reeds_s8-040510.htm
As
filed with the Securities and Exchange Commission on April 5, 2010
Registration
Statement No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Reed's
Inc.
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(Exact
name of registrant as specified in its
charter)
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Delaware |
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35-2177773
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(State
or other jurisdiction of incorporation or organization) |
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(I.R.S.
Employer Identification No.)
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13000
South Spring Street, Los Angeles, CA
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90061
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(Address
of Principal Executive Offices)
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(Zip
Code)
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2010
Incentive Stock Plan
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Christopher
J. Reed
Chief
Executive Officer
13000
South Spring Street
Los
Angeles, California 90061
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(Name
and address of agent for service)
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(310) 217-9400 |
(Telephone
number, including area code, of agent for service)
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with
copies to:
Ruba
Qashu
Qashu
& Schoenthaler LLP
4695
MacArthur Court, 11th Floor
Newport
Beach, CA 92660
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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 o |
Accelerated
filer o |
Non-accelerated
filer o (Do
not check if a smaller reporting company) |
Smaller
reporting company ü |
CALCULATION
OF REGISTRATION FEE
Title
of securities to be registered
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Amount
to be registered(1)
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Proposed
maximum
offering
price
per
share(2)
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Proposed
maximum
aggregate
offering
price
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Amount
of registration fee
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Common
Stock, $0.0001 par value
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25,000 |
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$ |
1.66 |
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$ |
41,500 |
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$ |
3.00 |
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended, (the “Securities Act”) this
registration statement shall also cover such indeterminate number of
additional shares of the registrant’s common stock that become issuable by
reason of any stock dividend, stock split, recapitalization or other
similar transaction that increases the number of the registrant’s
outstanding shares to be offered pursuant to the applicable plan described
herein
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(2)
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Estimated
solely for purposes of calculating the registration fee in accordance with
Rule 457(c) and Rule 457(h)(1) of the Securities Act as of April 1,
2010.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified by Part I of Form S-8 will be
sent or given to participants as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the “Securities
Act”). In accordance with Rule 428 of the Securities Act and
the requirements of Part I of Form S-8, such documents are not being filed with
the Securities and Exchange Commission (the “Commission”) either as part of
this registration statement (the “Registration Statement”) or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. Such documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II hereof, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents, which have been filed with the Commission by Reed's, Inc.,
a Delaware corporation (the “Registrant”), are incorporated
herein by reference as of their respective dates:
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(a)
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the
Registrant’s Annual Report on Form 10-K for the year ended December 31,
2009 as filed with the Commission on March 30,
2010;
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(b)
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the
Registrant’s Current Reports on Form 8-K as filed with the Commission on
February 22, 2010, March 9, 2010 and March 23,
2010;
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(c)
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all
other reports filed by the Registrant pursuant to Section 13(a) or 15(d)
of the Exchange Act after December 31, 2009;
and
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(d)
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the
description of the Registrant’s securities contained in any registration
statement filed by the Registrant under the Securities Act, including any
amendment or report filed by the Registrant under the Securities Act for
the purpose of updating such
description.
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All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby 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 part hereof from the respective filing dates of such
documents.
Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement 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 herein modifies or supersedes such
earlier statement. Any statement so modified or superseded shall 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.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law (the “DGCL”), as the same exists or
may hereafter be amended, provides that a Delaware corporation may indemnify any
persons who were, or are threatened to be made, parties to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the corporation’s best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his or her conduct was illegal. A Delaware corporation may
indemnify any persons who are, were or are threatened to be made, a party to any
threatened, pending or completed action or suit by or in the right of the
corporation by reason of the fact that such person was a director, officer,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the corporation’s best interests, provided that no
indemnification is permitted without judicial approval if the officer, director,
employee or agent is adjudged to be liable to the corporation. Where an officer,
director, employee, or agent is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him or
her against the expenses which such officer or director has actually and
reasonably incurred.
Section
145 of the DGCL further 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, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him or her and incurred by him or her in
any such capacity, arising out of his or her status as such, whether or not the
corporation would otherwise have the power to indemnify him or her under Section
145 of the DGCL.
