Reed's
Annual Report 2012

Plain-text annual report

SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2012 Commission File Number 000-32501 REED’S, INC. (Exact name of registrant as specified in its charter) Delaware State or other jurisdiction of incorporation or organization 35-2177773 I.R.S. Employer Identification Number 13000 South Spring Street Los Angeles, California Address of principal executive offices 90061 Zip Code (310) 217-9400 Registrant’s telephone number, including area code Securities registered pursuant to Section 12(b) of the Act: Title of Class Common Stock, $.0001 par value per share Name of each exchange where registered NYSE MKT Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes (cid:1) No  Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes (cid:1) No  Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  No (cid:1) Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes  No (cid:1) Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  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 definition of “large accelerated filer,” “accelerated filer” and “small reporting company” in Rule 12b-2 of the Exchange Act. Large Accelerated filer (cid:1) Accelerated filer (cid:1) Non-accelerated filer (cid:1) Smaller reporting company  Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act) Yes (cid:1) No  The aggregate market value of the voting and non-voting common equity held by non-affiliates (excluding voting shares held by officers and directors) as of June 30, 2012 was $26,080,000 12,500,833 common shares, $.001 par value, were outstanding on March 13, 2013. TABLE OF CONTENTS PART I Item 1. Item 2. Item 3. Item 4. PART II Item 5. Item 6. Item 7. Item 7A. Item 8. Item 9. Item 9A. Item 9B. PART III Item 10. Item 11. Item 12. Item 13. Item 14. PART IV Item 15. Business Properties Legal Proceedings Mine Safety Disclosures. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities Selected Financial Data Management’s Discussion and Analysis of Financial Condition and Results of Operations Quantitative and Qualitative Disclosures About Market Risk Financial Statements Changes in and Disagreements with Accountants on Accounting and Financial Disclosure Controls and Procedures Other Information Directors, Executive Officers and Corporate Governance Executive Compensation Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters Certain Relationships and Related Transactions, and Director Independence Principal Accountant Fees and Services Exhibits, Financial Statement Schedules 1 Page 4 11 11 11 11 12 12 14 15 20 21 22 22 22 23 23 28 29 30 31 32 32 CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS AND INFORMATION This Annual Report on Form 10-K (“Annual Report”), the other reports, statements, and information that we have previously filed or that we may subsequently file with the Securities and Exchange Commission (“SEC”) and public announcements that we have previously made or may subsequently make include, may include, incorporate by reference or may incorporate by reference certain statements that may be deemed to be forward-looking statements. The forward-looking statements included or incorporated by reference in this Annual Report and those reports, statements, information and announcements address activities, events or developments that Reed’s, Inc. (together with its subsidiaries hereinafter referred to as “we,” “us,” “our” or “Reed’s”) expects or anticipates will or may occur in the future. Any statements in this document about expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and are forward-looking statements. These statements are often, but not always, made through the use of words or phrases such as “may,” “should,” “could,” “predict,” “potential,” “believe,” “will likely result,” “expect,” “will continue,” “anticipate,” “seek,” “estimate,” “intend,” “plan,” “projection,” “would” and “outlook,” and similar expressions. Accordingly, these statements involve estimates, assumptions and uncertainties, which could cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this document. All forward-looking statements concerning economic conditions, rates of growth, rates of income or values as may be included in this document are based on information available to us on the dates noted, and we assume no obligation to update any such forward-looking statements. The risk factors referred to in this Annual Report could cause actual results or outcomes to differ materially from those expressed in any forward-looking statements made by us, and you should not place undue reliance on any such forward-looking statements. Any forward-looking statement speaks only as of the date on which it is made and we do not undertake any obligation to update any forward-looking statement or statements to reflect events or circumstances after the date on which such statement is made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. Management cautions that these statements are qualified by their terms and/or important factors, many of which are outside of our control, involve a number of risks, uncertainties and other factors that could cause actual results and events to differ materially from the statements made, including, but not limited to, the following risk factors. • • • • • • • • Our ability to generate sufficient cash flow to support capital expansion plans and general operating activities, Decreased demand for our products resulting from changes in consumer preferences, Competitive products and pricing pressures and our ability to gain or maintain its share of sales in the marketplace, The introduction of new products, Our being subject to a broad range of evolving federal, state and local laws and regulations including those regarding the labeling and safety of food products, establishing ingredient designations and standards of identity for certain foods, environmental protections, as well as worker health and safety. Changes in these laws and regulations could have a material effect on the way in which we produce and market our products and could result in increased costs, Changes in the cost and availability of raw materials and the ability to maintain our supply arrangements and relationships and procure timely and/or adequate production of all or any of our products, Our ability to penetrate new markets and maintain or expand existing markets, Maintaining existing relationships and expanding the distributor network of our products, 2  • • • • • • • • • The marketing efforts of distributors of our products, most of whom also distribute products that are competitive with our products, Decisions by distributors, grocery chains, specialty chain stores, club stores and other customers to discontinue carrying all or any of our products that they are carrying at any time, The availability and cost of capital to finance our working capital needs and growth plans, The effectiveness of our advertising, marketing and promotional programs, Changes in product category consumption, Economic and political changes, Consumer acceptance of new products, including taste test comparisons, Possible recalls of our products, and Our ability to make suitable arrangements for the co-packing of any of our products. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance, or achievements. 3 Item 1. Business Background PART I We develop, manufacture, market and sell natural non-alcoholic carbonated soft drinks, kombucha, candies and ice creams. We currently manufacture, market and sell seven unique product lines: • Reed’s Ginger Brews, • Virgil’s Root Beer, Cream Sodas, Dr. Better and Real Cola, including ZERO diet sodas, • Culture Club Kombucha • China Colas, • Reed’s Ginger Chews, • Reed’s Ginger Ice Creams, • Sonoma Sparkler Sparkling Juices, In addition, we have a growing private label business. We sell most of our products in specialty gourmet and natural food stores (estimated at approximately 4,000 smaller or specialty stores and approximately 3,000 supermarket format stores), supermarket chains (estimated at approximately 7,000 stores), retail stores and restaurants in the United States and, to a lesser degree, in Canada. We primarily sell our products through a network of natural, gourmet and independent distributors. We also maintain an organization of in-house sales managers who work mainly in the stores serviced by our natural, gourmet and mainstream distributors and with our distributors. We produce and co-pack our products in part at our facility in Los Angeles, California, known as the Brewery, and primarily at a contracted co-packing facility in Pennsylvania. The co-pack facility in Pennsylvania supplies us with soda products for the eastern half of the United States and nationally for soda products that we do not produce at The Brewery. Key elements of our business strategy include: • increase our relationship with and sales to the approximately 13,000 supermarkets that carry our products in natural and mainstream, • Expand our distribution network by adding regional direct store delivery (DSD’s) and additional direct accounts, • • stimulate consumer demand and awareness for our existing brands and products through promotions and advertising, develop additional product flavors under our brands (brand extensions) and other new products, including specialty packaging and alternative uses for our products, develop and produce private-label products for select customers, lower our cost of sales for our products by gaining economies of scale in our purchasing, and optimize the size and focus of our sales force to manage our relationships with distributors and retail outlets. • • • Our current sales effort is focused on building our business in our approximately 13,000 natural and mainstream supermarket accounts in the U.S. and Canada. We create consumer demand for our products by: supporting in-store sampling programs of our products, generating free press through public relations, advertising in store publications, • • • • maintaining a company website (www.reedsgingerbrew.com), • participating in large public events as sponsors. Our principal executive offices are located at 13000 South Spring Street, Los Angeles, California 90061. Our telephone number is (310) 217-9400. Our Internet address is (www.reedsgingerbrew.com). Information contained on our website or that is accessible through our website should not be considered to be part of this Annual Report. 4 Historical Development Reed’s Original Ginger Brew was created in 1987 by Christopher J. Reed, our founder and Chief Executive Officer, and was introduced to the market in Southern California stores in 1989. By 1990, we began marketing our products through United Natural Foods Inc. (UNFI), and other natural food distributors and moved our production to a larger facility in Boulder, Colorado. In 1991, we incorporated our business operations in the state of Florida under the name of Original Beverage Corporation and moved all of our production to a co-pack facility in Pennsylvania. Throughout the 1990’s, we continued to develop and launch new Ginger Brew varieties. Reed’s Ginger Brews reached broad placement in natural and gourmet foods stores nationwide through UNFI and other major specialty, natural/gourmet and mainstream food and beverage distributors. In 1997, we began licensing the products of China Cola and eventually acquired the rights to that product in 2000. In 1999, we purchased the Virgil’s Root Beer brand from the Crowley Beverage Company. In 2000, we moved into an 18,000 square foot warehouse property, the Brewery, in Los Angeles, California, to house our west coast production and warehouse facility. The Brewery now also serves as our principal executive offices. In 2001, pursuant to a reincorporation merger, we changed our state of incorporation to Delaware and also changed our name to Reed’s, Inc. On December 12, 2006, we completed the sale of 2,000,000 shares of our common stock at an offering price of $4.00 per share in our initial public offering. The public offering resulted in gross proceeds of $8,000,000. Following the public offering, we expanded sales and operations dramatically, initially using a direct store delivery strategy in Southern California, along with other regional independent direct store distributors (DSD). The relationships with DSD’s were supported by our sales staff. In 2007, we raised a net of $7,600,000 in a private placement. We re-focused our sales strategy to eliminate company direct store delivery sales and to expand sales to DSD’s and natural food distributors on a national level. We also started selling directly to supermarket grocery stores, which has become a significant portion of our business today. We continually introduce new products and line extensions, such as our Virgil’s diet line of ZERO beverages introduced in 2010 and Dr. Better and Extra Light 55 Calories in 2011. We commenced offering private label products in 2010, and have increased that business significantly in 2011 and 2012. In 2012, we introduced our Culture Club kombucha line with the initial four flavors. Industry Overview We offer natural premium carbonated soft drinks (CSD), which are a growing segment of the $ 10 billion CSD market nationwide. Within natural food store markets, we are among the top-selling natural soft drinks. This market is steady and growing. We also sell in major grocery chains nationally. The trend in grocery stores is to expand offerings of natural products and we have the scale and capability to develop these direct customer relationships. Our Products We currently manufacture and sell 24 beverages, four candies and three ice creams. We make all of our products using premium all- natural ingredients. Our primary brands are our Reed’s ginger brew line, our Virgil’s line of root beer and our Culture Club kombucha. Our candy products, include Reed’s Crystallized Ginger Candy and Reed’s Chews, represent a lesser portion of revenues, however, the products are popular and sales are expanding. We also sell ginger ice cream. Reed’s Ginger Brews Ginger ale is the oldest known soft drink. Before modern soft drink technology existed, non-alcoholic beverages were brewed at home directly from herbs, roots, spices, and fruits. These handcrafted brews were then aged like wine and highly prized for their taste and their tonic, health-giving properties. Reed’s Ginger Brews are a revival of this home brewing art and we make them with care and attention to wholesomeness and quality, using the finest fresh herbs, roots, spices, and fruits. Our expert brew masters brew each batch with fresh ginger. We believe that Reed’s Ginger Brews are unique in their kettle-brewed origin among all mass-marketed soft drinks. Reed’s Ginger Brews contain between 8 and 26 grams of fresh ginger in every 12-ounce bottle. We use pure cane sugar as the sweetener. Our products differ from commercial soft drinks in three particular characteristics: sweetening, carbonation and coloring for greater adult appeal. Instead of using injected-based carbonation, we produce our carbonation naturally, through slower, beer-oriented techniques. This process produces smaller, longer lasting bubbles that do not dissipate rapidly when the bottle is opened. We do not add coloring. The color of our products comes naturally from herbs, fruits, spices, roots and juices. 5 In addition, since Reed’s Ginger Brews are pasteurized, they do not require or contain any preservatives. In contrast, modern commercial soft drinks generally are produced using natural and artificial flavor concentrates prepared by flavor laboratories, tap water, and highly refined sweeteners. Typically, manufacturers make a centrally processed concentrate that will lend itself to a wide variety of situations, waters and filling systems. The final product is generally cold-filled and requires preservatives for stability. Colors are added that are either natural, although highly processed, or artificial. Our Reed’s line contains the following products: • Reed’s Original Ginger Brew was our first creation, and is a Jamaican recipe for homemade ginger ale using 17 grams of fresh ginger root, lemon, lime, honey, raw cane sugar, pineapple, herbs and spices. Reed’s Original Ginger Brew is 20% fruit juice. • Reed’s Extra Ginger Brew is the same approximate recipe, with 25 grams of fresh ginger root for a stronger bite. Reed’s Extra Ginger Brew is 20% fruit juice. • Reed’s Premium Ginger Brew is sweetened only with honey and pineapple juice. Reed’s Premium Ginger Brew is 20% fruit juice. • Reed’s Raspberry Ginger Brew is brewed from 17 grams of fresh ginger root, raspberry juice and lime. Reed’s Raspberry Ginger Brew is 20% raspberry juice. • Reed’s Spiced Apple Brew uses 8 grams of fresh ginger root, the finest tart German apple juice and such apple pie spices as cinnamon, cloves and allspice. Reed’s Spiced Apple Brew is 50% apple juice. • Reed’s Cherry Ginger Brew is naturally brewed from 22 grams of fresh ginger root, cherry juice from concentrate and spices. • Reed’s Natural Energy Elixir , an energy drink infused with all natural ingredients designed to provide consumers with a healthy and natural boost to energy levels • Reed’s Nausea Relief, based on our Ginger Brews with added B vitamins. Both ginger and B vitamins have been studied for their effectiveness in combating nausea. Virgil’s Root Beer Virgil’s is a premium root beer. We use all-natural ingredients, including filtered water, unbleached cane sugar, anise from Spain, licorice from France, bourbon vanilla from Madagascar, cinnamon from Sri Lanka, clove from Indonesia, wintergreen from China, sweet birch and molasses from the southern United States, nutmeg from Indonesia, pimento berry oil from Jamaica, balsam oil from Peru and cassia oil from China. We collect these ingredients worldwide and gather them together at the brewing and bottling facilities. We combine these ingredients under strict specifications and finally heat-pasteurize Virgil’s Root Beer, to ensure quality. We sell Virgil’s Root Beer in three packaging styles: 12-ounce bottles in a four-pack, a special swing-lid style pint bottle and a 5-liter self-tapping party keg. In addition to our Virgil’s Root Beer, we also offer the following products under our Virgil’s brand: • Virgil’s Cream Soda • Virgil’s Orange Cream Soda. • Virgil’s Black Cherry Cream Soda • Virgil’s Real Cola • Virgil’s Dr. Better • Virgil’s ZERO line, including Root Beer, Cream Soda, Real Cola, Dr. Better and Black Cherry Cream Soda. Our ZERO line is naturally sweetened with Stevia. • Virgil’s juice beverages, including Clementine, Peach Lemonade and Pomegranate Reed’s Culture Club Kombucha We introduced our Culture Club kombucha in 2012. Kombucha is a fermented tea that dates its origin back thousands of years. Among consumers, kombucha is believed to have healing and cleansing characteristics. Sweetened tea is introduced to a “starter” culture and lightly fermented to produce an acetic drink. We make the finest kombucha possible, using a combination of Oolong and Yerba Mate teas. Initially, we produced four flavors, Goji Ginger, Hibiscus Ginger Grapefruit, Lemon Ginger Raspberry and Cranberry. We plan to introduce four additional flavors in 2013. We have other popular brands that currently have limited distribution, including China Cola, Sonoma Sparkler and Flying Cauldron Butterscotch Beer. We are continually developing new brands and products. 