As filed with the Securities and Exchange Commission on March 10, 2010
Registration No. 333-160380
 
 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
 
CASTLE BRANDS INC.
(Exact name of registrant as specified in its charter)
     
Florida   41-2103550
(State or other jurisdiction of   (I.R.S. Employer
incorporation or organization)   Identification No.)
     
122 East 42 nd Street, Suite 4700    
New York, New York 10168   10168
(Address of Principal Executive Offices)   (Zip Code)
Castle Brands Inc. 2003 Stock Incentive Plan, as amended
(Full title of the plan(s))
 
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 and telephone number of agent for service)
 
Copy to:
Brian L. Heller, Esq.
Special Counsel
Castle Brands Inc.
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   x
CALCULATION OF REGISTRATION FEE
                             
 
              Proposed maximum              
        Amount to be     offering price per     Proposed maximum     Amount of  
  Title of securities to be registered     registered     share     aggregate offering price     registration fee  
  See below (1)     N/A     N/A     N/A     N/A  
 
(1)   No additional securities are to be registered, and registration fees were paid upon filing of the original Registration Statement on Form S-8 (Registration No. 333-160380). Therefore, no further registration fee is required.
 
 

 

 

EXPLANATORY NOTE
     Effective as of February 9, 2010, Castle Brands Inc., a Delaware corporation (“Predecessor Registrant” or “Castle Delaware”), completed a reincorporation from the State of Delaware to the State of Florida (the “Reincorporation”) through a merger of Castle Delaware with and into Castle Brands (Florida) Inc., a Florida corporation and a wholly-owned subsidiary of Castle Delaware (“Castle Florida” or “Registrant”). Castle Florida was the surviving corporation in the merger and changed its name to Castle Brands Inc. Castle Delaware’s stockholders approved the Reincorporation at the annual meeting of stockholders held on February 4, 2010.
     The Registrant has filed this Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (File No. 333-160380) (as amended, the “Registration Statement”), with the Securities and Exchange Commission (the “SEC”), relating to the Predecessor Registrant’s 2003 Stock Incentive Plan, as amended (the “Plan”) pursuant to Rule 414 under the Securities Act of 1933, as amended (the “Securities Act”), as the successor issuer to the Predecessor Registrant following the Reincorporation. In accordance with Rule 414(d) under the Securities Act, the Registrant, as successor to the Predecessor Registrant, hereby expressly adopts the Registration Statement as its own for all purposes of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as updated by subsequent filings under the Exchange Act.
     In connection with the Reincorporation, the Registrant assumed the Plan and all outstanding options and equity awards under the Plan.

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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
     The information required by Items 1 and 2 of Part I of Form S-8 is omitted from this registration statement in accordance with Rule 428 of the Securities Act and the introductory Note to Part I of Form S-8.
     The documents containing the information specified in Part I of Form S-8 will be provided to participating employees as specified by Rule 428(b) of the Securities Act. Such documents and the documents incorporated by reference herein pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
     The following documents previously filed (other than the portions of those documents furnished or otherwise not deemed to be filed) by the Registrant or the Predecessor Registrant with the SEC are incorporated herein by reference in this Registration Statement:
  •   The Predecessor Registrant’s Annual Report on Form 10-K for the year ended March 31, 2009 filed with the SEC on June 29, 2009, as amended by the Form 10-K/A filed with the SEC on July 29, 2009.
 
  •   The Predecessor Registrant’s Definitive Proxy Statement on Schedule 14A filed with the SEC on December 30, 2009 (“Proxy Statement”);
 
  •   The Predecessor Registrant’s Quarterly Reports on Form 10-Q for the quarters ended June 30, 2009 and September 30, 2009 filed with the SEC on August 14, 2009 and November 16, 2009, respectively;
 
  •   The Registrant’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2009 filed with the SEC on February 16, 2010;
 
  •   The Predecessor Registrant’s Current Reports on Form 8-K filed with the SEC on July 29, 2009, September 22, 2009, December 2, 2009 and December 30, 2009;
 
  •   The Registrant’s Current Report on Form 8-K12-B filed with the SEC on February 12, 2010 and the Registrant’s Current Report on Form 8-K filed with the SEC on March 1, 2010; and
 
  •   The description of the Registrant’s common stock contained in the Predecessor Registrant’s Registration Statement on Form 8-A filed with the SEC on March 31, 2006, including any amendment or report filed for the purpose of updating such description.
     All documents subsequently filed (other than the portions of those documents furnished or otherwise not deemed to be filed) by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
     Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such earlier statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
     Not applicable.
Item 5. Interests of Named Experts and Counsel.
     None.

