As filed with the Securities and Exchange Commission on July 1, 2009
Registration No. 333-           
 
 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
 
CASTLE BRANDS INC.
(Exact name of registrant as specified in its charter)
     
Delaware   41-2103550
(State or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)
 
122 East 42 nd Street, Suite 4700
New York, New York 10168
(Address of principal executive offices)
 
Castle Brands Inc. 2003 Stock Incentive Plan, as amended
(Full title of the plan)
 
Alfred J. Small
Senior Vice President, Chief Financial Officer, Secretary and Treasurer
122 East 42 nd Street, Suite 4700
New York, New York 10168
(646) 356-0200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
 
Copies to:
Brian L. Heller, Esq.
4400 Biscayne Blvd., 12 th Floor
Miami, Florida 33137
(305) 572-4100
     Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
             
Large accelerated filer o   Accelerated filer o   Non-accelerated filer o
(Do not check if a smaller reporting company) 		  Smaller reporting company þ
CALCULATION OF REGISTRATION FEE
                                             
 
  Title of securities     Amount to be     Proposed maximum     Proposed maximum     Amount of  
  to be registered     registered (1)     offering price per share (4)     aggregate offering price     registration fee  
 
Common Stock, $.01 par value (“Common Stock”)
      2,134,547 (2)     $ 0.24         $ 512,291.28       $ 28.59    
 
Common Stock
      7,865,453 (3)     $ 0.215       $ 1,691,072.30       $ 94.36    
 
Total
      10,000,000                           $ 122.95    
 
(1)   Pursuant to Rule 416, this registration statement also covers any additional shares of Common Stock as may be issuable under the anti-dilution provisions of the Castle Brands Inc. 2003 Stock Incentive Plan, as amended (the “Plan”).
 
(2)   Consists of Common Stock issued as restricted stock awards under the Plan and Common Stock issuable pursuant to the exercise of options granted prior to the date hereof under the Plan.
 
(3)   Consists of Common Stock to be issued in the future under the Plan.
 
(4)   For Common Stock issuable for outstanding awards, calculated pursuant to Rule 457(h), based on the weighted average per share exercise price of outstanding awards granted under the Plan. For Common Stock to be issued in the future under the Plan, calculated pursuant to Rules 457(c) and 457(h) based on the average of the high and low prices as reported on the NYSE Amex on June 30, 2009.
 
     In accordance with the provisions of Rule 462 promulgated under the Securities Act, this registration statement will become effective upon filing with the Securities and Exchange Commission.
 
 

 

 

EXPLANATORY NOTE
     On December 2, 2008, the Registrant’s Board of Directors approved an amendment to the 2003 Stock Incentive Plan, as amended, to increase the number of shares available for issuance under the plan from 2,000,000 shares to 12,000,000 shares. This amendment was approved by the Registrant’s stockholders on January 21, 2009. Accordingly, the Registrant is filing this Registration Statement to register the additional 10,000,000 shares of common stock available for issuance under the plan.
     The contents of the Registration Statement on Form S-8 (File No. 333-133567) previously filed by the Registrant with the Securities and Exchange Commission on April 26, 2006 are incorporated by reference in this Registration Statement in accordance with General Instruction E to Form S-8. Also, all exhibits required by General Instruction E of Form S-8 are filed as exhibits hereto.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits
     See the Exhibit Index included herewith which is incorporated herein by reference.
SIGNATURES
     Pursuant to the requirements of the Securities Act of 1933, Castle Brands Inc. 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 New York, State of New York on July 1, 2009.
         
  CASTLE BRANDS INC.
  		 
  By:   /s/ Alfred J. Small    
    Name:   Alfred J. Small   
    Title:   Senior Vice President, Chief Financial Officer, Secretary and Treasurer   

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POWER OF ATTORNEY
     Each individual whose signature appears below constitutes and appoints each of Richard J. Lampen, John Glover and Alfred J. Small, such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, 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 below by the following persons in the capacities and on the dates indicated.
         
SIGNATURE   TITLE   DATE
         
/s/ Richard J. Lampen
 
Richard J. Lampen
  Interim Chief Executive Officer and President
(Principal Executive Officer) 		  July 1, 2009
/s/ Alfred J. Small
 
Alfred J. Small 		  Senior Vice President, Chief Financial Officer, Secretary and Treasurer
(Principal Accounting and Financial Officer) 		  July 1, 2009
/s/ Mark Andrews
 
Mark Andrews 		  Director   July 1, 2009
/s/ John F. Beaudette
 
John F. Beaudette 		  Director   July 1, 2009
/s/ Henry C. Beinstein
 
Henry C. Beinstein 		  Director   July 1, 2009
/s/ Harvey P. Eisen
 
Harvey P. Eisen 		  Director   July 1, 2009
/s/ Phillip Frost, M.D.
 