6 Private Label Products We design and manufacture drinks for private label customers in our Los Angeles Brewery. We are experts in flavor development and in matching existing products in the market. We develop the recipe and may design the label and/or the bottle style. We do not private label any of our own branded product recipes. Private label manufacturing is different than copacking, as we build the products and purchase the ingredients. The customer is purchasing a finished product, not a copacking service. Our private label products have been primarily sparkling juices, waters and teas. We develop the sources for glass and ingredients. We have a variety of packaging options, including swing-lid bottles, foil capsules and various label types. New Product Development We are always working on ideas and products to continue expanding our Reed’s Ginger Brews, Virgil’s product line, Reed’s Ginger Ice Cream, and Reed’s Ginger Candy product lines and packaging styles. Among the advantages of our self-operated Brewery are the flexibility to try innovative packaging and the capability to experiment with new product flavors at less cost to our operations or capital. Our private label products require continual product development. We are able to be nimble and innovative, producing new products in a short amount of time. Manufacture of Our Products We produce our carbonated beverages at two facilities: • • a facility in Los Angeles, California, known as The Brewery, at which we produce certain soda products and our private label products, and a packing, or co-pack, facility in Pennsylvania which supplies us with product we do not produce at The Brewery. The co- packer assembles our products and charges us a fee, generally by the case, for the products they produce. We follow a “fill as needed” manufacturing model to the best of our ability and we have no significant backlog of orders. Substantially all of the raw materials used in the preparation, bottling and packaging of our products are purchased by us or by our contract packers in accordance with our specifications. Reed’s Crystallized Ginger is made to our specifications in Fiji. Reed’s Ginger Candy Chews are made and packed to our specifications in Indonesia. Generally, we obtain the ingredients used in our products from domestic suppliers and each ingredient has several reliable suppliers. We have no major supply contracts with any of our suppliers. As a general policy, we pick ingredients in the development of our products that have multiple suppliers and are common ingredients. This provides a level of protection against a major supply constriction or calamity. We believe that as we continue to grow, we will be able to keep up with increased production demands. We believe that the Brewery has ample capacity to handle increased West Coast business. To the extent that any significant increase in business requires us to supplement or substitute our current co-packers, we believe that there are readily available alternatives, so that there would not be a significant delay or interruption in fulfilling orders and delivery of our products. In addition, we do not believe that growth will result in any significant difficulty or delay in obtaining raw materials, ingredients or finished product that is repackaged at the Brewery. Our Primary Markets We target a niche in the estimated $60 billion carbonated and non-carbonated soft drink markets in the US, Canada and International markets. Our brands are generally regarded as premium and natural, with upscale packaging and are loosely defined as the artisanal (craft), premium bottled carbonated soft drink category. The soft drink industry is highly fragmented and the craft soft drink category consists of such competitors as, Henry Weinhards, Thomas Kemper, Hansen's, Izze, Boylans and Jones Soda, to name a few. These brands have the advantage of being seen widely in the national market and being commonly known for years through well-funded ad campaigns. Despite our products having a relatively high price for an artisanal premium beverage product, no mass media advertising and a relatively small but growing presence in the mainstream market compared to many of our competitors, we believe that results to date demonstrate that Reed's Ginger Brews and Virgil's sodas are making strong inroads and market share gains against some of the larger brands in the market. 7 Kombucha is the largest growth segment of the functional beverage category of drinks and foods, including coconut water, yogurt and fresh juices. Among this broader category, the refrigerated juices and functional beverages segment grew by approximately $200 million in 2012 to an estimated market of approximately $600 million (50% growth), according to SPINS data. Kombucha comprises the overwhelming majority share of this explosive growth and comprises most of the segment. It is generally believed that the segment will continue to expand at a strong rate over the next few years. Other functional drinks in this category are also expanding sales at healthy rates, primarily coconut water and fresh pressed juices. Consumer awareness and demand for functional drinks is increasing and we feel that kombucha and other cultured drinks will be in the forefront of this expanding market category. We sell the majority of our products in the natural food store, mainstream supermarket chains and foodservice locations, primarily in the United States and, to a lesser degree, in Canada and Europe. Natural Food Stores Our primary and historical marketing and distribution source of our products has been natural food and gourmet stores throughout the US. These stores include Whole Foods Market, Trader Joe's, Sprouts, Sunflowers, Earth Fare, New Seasons, just to name a few. Our brands are also sold in gourmet restaurants and delis nationwide. With the advent of large natural food store chains and specialty merchants, the natural foods segment continues to grow each year, helping fuel the continued growth of our brands. Mainstream Supermarkets and Retailers We also sell our products to direct store delivery distributors (DSD) who specialize in distributing and selling our products directly to mainstream retail channels, natural foods, and specialty retail stores. Our brands are further sold directly to some retailers who require that we sell directly to their distribution centers since they have developed their own logistics capabilities. Examples of chains that fall into the "direct" category are retailers such as, Costco, Trader Joe's, some Whole Foods Market Regions, and Kroger. Supermarkets, particularly supermarket chains and prominent local/regional chains, often impose slotting fees in order to gain shelf presence within their stores. These fees can be structured to be paid one-time only or in installments. We utilize selective slotting in supermarket chains throughout the US and to a lesser degree, in Canada. However, our local and national sales team has been able to place our products without having to pay significant slotting fees. Slotting fees for new item placements on average have cost anywhere between $10 to $150 per store, per new item. Food Service Placement We also market our beverages to industrial cafeterias (corporate feeders), and to on premise bars and restaurants. As our business continues to mature, we intend to place our beverages in stadiums, sport arenas, concert halls, theatres, and other cultural centers as long-term marketing and pouring relationships are developed within this business segment. International Sales We have developed a limited market for our products in Canada, Europe and Asia. Sales outside of North America currently represent less than 1% of our total sales. Sales in Canada represent about 1.3% of our total sales. We believe that there are good opportunities for expansion of sales in Canada and we are increasing our marketing focus on that market. Other international sales become cost prohibitive, except in specialty sales circumstances, since our premium sodas are packed in glass, which involves substantial freight to move overseas. We are open to opportunities to export and to copack internationally and expand our brands into foreign markets, and we are holding preliminary discussions with trading companies and import/export companies for the distribution of our products throughout Asia, Europe and South America. We believe that these areas are a natural fit for Reed’s ginger products, because of the importance of ginger in international markets, especially the Asian market where ginger is a significant part of diet and nutrition. 8 Distribution, Sales and Marketing We currently have a national network of mainstream, natural and specialty food distributors in the United States and Canada. We sell directly to our distributors, who in turn sell to retail stores. We also use our own internal sales force and independent sales representatives to promote our products for our distributors and direct sales to our retail customers. One of the main goals of our sales and marketing efforts is to increase sales and grow our brands. Our sales force consists of senior sales representatives in five geographic regions across the country. Additionally, we employ a staff of internal telemarketing sales representatives. Generally, our sales managers are responsible for all activities related to the sales, distribution and marketing of our brands to our entire distributor and retail partner network in North America. We distribute our products primarily through several national natural foods distributors and an increasing number of regional mainstream DSD distributors. We have entered into agreements with some of our distributors that commit us to "termination fees" if we terminate our agreements early or without cause. These agreements call for our customer to have the right to distribute our products to a defined type of retailer within a defined geographic region. As is customary in the beverage industry, if we should terminate the agreement or not automatically renew the agreement, we would be obligated to make certain payments to our customers. We have no plans to terminate or not renew any agreement with any of our customers. We also offer our products and promotional merchandise directly to consumers via the Internet through our website, www.reedsgingerbrew.com. Marketing to Distributors We market to distributors using a number of marketing strategies, including direct solicitation, telemarketing, trade advertising and trade show exhibition. These distributors include natural food, gourmet food, and mainstream distributors. Our distributors sell our products directly to natural food, gourmet food and mainstream supermarkets for sale to the public. We maintain direct contact with our distributor partners through our in-house sales managers. From time to time and in very limited markets, when use of our own sales force is not cost effective, we will utilize independent sales brokers and outside representatives. Marketing to Retail Stores The primary focus of our sales efforts is supermarket sales. We have a small highly trained sales force that is directly contacting supermarket chains and setting up promotional calendars. In addition, we market to retail stores by utilizing trade shows, trade advertising, telemarketing, direct mail pieces and direct contact with the store. Our sales managers and representatives visit these retail stores to sell directly in many regions. Sales to retail stores are coordinated through our distribution network and our regional warehouses. Competition The beverage industry is highly competitive. The principal areas of competition are pricing, packaging, development of new products and flavors and marketing campaigns. Our products compete with a wide range of drinks produced by a relatively large number of manufacturers. Most of these brands have enjoyed broad, well-established national recognition for years, through well-funded ad and other branding campaigns. In addition, the companies manufacturing these products generally have greater financial, marketing and distribution resources than we do. Important factors affecting our ability to compete successfully include taste and flavor of products, trade and consumer promotions, rapid and effective development of new, unique cutting edge products, attractive and different packaging, branded product advertising and pricing. We also compete for distributors who will concentrate on marketing our products over those of our competitors, provide stable and reliable distribution and secure adequate shelf space in retail outlets. Competitive pressures in the soft drink category could cause our products to be unable to gain or to lose market share or we could experience price erosion. We believe that our innovative beverage recipes and packaging and use of premium ingredients and a trade secret brewing process provide us with a competitive advantage and that our commitments to the highest quality standards and brand innovation are keys to our success. The kombucha market is dominated by one producer who sells their products nationally. The remainder of the producers are comprised of mostly fragmented regional or local companies. There are companies that gain market share in certain regions; however, most do not have the scale and capability to effectively sell and distribute on a national basis. We believe that there is an excellent opportunity for Reed’s to become the #2 national producer of kombucha in a relatively short period of time, since we have existing distribution channels and customer relationships to expanding our sales volume quickly. We also have in-house production capabilities that can be scaled up as needed to make this a primary brand for Reed’s. We believe that our existing infrastructure creates a competitive advantage, including product design, manufacturing & production, and a network of sales & distribution. 9 Proprietary Rights We own trademarks that we consider material to our business. Three of our material trademarks are registered trademarks in the U.S. Patent and Trademark Office: Virgil’s ®, Reed’s Original Ginger Brew All-Natural Jamaican Style Ginger Ale ® and China Cola ®. Registrations for trademarks in the United States will last indefinitely as long as we continue to use and police the trademarks and renew filings with the applicable governmental offices. We have not been challenged in our right to use any of our material trademarks in the United States. We intend to obtain international registration of certain trademarks in foreign jurisdictions. In addition, we consider our finished product and concentrate formulae, which are not the subject of any patents, to be trade secrets. Our brewing process is a trade secret. This process can be used to brew flavors of beverages other than ginger ale and ginger beer, such as root beer, cream soda, cola, and other spice and fruit beverages. We have not sought any patents on our brewing processes because we would be required to disclose our brewing process in patent applications. We generally use non-disclosure agreements with employees and distributors to protect our proprietary rights. Government Regulation The production, distribution and sale in the United States of many of our Company’s products are subject to the Federal Food, Drug, and Cosmetic Act, the Federal Trade Commission Act, the Lanham Act, state consumer protection laws, federal, state and local workplace health and safety laws, various federal, state and local environmental protection laws and various other federal, state and local statutes and regulations applicable to the production, transportation, sale, safety, advertising, labeling and ingredients of such products. Outside the United States, the distribution and sale of our many products and related operations are also subject to numerous similar and other statutes and regulations. A California law requires that a specific warning appear on any product that contains a component listed by the State as having been found to cause cancer or birth defects. The law exposes all food and beverage producers to the possibility of having to provide warnings on their products. This is because the law recognizes no generally applicable quantitative thresholds below which a warning is not required. Consequently, even trace amounts of listed components can expose affected products to the prospect of warning labels. Products containing listed substances that occur naturally or that are contributed to such products solely by a municipal water supply are generally exempt from the warning requirement. No Company beverages produced for sale in California are currently required to display warnings under this law. We are unable to predict whether a component found in a Company product might be added to the California list in the future, although the state has initiated a regulatory process in which caffeine will be evaluated for listing. Furthermore, we are also unable to predict when or whether the increasing sensitivity of detection methodology that may become applicable under this law and related regulations as they currently exist, or as they may be amended, might result in the detection of an infinitesimal quantity of a listed substance in a beverage of ours produced for sale in California. Bottlers of our beverage products presently offer and use nonrefillable, recyclable containers in the United States and various other markets around the world. Some of these bottlers also offer and use refillable containers, which are also recyclable. Legal requirements apply in various jurisdictions in the United States and overseas requiring that deposits or certain ecotaxes or fees be charged for the sale, marketing and use of certain nonrefillable beverage containers. The precise requirements imposed by these measures vary. Other types of beverage container- related deposit, recycling, ecotax and/or product stewardship statutes and regulations also apply in various jurisdictions in the United States and overseas. We anticipate that additional, similar legal requirements may be proposed or enacted in the future at local, state and federal levels, both in the United States and elsewhere. All of our facilities and other operations in the United States are subject to various environmental protection statutes and regulations, including those relating to the use of water resources and the discharge of wastewater. Our policy is to comply with all such legal requirements. Compliance with these provisions has not had, and we do not expect such compliance to have, any material adverse effect on our capital expenditures, net income or competitive position. Environmental Matters Our primary cost environmental compliance activity is in recycling fees and redemption values. We are required to collect redemption values from our customers and remit those redemption values to the state, based upon the number of bottles of certain products sold in that state. 10 Employees We have 28 full-time employees on our corporate staff, as follows: 3 in general management, 16 in sales and marketing support, and 9 in accounting, administration and operations. We also have 33 production employees that work both full and part time. We employ additional people on a part-time basis as needed. We have never participated in a collective bargaining agreement. We believe that the relationship with our employees is good. Item 2. Property We lease a facility of approximately 76,000 square feet, which serves as our principal executive offices, our West Coast Brewery and bottling plant and our Southern California warehouse facility. Approximately 30,000 of the total space is leased under a long-term lease expiring in 2024. We also lease a warehouse of approximately 18,000 square feet under a lease expiring in 2017, a warehouse of approximately 13,000 square feet under a lease expiring in 2014, and a warehouse of 15,000 square feet on a month to month basis. Item 3. Legal Proceedings From time to time, we are a party to claims and legal proceedings arising in the ordinary course of business. Our management evaluates our exposure to these claims and proceedings individually and in the aggregate and provides for potential losses on such litigation if the amount of the loss is estimable and the loss is probable. From August 3, 2005 through April 7, 2006, we issued 333,156 shares of our common stock in connection with our initial public offering. These securities represented all of the shares issued in connection with the initial public offering prior to October 11, 2006. These shares issued in connection with the initial public offering may have been issued in violation of either Federal or State securities laws, or both, and may be subject to rescission. On August 12, 2006, we made a rescission offer to all holders of the outstanding shares that we believe are subject to rescission, pursuant to which we offered to repurchase these shares then outstanding from the holders. At the expiration of the rescission offer on September 18, 2006, the rescission offer was accepted by 32 of the offerees to the extent of 28,420 shares for an aggregate of $119,000, including statutory interest. The shares that were tendered for rescission were agreed to be purchased by others and not from our funds. Federal securities laws do not provide that a rescission offer will terminate a purchaser’s right to rescind a sale of stock that was not registered as required or was not otherwise exempt from such registration requirements. With respect to the offerees who rejected the rescission offer, we may continue to be liable under federal and state securities laws for up to an amount equal to the value of all shares of common stock issued in connection with the initial public offering plus any statutory interest we may be required to pay. If it is determined that we offered securities without properly registering them under federal or state law, or securing an exemption from registration, regulators could impose monetary fines or other sanctions as provided under these laws. However, we believe the rescission offer provides us with additional meritorious defenses against any future claims relating to these shares. Except as set forth above, we believe that there are no material litigation matters at the current time. Although the results of such litigation matters and claims cannot be predicted with certainty, we believe that the final outcome of such claims and proceedings will not have a material adverse impact on our financial position, liquidity or results of operations. Item 4. Mine Safety Disclosures Not applicable. 