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Item 6. Indemnification of Officers and Directors.
     We are incorporated in the State of Florida and subject to the Florida Business Corporation Act, or the Florida Act. Section 607.0831 of the Florida Act provides that a director is not personally liable for monetary damages to a corporation or any other person for any statement, vote, decision, or failure to act regarding corporate management or policy unless (1) the director breached or failed to perform his or her duties as a director and (2) the director’s breach of, or failure to perform, those duties constitutes (a) a violation of the criminal law, unless the director had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful, (b) a transaction from which the director derived an improper personal benefit, either directly or indirectly, (c) a circumstance under which the liability provisions of Section 607.0834 of the Florida Act are applicable, (d) in a proceeding by or in the right of the corporation to procure a judgment in its favor or by or in the right of a shareholder, conscious disregard for the best interest of the corporation, or willful misconduct, or (e) in a proceeding by or in the right of someone other than the corporation or a shareholder, recklessness or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. A judgment or other final adjudication against a director in any criminal proceeding for a violation of the criminal law estops that director from contesting the fact that his or her breach, or failure to perform, constitutes a violation of the criminal law; but does not estop the director from establishing that he or she had reasonable cause to believe that his or her conduct was lawful or had no reasonable cause to believe that his or her conduct was unlawful.
     Under Section 607.0850 of the Florida Act, a corporation has the power to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of the corporation), by reason of the fact that he or she 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 against liability incurred in connection with such proceeding, including any appeal thereof, if he or she acted in good faith and in a manner he or she 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 his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the corporation or, with respect to any criminal action or proceeding, has reasonable cause to believe that his or her conduct was unlawful.
     Also, under Section 607.0850 of the Florida Act, a corporation has the power to indemnify any person, who was or is a party to any proceeding by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the 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, against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof. Such indemnification shall be authorized if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made under this subsection in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
     The indemnification and advancement of expenses provided pursuant to Section 607.0850 of the Florida Act are not exclusive, and a corporation may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses shall not be made to or on behalf of any director, officer, employee or agent if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (a) a violation of the criminal law, unless the director, officer, employee or agent had reasonable cause to believe his or her conduct was unlawful; (b) a transaction from which the director, officer, employee or agent derived an improper personal benefit; (c) in the case of a director, a circumstance under which the above liability provisions of Section 607.0834 are applicable; or (d) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder.
     Section 607.0850 also provides that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation against any liability asserted against the person and incurred by him or her in any such capacity or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of Section 607.0850. We currently maintain such liability insurance for each of our directors and officers.
     Article VII of our articles of incorporation and Article VIII of our bylaws provide for indemnification of our directors and officers to the fullest extent permitted by law, as now in effect or later amended. Article VII of our articles of incorporation provides that expenses incurred by a director or officer in defending a civil or criminal action, suit, or proceeding may be paid by us in advance of a final disposition upon receipt of an undertaking by or on behalf of the director or officer to repay the advanced amount if he or she is ultimately found not to be entitled to indemnification.
     Also, we have entered into indemnification agreements with all of our directors and executive officers whereby we have agreed to indemnify, and advance expenses to, such persons to the fullest extent permitted by applicable law. Each indemnification agreement also establishes processes and procedures for indemnification claims, advancement of expenses and other determinations with respect to indemnification.

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Item 7. Exemption from Registration Claimed.
     None.
Item 8. Exhibits.
         
EXHIBIT    
NUMBER   DESCRIPTION
       
 
  4.1    
Composite Articles of Incorporation*
       
 
  4.2    
By-laws (incorporated by reference to Appendix E to Proxy Statement).
       
 
  4.3    
Form of Common Stock Certificate*
       
 
  4.4    
Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.29 to the Predecessor Registrant’s registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.5    
Amendment to Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.30 to the Predecessor Registrant’s registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.6    
Amendment No. 2 to Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.24 to the Predecessor Registrant’s annual report on Form 10-K filed June 29, 2009).
       
 
  5.1    
Opinion of Brian L. Heller, Esq. *
       
 
  23.1    
Consent of Brian L. Heller, Esq. (included in Exhibit 5.1 hereto)*
       
 
  23.2    
Consent of Eisner LLP *
       
 
  24.1    
Power of Attorney (included on signature page)*
 
*   Filed herewith
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 the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
 
  (iii)   To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in the post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

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  (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.
 
  (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 any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of any employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(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.

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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 Post-Effective Amendment No. 1 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 March 5, 2010.
         
  CASTLE BRANDS INC.
  		 
