SEC Division of Corporation Finance no-action letter: Rocky Mountain Chocolate Factory, Inc.

LEGAL122889401.6
September 17, 2014
VIA ELECTRONIC MAIL
Office of the Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Re: Proposed Reorganization of Rocky Mountain Chocolate Factory, Inc. (Filer No. 000-14749); Securities Act of 1933 - Section 4(a)(3), Forms S-3, S-4 and S-8 and Rules 144, 174 and 414; Securities Exchange Act of 1934 - Schedule 14A, and Rules 12g-3 and 12b-2 Ladies and Gentlemen:
Rocky Mountain Chocolate Factory, Inc., a Colorado corporation (the “Company”), is considering undertaking a reorganization (the “ Reorganization”) in which (i) the Company formed a new wholly￾owned Delaware corporate direct subsidiary named Rocky Mountain Brands, Inc. (“HoldingCo”), (ii) HoldingCo formed a new wholly-owned Colorado corporate direct subsidiary named RKB Merger Corp. (“MergerCo”), and (iii) the Company would merge (the “Merger”) with its new, indirect, wholly-owned subsidiary, MergerCo, with the Company as the surviving company (the “Surviving Company”), thereby making the Company a direct wholly-owned subsidiary of HoldingCo. As a result of the Reorganization, each holder of shares of the common stock of the Company, par value $0.03 per share (“Company Common Stock”), would become a holder of an identical number of shares of common stock of HoldingCo, par value $0.001 per share (“HoldingCo Common Stock”), including a HoldingCo Preferred Stock Purchase Right (as defined below). At the time the Merger of the Company with MergerCo becomes effective (the “Effective Time”), HoldingCo will, in effect, replace the Company as the publicly held corporation. HoldingCo and its subsidiaries would conduct all of the operations currently conducted by the Company and its subsidiaries and the consolidated assets, liabilities, operations and financial condition of HoldingCo immediately after the Reorganization would be the same as those of the Company immediately prior to the Reorganization. HoldingCo will not be an operating company, but rather will hold the stock of the operating companies. The Company is a product-based international franchisor, confectionery manufacturer and retail operator. The Company’s revenues and profitability are derived principally from its franchised/licensed system of retail stores that feature chocolate, frozen yogurt, and other confectionery products. The Company also sells its candy in selected locations outside its system of retail stores and license the use of its brand with certain consumer products. The purpose of the Reorganization is to create a new holding company structure. Management of the Company believes that the Reorganization would align the Company’s corporate structure with its business operations and facilitate potential future acquisitions of additional