AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 26, 2006
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CASTLE BRANDS INC.
(Exact Name Of Registrant As Specified In Its Charter)
Delaware 41-2103550
(State Or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
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570 Lexington Avenue, 29th Floor
New York, New York 10022
(Address of Registrant's Principal Executive Offices)
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Castle Brands Inc. 2003 Stock Incentive Plan
(Full Title of the Plan)
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Mark Andrews
Chairman and Chief Executive Officer
570 Lexington Avenue, 29th Floor
New York, New York 10022
(212) 356-0200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
John E. Schmeltzer, III, Esq.
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036-6710
(212) 336-2000
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee (4)
Share (4) Price (4)
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Common Stock, $.01 par value 1,006,500(2) $7.12 $7,166,280 $766.79
(the "Common Stock")..........
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Common Stock.................. 981,500(3) $7.38 $7,243,470 $775.05
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act") this registration statement also covers any additional
shares of Common Stock of Castle Brands Inc. which become issuable under
the Castle Brands Inc. 2003 Stock Incentive Plan (the "Plan") by reason of
any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration
that results in an increase in the number of outstanding shares of the
Registrant's Common Stock.
(2) Consists of shares of Common Stock issuable pursuant to the exercise of
options granted prior to the date hereof under the Plan.
(3) Consists of shares of Common Stock to be issued in the future under the
Plan.
(4) With respect to the 1,006,500 shares of Common Stock, computed in
accordance with Rule 457(h) under the Securities Act, based on the
weighted average per share exercise price of outstanding options granted
under the Plan. With respect to the 981,500 shares of Common Stock to be
issued in the future under the Plan, calculated pursuant to Rule 457(c)
and Rule 457(h) under the Securities Act. Such computation is based on the
average of the high and low prices as reported on the American Stock
Exchange on April 19, 2006.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the Registrant are hereby incorporated by reference in
this Registration Statement:
(a) the Registrant's prospectus filed pursuant to Rule 424(b)
promulgated under the Securities Act with the Securities and
Exchange Commission (the "Commission") in connection with the
Registrant's Registration Statement on Form S-1 (No. 333-128676)
originally filed with the Commission on September 29, 2005, and
subsequently amended (the "S-1 Registration Statement"),
(b) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (No. 001-32849),
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Commission on March 31, 2006, as the same
may be amended from time to time, and
(c) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(c) of the Exchange Act since the end of the fiscal year
covered in the prospectus referred to in (a) above.
In addition, all other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents.
Any statement contained 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 any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statements so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law, or the DGCL, allows a
corporation to eliminate the personal liability of directors of the corporation
to the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty to the corporation
or its stockholders;
o for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
o under section 174 of the DGCL regarding unlawful dividends and stock
purchases; or
o for any transaction from which the director derived an improper
personal benefit.
The Registrant's certificate of incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach of fiduciary duty as a director, except to the extent such exemption from
liability is expressly forbidden by the DGCL, as it now exists or is later
amended.
Section 145 of the DGCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed actions, suits or proceedings in which such
person is made a party by reason of such person being or having been a director,
officer, employee of or agent of the corporation. The statute provides that it
is not exclusive of other rights to which those seeking indemnification may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
The Registrant's certificate of incorporation requires the Registrant to
indemnify to the fullest extent authorized or permitted by the DGCL (as it
existed at the time of the adoption of the certificate of incorporation, or, if
the DGCL is later amended to permit broader
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indemnification, as so amended) 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 Registrant or
is or was serving at the request of the Registrant 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. The Registrant is only
required to indemnify any such person seeking indemnification in connection with
an action initiated by such person if such action was authorized by the board of
directors. The certificate of incorporation also provides that the Registrant
must advance expenses to a director or officer in advance of the final
disposition of the matter with respect to which such expenses are being advanced
upon receipt of an undertaking, if such undertaking is required by the DGCL, by
or on behalf of such director or officer to repay such amount if it is
ultimately determined that the director or officer is not entitled to be
indemnified by the Registrant. The certificate of incorporation further states
that the Registrant may, by action of the board of directors, provide
indemnification to employees and agents of the Registrant with the same scope
and effect as the foregoing provisions relating to directors and officers.