  By:   /s/ Alfred J. Small    
    Name:   Alfred J. Small   
    Title:   Senior Vice President, Chief Financial Officer, Secretary and Treasurer   
 
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)   March 5, 2010
/s/ Alfred J. Small
 
Alfred J. Small 		  Senior Vice President, Chief Financial Officer, Secretary and Treasurer (Principal Accounting and Financial Officer)   March 5, 2010
*
 
Mark Andrews 		  Director   March 5, 2010
*
 
John F. Beaudette 		  Director   March 5, 2010
*
 
Henry C. Beinstein 		  Director   March 5, 2010
*
 
Harvey P. Eisen 		  Director   March 5, 2010
*
 
Phillip Frost, M.D. 		  Director   March 5, 2010
*
 
Glenn Halpryn 		  Director   March 5, 2010
/s/ Richard J. Lampen
 
  Director   March 5, 2010
Richard J. Lampen        
*
 
Micaela Pallini 		  Director   March 5, 2010
*
 
Steven D. Rubin 		  Director   March 5, 2010
/s/ Dennis Scholl
 
  Director   March 5, 2010
Dennis Scholl        
         
   
By:   *Alfred J. Small    
  Alfred J. Small, Attorney-in-Fact   
     

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EXHIBIT INDEX
         
EXHIBIT    
NUMBER   DESCRIPTION
       
 
  4.1    
Composite Articles of Incorporation *
       
 
  4.2    
By-laws (incorporated by reference to Appendix E to Proxy Statement).
       
 
  4.3    
Form of Common Stock Certificate *
       
 
  4.4    
Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.29 to the Predecessor Registrant’s registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.5    
Amendment to Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.30 to the Predecessor Registrant’s registration statement on Form S-1 (File No. 333-128676), which was declared effective on April 5, 2006).
       
 
  4.6    
Amendment No. 2 to Castle Brands Inc. 2003 Stock Incentive Plan (incorporated by reference to exhibit 10.24 to the Predecessor Registrant’s annual report on Form 10-K filed June 29, 2009).
       
 
  5.1    
Opinion of Brian L. Heller, Esq. *
       
 
  23.1    
Consent of Brian L. Heller, Esq. (included in Exhibit 5.1 hereto)*
       
 
  23.2    
Consent of Eisner LLP *
       
 
  24.1    
Power of Attorney (included on signature page)*
 
*   Filed herewith

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EXHIBIT 4.1
COMPOSITE
ARTICLES OF INCORPORATION
OF
CASTLE BRANDS INC.
ARTICLE I — NAME
     The name of this corporation is CASTLE BRANDS INC. (the “ Corporation ”).
ARTICLE II — PURPOSE
     The purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under the Florida Business Corporation Act (the “ Act ”).
ARTICLE III — PRINCIPAL PLACE OF BUSINESS AND MAILING ADDRESS
     The address of the principal office and the mailing address of the office of the Corporation is 122 East 42 nd Street, Suite 4700, New York, NY 10168.
ARTICLE IV — CAPITAL STOCK
     The Corporation shall be authorized to issue Two Hundred Fifty Million (250,000,000) shares of capital stock, of which (i) Two Hundred Twenty-Five Million (225,000,000) shares shall be common stock, par value $.01 per share (the “ Common Stock ”), and (ii) Twenty-Five Million (25,000,000) shares shall be preferred stock, par value $.01 per share (the “ Preferred Stock ”).
          (a)  Common Stock . Except as otherwise provided by law or by these Articles of Incorporation (including any certificate filed with the Secretary of State of the State of Florida establishing the terms of a series of Preferred Stock in accordance with Section (b) of this Article IV), the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Each share of Common Stock shall entitle the holder thereof to one vote on all matters on which shareholders are entitled generally to vote, and the holders of Common Stock shall vote together as a single class. The holders of shares of Common Stock shall not have cumulative voting rights.
          (b)  Preferred Stock . Shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors (the “ Board ”) is hereby authorized to fix by resolution or resolutions the voting powers, if any, designations, powers, preferences and the relative, participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof, of any unissued series of Preferred Stock; and to fix the number of shares constituting such series, and to increase or decrease the number of shares of any such series (but not below the number of shares thereof then outstanding). The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.