11 Item 5. Market for Common Equity and Related Stockholder Matters PART II Our common stock is listed for trading on the NYSE MKT trading under the symbol “REED”. Prior to December 31, 2012, our company traded on the NASDAQ exchange. The following is a summary of the high and low bid prices of our common stock on the NASDAQ and NYSE MKT Capital Markets for the periods presented: Year Ending December 31, 2011 First Quarter Second Quarter Third Quarter Fourth Quarter Year Ending December 31, 2012 First Quarter Second Quarter Third Quarter Fourth Quarter $ $ Sales Price High Low 3.00 $ 2.29 2.10 1.76 Sales Price High 1.90 $ 4.48 7.19 8.82 1.95 1.74 1.61 1.11 Low 1.10 1.70 3.28 4.94 As of December 31, 2012, there were approximately 190 stockholders of record of the common stock (not including the number of persons or entities holding stock in nominee or street name through various brokerage firms) and approximately 12,498,427 outstanding shares of common stock. Unregistered Sales of Equity Securities During the fiscal year ended December 31, 2012, we issued the following equity securities that were unregistered under the Securities Act: (cid:1) We issued 14,965 shares of common stock in exchange for consulting and legal services. The value of the stock was based on the closing price of the stock on the issuance or agreed upon date. The total value of shares issued for services was $23,000. The shares were issued pursuant to exemption from registration under Section 4(2) of the Securities Act. Dividend Policy We have never declared or paid dividends on our common stock. We currently intend to retain future earnings, if any, for use in our business, and, therefore, we do not anticipate declaring or paying any dividends in the foreseeable future. Payments of future dividends, if any, will be at the discretion of our board of directors after taking into account various factors, including the terms of our credit facility and our financial condition, operating results, current and anticipated cash needs and plans for expansion. We are obligated to pay a non-cumulative 5% dividend from lawfully available assets to the holders of our Series A preferred stock and $0.13 per share per quarter on our Series B preferred stock in either cash or additional shares of common stock at our discretion. In 2012 and 2011, we paid dividends on our Series A preferred stock in an aggregate of 4,760 and 11,455 shares of common stock in each such year, respectively, and anticipate that we will be obligated to issue at least this many shares annually to the holders of the Series A preferred stock so long as such shares are issued and outstanding. In 2012, we accrued $29,000 of dividends on our outstanding Series B shares and paid $37,000 of dividends by issuing 3,394 shares of our common stock. In 2011, we accrued $42,000 of dividends on our outstanding Series B shares and paid $3,000 of dividends by issuing 4,760 shares of our common stock. 12 Securities Authorized for Issuance Under Equity Compensation Plans 2001 Stock Option Plan and 2007 Stock Option Plan We are authorized to issue options to purchase up to 500,000 shares of common stock under our 2001 Stock Option Plan, and we are authorized to issue options to purchase up to 1,500,000 shares of common stock under our 2007 Stock Option Plan. On August 28, 2001, our board of directors adopted the 2001 Stock Option Plan, and the plan was approved by our stockholders. On October 8, 2007, our board of directors adopted the 2007 Stock Option Plan, and the plan was approved by our stockholders on November 19, 2007. The plans permit the grant of options to our employees, directors and consultants. The options may constitute either “incentive stock options” within the meaning of Section 422 of the Internal Revenue Code or “non-qualified stock options.” The primary difference between “incentive stock options” and “non-qualified stock options” is that once an option is exercised, the stock received under an “incentive stock option” has the potential of being taxed at the more favorable long-term capital gains rate, while stock received by exercising a “non-qualified stock option” is taxed according to the ordinary income tax rate schedule. The plans are currently administered by the board of directors. The plan administrator has full and final authority to select the individuals to receive options and to grant such options as well as a wide degree of flexibility in determining the terms and conditions of options, including vesting provisions. The exercise price of an option granted under the plan cannot be less than 100% of the fair market value per share of common stock on the date of the grant of the option. The exercise price of an incentive stock option granted to a person owning more than 10% of the total combined voting power of the common stock must be at least 110% of the fair market value per share of common stock on the date of the grant. Options may not be granted under the plan on or after the tenth anniversary of the adoption of the plan. Incentive stock options granted to a person owning more than 10% of the combined voting power of the common stock cannot be exercisable for more than five years. When an option is exercised, the purchase price of the underlying stock will be paid in cash, except that the plan administrator may permit the exercise price to be paid in any combination of cash, shares of stock having a fair market value equal to the exercise price, or as otherwise determined by the plan administrator. If an optionee ceases to be an employee, director, or consultant with us, other than by reason of death, disability, or retirement, all vested options must be exercised within three months following such event. However, if an optionee’s employment or consulting relationship with us terminates for cause, or if a director of ours is removed for cause, all unexercised options will terminate immediately. If an optionee ceases to be an employee or director of, or a consultant to us, by reason of death, disability, or retirement, all vested options may be exercised within one year following such event or such shorter period as is otherwise provided in the related agreement. When a stock award expires or is terminated before it is exercised, the shares set aside for that award are returned to the pool of shares available for future awards. No option can be granted under the plan after ten years following the earlier of the date the plan was adopted by the board of directors or the date the plan was approved by our stockholders. 13 2010 Incentive Stock Plan and 2010-2 Incentive Stock Plan We are authorized to issue up to an aggregate of 75,000 shares of common stock to employees, officers, directors, consultants, independent contractors, advisors, or other service providers to Reed’s under our 2010 Incentive Stock Plan and 2010-2 Incentive Stock Plan (collectively, the “2010 Plans”). The 2010 Incentive Stock Plan was adopted by our board of directors on March 31, 2010; the 2010-2 Incentive Stock Option Plan was adopted on May 5, 2010. The 2010 Plans are administered by a committee of the board of directors. The plan committee may from time to time, and subject to the provisions of the plan and such other terms and conditions as the plan committee may prescribe, grant to any eligible person one or more shares of common stock of Reed’s ("Award Shares"). The grant of Award Shares or grant of the right to receive Award Shares shall be evidenced by either a written consulting agreement or a separate written agreement confirming such grant, executed by Reed’s and the recipient, stating the number of Award Shares granted and stating all terms and conditions of such grant. During 2011, 14,965 shares of common stock were issued under the 2010 Plans, and in 2011 there were 72,025 shares of common stock issued. Equity Compensation Plan Information The following table provides information, as of December 31, 2012, with respect to equity securities authorized for issuance under compensation plans: Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights (a) Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights (b) Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (excluding securities reflected in Column (a))(c) 607,000 $ 317,253 $ 924,253 $ 1.27 2.40 1.66 470,999 – 470,999 Plan Category Equity compensation plans approved by security holders Equity compensation plans not approved by security holders TOTAL Item 6. Selected Financial Data As a smaller reporting company, Reed’s is not required to provide the information required by this Item 6. 14 Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our financial statements and the related notes appearing elsewhere in this Annual Report. This discussion and analysis may contain forward-looking statements based on assumptions about our future business. Our actual results could differ materially from those anticipated in these forward- looking statements as a result of certain factors, including but not limited to those set forth under “Risk Factors” and elsewhere in this Annual Report. Overview Our 2012 results reflect 20% growth in revenues to $30 million. Private label sales were approximately $5.2 million of the revenues, $1 million higher than in 2011. Our private label revenues fell a little short of expectations in the fourth quarter due to lower buying from a major customer. We are starting out 2013 with very strong growth in both private label and branded product revenues. In 2013, we anticipate that our Culture Club kombucha line will make an increasing impact on branded sales revenues while we continue to increase our distribution reach for our branded Ginger Brew and Virgil’s lines of natural sodas. In addition to revenues from our three great brands, we are exploring additional line extensions and branding opportunities. We are also increasing our consumer marketing and creating excitement around our brands, which will increase general awareness of our products. We believe that we have adequate capital for our existing business plans for 2013 and we are increasing margin contribution at a rate that is faster than increases in operating and sales costs. Results of Operations Year ended December 31, 2012 Compared to Year ended December 31, 2011 Sales Sales of $30,007,000 for the year ended December 31, 2012 represent an increase of $4,994,000, or 20%, as compared to the prior year same period. Sales from branded products increased over 19% during 2012, over 2011, with an overall volume increase of 18% in our core 12-ounce branded beverages. Sales of private label products increased to approximately $5.2 million in 2012, an increase of approximately 23% over 2011. The branded product sales increases are due to higher volumes with key customers as well as the addition of several regional direct store delivery (DSD) distributors selling our products. Promotional allowances, a deduction from revenues, increased at a faster rate than gross sales increases, primarily due to initial discounting on our kombucha sales and to additional promotional activities with our distributors. Our kombucha sales commenced during the second half of 2012, with volume increases primarily in the fourth quarter. Cost of Tangible Goods Sold Cost of tangible goods sold consists of the costs of raw materials and packaging utilized in the manufacture of products, co-packing fees, repacking fees, in-bound freight charges, as well as certain internal transfer costs. The total cost of $18,943,000 for the year December 31, 2012 was 63% of net sales, as it also was in 2011. Despite price increases in certain key raw ingredients, we were able to lower our average costs on our 12 ounce branded sodas overall by approximately 2% in the year ended December 31, 2012, as compared to the prior year same period, due primarily to lower costs of certain packaging materials. Cost of Goods Sold – Idle Capacity Cost of goods sold – idle capacity consists of direct production costs in excess of charges allocated to our finished goods in production. Plant costs include labor costs, production supplies, repairs and maintenance, and inventory write-off. Our charges for labor and overhead allocated to our finished goods are determined on a market cost basis, which is lower than our actual costs incurred. Plant costs in excess of production allocations are expensed in the period incurred rather than added to the cost of finished goods produced. Idle capacity expenses increased to $1,920,000 in the year ended December 31, 2012, from $1,761,000 in the prior year period. The increase is due to higher unabsorbed costs of production, primarily in payroll, workers compensation insurance and depreciation expense. During 2012 we produced about 60% less equivalent cases in our Los Angeles plant than we did in 2011. The lower production is due primarily to our initial kombucha productions, which tied up plant time while we learned and improved processes. During the first half of 2012, we also performed a number of plant upgrades and maintenance that required labor costs which could not be capitalized and which required periods of down time from production. Despite the lower production in 2012, we were able to mitigate the plant losses to an increase of $159,000 or 9% increase over 2011. We anticipate that our plant production will increase to record production rates in 2013, which will help us to reduce the idle capacity costs. 15 Gross Profit Our gross profit of $9,144,000 in the year ended December 31, 2012 represents 30% of sales, as compared to 30% in 2011. Delivery and Handling Expenses Delivery and handling expenses consist of delivery costs to certain customers and warehouse costs incurred for handling our finished goods after production. Delivery and handling costs increased to $2,634,000 in the year ended December 31, 2012 from $2,307,000 in 2011. The 14% increase is due to higher sales volume, increased freight costs on certain customers and increased inventory handling costs. As a percentage of sales, delivery and handling expenses were 9% in both of the years ended December 31, 2012, and 2011. Selling and marketing expenses Selling and marketing expenses consist primarily of direct charges for staff compensation costs, advertising, sales promotion, marketing and trade shows. Selling and marketing costs increased overall to $3,145,000 in the year ended December 31, 2012 from $2,470,000 in 2011. The $675,000 increase (27%) is primarily due to increased marketing and promotional costs of $403,000, including dealer promotions, sponsorships and trade shows; and to higher compensation related costs of $251,000. Our overall sales staff increased from 13 at the end of 2011 to 17 at the end of 2012. As our sales base continues to grow, we plan to progressively increase our sales staff further. As a percentage of sales, selling and marketing costs in the aggregate were 10% in both the years ended December 31, 2012 and 2011. General and Administrative Expenses General and administrative expenses consist primarily of the cost of executive, administrative, and finance personnel, as well as professional fees. General and administrative expenses during the year ended December 31, 2012 increased to $3,229,000 from $2,878,000 in 2011. The $351,000 increase is primarily due to increases in consulting and professional fees of $168,000, an increase in loan fees of $149,000, an increase in facilities-related costs of $142,000, and an increase in the accounts receivable reserve of $122,000. Cost increases were offset by a decrease in compensation-related costs of $103,000. In 2011, a legal matter asserted by a former industrial employee resulted in one-time legal costs of $327,000 that did not recur in 2012. We believe that our existing executive and administrative staffing levels are sufficient to allow for moderate growth without the need to add personnel and related costs for the foreseeable future. Income (Loss) from Operations Income from operations was $136,000 in the year ended December 31, 2012, as compared to a loss of $250,000 in 2011. The improvement of $386,000 is primarily due to increased sales and margin contribution. Interest Expense Interest expense decreased to $660,000 in the year ended December 31, 2012, compared to interest expense of $691,000 in the same period of 2011. The decrease is due to lower average borrowing under a loan and security agreement with PMC Financial, LLC, secured primarily by our inventory and accounts receivable. Modified EBITDA The Company defines modified EBITDA (a non-GAAP measurement) as net loss before interest, taxes, depreciation and amortization, and non- cash share-based compensation expense. Other companies may calculate modified EBITDA differently. Management believes that the presentation of modified EBITDA provides a measure of performance that approximates cash flow before interest expense, and is meaningful to investors. 16 MODIFIED EBITDA SCHEDULE Net loss Modified EBITDA adjustments: Depreciation and amortization Interest expense Stock option and warrant compensation Other stock compensation for services and finance fees Total EBITDA adjustments Year ended December 31, 2011 2012 (unaudited) (unaudited) $ (524,000 ) $ (941,000 ) 738,000 660,000 107,000 23,000 1,528,000 653,000 691,000 300,000 131,000 1,775,000 Modified EBITDA income from operations $ 1,004,000 $ 834,000 Liquidity and Capital Resources As of December 31, 2012, we had stockholders equity of $4,098,000 and we had working capital of $2,298,000, compared to stockholders equity of $4,305,000 and working capital of $2,655,000 at December 31, 2011. The decrease in our working capital of $357,000 was primarily a result of net losses and pay downs on our long-term debt. Our increase in cash and cash equivalents to $1,163,000 at December 31, 2012 compared to $713,000 at December 31, 2011 was primarily a result of cash provided by operating activities of $1,177,000. Such cash provided by operations was offset primarily by costs of plant improvements of $507,000 and loan pay downs of $397,000. We also gained $177,000 through the exercise of stock options and warrants. In addition to our cash position on December 31, 2012, we had availability under our line of credit of $234,000. Our Loan and Security Agreement with PMC Financial Services Group, LLC provides a $4 million revolving line of credit and a $750,000 term loan. The revolving line of credit is based on 85% of eligible accounts receivable and 50% of eligible inventory . The interest rate on the revolving line of credit is at the prime rate plus 3.75% (7% at December 31, 2012). The term loan is for $750,000 and bears interest at the prime rate plus 11.6%, which shall not be below 14.85%, is secured by all of the unencumbered assets of the Company, and is to be repaid in 48 equal installments of principal and interest of $21,000. We believe that the Company currently has the necessary working capital to support existing operations for at least the next 12 months. Our primary capital source will be positive cash flow from operations. If our sales goals do not materialize as planned, we believe that the Company can reduce its operating costs and can be managed to maintain positive cash flow from operations. Historically, we have financed our operations primarily through private sales of common stock, preferred stock, convertible debt, a line of credit from a financial institution and cash generated from operations. We may not generate sufficient revenues from product sales in the future to achieve profitable operations. If we are not able to achieve profitable operations at some point in the future, we eventually may have insufficient working capital to maintain our operations as we presently intend to conduct them or to fund our expansion and marketing and product development plans. In addition, our losses may increase in the future as we expand our manufacturing capabilities and fund our marketing plans and product development. These losses, among other things, have had and may continue to have an adverse effect on our working capital, total assets and stockholders’ equity. If we are unable to achieve profitability, the market value of our common stock would decline and there would be a material adverse effect on our financial condition. 