As filed with the Securities and Exchange Commission on June 4,
2020.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MONSTER BEVERAGE CORPORATION
(Exact name of registrant as specified in its charter)
|
Delaware |
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47-1809393 |
|
(State or other jurisdiction of incorporation or
organization) |
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(I.R.S.
Employer
Identification No.) |
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1 Monster
Way
Corona, California |
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92879 |
|
(Addresses of Principal Executive Offices) |
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(Zip
Code) |
Monster Beverage Corporation 2020 Omnibus Incentive Plan
(Full title of the plan)
Rodney C. Sacks
Chairman of the Board of Directors and
Chief Executive Officer
Monster Beverage Corporation
1 Monster Way
Corona, California 92879
(Name and address of agent for service)
(951) 739-6200
(Telephone number, including area code, of agent for
service)
With a copy to:
Farzad F. Damania, Esq.
Katten Muchin Rosenman LLP
575 Madison Avenue
New York, NY 10022
(212) 940-3838
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
| Large accelerated filer |
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x |
|
Accelerated filer |
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¨ |
| |
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| Non-accelerated filer |
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¨ |
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Smaller Reporting Company |
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¨ |
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Emerging Growth
Company |
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¨ |
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
¨
CALCULATION OF REGISTRATION FEE
|
Title of
securities to be registered (1) |
|
Amount to
be
registered (2)(3) |
|
Proposed
maximum
offering price per
share (4) |
|
Proposed
maximum
aggregate offering
price (4) |
|
Amount
of
registration fee (4) |
|
| Common Stock, par
value $0.005 per share |
|
|
32,000,000 |
|
$ |
70.68 |
|
$ |
2,261,760,000 |
|
$ |
293,576.45 |
|
| (1) |
Represents shares of Monster Beverage
Corporation’s common stock, par value $0.005 per share (“Common
Stock”) reserved for issuance pursuant to future awards under the
Monster Beverage Corporation 2020 Omnibus Incentive Plan (the “2020
Omnibus Incentive Plan”). |
| (2) |
In
accordance with Rule 416(a) of the Securities Act of 1933, as
amended (the “Securities Act”), this Registration Statement on Form
S-8 (this “Registration Statement”) shall be deemed to cover any
additional securities that may from
time to time be offered or issued to prevent dilution resulting
from stock splits, stock dividends or similar
transactions. |
| (3) |
In
accordance with Item 512(a)(1)(iii) of Regulation S-K and
Compliance and Disclosure Interpretation 126.43, on June 4, 2020,
the registrant will file a post-effective amendment to the
registration statement filed with respect to the Monster Beverage
Corporation 2011 Omnibus Incentive Plan (the “2011 Omnibus
Incentive Plan”) to cover the issuance pursuant to the 2020 Omnibus
Incentive Plan of the 12,345,006 shares of Common Stock that
remained available for grant under the 2011 Omnibus Incentive Plan
as of June 3, 2020. |
| (4) |
Estimated
solely for purposes of calculating the registration fee pursuant to
Rules 457(c) and (h) under the Securities Act, the proposed maximum
offering price per share, the proposed maximum aggregate offering
price and the amount of registration fee have been computed on the
basis of the average of the high and low prices of shares of Common
Stock as reported on the Nasdaq Global Select Market on May 28,
2020, which were $71.64 and $69.72, respectively. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement on Form S-8 (this “Registration
Statement”) is being filed by Monster Beverage Corporation (the
“Registrant”) with respect to the Monster Beverage Corporation 2020
Omnibus Incentive Plan (the “2020 Omnibus Incentive Plan”),
referred to on the cover of this Registration Statement. The
information required by Part I to be contained in the Section 10(a)
prospectus for the 2020 Omnibus Incentive Plan is omitted from this
Registration Statement in accordance with Rule 428 under the
Securities Act of 1933, as amended (the “Securities Act”) and the
Note to Part I of Form S-8. The document(s) containing the
information concerning the 2020 Omnibus Incentive Plan specified in
Part I will be sent or given to 2020 Omnibus Incentive Plan
participants as specified by Rule 428(b)(1). Such documents
and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II hereof, taken
together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Registrant
with the Securities and Exchange Commission (the “Commission”)
pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), are hereby incorporated by reference in this
Registration Statement (excluding any portion of such documents
that have been “furnished” rather than “filed” under applicable
Commission rules and exhibits furnished in connection with such
items):
|
(b) |
the Registrant’s Quarterly Report
on Form 10-Q for the quarterly period ended March 31, 2020, filed with the
Commission on May 11, 2020 (File No.