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ARTICLE V — REGISTERED AGENT AND OFFICE
     The street address of the Corporation’s initial registered office is 11380 Prosperity Farms Road #221E, Palm Beach Gardens, Florida 33410, and the name of its initial registered agent at such office is Corporate Creations Network Inc.
ARTICLE VI — BOARD OF DIRECTORS
     The business and affairs of the Corporation shall be managed by or under the direction of the Board except as otherwise provided herein or required by law.
          (a)  Board of Directors . Subject to the rights of the holders of any outstanding series of Preferred Stock or any other series or class of stock as set forth in these Articles of Incorporation to elect additional directors under specified circumstances, the number of directors of the Corporation shall be fixed, and may be increased or decreased from time to time, by resolution of the Board.
          (c)  Election of Directors . Unless and except to the extent that the By-laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
          (d)  Terms of Directors . Directors who are elected at an annual meeting of shareholders, and directors who are elected in the interim to fill vacancies and newly created directorships shall hold office until the next annual meeting of shareholders and until their successors are elected and qualified or until their earlier resignation or removal.
          (e) (1) Notwithstanding the foregoing, whenever, pursuant to the provisions of Article IV of these Articles of Incorporation, the holders of any one or more series of Preferred Stock shall have the right, voting separately as a series or together with holders of other such series, to elect directors at an annual or special meeting of shareholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of these Articles of Incorporation and any certificate of designations applicable thereto.
               (2) During any period when the holders of any series of Preferred Stock have the right to elect additional directors as provided for or fixed pursuant to the provisions of Article IV hereof, then upon commencement and for the duration of the period during which such right continues: (i) the then otherwise total authorized number of directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to said provisions, and (ii) each such additional director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to such director’s earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate and the total and authorized number of directors of the Corporation shall be reduced accordingly.

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          (f)  Vacancies . Subject to the rights of the holders of any series of Preferred Stock, any and all vacancies on the Board, however occurring, including, without limitation, by reason of an increase in size of the Board, or the death, resignation, disqualification or removal of a director, shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum of the Board. Any director appointed in accordance with the preceding sentence shall hold office until such director’s successor shall have been duly elected and qualified or until his or her earlier resignation or removal. In the event of a vacancy in the Board, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled.
          (g)  Liability . A director of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Act as the same exists or may hereafter be amended. Any amendment, repeal or modification of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to any act or omission occurring prior to such amendment, repeal or modification.
ARTICLE VII — INDEMNIFICATION
          (a) Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or officer 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, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized or permitted by the Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, excise taxes or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred by such person in connection with such action, suit or proceeding, and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person; provided, however, that, except as provided in paragraph (b), the Corporation shall indemnify any such person seeking indemnification in connection with an action, suit or proceeding (or part thereof) initiated by such person only if such action, suit or proceeding (or part thereof) was authorized by the Board of the Corporation. The right to indemnification conferred in this Article shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such action, suit or proceeding in advance of its final disposition; provided, however, that, if the Act requires, the payment of such expenses incurred by a director or officer in his capacity as such in advance of the final disposition of any such action, suit or proceeding shall be made only upon receipt by the Corporation of an undertaking by or on behalf of such director or officer to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article or otherwise. The Corporation may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.

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          (b) If a claim under paragraph (a) is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Act for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including the Board, independent legal counsel or its shareholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the Act, nor an actual determination by the Corporation (including the Board, independent legal counsel or its shareholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
          (c) The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of these Articles of Incorporation (as it may be amended), the By-laws, agreement, vote of shareholders or disinterested directors or otherwise.
          (d) The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Act.
          (e) Any amendment, repeal or modification of this Article Seventh shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to any act or omission occurring prior to such amendment, repeal or modification.

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ARTICLE VIII — MEETINGS OF THE SHAREHOLDERS
     Any action required or permitted by the shareholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
ARTICLE IX — BYLAWS AMENDMENT
     In furtherance and not in limitation of the powers conferred upon it by the laws of the State of Florida, the Board shall have the power to adopt, amend, alter or repeal the Corporation’s By-laws. The affirmative vote of at least a majority of the entire Board shall be required to adopt, amend, alter or repeal the Corporation’s By-laws.
ARTICLE X — AMENDMENTS
     The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in these Articles of Incorporation and any other provisions authorized by the laws of the State of Florida at the time in force may be added or inserted, in the manner now or hereafter prescribed by statute and these Articles of Incorporation, and all rights, preferences and privileges conferred upon shareholders, directors or any other persons by and pursuant to these Articles of Incorporation are granted subject to this reservation. No amendment or repeal of these Articles of Incorporation shall be made unless the same is first approved by the Board pursuant to a resolution adopted by the Board in accordance with Section 607.1003 of the Act, and, except as otherwise provided by law, thereafter approved by the shareholders. Whenever any vote of the holders of voting stock is required, and in addition to any other vote of holders of voting stock that is required by these Articles of Incorporation or by law, the affirmative vote of a majority of the total votes eligible to be cast by holders of voting stock with respect to such amendment or repeal, voting together as a single class, at a duly constituted meeting of shareholders called expressly for such purpose shall be required to amend or repeal any provisions of these Articles of Incorporation .
ARTICLE XI — INCORPORATOR
     The name of the Incorporator is Brian Heller, and the address of the Incorporator is 4400 Biscayne Blvd., 12 th Floor, Miami, FL 33137.
      IN WITNESS WHEREOF, the undersigned, being the Incorporator named above, for the purpose of forming a corporation pursuant to the Florida Business Corporation Act of the State of Florida has signed these Articles of Incorporation this 11th day of December, 2009.
         