17 If we suffer losses from operations, our working capital may be insufficient to support our ability to expand our business operations as rapidly as we would deem necessary at any time, unless we are able to obtain additional financing. There can be no assurance that we will be able to obtain such financing on acceptable terms, or at all. If adequate funds are not available or are not available on acceptable terms, we may not be able to pursue our business objectives and would be required to reduce our level of operations, including reducing infrastructure, promotions, personnel and other operating expenses. These events could adversely affect our business, results of operations and financial condition. If adequate funds are not available or if they are not available on acceptable terms, our ability to fund the growth of our operations, take advantage of opportunities, develop products or services or otherwise respond to competitive pressures, could be significantly limited. Critical Accounting Policies and Estimates Our financial statements are prepared in accordance with accounting principles generally accepted in the United States of America, or GAAP. GAAP requires us to make estimates and assumptions that affect the reported amounts in our financial statements including various allowances and reserves for accounts receivable and inventories, the estimated lives of long-lived assets and trademarks and trademark licenses, as well as claims and contingencies arising out of litigation or other transactions that occur in the normal course of business. The following summarize our most significant accounting and reporting policies and practices: Revenue Recognition . Revenue is recognized on the sale of a product when the product is shipped, which is when the risk of loss transfers to our customers, and collection of the receivable is reasonably assured. A product is not shipped without an order from the customer and credit acceptance procedures performed. The allowance for returns is regularly reviewed and adjusted by management based on historical trends of returned items. Amounts paid by customers for shipping and handling costs are included in sales. The Company reimburses its wholesalers and retailers for promotional discounts, samples and certain advertising and promotional activities used in the promotion of the Company’s products. The accounting treatment for the reimbursements for samples and discounts to wholesalers results in a reduction in the net revenue line item. Reimbursements to wholesalers and retailers for certain advertising activities are included in selling and marketing expenses. Trademark License and Trademarks . We own trademarks that we consider material to our business. Three of our material trademarks are registered trademarks in the U.S. Patent and Trademark Office: Virgil’s ®, Reed’s Original Ginger Brew All-Natural Jamaican Style Ginger Ale ® and Tianfu China Natural Soda ®. Registrations for trademarks in the United States will last indefinitely as long as we continue to use and police the trademarks and renew filings with the applicable governmental offices. We have not been challenged in our right to use any of our material trademarks in the United States. We intend to obtain international registration of certain trademarks in foreign jurisdictions. We account for these items in accordance with FASB guidance; we do not amortize indefinite-lived trademark licenses and trademarks. In accordance with FASB guidance, we evaluate our non-amortizing trademark license and trademarks quarterly for impairment. We measure impairment by the amount that the carrying value exceeds the estimated fair value of the trademark license and trademarks. The fair value is calculated by reviewing net sales of the various beverages and applying industry multiples. Based on our quarterly impairment analysis the estimated fair values of trademark license and trademarks exceeded the carrying value and no impairments were identified during the year ended December 31, 2012. Long-Lived Assets . Our management regularly reviews property, equipment and other long-lived assets, including identifiable amortizing intangibles, for possible impairment. This review occurs quarterly or more frequently if events or changes in circumstances indicate the carrying amount of the asset may not be recoverable. If there is indication of impairment of property and equipment or amortizable intangible assets, then management prepares an estimate of future cash flows expected to result from the use of the asset and its eventual disposition. If these cash flows are less than the carrying amount of the asset, an impairment loss is recognized to write down the asset to its estimated fair value. The fair value is estimated at the present value of the future cash flows discounted at a rate commensurate with management’s estimates of the business risks. Quarterly, or earlier, if there is indication of impairment of identified intangible assets not subject to amortization, management compares the estimated fair value with the carrying amount of the asset. An impairment loss is recognized to write down the intangible asset to its fair value if it is less than the carrying amount. Preparation of estimated expected future cash flows is inherently subjective and is based on management’s best estimate of assumptions concerning expected future conditions. No impairments were identified during the year ended December 31, 2012. 18 Management believes that the accounting estimate related to impairment of our long lived assets, including our trademark license and trademarks, is a “critical accounting estimate” because: (1) it is highly susceptible to change from period to period because it requires management to estimate fair value, which is based on assumptions about cash flows and discount rates; and (2) the impact that recognizing an impairment would have on the assets reported on our balance sheet, as well as net income, could be material. Management’s assumptions about cash flows and discount rates require significant judgment because actual revenues and expenses have fluctuated in the past and we expect they will continue to do so. In estimating future revenues, we use internal budgets. Internal budgets are developed based on recent revenue data for existing product lines and planned timing of future introductions of new products and their impact on our future cash flows. Accounts Receivable . We evaluate the collectability of our trade accounts receivable based on a number of factors. In circumstances where we become aware of a specific customer’s inability to meet its financial obligations to us, a specific reserve for bad debts is estimated and recorded which reduces the recognized receivable to the estimated amount our management believes will ultimately be collected. In addition to specific customer identification of potential bad debts, bad debt charges are recorded based on our historical losses and an overall assessment of past due trade accounts receivable outstanding. Inventories . Inventories are stated at the lower of cost to purchase and/or manufacture the inventory or the current estimated market value of the inventory. We regularly review our inventory quantities on hand and record a provision for excess and obsolete inventory based primarily on our estimated forecast of product demand and/or our ability to sell the product(s) concerned and production requirements. Demand for our products can fluctuate significantly. Factors that could affect demand for our products include unanticipated changes in consumer preferences, general market conditions or other factors, which may result in cancellations of advance orders or a reduction in the rate of reorders placed by customers. Additionally, our management’s estimates of future product demand may be inaccurate, which could result in an understated or overstated provision required for excess and obsolete inventory. Stock-Based Compensation. We periodically issue stock options and warrants to employees and non-employees in non-capital raising transactions for services and for financing costs. The Company accounts for stock option and warrant grants issued and vesting to employees based on FASB ASC Topic 718, “Compensation – Stock Compensation”, whereas the award is measured at its fair value at the date of grant and is amortized ratably over the vesting period. We account for stock option and warrant grants issued and vesting to non-employees in accordance with ASC Topic 718 whereby the fair value of the stock compensation is based on the measurement date as determined at either (a) the date at which a performance commitment is reached, or (b) at the date at which the necessary performance to earn the equity instrument is complete. We estimate the fair value of stock options using the Black-Scholes option-pricing model, which was developed for use in estimating the fair value of options that have no vesting restrictions and are fully transferable. This model requires the input of subjective assumptions, including the expected price volatility of the underlying stock and the expected life of stock options. Projected data related to the expected volatility of stock options is based on the historical volatility of the trading prices of the Company’s common stock and the expected life of stock options is based upon the average term and vesting schedules of the options. Changes in these subjective assumptions can materially affect the fair value of the estimate, and therefore the existing valuation models do not provide a precise measure of the fair value of our employee stock options. 19 We believe there have been no significant changes, during the year ended December 31, 2012, to the items disclosed as critical accounting policies and estimates in Management's Discussion and Analysis of Financial Condition and Results of Operations in the Company’s Annual Report on Form 10-K for the year ended December 31, 2011. Recent Accounting Pronouncements In December 2011, the FASB issued ASU No. 2011-11, “Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities.” This ASU requires an entity to disclose information about offsetting and related arrangements to enable users of its financial statements to understand the effect of those arrangements on its financial position. ASU No. 2011-11 will be applied retrospectively and is effective for annual and interim reporting periods beginning on or after January 1, 2013. The Company does not expect adoption of this standard to have a material impact on its results of operations, financial condition, or liquidity. Other recent accounting pronouncements issued by the FASB (including its Emerging Issues Task Force), the AICPA, and the Securities Exchange Commission (the "SEC") did not or are not believed by management to have a material impact on the Company's present or future financial statements. Inflation Although management expects that our operations will be influenced by general economic conditions, we do not believe that inflation has a material effect on our results of operations. Item 7A. Quantitative and Qualitative Disclosures About Market Risk As a smaller reporting company, Reed’s is not required to provide the information required by this Item 7A. 20 Item 8. Financial Statements Report of Independent Registered Public Accounting Firm Financial Statements: Balance Sheets as of December 31, 2012 and December 31, 2011 Statements of Operations for the years ended December 31, 2012 and 2011 Statements of Changes in Stockholders’ Equity for the years ended December 31, 2012 and 2011 Statements of Cash Flows for the years ended December 31, 2012 and 2011 Notes to Financial Statements F-1 F-2 F-3 F-4 F-5 F-6 21 Report of Independent Registered Public Accounting Firm To the Board of Directors and Stockholders Reed’s, Inc. We have audited the accompanying balance sheets of Reed’s, Inc. as of December 31, 2012 and 2011 and the related statements of operations, changes in stockholders’ equity and cash flows for the years then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly in all material respects, the financial position of Reed’s, Inc. as of December 31, 2012 and 2011 and the results of its operations and its cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America. Weinberg & Company, P.A. Los Angeles, California March 25, 2013 F- 1 REED’S, INC. BALANCE SHEETS ASSETS Current assets: Cash Inventory Trade accounts receivable, net of allowance for doubtful accounts and returns and discounts $ 1,163,000 $ 5,794,000 of $399,000 and $135,000, respectively Prepaid inventory Prepaid and other current assets Total Current Assets 1,961,000 201,000 212,000 9,331,000 713,000 6,099,000 1,626,000 168,000 123,000 8,729,000 December 31, 2012 December 31, 2011 Property and equipment, net of accumulated depreciation of $2,351,000 and $1,739,000, respectively Brand names Deferred financing fees, net of amortization of $50,000 and $8,000, respectively Total assets LIABILITIES AND STOCKHOLDERS’ EQUITY Current Liabilities: Accounts payable Accrued expenses Dividends payable Recycling fees payable Line of credit Current portion of long term financing obligation Current portion of capital leases payable Current portion of term loan Total current liabilities $ $ Long term financing obligation, less current portion, net of discount of $576,000 and $626,000, respectively Capital leases payable, less current portion Term loan, less current portion Total Liabilities Commitments and contingencies Stockholders’ equity: Series A Convertible Preferred stock, $10 par value, 500,000 shares authorized, 10,411 and 46,621 shares issued and outstanding, respectively Series B Convertible Preferred stock, $10 par value, 500,000 shares authorized, 45,602 and 80,415 shares issued and outstanding, respectively Common stock, $.0001 par value, 19,500,000 shares authorized, 12,084,673 and 10,885,883 shares issued and outstanding, respectively Additional paid in capital Accumulated deficit Total stockholders’ equity Total liabilities and stockholders’ equity $ 3,422,000 1,029,000 54,000 13,836,000 $ 3,512,000 1,029,000 85,000 13,355,000 3,368,000 $ 214,000 74,000 19,000 3,023,000 90,000 69,000 176,000 7,033,000 2,208,000 98,000 399,000 9,738,000 2,310,000 196,000 83,000 111,000 3,095,000 71,000 56,000 152,000 6,074,000 2,247,000 153,000 576,000 9,050,000 104,000 456,000 1,000 23,996,000 (20,459,000 ) 4,098,000 13,836,000 $ 466,000 804,000 1,000 22,924,000 (19,890,000 ) 4,305,000 13,355,000 The accompanying notes are an integral part of these financial statements F- 2 REED’S, INC. STATEMENTS OF OPERATIONS For the Years Ended December 31, 2012 and 2011 Sales Cost of tangible goods sold Cost of goods sold – idle capacity Gross profit Operating expenses: Delivery and handling expenses Selling and marketing expense General and administrative expense Total operating expenses Income (loss) from operations Interest expense Net loss Preferred stock dividend Net loss attributable to common stockholders Loss per share attributable to common stockholders - basic and diluted Weighted average number of shares outstanding - basic and diluted $ 2012 30,007,000 $ 18,943,000 1,920,000 9,144,000 2011 25,013,000 15,847,000 1,761,000 7,405,000 2,634,000 3,145,000 3,229,000 9,008,000 136,000 (660,000 ) 2,307,000 2,470,000 2,878,000 7,655,000 (250,000 ) (691,000 ) (524,000 ) (941,000 ) (45,000 ) (65,000 ) (569,000 ) $ (1,006,000 ) (0.05 ) $ 11,361,053 (0.09 ) 10,785,719 $ $ The accompanying notes are an integral part of these financial statements F- 3 REED’S, INC. STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY For the Years Ended December 31, 2012 and 2011 Common Stock Shares Amount Series A Preferred Stock Shares Amount Series B Preferred Stock Shares Amount Additional Paid-In Capital Accumulated Total Stockholders' Deficit Equity 10,446,090 1,000 46,621 466,000 85,766 858,000 21,701,000 (18,884,000 ) 4,142,000 72,873 – – – – – 146,000 – 146,000 37,457 – – – (5,351 ) (54,000 ) 54,000 – – 304,880 11,000 – – – – – – – – – – – – – – – – – – – – 672,000 – 672,000 25,000 – 25,000 – 258,000 – 258,000 – 42,000 – 42,000 – – – – – – – (65,000 ) (65,000 ) 13,533 – – – – – – – – – – – 26,000 – – (941,000 ) 26,000 (941,000 ) 10,885,833 $ 1,000 46,621 $ 466,000 80,415 $ 804,000 $ 22,924,000 $ (19,890,000 ) $ 4,305,000 14,965 – – – – – 23,000 – 23,000 144,840 – (36,210 ) (362,000 ) – – 362,000 – – 243,691 347,223 416,048 – – – – – – – – – (34,813 ) (348,000 ) 348,000 – – – – – – 30,000 – 30,000 147,000 – 147,000 Balance, December 31, 2010 Fair value of common stock issued for services and finance fees Common stock issued upon conversion of Series B preferred stock Sale of common stock in private offering Exercise of warrants Fair value vesting of options issued to employees Fair value of warrants issued for services Series A and Series B preferred stock dividend Common stock paid for Series A and Series B preferred stock dividend Net loss Balance, December 31, 2011 Fair Value of Common Stock issued for bonuses and services Common stock issued upon conversion of Series A preferred stock Common stock issued upon conversion of Series B preferred stock Exercise of stock options Exercise of warrants Fair value vesting of options issued to employees Series A and Series B preferred stock dividend Common stock paid for Series A and Series B dividend Net Loss Balance, – – – – – – 107,000 – 107,000 – – – – – – – (45,000 ) (45,000 ) 32,073 – – – – – 55,000 – (524,000 ) 55,000 (524,000 ) December 31, 2012 $ 12,084,673 $ 1,000 10,411 $ 104,000 45,602 $ 456,000 $ 23,996,000 $ 20,459,000 $ 4,098,000 The accompanying notes are an integral part of these financial statements F- 4 REED’S, INC. STATEMENTS OF CASH FLOWS For the Years Ended December 31, 2012 and 2011 Cash flows from operating activities: Net loss Adjustments to reconcile net loss to net cash provided by (used in) operating activities: $ (524,000 ) $ (941,000 ) 2012 2011 Depreciation and amortization Fair value of stock options issued to employees Fair value of warrants issued for services Fair value of common stock issued for services Increase in allowance for doubtful accounts Changes in assets and liabilities: Accounts receivable Inventory Prepaid expenses and inventory and other current assets Accounts payable Accrued expenses Recycling fees payable Net cash provided by (used in) operating activities Cash flows from investing activities: Purchase of property and equipment Net cash used in investing activities Cash flows from financing activities: Proceeds from issuance of common stock in private placement, net of offering costs Proceeds from stock option and warrant exercises Payments for deferred financing fees Proceeds received from term loan Principal repayments on term loan Principal repayments on long term financing obligation Principal repayments on capital lease obligation Net (repayments) borrowings on existing line of credit Net (payoff) borrowings on former line of credit Principal repayments on note payable Net cash (used) provided by financing activities Net increase (decrease) in cash Cash at beginning of year Cash at end of year Supplemental Disclosures of Cash Flow Information: Cash paid during the year for: Interest Taxes Non Cash Investing and Financing Activities Series A preferred stock converted to common stock Series B preferred stock converted to common stock Common Stock issued in settlement of Series A and Series B preferred stock Series B preferred stock dividend payable in common stock Property and equipment acquired through capital lease obligation Common stock issued for deferred financing fees $ $ $ $ $ $ $ $ $ 738,000 107,000 – 23,000 264,000 (599,000 ) 305,000 (122,000 ) 1,058,000 19,000 (92,000 ) 1,177,000 (507,000 ) (507,000 ) – 177,000 (44,000 ) – (153,000 ) (71,000 ) (57,000 ) (72,000 ) – – (220,000 ) 450,000 713,000 1,163,000 $ 668,000 $ – $ 362,000 $ 348,000 $ 55,000 $ 74,000 $ 15,000 $ – $ 653,000 258,000 42,000 131,000 30,000 (361,000 ) (1,544,000 ) (75,000 ) (276,000 ) 34,000 (215,000 ) (2,264,000 ) (356,000 ) (356,000 ) 672,000 25,000 (65,000 ) 750,000 (22,000 ) (54,000 ) (43,000 ) 3,404,000 (2,347,000 ) (71,000 ) 2,249,000 (371,000 ) 1,084,000 713,000 671,000 – – 54,000 26,000 42,000 -67,000 15,000 The accompanying notes are an integral part of these financial statements F- 5 REED’S, INC. NOTES TO FINANCIAL STATEMENTS FOR THE YEARS ENDED DECEMBER 31, 2012 AND 2011 (1) Operations and Summary of Significant Accounting Policies A) Nature of Operations Reed’s, Inc. (the “Company”) was organized under the laws of the state of Florida in January 1991. In 2001, the Company changed its name from Original Beverage Corporation to Reed’s, Inc. and changed its state of incorporation from Florida to Delaware. The Company is engaged primarily in the business of developing, manufacturing and marketing natural