UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
(Rule
14a-101)
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed
by the Registrant [X]
Filed
by a Party other than the Registrant [ ]
Check
the appropriate box:
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Preliminary
Proxy Statement
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Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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[X]
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Definitive
Proxy Statement
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Definitive
Additional Materials
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[ ]
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Soliciting
Material Pursuant to §240.14a-12
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CASTLE
BRANDS INC.
(Name
of Registrant as Specified in its Charter)
(Name
of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
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[X]
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No
fee required.
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[ ]
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title
of each class of securities to which transaction applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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Per
unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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(5)
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Total
fee paid:
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Fee
paid previously with preliminary materials.
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Check
box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date
of its filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement No.:
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Filing
Party:
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Date
Filed:
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CASTLE
BRANDS INC.
122
East 42
nd
Street, Suite 5000
New
York, New York 10168
NOTICE
OF 2018 ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON FEBRUARY 27, 2019
Castle
Brands Inc. will hold its 2018 annual meeting of shareholders at the offices of Ladenburg Thalmann & Co. Inc., located at
277 Park Avenue, 26th Floor, New York, NY 10172, on February 27, 2019 at 10:00 a.m., for the following purposes, as further described
in the attached proxy statement:
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1.
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To
elect eight directors to our board of directors;
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2.
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To
ratify the appointment of EisnerAmper LLP as our independent registered public accounting firm for fiscal 2019;
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3.
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To
approve, on an advisory basis, the compensation of our named executive officers, which we refer to as the “say on pay”
vote;
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4.
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To
hold an advisory vote on the frequency of holding the say on pay vote in the future; and
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5.
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To
transact any other business properly presented at the meeting and at any postponements or adjournments.
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You
may vote at the meeting and at any adjournment or postponement if you were a record owner of our common stock at the close of
business on January 3, 2019.
Your
vote is important. Whether or not you plan to attend the 2018 annual meeting, we encourage you to read the attached proxy statement
and promptly vote your shares using the enclosed proxy card. Please sign and date the accompanying proxy card and mail it in the
enclosed addressed, postage-prepaid envelope. You may also vote your shares over the Internet or by telephone by following the
voting instructions on the proxy card. You may revoke your proxy if you so desire at any time before it is voted.
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By
Order of the Board of Directors
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Richard
J. Lampen,
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President
and Chief Executive Officer
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New
York, New York
January
25, 2019
TABLE
OF CONTENTS
CASTLE
BRANDS INC.
PROXY
STATEMENT
Our
board of directors is soliciting proxies for the 2018 annual meeting of shareholders to be held on February 27, 2019. This proxy
statement and the enclosed form of proxy contain important information for you to consider in deciding how to vote on the matters
brought before the meeting.
We
first sent this proxy statement to shareholders on or about January 25, 2019. Our board of directors set January 3, 2019, as the
record date for the meeting. Shareholders of record who owned our stock at the close of business on that date may vote and attend
the meeting. As of the record date, we had issued and outstanding 168,931,496 shares of common stock, par value $0.01 per share,
which we refer to as common stock. Each holder of our common stock is entitled to one vote for each share of common stock held
on the record date.
What
matters am I voting on?
You
will be voting on:
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the
election of eight directors to hold office until the next annual meeting of shareholders and until their successors are duly
elected and qualified;
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the
ratification of the appointment of EisnerAmper LLP as our independent registered public accounting firm for fiscal 2019;
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the
approval, on an advisory basis, of the compensation of our named executive officers;
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the
approval, on an advisory basis, of the frequency of holding the say on pay vote in the future; and
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any
other business that may properly come before the meeting.
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Who
may vote?
Holders
of our common stock at the close of business on January 3, 2019, the record date, may vote at the meeting. On the record date,
168,931,496 shares of our common stock were issued and outstanding. Each holder of our common stock is entitled to one vote for
each share held on the record date.
When
and where is the meeting?
We
will hold the meeting on February 27, 2019, at 10:00 a.m. Eastern Time at the offices of Ladenburg Thalmann & Co. Inc., located
at 277 Park Avenue, 26th Floor, New York, NY 10172.
If
you need directions to the location of the meeting, please contact our Investor Relations Department by: (a) mail at Castle Brands
Inc., Attention: Investor Relations, 122 East 42
nd
Street, Suite 5000, New York, New York 10168, (b) telephone at (646)
356-0200 or (c) e-mail at
ir@castlebrandsinc.com
.
What
is the effect of giving a proxy?
Proxies
in the form enclosed are solicited by and on behalf of our board of directors. The persons named in the proxy have been designated
as proxies by our board of directors. If you sign and return the proxy in accordance with the procedures described in this proxy
statement, the persons designated as proxies by the board of directors will vote your shares at the meeting as specified in your
proxy.
If
you duly execute the proxy card but do not specify how you want to vote, your shares will be voted:
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FOR
the election as directors of the nominees listed below under Proposal I.