     
  By:   /s/ Brian Heller    
    Brian Heller, Incorporator   
       
 

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EXHIBIT 4.3
SPECIMEN COMMON STOCK CERTIFICATE
         
         
NUMBER: CB   (CASTLE BRANDS LOGO)   SHARES
INCORPORATED UNDER THE LAWS        
OF THE STATE OF FLORIDA   CASTLE BRANDS   CUSIP 148435 10 0
        SEE REVERSE FOR CERTAIN DEFINITIONS
    CASTLE BRANDS INC.    
THIS CERTIFIES THAT                                           IS THE OWNER OF                                           FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.01 PER SHARE, OF CASTLE BRANDS INC. transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate is not valid until countersigned and registered by the Transfer Agent and Registrar.
     WITNESS the facsimile signatures of its duly authorized officers.
Dated:
             
 
           
Secretary
      Chairman of the Board    
CASTLE BRANDS INC.
CORPORATE SEAL
2009
Florida
Countersigned and Registered   
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
(JERSEY CITY, NJ)
Transfer Agent and Registrar
Authorized Officer

 

 

     The Corporation will furnish without charge to each stockholder who so request a statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
     The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
     TEN COM — as tenants in common
     TEN ENT — as tenants by the entireties
     JT TEN — as joint tenants with right of survivorship and not as tenants in common
                 
UNIF GIFT MIN ACT -
 
 
  Custodian  
 
   
 
  (Cust)       (Minor)    
         
under Uniform Gifts to Minors Act
 
 
   
 
  (State)    
     Additional Abbreviations may also be used though not in the above list.
  For value received,                      hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
 
 
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
 

 

 
     
 
  Shares
 
   
     
represented by the within Certificate, and do hereby irrevocably constitute and appoint
 
 
Attorney to transfer the said shares on the books of the within-named Corporation with full power of substitution in the premises.
     
Dated,    
     
 
 
 

 

 

     
NOTICE:
  The signature to this assignment must correspond with the name as written upon the face of the certificate, in every particular, without alteration or enlargement, or any change whatever.
Signature(s) Guaranteed:
 
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT TO S.E.C. RULE 17Ad-15.

 

Exhibit 5.1
March 10, 2010
Castle Brands Inc.
122 East 42 nd Street, Suite 4700
New York, New York 10168
      Re:   Post-Effective Amendment No. 1 to Registration
Statement on Form S-8
Dear Ladies and Gentlemen:
     I have acted as special counsel to Castle Brands Inc., a Florida corporation (the “Company”), in connection with the Company’s Post-Effective Amendment No. 1 to the 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 connection therewith, I have relied upon, among other things, an examination of such documents, records of the Company and certificates of its officers and public officials as I have deemed necessary for purposes of the opinions expressed below. In examining such documents, 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.
     This opinion assumes that the provisions of the Company’s Articles of Incorporation will not be amended after the date hereof and that a sufficient number of authorized, but unissued shares of the Company’s common stock will be available for issuance when the Shares are issued. The opinion expressed below 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.
     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.
     I do not undertake to advise the Company of any changes in the opinions expressed herein from matters that might hereafter arise or be brought to my attention.
     I hereby consent to the filing of this opinion with the Securities and Exchange Commission (the “Commission”) as an exhibit to the Registration Statement. In giving such consent, I do not thereby admit that I am come within the category of persons whose consent is required by the Act or the rules and regulations promulgated thereunder.
         
  Very truly yours,
  		 
  /s/ BRIAN L. HELLER, ESQ.    
  Brian L. Heller, Esq.   
  Assistant Secretary and Special Counsel   

 

         
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 26, 2009 relating to our audits of the consolidated financial statements of Castle Brands, Inc. and Subsidiaries as of March 31, 2009 and 2008 and for the years then ended, which is included in the Annual Report on Form 10-K for the year ended March 31, 2009.
/s/ Eisner LLP
New York, New York
March 10, 2010