non-alcoholic beverages, as well as candies and ice creams. The Company currently offers seven Reed’s Ginger Brew flavors (Extra, Original, Premium, Light 55 Calorie Extra, Cherry Ginger, Raspberry Ginger and Spiced Apple Ginger); Reed’s Energy Elixir; five Virgil’s beverages (Root Beer, Cream Soda, Orange Cream Soda, Black Cherry Cream Soda, and Real Cola); four zero calorie Virgil’s versions; two China Cola beverages (regular and cherry); two Sonoma Sparkler sparkling juices; three kinds of ginger candies (crystallized ginger, ginger chews and peanut butter ginger chews); and three flavors of ginger ice cream (Original, Green Tea, and Chocolate). In 2011 the Company introduced its nausea relief product and reformulated its Virgil’s diet products into its new ZERO line with stevia natural sweetener. In 2012 the company introduced its kombucha line with four flavors. The Company sells its products primarily in upscale gourmet and natural food stores and supermarket chains in the United States and Canada. B) Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Those estimates and assumptions include estimates for reserves of uncollectible accounts, inventory obsolescence, depreciable lives of property and equipment, analysis of impairments of recorded intangibles, accruals for potential liabilities and assumptions made in valuing stock instruments issued for services. C) Accounts Receivable The Company evaluates the collectability of its trade accounts receivable based on a number of factors. In circumstances where the Company becomes aware of a specific customer’s inability to meet its financial obligations to the Company, a specific reserve for bad debts is estimated and recorded, which reduces the recognized receivable to the estimated amount the Company believes will ultimately be collected. In addition to specific customer identification of potential bad debts, bad debt charges are recorded based on the Company’s historical losses and an overall assessment of past due trade accounts receivable outstanding. The allowance for doubtful accounts and returns and discounts is established through a provision reducing the carrying value of receivables. Receivables are charged off against the allowance when payments are received or products returned. The allowance for doubtful accounts and returns and discounts as of December 31, 2012 was approximately $399,000 and December 31, 2011 was approximately $135,000. D) Property and Equipment and Related Depreciation Property and equipment is stated at cost. Depreciation is calculated using accelerated and straight-line methods over the estimated useful lives of the assets as follows: Property and Equipment Type Building Machinery and equipment Vehicles Office equipment Years of Depreciation 39 years 5-12 years 5 years 5-7 years F- 6 Management regularly reviews property, equipment and other long-lived assets for possible impairment. This review occurs quarterly, or more frequently if events or changes in circumstances indicate the carrying amount of the asset may not be recoverable. If there is indication of impairment, management prepares an estimate of future cash flows expected to result from the use of the asset and its eventual disposition. If these cash flows are less than the carrying amount of the asset, an impairment loss is recognized to write down the asset to its estimated fair value. The Company did not recognize impairment for the years ended December 31, 2012 and 2011. E) Intangible Assets and Impairment Policy The Company records intangible assets in accordance with FASB ASU Topic 350 “Intangibles – Goodwill and Other”. Intangible assets consist mostly of brand names and are deemed to have indefinite lives not subject to annual amortization. Intangible assets, which have finite lives, are amortized on a straight-line basis over their remaining useful life; they are also subject to annual impairment reviews. Management regularly reviews intangible assets for possible impairment. This review occurs quarterly, or more frequently if events or changes in circumstances indicate the carrying amount of the asset may not be recoverable. If there is indication of impairment, management prepares an estimate of future cash flows expected to result from the use of the asset and its eventual disposition. If these cash flows are less than the carrying amount of the asset, an impairment loss is recognized to write down the asset to its estimated fair value. No impairments were identified for the years ended December 31, 2012 and 2011. F) Concentrations The Company’s cash balances on deposit with banks are guaranteed by the Federal Deposit Insurance Corporation up to $250,000 at December 31, 2012. The Company may be exposed to risk for the amounts of funds held in bank accounts in excess of the insurance limit. In assessing the risk, the Company’s policy is to maintain cash balances with high quality financial institutions. The Company had cash balances in excess of the guarantee during the years ended December 31, 2012 and 2011. During the year ended December 31, 2012, the Company had two customers who accounted for approximately 30% and 10% of its sales, respectively; and during the year ended December 31, 2011, the Company had two customers who accounted for approximately 28% and 11% of its sales, respectively. No other customer accounted for more than 10% of sales in either year. As of December 31, 2012 the Company had accounts receivable due from two customers who comprised $580,000 (25%) and $340,000 (14%), of its total accounts receivable; and as of December 31, 2011 the Company had accounts receivable due from two customers who comprised $475,000 (27%), $264,000 (15%), respectively, of its total accounts receivable. The Company currently relies on a single contract packer for a majority of its production and bottling of beverage products. The Company has different packers available for their production of products. Although there are other packers and the Company has outfitted their own brewery and bottling plant, a change in packers may cause a delay in the production process, which could ultimately affect operating results. G) Fair Value of Financial Instruments The Company uses various inputs in determining the fair value of its investments and measures these assets on a recurring basis. Financial assets recorded at fair value in the balance sheets are categorized by the level of objectivity associated with the inputs used to measure their fair value. Authoritative guidance provided by the FASB defines the following levels directly related to the amount of subjectivity associated with the inputs to fair valuation of these financial assets: Level 1—Quoted prices in active markets for identical assets or liabilities. Level 2—Inputs, other than the quoted prices in active markets, that are observable either directly or indirectly. Level 3—Unobservable inputs based on the Company's assumptions. The Company has no such assets or liabilities recorded to be valued on the basis above at December 31, 2012 and 2011. F- 7 H) Cost of sales The Company classifies cost of sales in two categories. Cost of tangible goods sold is comprised of the costs of raw materials and packaging utilized in the manufacture of products, co-packing fees, repacking fees, in-bound freight charges, as well as certain internal transfer costs. Cost of goods sold – idle capacity consists of direct production costs in excess of charges allocated to finished goods in production. Plant costs include labor costs, production supplies, repairs and maintenance, and inventory write-off. Charges for labor and overhead allocated to finished goods are determined on a market cost basis, which is lower than the actual costs incurred. Plant costs in excess of production allocations are expensed in the period incurred rather than added to the cost of finished goods produced. Expenses not related to the production of our products are classified as operating expenses. I) Delivery and Handling Expenses Shipping and handling costs are comprised of purchasing and receiving costs, inspection costs, warehousing costs, transfer freight costs, and other costs associated with product distribution after manufacture and are included as part of operating expenses. J) Income Taxes Current income tax expense is the amount of income taxes expected to be payable for the current year. A deferred income tax asset or liability is established for the expected future consequences of temporary differences in the financial reporting and tax bases of assets and liabilities. The Company considers future taxable income and ongoing, prudent and feasible tax planning strategies, in assessing the value of its deferred tax assets. If the Company determines that it is more likely than not that these assets will not be realized, the Company will reduce the value of these assets to their expected realizable value, thereby decreasing net income. Evaluating the value of these assets is necessarily based on the Company’s judgment. If the Company subsequently determined that the deferred tax assets, which had been written down, would be realized in the future, the value of the deferred tax assets would be increased, thereby increasing net income in the period when that determination was made. K) Revenue Recognition Revenue is recognized on the sale of a product when the product is shipped, which is when the risk of loss transfers to our customers, and collection of the receivable is reasonably assured. A product is not shipped without an order from the customer and credit acceptance procedures performed. The allowance for returns is regularly reviewed and adjusted by management based on historical trends of returned items. Amounts paid by customers for shipping and handling costs are included in sales. The Company accounts for certain sales incentives, including slotting fees, as a reduction of gross sales. These sales incentives for the years ended December 31, 2012 and 2011 approximated $2,345,000 and $1,463,000, respectively. L) Net Loss Per Share Basic earnings (loss) per share is computed by dividing the net income (loss) applicable to Common Stockholders by the weighted average number of shares of Common Stock outstanding during the year. Diluted earnings (loss) per share is computed by dividing the net income (loss) applicable to Common Stockholders by the weighted average number of common shares outstanding plus the number of additional common shares that would have been outstanding if all dilutive potential common shares had been issued, using the treasury stock method. Potential common shares are excluded from the computation as their effect is antidilutive. For the years ended December 31, 2012 and 2011, the calculations of basic and diluted loss per share are the same because potential dilutive securities would have an anti-dilutive effect. The potentially dilutive securities consisted of the following as of: Warrants Series A Preferred Stock Series B Preferred Stock Options Total December 31, 2012 2011 317,253 41,644 319,214 607,000 1,285,111 2,006,870 186,484 562,905 1,172,000 3,928,259 F- 8 M) Advertising Costs Advertising costs are expensed as incurred and are included in selling expense in the amount of $111,000 and $25,000, for the years ended December 31, 2012 and 2011, respectively. N) Stock Compensation Expense The Company periodically issues stock options and warrants to employees and non-employees in non-capital raising transactions for services and for financing costs. The Company accounts for stock option and warrant grants issued and vesting to employees based on Financial Accounting Standards Board (FASB) ASC Topic 718, “Compensation – Stock Compensation”, whereas the award is measured at its fair value at the date of grant and is amortized ratably over the vesting period. The Company accounts for stock option and warrant grants issued and vesting to non-employees in accordance with ASC Topic 718 whereas the value of the stock compensation is based upon the measurement date as determined at either (a) the date at which a performance commitment is reached, or (b) at the date at which the necessary performance to earn the equity instruments is complete. O) Recent Accounting Pronouncements In December 2011, the FASB issued ASU No. 2011-11, “Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities.” This ASU requires an entity to disclose information about offsetting and related arrangements to enable users of its financial statements to understand the effect of those arrangements on its financial position. ASU No. 2011-11 will be applied retrospectively and is effective for annual and interim reporting periods beginning on or after January 1, 2013. The Company does not expect adoption of this standard to have a material impact on its results of operations, financial condition, or liquidity. Other recent accounting pronouncements issued by the FASB (including its Emerging Issues Task Force), the AICPA, and the Securities Exchange Commission (the "SEC") did not or are not believed by management to have a material impact on the Company's present or future financial statements. P) Reclassification In presenting the Company’s statement of operations for the year ended December 31, 2011, the Company previously presented $2,307,000 of delivery and handling expenses as part of cost of goods sold. In presenting the Company’s statement of operations for the year ended December 31, 2012, the Company has reclassified the 2011 delivery and handling expenses to operating expenses. F- 9 (2) Inventory Inventory is valued at the lower of cost (first-in, first-out) or market, and is comprised of the following as of: Raw Materials and Packaging Finished Goods December 31, 2012 December 31, 2011 $ $ 3,524,000 $ 2,270,000 5,794,000 $ 3,538,000 2,561,000 6,099,000 (3) Property and Equipment Property and equipment is comprised of the following as of: Land Building Vehicles Machinery and equipment Office equipment Accumulated depreciation December 31, 2012 December 31, 2011 $ $ 1,108,000 $ 1,737,000 320,000 2,174,000 434,000 5,773,000 (2,351,000 ) 3,422,000 $ 1,108,000 1,708,000 320,000 1,702,000 413,000 5,251,000 (1,739,000 ) 3,512,000 Depreciation expense for the years ended December 31, 2012 and 2011 was $612,000 and $561,000, respectively. Machinery and equipment at December 31, 2012 and 2011 includes equipment held under capital leases of $309,000 and $294,000, respectively. Accumulated depreciation on equipment held under leases was $149,000 and 104,000 as of December 31, 2012 and 2011, respectively. (4) Intangible Assets Brand Names Brand names consist of three trademarks for natural beverages. As long as the Company continues to renew its trademarks, these intangible assets will have an indefinite life. Accordingly, they are not subject to amortization. Deferred Financing Fees Deferred financing fees are comprised of the following as of: Loan fees relating to financing Accumulated amortization December 31, 2012 December 31, 2011 $ $ 80,000 $ (26,000 ) 54,000 $ 135,000 (50,000 ) 85,000 Amortization expense for the years ended December 31, 2012 and 2011 was approximately $75,000 and $42,000 respectively. F- 10 Amortization of deferred financing fees is as follows for the years ending December 31: Year 2013 2014 2015 2016 Total Amount 41,000 8,000 3,000 2,000 54,000 $ (5) Line of Credit On November 9, 2011, the Company entered into a Loan and Security Agreement with PMC Financial Services Group, LLC. The Loan and Security Agreement replaced the Company’s existing RLOC and added a $750,000 term loan to the credit (see Note 7). The RLOC initially was for $3 million, based on 85% of eligible accounts receivable and 50% of eligible inventory . The interest rate on the revolving line of credit is at the prime rate plus 3.75% (7% at December 31, 2012). The three-year Agreement is secured by all of the unencumbered assets of the Corporation. There is an early termination fee of 2% of the maximum revolver amount during the first two years and 1% of the maximum revolver during the third year. The Agreement includes a financial covenant debt service coverage ratio that is effective if the credit availability under the RLOC falls below $100,000. On November 30, 2011, the maximum RLOC amount was temporarily raised to $3.5 million, and on May 11, 2012, the Company’s revolving line of credit was increased from $3,000,000 to $4,000,000. At December 31, 2012 and December 31, 2011, the aggregate amount outstanding under the line of credit was $3,023,000 and $3,095,000 respectively, and the Company had approximately $ 234 ,000 of availability on this line of credit at December 31, 2012. The line of credit expires on November 7, 2014 and is secured by substantially all of the Company’s assets. (6) Long Term Financing Obligation Long term financing obligation is comprised of the following as of: Financing obligation Valuation discount Less current portion Long term financing obligation December 31, 2012 2011 $ $ 2,874,000 $ (576,000 ) 2,298,000 (90,000 ) 2,208,000 $ 2,944,000 (626,000 ) 2,318,000 (71,000 ) 2,247,000 On June 15, 2009, the Company closed escrow on the sale of its two buildings and its brewery equipment and concurrently entered into a long-term lease agreement for the same property and equipment. In connection with the lease the Company has the option to repurchase the buildings and brewery equipment from 12 months after the commencement date to the end of the lease term at the greater of the fair market value or an agreed upon amount. Since the lease contains a buyback provision and other related terms, the Company determined it had continuing involvement that did not warrant the recognition of a sale; therefore, the transaction has been accounted for as a long-term financing. The proceeds from the sale, net of transaction costs, have been recorded as a financing obligation in the amount of $3,056,000. Monthly payments under the financing agreement are recorded as interest expense and a reduction in the financing obligation at an implicit rate of 9.9%. The financing obligation is personally guaranteed up to a limit of $150,000 by the principal shareholder and Chief Executive Officer, Christopher J. Reed. In connection with the financing obligation, the Company issued an aggregate of 400,000 warrants to purchase its common stock at $1.20 per share for five years. The 400,000 warrants were valued at $752,000 and reflected as a debt discount, using the Black Scholes option pricing model. The following assumptions were utilized in valuing the 400,000 warrants: strike price of $2.10 to $2.25; term of 5 years; volatility of 91.36% to 110.9%; expected dividends 0%; and discount rate of 2.15% to 2.20%. The 400,000 warrants were recorded as valuation discount and are being amortized over 15 years, the term of the purchase option. Amortization of valuation discount was $50,000 during both of the years ended December 31, 2012 and 2011. F- 11 The aggregate amount due under the financing obligation at December 31, 2012 and 2011 was $2,874,000 and $2,944,000, respectively. Aggregate future obligations under the financing obligation are as follows: Year 2013 2014 2015 2016 2017 Thereafter Total $ $ 90,000 111,000 134,000 161,000 190,000 2,188,000 2,874,000 (7) Term Loan In connection with the Loan and Security Agreement with PMC Financial Services Group, LLC (see Note 5), the Company entered into a Term Loan. The loan is for $750,000, bears interest at the prime rate plus 11.6%, which shall not be below 14.85%, is secured by all of the unencumbered assets of the Company, and is to be repaid in 48 equal installments of principal and interest of $21,000. Term loan Less current portion Long term debt $ $ 575,000 $ (176,000 ) 399,000 $ 728,000 (152,000 ) 576,000 December 31, 2012 2011 Aggregate future obligations under the term loan are as follows: Year 2013 2014 2015 Total $ $ 176,000 204,000 195,000 575,000 (8) Obligations Under Capital Leases The Company leases equipment for its brewery operations with an aggregate value of $294,000 under eight non-cancelable capital leases. Most of the leases are personally guaranteed by the Company’s chief executive officer. Monthly payments range from $341 to $1,680 per month, including interest, at interest rates ranging from 6.51% to 17.32% per annum. At December 31, 2012, monthly payments under these leases aggregated $7,000. The leases expire at various dates through 2016. Future minimum lease payments under capital leases are as follows: Years Ending December 31, 2013 2014 2015 2016 Total payments Less: Amount representing interest Present value of net minimum lease payments Less: Current portion Non-current portion F- 12 $ $ 92,000 71,000 28,000 14,000 205,000 38,000 167,000 69,000 98,000 (9) Stockholders’ Equity Preferred Stock Series A Series A