The certificate of incorporation provides that the rights to
indemnification and advancement of expenses conferred by it are not exclusive of
any other right that any person may have or acquire under any statute, any
amendment to the certificate of incorporation, by-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
The Registrant maintains directors and officers liability insurance.
The underwriting agreement filed as Exhibit 1.1 to our S-1 Registration
Statement provides that the underwriters are obligated, under certain
circumstances, to indemnify the Registrant's directors, officers and controlling
persons against certain liabilities, including liabilities under the Securities
Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or are incorporated by reference
to other filings:
4.1 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the S-1 Registration
Statement)
4.2 Amended and Restated By-laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the S-1 Registration Statement)
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4.3 Form of Common Stock Certificate of the Registrant (incorporated by
reference to Exhibit 4.1 to the S-1 Registration Statement)
4.4 Shareholders Agreement, dated as of December 1, 2003, by and among
GSRWB, Inc. and the holders of shares of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock and the Common
Stockholders (incorporated by reference to Exhibit 4.2 to the S-1
Registration Statement)
5.1 Opinion of Patterson, Belknap, Webb & Tyler LLP
23.1 Consent of Patterson, Belknap, Webb & Tyler LLP (included in Exhibit
5.1)
23.2 Consent of Eisner LLP
24.1 Power of Attorney (included on signature page)
99.1 Castle Brands Inc. 2003 Stock Incentive Plan, as amended
(incorporated by reference to Exhibit 10.29 to the S-1 Registration
Statement)
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 set forth in the
registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities would not
exceed that which was registered) and any deviation from
the low or high and 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 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
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(iii) 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 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 Section 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.
(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 15(d) of
the Exchange Act (and, where applicable, each filing of an 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
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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, 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 April 26, 2006.
CASTLE BRANDS INC.
By: /s/ Mark Andrews
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Name: Mark Andrews
Title: Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints
each of Mark Andrews, Keith Bellinger and Matthew MacFarlane, 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/ Mark Andrews Chairman of the Board and Chief April 26, 2006
-------------------------- Executive Officer (Principal Executive
Mark Andrews Officer)
/s/ Keith A. Bellinger President, Chief Operating Officer and April 26, 2006
-------------------------- Secretary (Principal Financial Officer)
Keith A. Bellinger
/s/ Matthew F. MacFarlane Senior Vice President and Chief April 26, 2006
-------------------------- Financial Officer (Principal Accounting
Matthew F. MacFarlane Officer)
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SIGNATURE TITLE DATE
--------------------------------- ------------------------------------------------ ----------------------
/s/ John F. Beaudette Director April 26, 2006
--------------------------
John F. Beaudette
/s/ Robert J. Flanagan Director April 26, 2006
--------------------------
Robert J. Flanagan
/s/ Colm Leen Director April 26, 2006
--------------------------
Colm Leen
/s/ Phillip Frost, M.D. Director April 26, 2006
--------------------------
Phillip Frost, M.D.
/s/ Richard Morrison Director April 26, 2006
--------------------------
Richard Morrison
/s/ Frederick M.R. Smith Director April 26, 2006
--------------------------
Frederick M.R. Smith
/s/ Kevin P. Tighe Director April 26, 2006
--------------------------
Kevin P. Tighe
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EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the S-1 Registration
Statement)
4.2 Amended and Restated By-laws of the Registrant (incorporated by reference
to Exhibit 3.2 to the S-1 Registration Statement)
4.3 Form of Common Stock Certificate of the Registrant (incorporated by
reference to Exhibit 4.1 to the S-1 Registration Statement)
4.4 Shareholders Agreement, dated as of December 1, 2003, by and among GSRWB,
Inc. and the holders of shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock and the Common Stockholders
(incorporated by reference to Exhibit 4.2 to the S-1 Registration
Statement)
5.1 Opinion of Patterson, Belknap, Webb & Tyler LLP
23.1 Consent of Patterson, Belknap, Webb & Tyler LLP (included in Exhibit 5.1
hereto)
23.2 Consent of Eisner LLP
24.1 Power of Attorney (included on signature page)
99.1 Castle Brands Inc. 2003 Stock Incentive Plan, as amended (incorporated by
reference to Exhibit 10.29 to the S-1 Registration Statement)
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