.

     
 

(2)

Pursuant to Rule 416(a) under the Securities Act, this registration statement also covers any additional shares of the registrant’s common stock that may become issuable under the Rocky Mountain Chocolate Factory, Inc. 401(k) Plan as a result of any future stock splits, stock dividends or similar adjustments of the registrant’s outstanding common stock.

     
 

(3)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act. The proposed maximum offering price per share is estimated based on the average of the high and low sales prices for the registrant’s common stock as reported by the NASDAQ Global Market on August 18, 2015.

  

 
 

 

 

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 (the “Commission”) are hereby incorporated by reference in this registration statement:

 

(a)     The Registrant’s Annual Report on Form 10-K for the fiscal year ended February 28, 2015, filed with the Commission on May 27, 2015, which contains the Registrant’s audited financial statements for the most recent fiscal year for which such statements have been filed;

 

(b)     The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended May 31, 2015, filed with the Commission on July 15, 2015;

 

(c)     The Registrant’s Current Reports on Form 8-K filed with the Commission on March 2, 2015, June 2, 2015, July 20, 2015, July 22, 2015, August 21, 2015 and August 24, 2015;

 

(d)     The Rocky Mountain Chocolate Factory, Inc. 401(k) Plan Annual Report on Form 11-K for the fiscal year ended February 28, 2014, filed with the Commission on August 25, 2014 (File No. 000-14749); and

 

(e)     The description of the Registrant’s common stock contained in the Registrant’s Current Report on Form 8-K filed with the Commission on August 24, 2015, including any amendment or report filed for the purpose of updating such description.

 

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date hereof (excluding any documents or portions of such documents that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K and any exhibits included with such Items), and prior to the filing of a post-effective amendment that indicates that all the securities offered hereby have been sold or that deregisters the securities offered hereby then remaining unsold, shall also 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.

 

Any statement contained in this registration statement or in a document incorporated or deemed to be incorporated by reference in this registration statement will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this registration statement modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

 

Item 4.

Description of Securities.

 

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

 

None.

 

Item 6. 

Indemnification of Directors and Officers.

     

Section 145 of the Delaware General Corporation Law (“DGCL”) authorizes a corporation to indemnify its directors, officers, employees and agents against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred, provided they act in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal proceeding, had no reasonable cause to believe their conduct was unlawful, although in the case of proceedings brought by or on behalf of the corporation, such indemnification is limited to expenses and is not permitted if the individual is adjudged liable to the corporation (unless the Delaware Court of Chancery or the court in which such proceeding was brought determines otherwise in accordance with the DGCL).

 

Section 102 of the DGCL authorizes a corporation to limit or eliminate its directors’ liability to the corporation or its stockholders for monetary damages for breaches of fiduciary duties, other than for (1) breaches of the duty of loyalty, (2) acts or omissions not in good faith or that involve intentional misconduct or knowing violations of law, (3) unlawful payments of dividends, stock purchases or redemptions or (4) transactions from which a director derives an improper personal benefit.

 

The Registrant’s certificate of incorporation contains provisions protecting its directors and officers to the fullest extent permitted by Sections 102 and 145 of the DGCL. The Registrant’s bylaws provide similar protection under Section 145 of the DGCL for its directors and officers.

 

 
 

 

  

Section 145 of the DGCL also authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation against certain liabilities asserted against and incurred by such person in any such capacity, or arising out of such person’s status as such. The Registrant maintains liability insurance covering its directors and officers for claims asserted against them or incurred by them in such capacity.

 

The Registrant expects to enter into agreements to indemnify its directors and certain of its officers to the maximum extent allowed under Delaware law. These agreements, among other things, will indemnify the Registrant’s directors for certain expenses (including attorneys’ fees), judgments, fines and settlement amounts reasonably incurred by such person in any action or proceeding, including any action by or in the Registrant’s right, on account of any services undertaken by such person on behalf of the Registrant or that person’s status as a member of the Registrant’s board or directors.

 

Item 7.

Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.

Exhibits.

 

Exhibit Number

 

Description of Document

     

5.1

 

Opinion of Perkins Coie LLP.

     

23.1

 

Consent of EKS&H LLLP.

     

23.2

 

Consent of Perkins Coie LLP (included in Exhibit 5.1).

     

24.1

 

Power of Attorney (see signature page).

     

99.1

 

Rocky Mountain Chocolate Factory, Inc. 401(k) Plan, as amended.

     

The Registrant hereby undertakes that it will submit or has submitted the Rocky Mountain Chocolate Factory, Inc. 401(k) Plan subject to this registration statement and any amendments thereto to the Internal Revenue Service (the “IRS”) in a timely manner and has made or will make all changes required by the IRS in order to qualify the plan under Section 401 of the Internal Revenue Code of 1986, as amended.

 

Item 9.

Undertakings.

 

A. The undersigned 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:

 

(a) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(b) 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; and

 

(c) 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;

 

providedhowever, that paragraphs (1)(a) and (1)(b) above do not apply if this registration statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement..

 

(2) That, for the purpose of determining any liability under 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 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.

 

B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.

 

 
 

 

  

C. Insofar as indemnification for liabilities arising under the Securities Act 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 Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the 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 Securities Act and will be governed by the final adjudication of such issue.

 

 
 

 

  

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, State of Colorado, on August 24, 2015.

 

             

 

 

ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.

     
   

By:

/s/ Franklin E. Crail

 

 

 

Name: Franklin E. Crail

 

 

 

Title: Chief Executive Officer and President


POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Franklin E. Crail and Bryan J. Merryman, or any of them, as his attorneys-in-fact, with the power of substitution, for him in any and all capacities, to sign any amendments to this registration statement, including any and all post-effective amendments, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may 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, Chief Executive Officer and President (Principal Executive Officer)

 

August 24, 2015

Franklin E. Crail

       
         

/s/ Bryan J. Merryman

 

Chief Operating Officer, Chief Financial Officer, Treasurer and Director (Principal Financial and Accounting Officer)

 

August 24, 2015

Bryan J. Merryman

       
         

/s/ Gerald A. Kien

 

Director

 

August 24, 2015

Gerald A. Kien

       
         

/s/ Lee N. Mortenson

 

Director

 

August 24, 2015

Lee N. Mortenson

       
         

/s/ Clyde Wm. Engle

 

Director

 

August 24, 2015

Clyde Wm. Engle

       
         

/s/ Scott G. Capdevielle

 

Director

 

August 24, 2015

Scott G. Capdevielle

       
         

  

 
 

 

 

Rocky Mountain Chocolate Factory, Inc. 401(k) Plan

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the trustee (or other persons who administer the Rocky Mountain Chocolate Factory, Inc. 401(k) Plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Durango, State of Colorado, on August 24, 2015.

 

 

ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.

 

  401(K) PLAN  

 

 

 

 

 

By:

/s/ Bryan J. Merryman

 

 

 

Name: Bryan J. Merryman

 

 

 

Title: Plan Administrator

 

 

 
 

 

 

EXHIBIT INDEX

 

Exhibit Number

 

Description of Document

     

5.1

 

Opinion of Perkins Coie LLP.

     

23.1

 

Consent of EKS&H LLLP.

     

23.2

 

Consent of Perkins Coie LLP (included in Exhibit 5.1).

     

24.1

 

Power of Attorney (see signature page).

     

99.1

 

Rocky Mountain Chocolate Factory, Inc. 401(k) Plan, as amended.