Preferred stock consists of 500,000 shares authorized to Series A, $10.00 par value, 5% non-cumulative, participating, preferred stock. As of December 31, 2012 and 2011, there were 10,411 and 46,621 shares outstanding, respectively, with a liquidation preference of $10.00 per share. These preferred shares have a 5% pro-rata annual non-cumulative dividend. The dividend can be paid in cash or, in the sole and absolute discretion of our board of directors, in shares of common stock based on its then fair market value. We cannot declare or pay any dividend on shares of our securities ranking junior to the preferred stock until the holders of our preferred stock have received the full non-cumulative dividend to which they are entitled. In addition, the holders of our preferred stock are entitled to receive pro rata distributions of dividends on an “as converted” basis with the holders of our common stock. During the year ended December 31, 2012 the Company accrued and paid a $16,000 dividend payable to the preferred shareholders, which the board of directors elected to pay through the issuance of 4,760 shares of its common stock; and during the year ended December 31, 2011 the Company accrued and paid a $23,000 dividend payable to the preferred shareholders, which the board of directors elected to pay through the issuance of 11,455 shares of its common stock. In the event of any liquidation, dissolution or winding up of the Company, or if there is a change of control event, then, subject to the rights of the holders of our more senior securities, if any, the holders of our Series A preferred stock are entitled to receive, prior to the holders of any of our junior securities, $10.00 per share plus all accrued and unpaid dividends. Thereafter, all remaining assets shall be distributed pro rata among all of our security holders. Since June 30, 2008, we have the right, but not the obligation, to redeem all or any portion of the Series A preferred stock by paying the holders thereof the sum of the original purchase price per share, which was $10.00, plus all accrued and unpaid dividends. The Series A preferred stock may be converted, at the option of the holder, at any time after issuance and prior to the date such stock is redeemed, into four shares of common stock, subject to adjustment in the event of stock splits, reverse stock splits, stock dividends, recapitalization, reclassification and similar transactions. We are obligated to reserve out of our authorized but unissued shares of common stock a sufficient number of such shares to effect the conversion of all outstanding shares of Series A preferred stock. During the year ended December 31, 2012, 36,210 shares of Series A preferred stock were converted into 144,840 shares of common stock and in 2011, no shares of Series A preferred stock were converted into shares of common stock. Except as provided by law, the holders of our Series A preferred stock do not have the right to vote on any matters, including, without limitation, the election of directors. However, so long as any shares of Series A preferred stock are outstanding, we shall not, without first obtaining the approval of at least a majority of the holders of the Series A preferred stock, authorize or issue any equity security having a preference over the Series A preferred stock with respect to dividends, liquidation, redemption or voting, including any other security convertible into or exercisable for any equity security other than any senior preferred stock. Series B Series B Preferred stock consists of 500,000 shares authorized to Series B, $10.00 par value, 5% non-cumulative, participating, preferred stock. As of December 31, 2012 and 2011 there were 45,602 and 80,415 shares outstanding, respectively. On February 5, 2011, the Company completed a standby offering of 12,780 shares of its Series B Convertible Preferred Stock at $10.00 per share, for gross proceeds of $127,800. In connection with the offering, the Company also issued warrants to purchase 3,575 shares of common stock at $1.79 per share for five years. The Company paid legal and broker fees of approximately $11,000 in connection with the offering, resulting in net proceeds to the Company of $117,000. These preferred shares have a 5% pro-rata annual non-cumulative dividend payable quarterly for a period of three years. The dividend can be paid in cash or, in the sole and absolute discretion of our board of directors, in shares of common stock based on its then fair market value. We cannot declare or pay any dividend on shares of our securities ranking junior to the preferred stock until the holders of our preferred stock have received the full non-cumulative dividend to which they are entitled. During the year ended December 31, 2012, $29,000 in dividends were accrued and $38,000 of dividends were paid by the issuance of 27,313 shares of common stock, as shares of Series B Preferred were converted into shares of common stock. During the year ended December 31, 2011, $42,000 in dividends were accrued and $3,000 of dividends were paid by the issuance of 2,078 shares of common stock. F- 13 In the event of any liquidation, dissolution or winding up of the Company, or if there is a change of control event, then, subject to the rights of the holders of our more senior securities, if any, the holders of our Series B preferred stock are entitled to receive, prior to the holders of any of our junior securities, $10.00 per share plus all accrued and unpaid dividends. Thereafter, all remaining assets shall be distributed pro rata among all of our security holders. The Series B preferred stock may be converted, at the option of the holder, at any time after issuance and prior to the date such stock is redeemed, into seven shares of common stock, subject to adjustment in the event of stock splits, reverse stock splits, stock dividends, recapitalization, reclassification and similar transactions. We are obligated to reserve out of our authorized but unissued shares of common stock a sufficient number of such shares to effect the conversion of all outstanding shares of Series B preferred stock. During the year ended December 31, 2012, 34,813 shares of preferred stock were converted into 243,691 shares of common stock. During the year ended December 31, 2011, 5,351 shares of Series B preferred stock were converted into 37,457 shares of common stock. Except as provided by law, the holders of our Series B preferred stock do not have the right to vote on any matters, including, without limitation, the election of directors. However, so long as any shares of Series B preferred stock are outstanding, we shall not, without first obtaining the approval of at least a majority of the holders of the Series B preferred stock, authorize or issue any equity security having a preference over the Series B preferred stock with respect to dividends, liquidation, redemption or voting, including any other security convertible into or exercisable for any equity security other than any senior preferred stock. Common Stock Common stock consists of $.0001 par value, 19,500,000 shares authorized, 12,084,673 shares issued and outstanding as of December 31, 2012 and 10,885,833 shares issued and outstanding as of December 31, 2011. On February 3, 2011 the Company sold 304,880 shares of common stock at $2.46 per share for $750,000. In connection with the sale, the Company granted to the investors warrants to purchase 121,952 shares of common stock for $2.77 for five years. The Company paid an 8% placement agent fee of $60,000. The Company received proceeds from the private placement, after deducting placement agent fees and offering expenses, of $672,000. On March 25, 2011, the Registration Statement of the common stock to be sold and the common stock underlying the warrants with the Securities and Exchange Commission was declared effective, in accordance with the Registration Rights Agreement. During the year ended December 31, 2011, the Company issued 63,873 shares of common stock for services rendered at prices ranging from $1.32 to $2.69 per share with a value of $131,000. During the year ended December 31, 2011, the Company issued 9,000 shares of common stock at a price of $1.75 with a value of $15,000 for financing fees related to the capital leases. The value of the shares has been recorded as deferred financing fees and are being amortized over the term of the capital leases. During the year ended December 31, 2012, the Company issued 14,965 shares of common stock for services rendered at prices ranging from $1.13 to $2.17 per share with a value of $23,000. (10) Stock Options and Warrants A) Stock Options In 2001, the Company adopted the Original Beverage Corporation 2001 Stock Option Plan and, in 2007, the Company adopted the Reed’s Inc 2007 Stock Option Plan (the “Plans”). The options under both plans shall be granted from time to time by the Compensation Committee. Individuals eligible to receive options include employees of the Company, consultants to the Company and directors of the Company. The options shall have a fixed price, which will not be less than 100% of the fair market value per share on the grant date. The total number of options authorized is 500,000 and 1,500,000, respectively for the Original Beverage Corporation 2001 Stock Option Plan and the Reed’s Inc 2007 Stock Option Plan. F- 14 During the years ended December 31, 2012 and 2011, the Company granted 10,000 and 437,000 options, respectively, to purchase the Company's common stock at a weighted price of $1.85 and a weighted average price of $1.48, respectively, to employees under the Plans. The aggregate value of the options vesting, net of forfeitures, during the years ended December 31, 2012 and 2011 was $112,000 and $210,000, respectively, and has been reflected as compensation cost. As of December 31, 2012, the aggregate value of unvested options was $145,000, which will be amortized as compensation cost as the options vest, over 2 - 3 years. On April 9, 2012, the Company repriced 20,000 employee options to an exercise price of $1.83, which were previously $2.43 per share and $2.06 per share. The total increase in stock compensation expense, as a result of the repricing was $3,000. On December 23, 2011, the Company repriced 20,000 employee options to an exercise price of $1.14, which were previously $2.06 per share; and extended the termination date of 420,000 employee options until December 22, 2016. Such options previously were to expire on dates that were between 8 months and 48 months from the extension date. The total increase in stock compensation expense, as a result of the repricing and extensions, was $53,000; of which $48,000 was recognized in the year ended December 31, 2011 and $5,000 in the year ended December 31, 2012. During the year ended December 31, 2012 there were 408,334 options exercised at an average price of $1.05, resulting in proceeds to the Company of $30,000. Most of such exercises were cash-less, resulting in no proceeds to the Company. During the year ended December 31, 2011 there were 8,333 stock options exercised at a price of $0.75 per share resulting in proceeds to the Company of $6,000. The weighted-average grant date fair value of options granted during 2012 and 2011 was $0.40 and $0.66, respectively. The fair value of each option award is estimated on the date of grant using the Black-Scholes option pricing model that uses the assumptions noted in the following table. For purposes of determining the expected life of the option, an average of the estimated holding period is used. The risk-free rate for periods within the contractual life of the options is based on the U. S. Treasury yield in effect at the time of the grant. Expected volatility Expected dividends Expected average term (in years) Risk free rate - average Forfeiture rate Year ended December 31, 2011 2012 48% — 3.0 0.9% 0% 48% - 92% — 3.0 1.30% 0% A summary of option activity as of December 31, 2012 and changes during the two years then ended is presented below: Outstanding at December 31, 2010 Granted Exercised Forfeited or expired Outstanding at December 31, 2011 Granted Exercised Forfeited or expired Outstanding at December 31, 2012 Exercisable at December 31, 2012 Shares 840,000 437,000 - (105,000) 1,172,000 10,000 (408,334) (166,666) 607,000 411,165 Weighted-Average Exercise Price Weighted-Average Remaining Contractual Terms (Years) Aggregate Intrinsic Value $1.74 $1.48 - $2.59 $1.55 $1.85 $1.05 $4.46 $1.27 $1.17 3.6 3.7 $ $ 2,668,000 1,847,000 The aggregate intrinsic values of $2,668,000 and $1,847,000 were calculated as the difference between the market price and the exercise price of the Company’s stock, which was $5.68 as of December 31, 2012. F- 15 A summary of the status of the Company’s nonvested shares granted under the Company’s stock option plan as of December 31, 2012 and changes during the year then ended is presented below: Nonvested at December 31, 2011 Granted Vested Forfeited Shares 505,000 10,000 (205,276) (113,888) Weighted- Average Grant Date Fair Value $0.74 $0.40 $0.55 $1.41 Nonvested at December 31, 2012 195,836 $0.65 Additional information regarding options outstanding as of December 31, 2012 is as follows: Options Outstanding at December 31, 2012 Weighted Average Remaining Contractual Life (years) Number of Shares Outstanding Weighted Average Exercise Price 472,000 135,000 607,000 3.80 2.90 $1.05 $2.01 Options Exercisable at December 31, 2012 Number of Shares Exercisable Weighted Average Exercise Price 332,831 78,334 411,165 $0.67 $1.96 Range of Exercise Price $0.01 - $1.99 $2.00 - $4.99 B) Warrants On February 9, 2011, the Company granted warrants to purchase 3,575 shares of common stock to a dealer-manager in connection with the placement of its Series B Convertible Preferred Stock. The warrants are exercisable for five years at an exercise price of $1.79. On February 22, 2011, the Company granted warrants to purchase 83,208 shares of common stock to investors who purchased 277,359 shares of its common stock. The warrants are exercisable for five years at an exercise price of $2.10. On February 3, 2011, the Company granted warrants in connection with a placement of 304,880 shares of its common stock to purchase 121,952 shares of common stock for $2.77 for a term of five years. In connection with the same placement, the Company also granted warrants to purchase 24,390 shares of common stock to a dealer-manager at a price of $3.075 for five years. In February 2011, 11,000 warrants were exercised at a price of $2.25 per share resulting in proceeds to the Company of $25,000. On April 8, 2011, the Company granted to a consultant 250,000 warrants to purchase common stock at a price of $3.00 for five years. The warrants vest monthly over 24 months. In October 2011, the consultant agreement was terminated, so no further vesting shall occur on these warrants. During the year ended December 31, 2011, 62,500 of such warrants vested, resulting in expense of $42,000, and 187,500 of such warrants were forfeited. During the year ended December 31, 2012 there were 574,622 warrants exercised at prices between $1.20 per share and $3.08 per share (an average price of $1.61), resulting in proceeds to the Company of $147,000 and 416,328 shares of common stock issued. F- 16 The following table summarizes warrant activity for the two years ended December 31, 2012: Outstanding at December 31, 2010 Granted Exercised Forfeited or expired Outstanding at December 31, 2011 Granted Exercised Forfeited or expired Outstanding at December 31, 2012 Exercisable at December 31, 2012 Shares 2,009,028 396,342 (11,000) (387,500) 2,006,870 - (574,622) (1,114,995) 317,253 317,253 Weighted- Average Exercise Price $4.68 $2.93 $2.25 $4.86 $4.32 - $1.61 $6.26 $2.40 $2.40 Weighted- Average Remaining Contractual Terms (Years) Aggregate Intrinsic Value 1.7 2.7 $1,906,000 $1,906,000 The aggregate intrinsic value of $1,906,000 was calculated, as of December 31, 2012, as the difference between the market price and the exercise price of the Company’s stock, which was $5.68 as of December 31, 2012. The fair value of each warrant is estimated on the date of grant using the Black-Scholes option pricing model that uses the assumptions noted in the following table. Expected volatility is based on the historical volatility of the Company. For purposes of determining the expected life of the warrant, the full contract life of the warrant is used. The risk-free rate for periods within the contractual life of the warrants is based on the U. S. Treasury yield in effect at the time of the grant. Expected volatility Expected dividends Expected term (in years) Risk free rate Year ended December 31, 2012 N/A N/A N/A N/A 2011 48% - 76% - 5 1.6% The weighted-average grant date fair value of warrants granted during 2011 was $0 and $0.98 respectively. There were no warrants granted in 2012. The following table summarizes the outstanding warrants to purchase Common Stock at December 31, 2012: Number 83,208 116,565 117,480 317,253 Exercise Price $2.10 $2.25 $2.77 Expiration Dates August 2015 April 2015 February 2016 (11) Income Taxes At December 31, 2012 and 2011, the Company had available Federal and state net operating loss carryforwards to reduce future taxable income. The amounts available were approximately $16.5 million and $16.2 million for Federal purposes, respectively, and $12.5 million and $12.3 million for state purposes respectively. The Federal carryforward expires in 2033 and the state carryforward expires in 2018. Given the Company’s history of net operating losses, management has determined that it is more likely than not that the Company will not be able to realize the tax benefit of the carryforwards. Accordingly, the Company has not recognized a deferred tax asset for this benefit. F- 17 Effective January 1, 2007, the Company adopted FASB guidelines that address the determination of whether tax benefits claimed or expected to be claimed on a tax return should be recorded in the financial statements. Under this guidance, we may recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position should be measured based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. This guidance also provides guidance on derecognition, classification, interest and penalties on income taxes, accounting in interim periods and requires increased disclosures. At the date of adoption, and as of December 31, 2012 and 2011, the Company did not have a liability for unrecognized tax benefits, and no adjustment was required at adoption. The Company’s policy is to record interest and penalties on uncertain tax provisions as income tax expense. As of December 31, 2012 and 2011, the Company has not accrued interest or penalties related to uncertain tax positions. Additionally, tax years 2007 through 2012 remain open to examination by the major taxing jurisdictions to which the Company is subject. Upon the attainment of taxable income by the Company, management will assess the likelihood of realizing the tax benefit associated with the use of the carryforwards and will recognize a deferred tax asset at that time. Significant components of the Company’s deferred income tax assets are as follows as of: December 31, 2012 December 31, 2011 Deferred income tax asset: Net operating loss carry forward Valuation allowance Net deferred income tax asset $ $ 6,000,000 $ (6,000,000 ) – $ 6,150,000 (6,150,000 ) – Reconciliation of the effective income tax rate to the U.S. statutory rate is as follows: Federal Statutory tax rate State tax, net of federal benefit Valuation allowance Effective tax rate Year Ended December 31, 2012 2011 (34 )% (5 )% (39 )% 39 % –% (34 )% (5 )% (39 )% 39 % –% (12) Commitments and Contingencies Lease Commitments The Company leases warehouse space under non-cancelable operating leases. Rental expense for the years ended December 31, 2012 and 2011 was $237,000 and $129,000, respectively. Future payments under these leases as of December 31, 2012 are as follows: Year ending December 31, Amount 2013 2014 2015 2016 2017 Total $ $ 181,000 186,000 138,000 138,000 131,000 774,000 Other Commitments The Company has entered into contracts with customers with clauses that commit the Company to pay fees if the Company terminates the agreement early or without cause. The contracts call for the customer to have the right to distribute the Company’s products to a defined type of retailer within a defined geographic region. If the Company should terminate the contract or not automatically renew the agreements without cause, amounts would be due to the customer. As of December 31, 2012 and 2011, the Company has no plans to terminate or not renew any agreement with any of their customers; therefore, no fees have been accrued in the accompanying financial statements. F- 18  (13) Legal Proceedings From time to time, we are a party to claims and legal proceedings arising in the ordinary course of business. Our management evaluates our exposure to these claims and proceedings individually and in the aggregate and provides for potential losses on such litigation if the amount of the loss is estimable and the loss is probable. From August 3, 2005 through April 7, 2006, we issued 333,156 shares of our common stock in connection with our initial public offering. These securities represented all of the shares issued in connection with the initial public offering prior to October 11, 2006. These shares issued in connection with the initial public offering may have been issued in violation of either federal or state securities laws, or both, and may be subject to rescission. On August 12, 2006, we made a rescission offer to all holders of the outstanding shares that we believe are subject to rescission, pursuant to which we offered to repurchase these shares then outstanding from the holders. At the expiration of the rescission offer on September 18, 2006, the rescission offer was accepted by 32 of the offerees to the extent of 28,420 shares for an aggregate of $119,000, including statutory interest. The shares that were tendered for rescission were agreed to be purchased by others and not from our funds. Federal securities laws do not provide that a rescission offer will terminate a purchaser’s right to rescind a sale of stock that was not registered as required or was not otherwise exempt from such registration requirements. With respect to the offerees who rejected the rescission offer, we may continue to be liable under Federal and state securities laws for up to an amount equal to the value of all shares of common stock issued in connection with the initial public offering plus any statutory interest we may be required to pay. If it is determined that we offered securities without properly registering them under federal or state law, or securing an exemption from registration, regulators could impose monetary fines or other sanctions as provided under these laws. However, we believe the rescission offer provides us with additional meritorious defenses against any future claims relating to these shares. Except as set forth above, we believe that there are no material litigation matters at the current time. Although the results of such litigation matters and claims cannot be predicted with certainty, we believe that the final outcome of such claims and proceedings will not have a material adverse impact on our financial position, liquidity, or results of operations. (14) Related Party Activity During the year ended December 31, 2008, the Company entered into an agreement for the distribution of its products internationally. The agreement is between the Company and a company controlled by two brothers of Christopher Reed, Chief Executive Officer of the Company. The agreement remains in effect until terminated by either party and requires the Company to pay 10% of the defined sales of the previous month. During the year ended December 31, 2012, the Company paid commissions on sales of $15,000, and during the year ended December 31, 2011, the Company paid commissions on sales of $66,000. (15) Subsequent Events From January 1, 2013 until February 20, 2013, Company employees exercised 51,665 options at prices between $0.86 and $2.02, and received proceeds of $30,000 and issued 47,867 shares of common stock. On January 23, 2013 the Company issued 1,189 shares of common stock as a cashless exercise of a warrant for 2,000 shares at $2.25. As of February 15, 2013, the Company declared a mandatory conversion of its Series B Convertible Preferred Stock. The company issued 319,214 shares of common stock in exchange for the remaining 45,602 shares of Series B Convertible Preferred Stock outstanding. The Company also issued 47,890 shares of common stock to the Series B Convertible Preferred Stock shareholders as payment of dividends that had accrued in the amount of $1.05 per share. On March 4, 2013, the Company granted stock options to employees for 256,000 shares with an exercise price of $4.00 per share, the market closing price of its common stock on the grant date with a fair value of approximately $287,000. F- 19 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure None. Item 9A. Controls and Procedures Management’s Annual Report on Internal Control over Financial Reporting Disclosure Controls and Procedures Under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Securities and Exchange Act of 1934 Rules 13a-15(f). Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective as of December 31, 2012. Changes in Internal Control over Financial Reporting There have been no changes in the Company’s internal control over financial reporting during the fourth quarter of 2012 that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting. Management’s Report on Internal Control over Financial Reporting Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Our internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2012. In making this assessment, we used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control — Integrated Framework . Based on our assessment we concluded that, as of December 31, 2012, the Company’s internal control over financial reporting was effective. This report shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, and is not incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing. Item 9B. Other Information None. 22 Item 10. Directors, Executive Officers, Promoters, Control Persons and Corporate Governance; Compliance with Section 16(a) of the PART III Exchange Act General Our directors currently have terms which will end at our next annual meeting of the stockholders or until their successors are elected and qualify, subject to their death, resignation or removal. Officers serve at the discretion of the board of directors. Our board members are encouraged to attend meetings of the board of directors and the annual meeting of stockholders. The board of directors held nine meetings in 2012. The following table sets forth certain information with respect to our current directors and executive officers: Name Position Christopher J. Reed James Linesch Thierry Foucaut Judy Holloway Reed Mark Harris Daniel S.J. Muffoletto Michael Fischman President, Chief Executive Officer and Chairman of the Board Chief Financial Officer Chief Operating Officer Secretary and Director Director Director Director Business Experience of Directors and Executive Officers Age 54 58 48 53 57 58 57 Christopher J. Reed founded our company in 1987. Mr. Reed has served as our Chairman, President and Chief Executive Officer since our incorporation in 1991. Mr. Reed also served as Chief Financial Officer during fiscal year 2007 until October 1, 2007 and again from April 17, 2008 to January 19, 2010. Mr. Reed has been responsible for our design and products, including the original product recipes, the proprietary brewing process and the packaging and marketing strategies. Mr. Reed received a B.S. in Chemical Engineering in 1980 from Rennselaer Polytechnic Institute in Troy, New York. James Linesch was appointed as Chief Financial Officer effective January 19, 2009. Mr. Linesch served as the chief financial officer of AdStar, Inc., a public company providing ad placement services and payment processing software for publishers, from February 2006 until January 2009. He performed transaction intermediary services with MET Advisors, LLC from January 2005 until January 2006. From June 2000 to October 2004, he served as chief financial officer of DynTek, Inc., an information technology (IT) services company. From May 1996 until October 1999, he served as chief financial officer and president of CompuMed, Inc. He also served as chief financial officer of Universal Self Care, Inc. from June 1991 until May 1996. Mr. Linesch is a certified public accountant (CPA), having practiced with Price Waterhouse in Los Angeles. He earned a BS degree in finance from California State University, Northridge, and an MBA from the University of Southern California. Thierry Foucaut has been our Chief Operating Officer since May 2007. Prior to joining us, Mr. Foucaut worked for six years as Chief Operating Officer of Village Imports, a $30 million specialty foods and beverage distributor in California, where he created and launched a line of sparkling lemonades and managed the company’s operations including multiple warehouses and fleets of DSD delivery trucks. Mr. Foucaut spent 2000 with Eve.com, a leading San Francisco website specializing in retail sales of high-end cosmetics. Mr. Foucaut worked for L’Oréal Paris from 1994 through 1999 with growing marketing and sales responsibilities, including Product Manager from September 1994 to May 1996, South Europe Marketing Coordinator from June 1996 to July 1998 and Duty Free Key Account Executive from July 1998 to December 1999, managing large airport and airline clients over several European countries. He earned a Master of Science degree from Ecole Centrale Paris in 1988, and an MBA from Harvard Business School in 1994. 23 Judy Holloway Reed has been with us since 1992 and, as we have grown, has run the accounting, purchasing and shipping and receiving departments at various times since the 1990s. Ms. Reed has been one of our directors since June 2004, and our Secretary since October 1996. In the 1980s, Ms. Reed managed media tracking for a Los Angeles Infomercial Media Buying Group and was an account manager with a Beverly Hills, California stock portfolio management company. She earned a Business Degree from MIU in 1981. Ms. Reed is the wife of Christopher J. Reed, our Chairman, President and Chief Executive Officer. Mark Harris has been a member of our board of directors since April 2005. Mr. Harris is an independent venture capitalist and has been retired from the work force since 2002. In late 2003, Mr. Harris joined a group of Amgen colleagues in funding NeoStem, Inc., a company involved in stem-cell storage, archiving, and research to which he is a founding investor. From 1991 to 2002, Mr. Harris worked at Amgen, Inc. (Nasdaq: AMGN), a preeminent biotech company, managing much of Amgen’s media production for internal use and public relations. Mr. Harris spent the decade prior working in the aerospace industry at Northrop with similar responsibilities. Daniel S.J. Muffoletto, N.D. has been a member of our board of directors from April 2005 to December 2006 and from January 2007 to the present. Dr. Muffoletto has practiced as a Naturopathic Physician since 1986. He has served as chief executive officer of Its Your Earth, a natural products marketing company since June 2004. From 2003 to 2005, Dr. Muffoletto worked as Sales and Marketing Director for Worthington, Moore & Jacobs, a Commercial Law League member firm serving FedEx, UPS, DHL and Kodak, among others. From 2001 to 2003, he was the owner-operator of the David St. Michel Art Gallery in Montreal, Québec. From 1991 to 2001, Dr. Muffoletto was the owner/operator of a Naturopathic Apothecary, Herbal Alter*Natives of Seattle, Washington and Ellicott City, Maryland. The apothecary housed Dr. Muffoletto’s Naturopathic practice. Dr. Muffoletto received a Bachelors of Arts degree in Government and Communications from the University of Baltimore in 1977, and conducted postgraduate work in the schools of Public Administration and Publication Design at the University of Baltimore from 1978 to 1979. In 1986, he received his Doctorate of Naturopathic Medicine from the Santa Fe Academy of Healing, Santa Fe, New Mexico. Michael Fischman has been a member of our board of directors since April 2005. Since 1998, Mr. Fischman has been President and chief executive officer of the APEX course, the corporate training division of the International Association of Human Values. In addition, Mr. Fischman is a founding member and the director of training for USA at the Art of Living Foundation, a global non-profit educational and humanitarian organization at which he has coordinated over 200 personal development instructors since 1997. Family Relationships Other than the relationship of Christopher J. Reed, and Judy Holloway Reed, Christopher Reed’s wife and a board member, none of our directors or executive officers are related to one another. Legal Proceedings To the best of our knowledge, none of our executive officers or directors are parties to any material proceedings adverse to Reed’s, have any material interest adverse to Reed’s or have, during the past ten years: • • • been convicted in a criminal proceeding or been subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); had any bankruptcy petition filed by or against him/her or any business of which he/she was a general partner or executive officer, either at the time of the bankruptcy or within two years prior to that time; been subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his/her involvement in any type of business, securities, futures, commodities or banking activities; 24 • been found by a court of competent jurisdiction (in a civil action), the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated; (cid:1) been subject to, or party to, any judicial or administrative order, judgment, decree , or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (i) any Federal or State securities or commodities law or regulation, (ii) any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order or (iii) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or been the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member. been subject to, or party to, any judicial or administrative order, judgment, decree , or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (i) any Federal or State securities or commodities law or regulation, (ii) any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order or (iii) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or been the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member. Corporate Governance We are committed to having sound corporate governance principles. We believe that such principles are essential to running our business efficiently and to maintaining our integrity in the marketplace. There have been no changes to the procedures by which stockholders may recommend nominees to our board of directors. Director Qualifications We believe that our directors should have the highest professional and personal ethics and values, consistent with our longstanding values and standards. They should have broad experience at the policy-making level in business or banking. They should be committed to enhancing stockholder value and should have sufficient time to carry out their duties and to provide insight and practical wisdom based on experience. Their service on other boards of public companies should be limited to a number that permits them, given their individual circumstances, to perform responsibly all director duties for us. Each director must represent the interests of all stockholders. When considering potential director candidates, the board of directors also considers the candidate’s character, judgment, diversity, age and skills, including financial literacy and experience in the context of our needs and the needs of the board of directors. Director Independence The board of directors has determined that three members of our board of directors, Mr. Harris, Dr. Muffoletto and Mr. Fischman, are independent under the New York Stock Exchange Listed Company Manual. We intend to maintain at least three independent directors on our board of directors in the future. Code of Ethics Our Chief Executive Officer and all senior financial officers, including the Chief Financial Officer, are bound by a Code of Ethics that complies with Item 406 of Regulation S-B of the Exchange Act. Our Code of Ethics is posted on our website at www.reedsinc.com. 25 Board Structure and Committee Composition As of the date of this Annual Report, our board of directors has five directors and the following three standing committees: an Audit Committee, a Compensation Committee and a Nominations and Governance Committee. These committees were formed in January 2007. Audit Committee. Our Audit Committee oversees our accounting and financial reporting processes, internal systems of accounting and financial controls, relationships with independent auditors and audits of financial statements. Specific responsibilities include the following: • • • • • • • selecting, hiring and terminating our independent auditors; evaluating the qualifications, independence and performance of our independent auditors; approving the audit and non-audit services to be performed by our independent auditors; reviewing the design, implementation, adequacy and effectiveness of our internal controls and critical accounting policies; overseeing and monitoring the integrity of our financial statements and our compliance with legal and regulatory requirements as they relate to financial statements or accounting matters; reviewing with management and our independent auditors, any earnings announcements and other public announcements regarding our results of operations; and preparing the audit committee report that the SEC requires in our annual proxy statement. Our Audit Committee is comprised of Dr. Muffoletto, Mr. Harris and Mr. Fischman. Dr. Muffoletto serves as Chairman of the Audit Committee. The board of directors has determined that the three members of the Audit Committee are independent under the rules of the SEC and the New York Stock Exchange Listed Company Manual and that Dr. Muffoletto qualifies as an “audit committee financial expert,” as defined by the rules of the SEC. Our board of directors has adopted a written charter for the Audit Committee meeting applicable standards of the SEC and the New York Stock Exchange. Compensation Committee. Our Compensation Committee assists our board of directors in determining and developing plans for the compensation of our officers, directors and employees. Specific responsibilities include the following: • • • approving the compensation and benefits of our executive officers; reviewing the performance objectives and actual performance of our officers; and administering our stock option and other equity compensation plans. 26 Our Compensation Committee is comprised of Dr. Muffoletto, Mr. Harris and Mr. Fischman. The board of directors has determined that all of the members of the Compensation Committee are independent under New York Stock Exchange Listed Company Manual Section 303A.02. In affirmatively determining the independence of a director who will serve on the compensation committee, the Company’s board considered all factors specifically relevant to whether the director has a relationship to the Company which is material to the director’s ability to be independent from management in connection with the duties of a committee member, including, without limitation: (1) the source of compensation of the director, including any consulting, advisory or other compensatory fee paid by the Company; and (2) whether the director is affiliated with the Company, or an affiliate of the Company. Our board of directors has adopted a written charter for the Compensation Committee. Nominations and Governance Committee. Our Nominations and Governance Committee assists the board of directors by identifying and recommending individuals qualified to become members of our board of directors, reviewing correspondence from our stockholders, and establishing, evaluating and overseeing our corporate governance guidelines. Specific responsibilities include the following: • • • evaluating the composition, size and governance of our board of directors and its committees and making recommendations regarding future planning and the appointment of directors to our committees; establishing a policy for considering stockholder nominees for election to our board of directors; and evaluating and recommending candidates for election to our board of directors. Our Nominations and Governance Committee is comprised of Dr. Muffoletto and Mr. Fischman. The board of directors has determined that all of the members of the Nominations and Governance Committee are independent under the rules of the New York Stock Exchange Listed Company Manual. Our board of directors has adopted a written charter for the Nominations and Corporate Governance Committee. Section 16(a) Beneficial Ownership Reporting Compliance Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) requires our directors and executive officers and beneficial holders of more than 10% of our common stock to file with the SEC initial reports of ownership and reports of changes in ownership of our equity securities. To our knowledge, based solely upon a review of Forms 3 and 4 and amendments thereto furnished to Reed’s under 17 CFR 240.16a-3 (e) during our most recent fiscal year and Forms 5 and amendments thereto furnished to Reed’s with respect to our most recent fiscal year or written representations from the reporting persons, we believe that during the year ended December 31, 2012 our directors, executive officers and persons who own more than 10% of our common stock complied with all Section 16(a) filing requirements. 