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FOR
the ratification of the appointment of EisnerAmper LLP as our independent registered public accounting firm for fiscal 2019
as described below under Proposal II.
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FOR
the approval, on an advisory basis, of the compensation of our named executive officers as described below under Proposal
III.
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FOR
the approval, on an advisory basis, of holding the advisory vote on executive compensation every year as described below under
Proposal IV.
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If
you give your proxy, the proxies named on the proxy card also will vote your shares in their discretion on any other matters properly
brought before the meeting.
Can
I change my vote after I voted?
You
may revoke your proxy at any time before it is exercised by:
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delivering
written notification of your revocation to our Corporate Secretary;
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voting
in person at the meeting; or
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delivering
another proxy bearing a later date.
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Please
note that your attendance at the meeting will not alone serve to revoke your proxy.
What
is a quorum?
A
quorum is the minimum number of shares required to be present at the meeting for the meeting to be properly held under our bylaws
and Florida law. The presence, in person or by proxy, of outstanding shares of our common stock representing a majority of all
votes entitled to be cast at the meeting will constitute a quorum. A proxy submitted by a shareholder may indicate that all or
a portion of the shares represented by the proxy are not being voted on a particular matter, which is referred to as shareholder
withholding. Similarly, a broker may not be permitted to vote stock held in street name on a particular matter absent instructions
from the beneficial owner of the stock, which is referred to as a broker non-vote. Abstentions and broker non-votes will be counted
for purposes of determining the presence of a quorum.
How
may I vote?
You
may vote your shares by mail or by attending the meeting. You may also vote over the Internet or by telephone using one of the
methods described in the proxy card. If you vote by Internet or telephone, please do not return the proxy card. If you vote by
mail, date, sign and return the accompanying proxy in the envelope enclosed for that purpose (to which no postage need be affixed
if mailed in the United States). You may specify your choices by marking the appropriate boxes on the proxy card. If you attend
the meeting, you may deliver your completed proxy card in person or fill out and return a ballot that will be supplied to you
at the meeting.
What
is the vote required for each proposal?
Proposal
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Vote
Required
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Broker
Discretionary
Voting Allowed
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Proposal
I – Election of eight directors
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Plurality
of votes cast
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No
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Proposal
II – Ratification of auditors for fiscal 2019
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Majority
of votes cast
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Yes
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Proposal
III – Advisory vote on executive compensation
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Majority
of votes cast
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No
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Proposal
IV – Advisory vote on the frequency of advisory votes on executive compensation
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Majority
of votes cast
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No
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On
Proposal I, you may vote FOR all nominees, WITHHOLD your vote as to all nominees, or vote FOR all nominees except those specific
nominees from who you WITHHOLD your vote. The eight nominees receiving the most FOR votes will be elected. A properly executed
proxy marked WITHHOLD as to the election of one or more directors will not be voted with respect to the director or directors
indicated.
On
Proposals II and III, you may vote FOR, AGAINST or ABSTAIN.
On
Proposal IV, you may vote ONE YEAR, TWO YEARS, THREE YEARS, or ABSTAIN.
Broker
non-votes will not affect the outcome of any matter being voted on at the meeting, assuming a quorum is obtained, as shares subject
to a broker non-vote will not be considered entitled to vote with respect to any of the Proposals. Abstentions will not affect
the outcome of any matter being voted on at the meeting, assuming a quorum is obtained because approval of a percentage of shares
present or outstanding is not required for any of the Proposals.
Are
there any rules regarding admission to the meeting?
Yes.
You are entitled to attend the meeting only if you were, or you hold a valid legal proxy naming you to act for, one of our shareholders
on the record date. Before we will admit you to the meeting, we must be able to confirm:
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Your
identity by reviewing a valid form of photo identification, such as a driver’s license; and
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You
were, or are validly acting for, a shareholder of record on the record date by:
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verifying
your name and stock ownership against our list of registered shareholders, if you are the record holder of your shares;
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reviewing
other evidence of your stock ownership, such as your most recent brokerage or bank statement, if you hold your shares in street
name; or
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reviewing
a written proxy that shows your name and is signed by the shareholder you are representing, in which case either the shareholder
must be a registered shareholder or you must have a brokerage or bank statement for that shareholder as described above.
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If
you do not have a valid picture identification and proof that you owned, or are legally authorized to act for someone who owned,
shares of voting stock on January 3, 2019, you will not be admitted to the meeting.
At
the entrance to the meeting, we will verify that your name appears in our stock records or will inspect your brokerage or bank
statement as your proof of ownership and any written proxy you present as the representative of a shareholder. We will decide
whether the documentation you present for admission to the meeting meets the requirements described above.
What
is the “householding” of annual disclosure documents?