Phillip Frost, M.D. 		  Director   July 1, 2009
/s/ Glenn Halpryn
 
Glenn Halpryn 		  Director   July 1, 2009
/s/ Richard J. Lampen
 
Richard J. Lampen 		  Director   July 1, 2009
/s/ Micaela Pallini
 
Micaela Pallini 		  Director   July 1, 2009
/s/ Steven D. Rubin
 
Steven D. Rubin 		  Director   July 1, 2009

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EXHIBIT INDEX
         
EXHIBIT    
NUMBER   DESCRIPTION
       
 
  4.1    
Amended and Restated Certificate of Incorporation (incorporated by reference to exhibit 3.1 to our registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.2    
Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to exhibit 3.3 to our annual report on Form 10-K filed June 29, 2009).
       
 
  4.3    
Amended and Restated By-laws (incorporated by reference to exhibit 3.2 to our registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.4    
Form of Common Stock Certificate (incorporated by reference to exhibit 4.1 to our registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.5    
Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.29 to our registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.6    
Amendment to Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.30 to our registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.7    
Amendment No. 2 to Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.24 to our annual report on Form 10-K filed June 29, 2009).
       
 
  4.8    
Form of Restricted Stock Agreement (incorporated by reference to Exhibit 10.5 of our quarterly report on Form 10-Q filed on February 17, 2009).
       
 
  4.9    
Form of Stock Option Grant Agreement (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K filed on June 16, 2006).
       
 
  5    
Opinion of Brian L. Heller, Esq. *
       
 
  23.1    
Consent of Eisner LLP *
       
 
  23.2    
Consent of Brian L. Heller, Esq. (included in Exhibit 5)
       
 
  24    
Power of Attorney (included on signature page)
 
*   Filed herewith

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Exhibit 5
July 1, 2009
Castle Brands Inc.
122 East 42 nd Street, Suite 4700
New York, New York 10168
Re:   Offering of Shares Pursuant to
Registration Statement on Form S-8
Ladies and Gentlemen:
     I have acted as special counsel to Castle Brands Inc., a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the registration by the Company of 10,000,000 shares (the “Shares”) of its Common Stock, $.01 par value per share, issuable from time to time upon the exercise of awards under the Castle Brands Inc. 2003 Stock Incentive Plan, as amended (the “Plan”).
     This opinion is being furnished to you in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
     In so acting, I have examined originals, or copies certified or otherwise identified to my satisfaction, of (a) the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws, each as amended to date (b) the Registration Statement, (c) the Plan and the forms of award agreements relating to awards to acquire Shares granted under the Plan (collectively, the “Agreements”), (d) certain resolutions adopted by the Board of Directors of the Company, (e) certain resolutions adopted on January 21, 2009 by the Company’s stockholders as certified by the Inspector of Elections of the Company’s Annual Meeting of Stockholders held on such date and (f) such other documents, records, certificates and other instruments of the Company as in my judgment are necessary or appropriate for purposes of this opinion. In examining the documents referred to above, I have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the documents reviewed by me, the authenticity of all documents submitted as originals, the conformity to the originals of all documents submitted to me as certified, photostatic, reproduced or conformed copies of valid existing agreements or other documents, the authenticity of all the latter documents and that the statements regarding matters of fact in the certificates, records, agreements, instruments and documents that I have examined are accurate and complete.
     In rendering the opinion set forth below, I have assumed that each of the Agreements will be consistent with the terms of the Plan, duly authorized, and if applicable, validly executed and delivered by the parties thereto, and that the Shares will be issued in accordance with the terms of the Plan for consideration in an amount at least equal to the par value of such shares.
     Based on the foregoing, and subject to the stated qualifications, I am of the opinion that, when issued in accordance with the terms of the Plan and any applicable Agreements, the Shares will be duly authorized, validly issued, fully paid and non-assessable.
     The opinion expressed above is limited to the General Corporation Law of the State of Delaware. This opinion is rendered only with respect to the laws, and the rules, regulations, orders and applicable judicial and regulatory determinations under those laws, that are currently in effect.
     I hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving this consent, I do not thereby admit that I come within the category of persons whose consent is required by the Act or the rules and regulations thereunder.
         
  Very truly yours,
  		 
  /s/ BRIAN L. HELLER, ESQ.    
  Brian L. Heller, Esq.   
  Assistant Secretary and Special Counsel   

 

         
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this registration statement on Form S-8 of our report dated June 26, 2009 relating to our audit of the consolidated financial statements of Castle Brands, Inc. as of March 31, 2009 and 2008 and for the two years then ended, included in the 2009 Annual Report on Form 10-K filed with the Securities and Exchange Commission.
/s/ Eisner LLP
New York, New York
June 26, 2009