The
Registrant's amended certificate of incorporation provides that, to the fullest
extent permitted by Delaware law, as it may be amended from time to time, none
of its directors will be personally liable to it or its stockholders for
monetary damages resulting from a breach of fiduciary duty as a director. The
Registrant's amended certificate of incorporation also provides discretionary
indemnification for the benefit of its directors, officers, and employees, to
the fullest extent permitted by Delaware law, as it may be amended from time to
time. Pursuant to the Registrant's bylaws, the Registrant is required to
indemnify its directors, officers, employees and agents and has the discretion
to advance their related expenses, to the fullest extent permitted by
law.
These
indemnification provisions may be sufficiently broad to permit indemnification
of the Registrant's officers and directors for liabilities (including
reimbursement of expenses incurred) arising under the Securities
Act.
In
addition, the Registrant does currently provide liability insurance coverage for
its directors and officers.
In the
event that a claim for indemnification against such liabilities (other than the
payment of expenses incurred or paid by a director, officer or controlling
person in a 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 the 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.
Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to the Registrant’s directors, officers and controlling persons
pursuant to the DGCL, the Registrant’s amended certificate of incorporation,
bylaws 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. No pending material litigation
or proceeding involving the Registrant's directors, executive officers,
employees or other agents as to which indemnification is being sought exists,
and the Registrant is not aware of any pending or threatened material
litigation that may result in claims for indemnification by any of its directors
or executive officers.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Exhibit
Number
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Exhibit
Description
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4.1
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2010
Incentive Stock Plan
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5.1
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Opinion
of Qashu & Schoenthaler LLP
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23.1
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Consent
of Weinberg & Company, PA
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23.2
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Consent
of Qashu & Schoenthaler LLP (filed as part of Exhibit
5.1)
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Item
9. Undertakings.
(a)
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The
undersigned Registrant hereby
undertakes:
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1.
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement,
to:
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i.
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include
any prospectus required by section 10(a)(3) of the Securities
Act;
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ii.
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reflect
in the prospectus any facts or events arising after the effective date of
the 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 the 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 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective Registration Statement;
and
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iii.
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include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration
Statement;
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provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic 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 the Registration Statement.
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2.
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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.
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3.
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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.
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(b)
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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 section 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 the 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.
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(c)
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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.
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SIGNATURES
In
accordance with 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 of filing this Registration Statement on Form S-8 and authorized
this Registration Statement to be signed on its behalf by the undersigned, in
Los Angeles, California on April 5, 2010.
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REED’S,
INC.
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/s/ Christopher J.
Reed
Christopher
J. Reed
Chief
Executive Officer
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KNOW ALL MEN BY THESE
PRESENTS, that each of the undersigned officers and directors of Reed’s,
Inc. hereby constitutes and appoints Christopher J. Reed,
his attorney-in-fact and agent, with full power of substitution and
resubstitution for her in any and all capacities, to sign any or all amendments
or post-effective amendments to this registration statement, and to file the
same, with exhibits thereto and other documents in connection therewith or in
connection with the registration of the shares of common stock under the
Securities Act of 1933, with the Securities and Exchange Commission, granting
unto such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary in connection with such
matters as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that such attorney-in-fact and agent or her
substitute 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 date
indicated.
Signature
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Title
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Date
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/s/ Christopher J. Reed
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Chief Executive Officer,
Chairman of the Board of Directors (Principal Executive
Officer)
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April
5, 2010
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Christopher J. Reed
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/s/
James Linesch
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Chief
Financial Officer (Principal Accounting Officer)
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April
5, 2010
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James
Linesch
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/s/ Judy Holloway Reed
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Director
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April
5, 2010
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Judy Holloway Reed
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/s/ Mark Harris
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Director
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April
5, 2010
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Mark Harris
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/s/ Daniel S.J. Muffoletto
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Director
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April
5, 2010
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Daniel S.J. Muffoletto
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/s/ Michael Fischman
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Director
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April
5, 2010
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Michael Fischman |
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