27 Item 11. Executive Compensation The following table summarizes all compensation for fiscal years 2012 and 2011 received by our principal executive officer, principal financial officer and chief operating officer, who are the only executive officers of the Company in fiscal year 2012, our “Named Executive Officers”. Name and Principal Position Year Salary Bonus Stock Awards Non- Equity Incentive Plan Compensation Non- Qualified Deferred Compensation Earnings Option Awards ($)(1) All Other Compensation Total Christopher J. Reed , Chief Executive Officer (Principal Executive Officer) James Linesch , Chief Financial Officer (Principal Financial Officer) Thierry Foucaut , Chief Operating Officer 2012 $ 217,000 $ 4,000 2011 $ 190,000 $ 3,045 – $ – – $ 19,000 2012 $ 181,009 $ 29,000 – $ – 2011 $ 175,400 $ 3,045 – $ 15,200 – – – – – $ – $ 4,616 (2) $ 221,000 4,616 (2) $ 216,661 – – – $ 210,009 – $ 193,645 2012 $ 184,154 $ – $ 2011 $ 180,000 $ 3,045 $ $ – $ 9,500 $ 184,154 $ 192,545 (1) The amounts represent the fair value for all share-based payment awards, calculated on the date of grant in accordance with Financial Accounting Standards, excluding any impact of assumed forfeiture rates. (2) Represents value of automobile provided to Christopher J. Reed. Employment Agreements There are no employment agreements with our executive officers. Mr. Reed is currently paid an annual Salary of $190,000; Mr. Linesch is currently paid an annual salary of $175,000; and Mr. Foucaut is currently paid an annual salary of $180,000. Any bonuses are discretionary. In the event of a sale of Reed’s, Inc., should Mr. Linesch’s employment terminate during the first 12 months after the sale, he will be entitled to three months severance based on his compensation level at that time. 28 Outstanding Equity Awards At Fiscal Year-End The following table sets forth information regarding unexercised options and equity incentive plan awards for each Named Executive Officer outstanding as of December 31, 2012. Number of Securities Underlying Unexercised Options (#) Exercisable Number of Securities Underlying Unexercised Options (#) Unexercisable Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options 25,000 25,000 (1) 13,333 20,000 6,667 (3) 20,000 (4) 12,500 12,500 (5) – – – – Option Exercise Price Option Expiration Date $1.14 $1.14 $1.14 $1.14 12/22/16 12/22/16 12/22/16 12/22/16 Name and Position Christopher J. Reed, Chief Executive Officer James Linesch, Chief Financial Officer Thierry Foucaut, Chief Operating Officer Vesting of Options: (1) 25,000 will vest on 12/23/13 (2) 25,000 vested on 01/03/12. (3) 6,667 will vest on 12/30/13 (4) 20,000 will vest on 12/23/13 (5) 12,500 will vest on 12/23/13 Director Compensation The following table summarizes the compensation paid to our directors for the fiscal year ended December 31, 2012: Name Judy Holloway Reed Mark Harris Daniel S.J. Muffoletto Michael Fischman Fees Earned or Paid in Cash $ $ $ $ 1,350 2,350 12,096 (1) 750 Stock Awards Option Awards Non-Equity Incentive Plan All Other Compensation Compensation Total $ $ $ $ 1,350 2,350 12,096 750 (1) Since November 2007, Dr. Muffoletto receives $833 per month to serve as the Chairman of the Audit Committee. Item 12. Security Ownership of Certain Beneficial Owners, Management and Related Stockholder Matters The following table reflects, as of March 7, 2013, the beneficial common stock ownership of: (a) each of our directors, (b) each of our current named executive officers, (c) each person known by us to be a beneficial holder of 5% or more of our common stock, and (d) all of our executive officers and directors as a group. Except as otherwise indicated below, the persons named in the table have sole voting and investment power with respect to all shares of common stock held by them. Unless otherwise indicated, the principal address of each listed executive officer and director is 13000 South Spring Street, Los Angeles, California 90061. 29 Name of Named Beneficial Owner Directors and Named Executive Officers Christopher J. Reed (2) Judy Holloway Reed (2) Mark Harris (3) Daniel S.J. Muffoletto, N.D. Michael Fischman James Linesch (4) Thierry Foucaut (5) Directors and executive officers as a group (7 persons) 5% or greater stockholders Robert Reed (6) * Less than 1%. Number of Shares Beneficially Owned Percentage of Shares Beneficially Owned (1) 1,615,475 1,615,475 9,363 0 0 112,921 70,049 1,807,808 800,000 12.9 12.9 * * * * * 14.4 6.4 (1) Beneficial ownership is determined in accordance with the rules of the SEC. Shares of common stock subject to options or warrants currently exercisable or exercisable within 60 days of March 8, 2012 are deemed outstanding for computing the percentage ownership of the stockholder holding the options or warrants but are not deemed outstanding for computing the percentage ownership of any other stockholder. Unless otherwise indicated in the footnotes to this table, we believe stockholders named in the table have sole voting and sole investment power with respect to the shares set forth opposite such stockholder’s name. Percentage of ownership is based on approximately 12,500,833 shares of common stock outstanding as of March 8, 2012. (2) Christopher J. Reed and Judy Holloway Reed are husband and wife. The same number of shares of common stock is shown for each of them, as they may each be deemed to be the beneficial owner of all of such shares. Consists of 1,584,225 shares of common stock and options to purchase 31,250 shares of common stock. Does not include options to purchase up to 43,750 shares of common stock, which vest over two years. The address for Mr. Harris is 160 Barranca Road, Newbury Park, California 91320. (3) (4) Consists of 73,338 shares of common stock and options to purchase 39,583 shares of common stock. Does not include options to purchase 45,417 shares of common stock vesting over two years. (5) Consists of 51,299 shares of common stock and options to purchase up to 18,750 shares of common stock. Does not include options to purchase up to 31,250 shares of common stock, which vest over two years. (6) Robert Reed is the trustee of the Reed Family Irrevocable Trust One and the Reed Family Irrevocable Trust Two. Each trust owns 400,000 shares of common stock. As sole Trustee, Robert Reed holds voting and dispositive power over all of these shares. Item 13. Certain Relationships and Related Transactions, and Director Independence Our board of directors has adopted written policies and procedures for the review of any transaction, arrangement or relationship between Reed’s and one of our executive officers, directors, director nominees or 5% or greater stockholders (or their immediate family members), each of whom we refer to as a “related person,” in which such related person has a direct or indirect material interest. 30 If a related person proposes to enter into such a transaction, arrangement or relationship, defined as a “related party transaction,” the related party must report the proposed related party transaction to our Chief Financial Officer. The policy calls for the proposed related party transaction to be reviewed and, if deemed appropriate, approved by the Nominations and Governance Committee. Our Nominations and Governance Committee is comprised of Dr. Muffoletto and Mr. Fischman. The board of directors has determined that all of the members of the Nominations and Governance Committee are independent under the rules of the New York Stock Exchange Listed Company Manual. If practicable, the reporting, review and approval will occur prior to entry into the transaction. If advance review and approval is not practicable, the Nominations and Governance Committee will review, and, in its discretion, may ratify the related party transaction. Any related party transactions that are ongoing in nature will be reviewed annually at a minimum. The related party transactions listed below were reviewed by the full board of directors. Prior to August 2005, we did not have independent directors on our board to review and approve related party transactions. The Nominations and Governance Committee shall review future related party transactions. During the years December 31, 2012 and 2011, we have participated in the following transactions in which a related person had or will have a direct or indirect material interest: Judy Holloway Reed, our Secretary and director, is Christopher J. Reed’s spouse. During the year ended December 31, 2008, the Company entered into an agreement for the distribution of its products internationally. The agreement is between the Company and a company controlled by two brothers of Christopher Reed, Chief Executive Officer of the Company. The agreement remains in effect until terminated by either party and requires the Company to pay 10% of the defined sales of the previous month. During the year ended December 31, 2012, the Company paid commissions on sales of $15,000, and during the year ended December 31, 2011, the Company paid commissions on sales of $66,000. Item 14. Principal Accounting Fees and Services Weinberg & Company, P.A. (“Weinberg”) was our independent registered public accounting firm for the years ended December 31, 2012 and 2011. The following table shows the fees paid or accrued by us for the audit and other services provided by Weinberg for the years ended December 31, 2012 and 2011. Audit Fees Audit-Related Fees Tax Fees All Other Fees Total 2012 2011 $ $ 57,000 $ 0 5,000 0 62,000 $ 100,000 0 5,000 0 105,000 As defined by the SEC, (i) “audit fees” are fees for professional services rendered by our principal accountant for the audit of our annual financial statements and review of financial statements included in our Form 10-K, or for services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for those fiscal years; (ii) “audit-related fees” are fees for assurance and related services by our principal accountant that are reasonably related to the performance of the audit or review of our financial statements and are not reported under “audit fees;” (iii) “tax fees” are fees for professional services rendered by our principal accountant for tax compliance, tax advice, and tax planning; and (iv) “all other fees” are fees for products and services provided by our principal accountant, other than the services reported under “audit fees,” “audit-related fees,” and “tax fees.” Audit Fees Services provided to us by Weinberg with respect to such periods consisted of the audits of our financial statements and limited reviews of the financial statements included in Quarterly Reports on Form 10-Q. Weinberg also provided services with respect to the filing of our registration statements in 2012 and 2011. 31 Audit Related Fees Weinberg did not provide any professional services to us with which would relate to “audit related fees.” Tax Fees Weinberg prepared our 2012 and 2011 Federal and state income taxes. All Other Fees Weinberg did not provide any professional services to us with which would relate to “other fees.” Audit Committee Pre-Approval Policies and Procedures Under the SEC’s rules, the Audit Committee is required to pre-approve the audit and non-audit services performed by the independent registered public accounting firm in order to ensure that they do not impair the auditors’ independence. The Commission’s rules specify the types of non-audit services that an independent auditor may not provide to its audit client and establish the Audit Committee’s responsibility for administration of the engagement of the independent registered public accounting firm. Consistent with the SEC’s rules, the Audit Committee Charter requires that the Audit Committee review and pre-approve all audit services and permitted non-audit services provided by the independent registered public accounting firm to us or any of our subsidiaries. The Audit Committee may delegate pre-approval authority to a member of the Audit Committee and if it does, the decisions of that member must be presented to the full Audit Committee at its next scheduled meeting. Accordingly, 100% of audit services and non-audit services described in this Item 14 were pre-approved by the Audit Committee. There were no hours expended on the principal accountant’s engagement to audit the registrant’s financial statements for the most recent fiscal year that were attributed to work performed by persons other than the principal accountant’s full-time, permanent employees. Item 15. Exhibits and Financial Statements PART IV (a) 1. Financial Statements See Index to Financial Statements in Item 8 of this Annual Report on Form 10-K, which is incorporated herein by reference. 2. Financial Statement Schedules All other financial statement schedules have been omitted because they are either not applicable or the required information is shown in the financial statements or notes thereto. 3. Exhibits See the Exhibit Index, which follows the signature page of this Annual Report on Form 10-K, which is incorporated herein by reference. (b) Exhibits See Item 15(a) (3) above. (c) Financial Statement Schedules See Item 15(a) (2) above. 32 In accordance with Section 13 or 15(d) of the Exchange Act, the registrant caused this Report to be signed on its behalf by the SIGNATURES undersigned, thereunto duly authorized. Date: March 25, 2013 REED’S, INC. a Delaware corporation By: /s/ Christopher J. Reed Christopher J. Reed Chief Executive Officer In accordance with the Exchange Act, this Report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. Signature Title Date /s/ CHRISTOPHER J. REED Christopher J. Reed /s/ JAMES LINESCH James Linesch /s/ JUDY HOLLOWAY REED Judy Holloway Reed /s/ MARK HARRIS Mark Harris /s/ DANIEL S.J. MUFFOLETTO Daniel S.J. Muffoletto Michael Fischman Chief Executive Officer, President and Chairman of the Board of Directors (Principal Executive Officer) Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) Director Director Director Director 33 March 25, 2013 March 25, 2013 March 25, 2013 March 25, 2013 March 25, 2013 March 25, 2013 3.1 3.2 3.3 3.4 3.5 3.6 3.7 4.1 4.2 10.1 10.2* 10.3 10.4* 10.5* 10.6* 10.7* 10.8 14.1 21. 23.1 31.1 31.2 32.1 32.2 EXHIBIT INDEX Certificate of Incorporation of Reed’s, Inc. as filed September 7, 2001 (Incorporated by reference to Exhibit 3.1 to Reed’s, Inc.’s Registration Statement on Form SB-2 (File No. 333-120451)) Certificate of Amendment of Certificate of Incorporation of Reed’s, Inc. as filed September 27, 2004 (Incorporated by reference to Exhibit 3.2 to Reed’s, Inc.’s Registration Statement on Form SB-2 (File No. 333-120451)) Certificate of Amendment of Certificate of Incorporation of Reed’s, Inc. as filed December 18, 2007 (Incorporated by reference to Exhibit 3.3 to Reed’s, Inc.’s Registration Statement on Form S-1 (File No. 333-156908 )) Certificate of Designations, Preferences and Rights of Series A Preferred Stock of Reed’s, Inc. as filed October 12, 2004 (Incorporated by reference to Exhibit 3.3 to Reed’s, Inc.’s Registration Statement on Form SB-2 (File No. 333-120451)) Certificate of Correction to Certificate of Designations as filed November 10, 2004 (Incorporated by reference to Exhibit 3.4 to Reed’s, Inc.’s Registration Statement on Form SB-2 (File No. 333-120451)) Amended Certificate of Designation of Series B Convertible Preferred Stock, filed December 4, 2009 (filed herewith) Bylaws of Reed’s Inc., as amended (Incorporated by reference to Exhibit 3.1 to Reed’s, Inc.’s Current Report on Form 8-K filed December 19, 2012) Form of common stock certificate (Incorporated by reference to Exhibit 4.1 to Reed’s, Inc.’s Registration Statement on Form SB- 2 (File No. 333-120451)) Form of Series A preferred stock certificate (Incorporated by reference to Exhibit 4.2 to Reed’s, Inc.’s Registration Statement on Form SB-2 (File No. 333-120451)) Waiver to Loan and Security Agreement dated January 5, 2009 (Incorporated by reference to Exhibit 10.19 to Reed’s, Inc.’s Registration Statement on Form S-1 (File No. 333-156908 )) 2001 Stock Option Plan (Incorporated by reference to Exhibit 4.3 to Reed’s, Inc.’s Registration Statement on Form SB-2 (File No. 333-120451) Reed’s Inc. Master Brokerage Agreement between Reed’s, Inc. and Reed’s Brokerage, Inc. dated May 1, 2008 (Incorporated by reference to Exhibit 10.21 to Reed’s, Inc.’s Registration Statement on Form S-1 (File No. 333-156908 )) 2007 Stock Option Plan (Incorporated by reference to Exhibit 10.22 to Reed's, Inc.'s Form 10K filed March 27, 2009) 2009 Consultant Stock Plan (Incorporated by reference to Exhibit 4.1 to Reed’s, Inc.’s Registration Statement on Form S-8 (File No. 333-157359)) 2010 Incentive Stock Plan (Incorporated by reference to Exhibit 4.1 to Reed’s, Inc.’s Registration Statement on Form S-8 (File No. 333-165906)) 2010-2 Incentive Stock Plan (Incorporated by reference to Exhibit 4.1 to Reed’s, Inc.’s Registration Statement on Form S-8 (File No. 333-166575)) Loan and Security Agreement between PMC Financial Services Group, LLC and Reed’s, Inc. dated November 8, 2011 (Incorporated by reference to Exhibit 10.15 to Reed’s, Inc.’s Form 10Q as filed November 14, 2011) Code of Ethics (Incorporated by reference to Exhibit 14.1 to Reed’s, Inc.’s Registration Statement on Form SB-2 (File No. 333- 157359)) Subsidiaries of Reed’s, Inc., filed herewith. Consent of Weinberg & Co., P.A., filed herewith. Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes- Oxley Act of 2002. Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes- Oxley Act of 2002. 101.INS 101.SCH 101.CAL 101.DEF 101.LAB 101.PRE XBRL Instance Document XBRL Schema Document XBRL Calculation Linkbase Document XBRL Definition Linkbase Document XBRL Label Linkbase Document XBRL Presentation Linkbase Document * Indicates a management contract or compensatory plan or arrangement. In accordance with SEC Release 33-8238, Exhibit 32.1 and 32.2 are being furnished and not filed. Furnished herewith. XBRL (Extensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise is not subject to liability under these sections. 34  EXHIBIT 21 REED’S, INC. SUBSIDIARIES NONE EXHIBIT 31.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Christopher J. Reed, certify that: 1. 2. 3. 4. I have reviewed this Annual Report on Form 10-K of Reed’s Inc.; Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a. b. c. d. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under my supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principals; Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): a. b. All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date: March 25, 2013 /s/ Christopher J. Reed Christopher J. Reed Chief Executive Officer (Principal Executive Officer) EXHIBIT 31.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, James Linesch, certify that: 1. 2. 3. 4. I have reviewed this Annual Report on Form 10-K of Reed’s Inc.; Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a. b. c. d. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under my supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principals; Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): a. b. All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date: March 25, 2013 /s/ James Linesch James Linesch Chief Financial Officer (Principal Financial Officer) EXHIBIT 32.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K of Reed’s, Inc., a Delaware corporation (the “Company”) for the year ended December 31, 2012, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Christopher J. Reed, Chief Executive Officer of the Company, hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge and belief: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: March 25, 2013 REED’S, INC. By: /s/ Christopher J. Reed Christopher J. Reed Chief Executive Officer (Principal Executive Officer) EXHIBIT 32.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K of Reed’s, Inc., a Delaware corporation (the “Company”) for the year ended December 31, 2012, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), James Linesch, Chief Financial Officer of the Company, hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge and belief, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: March 25, 2013 REED’S, INC. By: /s/ James Linesch James Linesch Chief Financial Officer (Principal Financial Officer) 

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