As
filed with the Securities and Exchange Commission on February 17,
2009
Registration Statement No.
333-_
______
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
REED’S,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation
or organization)
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35-2177773
(IRS
Employer Identification
Number)
|
13000
South Spring Street
Los
Angeles, California 90061
(310) 217-9400
(Address
of principal executive offices, including zip code)
2009
CONSULTANT STOCK PLAN
(Full
title of the plan)
Christopher
J. Reed
Chief
Executive Officer
13000
South Spring Street
Los
Angeles, California 90061
(Name
and address of agent for service)
(310) 217-9400
(Telephone
number, including area code, of agent for service)
copies
to:
Peter
Hogan, Esq.
Richardson
& Patel, LLP
10900
Wilshire Boulevard, Suite 500
Los
Angeles, California 90024
(310)
208-1182
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CALCULATION
OF REGISTRATION FEE
Title
of securities to be
registered
|
|
Amount
to be
registered
(1)
|
|
Proposed
maximum
offering price
per
share
|
|
|
Proposed
maximum
aggregate
offering
price
|
|
|
Amount
of
registration
fee
|
|
Common
Stock, $0.0001 par value
|
|
100,000
shares
|
|
$
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1.19
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(2)
|
|
$
|
119,000
|
|
|
$
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6.65
|
|
Total
|
|
100,000
shares
|
|
|
|
|
|
$
|
119,000
|
|
|
$
|
6.65
|
|
(1)
|
Pursuant
to Rule 416 of the Securities Act, this registration statement shall also
cover any additional shares of common
stock that shall
become issuable by reason of any stock dividend, stock split,
recapitalization, or other similar transaction by the
Registrant.
|
(2)
|
Estimated
solely for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as
amended.
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PART
I
INFORMATION
REQUIRED IN SECTION 10(a) PROSPECTUS
Information
required in Part I of Form S-8 to be contained in a prospectus meeting the
requirements of Section 10(a) of the Securities Act is not required to be filed
with the Securities and Exchange Commission (the “Commission”) and is omitted
from this Registration Statement in accordance with the explanatory note to
Part I of Form S-8 and Rule 428(b)(1) under the Securities Act of
1933, as amended (the “Securities Act”).
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The
following documents previously filed by Reed’s Inc., a Delaware Corporation
(“Reed’s” or the “Registrant”) pursuant to the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), are incorporated herein by
reference:
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(a)
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The
Registrant’s Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2007, as filed April 15,
2008;
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(b)
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The
Company’s Quarterly Reports on Form 10Q filed May 20, 2008, August 19,
2008 and November 12, 2008;
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(c)
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The
Company’s Current Reports on Form 8-K filed with the SEC on March 26,
2008, July 16, 2008, July 23, 2008, November 6, 2008, January 6, 2009 and
January 26, 2009;
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(d)
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All other reports filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"),
since the end of the fiscal year
covered by the annual report referred to in paragraph (a) above;
and
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(e)
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The
description of the Registrant’s common stock that is contained in the
Registrant’s Registration Statement on Form S-1 (File No.
)
,
as filed November 20, 2008.
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In
addition, 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 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.
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. The class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item
5. Interests of Named Experts and Counsel
The
financial statements incorporated by reference herein have been audited by
Weinberg & Company, P.A., our independent registered public accounting firm,
to the extent and for the periods set forth in its reports. Such financial
statements are included in reliance upon the authority of said firm as experts
in auditing and accounting.
Richardson
& Patel, LLP has given an opinion on the validity of the securities being
registered hereunder. Erick Richardson and Nimish Patel, principals in the law
firm, own 45,416 shares of Reed’s common stock, all of which are being
registered pursuant to this Form S-8 registration statement.
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.
Our
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 our
directors will be personally liable to us or our stockholders for monetary
damages resulting from a breach of fiduciary duty as a director. Our amended
certificate of incorporation also provides discretionary indemnification for the
benefit of our directors, officers, and employees, to the fullest extent
permitted by Delaware law, as it may be amended from time to time. Pursuant to
our bylaws, we are required to indemnify our directors, officers, employees and
agents, and we have the discretion to advance his or her related expenses, to
the fullest extent permitted by law.
These
indemnification provisions may be sufficiently broad to permit indemnification
of our officers and directors for liabilities (including reimbursement of
expenses incurred) arising under the Securities Act.
In
addition, we do currently provide liability insurance coverage for our 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, we will, unless in the opinion of our 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 of 1933 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, Reed’s has been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. No pending material
litigation or proceeding involving Reed’s directors, executive officers,
employees or other agents as to which indemnification is being sought exists,
and Reed’s 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.
See the
attached Exhibit Index that follows the signature pages, which is incorporated
by reference.
Item
9. Undertakings.
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:
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(i)
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To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933;
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(ii)
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To
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) (§ 230.424(b) of this chapter) 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.
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(iii)
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To
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 the
undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
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 Securities
Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) 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 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.
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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
Registrant hereby undertakes 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 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 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
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 February 17, 2009.
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REED’S,
INC.
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By:
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/s/ Christoper J. Reed
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Christoper
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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February
17, 2009
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/s/
James Linesch
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Chief
Financial Officer (Principal
Accounting
Officer)
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James
Linesch
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/s/ Judy Holloway Reed
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Director
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Judy Holloway Reed
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/s/ Mark Harris
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Director
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Mark Harris
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/s/ Daniel S.J. Muffoletto
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Director
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Daniel S.J. Muffoletto
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/s/ Michael Fischman
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Director
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Michael Fischman
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EXHIBIT
INDEX
Exhibit No.
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Exhibit Description
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4.1
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2009
Consultant Stock Plan
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5.1
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Opinion
of Richardson & Patel, LLP
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23.1
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Consent
of Weinberg & Co., P.A., independent auditors
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23.2
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Consent
of Richardson & Patel, LLP (contained in
Exhibit 5.1).
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