001-18761); |
|
(d) |
the description of the Registrant’s
common stock, $0.005 par value per share (“Common Stock”) filed as
Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2019, filed
with the Commission on February 28, 2020 (File No.
001-18761). |
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
filing of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement or a
document incorporated or deemed to be incorporated by reference in
this Registration Statement will be deemed to be modified or
superseded for purposes of this Registration Statement to the
extent that a statement contained in this Registration Statement or
in any other subsequently filed document that is deemed to be
incorporated by reference in this Registration Statement modifies
or supersedes such statement. Any statement so modified or
superseded will not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Set forth below is a description of certain provisions of the
Registrant’s Certificate of Incorporation, as amended (the
“Certificate of Incorporation”), the Registrant’s Second Amended
and Restated By-laws (the “By-laws”) and the Delaware General
Corporation Law, as amended (the “DGCL”), as such provisions relate
to the indemnification of the directors and officers of the
Registrant. This description is intended only as a summary and is
qualified in its entirety by reference to the Certificate of
Incorporation, the By-laws and the DGCL.
The Registrant is a Delaware corporation. Section 145 of the
DGCL, permits, under certain circumstances, the indemnification of
any person with respect to any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the
right of the corporation), to which such person was or is a party
or is threatened to be made a party by reason of the fact that such
person is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. To the
extent such person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person’s conduct
was unlawful and has been successful in defending any such
proceeding, the DGCL provides that such person shall be indemnified
against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
person in connection therewith. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, does not, of itself,
create a presumption that a person did not act in good faith and in
a manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that the person’s conduct was unlawful.
With respect to a threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its
favor, the corporation may indemnify such person who was or is a
party to such an action or suit against expenses (including
attorney’s fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if
the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests
of the corporation. The statute provides, however, that no
indemnification is allowed in respect of any claim, issue or matter
if such person is adjudged liable to the corporation unless and
only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought, upon application,
determines that, despite the adjudication of liability but in view
of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses which the
Delaware Court of Chancery or such other court deems proper.
The DGCL provides that, to the extent that a present or former
director or officer of a corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to above, or in defense of any claim, issue or matter
therein, such person will be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by
such person in connection therewith. Any indemnification under the
preceding paragraphs, unless ordered by a court, shall be made by
the corporation only as authorized in the specific case upon a
determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct. Such
determination shall be made by: (i) majority vote of directors
not parties to the action, suit or proceeding, even though less
than a quorum, (ii) a committee of such directors designated
by majority vote of such directors, even though less than a quorum,
(iii) written opinion of independent legal counsel if there
are no such directors or if such directors so direct, or
(iv) the stockholders.
The DGCL permits a corporation to advance expenses (including
attorneys’ fees) incurred by an officer or director of the
corporation in defending any civil, criminal, administrative or
investigative action, suit or proceeding, in advance of final
disposition of such action, suit or proceeding provided the officer
or director undertakes to repay such advanced expenses if it is
ultimately determined that such person is not entitled to
indemnification. A corporation may purchase and maintain insurance
on behalf of an indemnitee against any liability asserted against
such person and incurred by such person in any such capacity, or
arising out of such person’s status as such, whether or not the
corporation would be empowered to indemnify him against such
liability under Section 145 of the DGCL. Delaware law also provides
that the above rights shall not be deemed exclusive of other rights
of indemnification or advancement of expenses under any bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in such person’s official capacity and
as to action in another capacity while holding such office.
The Certificate of Incorporation and the By-laws generally require
the Registrant to indemnify and advance expenses to its directors,
officers employees and agents to the fullest extent permitted by
law.
Section 102(b)(7) of the DGCL permits Delaware
corporations in their certificates of incorporation to eliminate or
limit the personal liability of a director to the corporation or
its stockholders for monetary damages for breaches of fiduciary
duty as a director. Under the Certificate of Incorporation, a
director of the Registrant shall, to the maximum extent currently
or hereafter permitted by Section 102(b)(7) of the DGCL (or
any successor provision) have no personal liability to the
Registrant or its stockholders. Section 102(b)(7) of the
DGCL provides that Delaware corporations may not eliminate or limit
the liability of a director: (i) for any breach of the
director’s duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL (involving certain
unlawful dividends, stock purchases or redemptions) or
(iv) for any transaction from which the director derived an
improper personal benefit.
Under the By-laws, the Registrant may purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the Registrant covering any liability
incurred in such capacity, or arising out of the person’s status as
such. The Registrant has purchased directors’ and officers’
liability insurance covering many of the possible actions or
omissions of persons acting or failing to act in such
capacities.
On June 6, 2019, the Board of Directors of the Registrant (the
“Board”) approved and adopted an updated form of
indemnification agreement (the “Indemnification Agreement”) to be
entered into by the Registrant with its directors and officers. The
Registrant has entered into Indemnification Agreements with its
current directors and officers, in the form approved by the Board,
and the Indemnification Agreement provides for the maximum
indemnity permitted for directors and officers under the DGCL and
the Registrant’s charter documents, as well as additional
procedural protections. The Indemnification Agreement requires the
Registrant to indemnify the directors and officers against
liability that may arise by reason of their status or service as
directors or officers of the Registrant if the director or officer
acted in good faith and in a manner reasonably believed to be in,
or not opposed to, the best interests of the Registrant and, in the
case of a criminal proceeding had no reasonable cause to believe
that his conduct was unlawful. The foregoing description is
intended only as a summary of the provisions of the Indemnification
Agreement and is qualified in its entirety by reference to the full
text of the Indemnification Agreement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Index of Exhibits filed herewith and appearing immediately
after the signature page to this Registration Statement is
incorporated by reference in this Item 8.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in this Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective Registration Statement;
and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining liability under the Securities Act, each filing of
the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference
in this Registration Statement shall be deemed a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Corona, State of California, on June 4, 2020.
| |
MONSTER BEVERAGE CORPORATION |
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By: |
/s/ Rodney C. Sacks |
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Name: |
Rodney C.
Sacks |
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Title: |
Chairman of
the Board of Directors and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Rodney C.
Sacks and Hilton H. Schlosberg, and each of them acting
individually, as his attorneys-in-fact and agents, each with full
power of substitution and resubstitution, to do any and all acts
and things and execute, in the name of the undersigned, any and all
instruments which said attorneys-in-fact and agents may deem
necessary or advisable in order to enable Monster Beverage
Corporation to comply with the Securities Act of 1933, as amended,
and any requirements of the Securities and Exchange Commission in
respect thereof, in connection with the filing with the Securities
and Exchange Commission of the registration statement on
Form S-8 under the Securities Act, including specifically, but
without limitation, power and authority to sign the name of the
undersigned to such registration statement, and any amendments to
such registration statement (including post-effective amendments),
and to file the same with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange
Commission, to sign any and all applications, registration
statements, notices or other documents necessary or advisable to
comply with applicable state securities laws, and to file the same,
together with other documents in connection therewith with the
appropriate state securities authorities, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and to perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated:
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Signature |
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Title |
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Date |
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/s/ Rodney C. Sacks
Rodney C. Sacks
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Chairman of the Board of Directors and Chief
Executive Officer (Principal Executive Officer) |
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June 4, 2020 |
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/s/ Hilton H. Schlosberg
Hilton H. Schlosberg
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Vice Chairman of the Board of Directors,
President, Chief Operating Officer, Chief Financial Officer and
Secretary (Principal Financial Officer, Controller and Principal
Accounting Officer) |
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June 4, 2020 |
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/s/ Kathleen E. Ciaramello
Kathleen E. Ciaramello
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Director |
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June 4, 2020 |
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/s/ Gary P. Fayard
Gary P. Fayard
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Director |
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June 4, 2020 |
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/s/ Mark J. Hall
Mark J. Hall
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Director |
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June 4, 2020 |
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/s/ Jeanne P. Jackson
Jeanne P. Jackson
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Director |
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June 4, 2020 |
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/s/ Steven G. Pizula
Steven G. Pizula
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Director |
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June 4, 2020 |
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/s/ Benjamin M. Polk
Benjamin M. Polk
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Director |
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June 4, 2020 |
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/s/ Sydney Selati
Sydney Selati
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Director |
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June 4, 2020 |
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/s/ Mark S. Vidergauz
Mark S. Vidergauz
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Director |
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June 4, 2020 |
MONSTER BEVERAGE CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX OF EXHIBITS
* Filed herewith
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