The
Securities and Exchange Commission, which we refer to as the SEC, has adopted rules governing the delivery of annual disclosure
documents that permit us to send a single set of our annual report and proxy statement to any household at which two or more shareholders
reside if we believe that the shareholders are members of the same family. This rule benefits both shareholders and us by reducing
the volume of duplicate information received and our expenses. Each shareholder will continue to receive a separate proxy card.
If your household received a single set of disclosure documents for this year, but you would prefer to receive your own copy,
or if you share an address with another shareholder and together both of you wish to receive only a single set of our annual disclosure
documents, please contact our Investor Relations Department by: (a) mail at Castle Brands Inc., Attention: Investor Relations,
122 East 42
nd
Street, Suite 5000, New York, New York 10168, (b) telephone at (646) 356-0200 or (c) e-mail at
ir@castlebrandsinc.com
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Our
2018 annual report, including financial statements for the fiscal year ended March 31, 2018, accompany the proxy solicitation
materials. The annual report, however, is not part of the proxy solicitation materials.
Share
Ownership
The
table below shows the number of shares of our common stock beneficially owned as of January 3, 2019 by (i) those persons or groups
known by us to beneficially own more than 5% of our common stock, (ii) each of our directors, (iii) each of our executive officers
named in the “Summary Compensation Table” below, whom we refer to as named executive officers, and (iv) all directors
and executive officers as a group. The number of shares beneficially owned by each individual or group is based upon information
in documents filed with the SEC, other publicly available information or information available to us. Percentage ownership information
is based on 168,931,496 shares of our common stock issued and outstanding as of January 3, 2019.
Shares
of our common stock issuable upon the exercise of options or conversion of convertible notes that are presently exercisable or
exercisable or convertible within 60 days of January 3, 2019 are deemed to be outstanding and beneficially owned by the person
holding the options or convertible notes for the purpose of computing the percentage of ownership of that person, but are not
treated as outstanding for the purpose of computing the percentage of any other person.
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Beneficial ownership of our
common stock
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Name and Address of Beneficial Owner
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Number of Shares
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Percent
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Phillip
Frost, M.D. and related entities
(1)
4400 Biscayne Blvd., Suite 1500, Miami, FL 33137
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54,221,285
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32.1
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%
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Vector Group Ltd.
(2)
4400 Biscayne Blvd., 10
th
Floor, Miami, FL 33137
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12,895,017
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7.6
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%
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Mark Andrews
(3)
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6,670,987
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3.9
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%
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John Beaudette
(4)
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240,246
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*
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Henry C. Beinstein
(5)
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355,000
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*
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John S. Glover
(6)
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2,377,927
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1.4
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%
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Dr. Richard M. Krasno
(7)
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180,000
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*
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Richard J. Lampen
(8)
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6,688,535
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3.9
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%
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Alejandra Peña
(9)
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486,081
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*
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Steven D. Rubin
(10)
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256,000
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*
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Alfred J. Small
(11)
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1,065,976
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*
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T. Kelley Spillane
(12)
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1,092,109
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*
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Mark Zeitchick
(13)
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255,000
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*
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All directors and executive officers as a group (12 persons)
(14)
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73,889,145
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41.6
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%
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(1)
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Includes
15,000 shares of common stock which are subject to vesting restrictions and 80,000 shares of common stock issuable upon exercise
of options exercisable within 60 days of January 3, 2019. Also includes 9,370,790 shares of common stock held by Frost Nevada
Investments Trust. Frost-Nevada Limited Partnership is the sole and exclusive beneficiary of Frost Nevada Investments Trust.
Dr. Frost is one of five limited partners of Frost-Nevada Limited Partnership and the sole shareholder of Frost-Nevada Corporation,
which is the sole general partner of Frost-Nevada Limited Partnership. Dr. Frost disclaims beneficial ownership of the shares
held by Frost Nevada Investments Trust, except to the extent of his pecuniary interest. Also includes 43,975,719 shares of
common stock held by Frost Gamma Investments Trust, of which Dr. Frost is the trustee. Frost Gamma Limited Partnership is
the sole and exclusive beneficiary of Frost Gamma Investments Trust. Dr. Frost is one of two limited partners of Frost Gamma
Limited Partnership. The general partner of Frost Gamma Limited Partnership is Frost Gamma, Inc., and the sole shareholder
of Frost Gamma, Inc. is Frost-Nevada Corporation. Dr. Frost is also the sole shareholder of Frost-Nevada Corporation. Dr.
Frost disclaims beneficial ownership of these shares, except to the extent of his pecuniary interest.
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(2)
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This
information has been derived from a Schedule 13D, as amended, filed with the SEC on March 14, 2014. Excludes (i) 6,688,535
shares of common stock beneficially owned by Richard J. Lampen, the executive vice president of Vector Group Ltd., and a director
and the president and chief executive officer of our company, and (ii) 355,000 shares of common stock beneficially owned by
Henry C. Beinstein, a director of our company, who is also a director of Vector Group.
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(3)
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Includes
1,183,079 shares of common stock held by Knappogue Corp. Knappogue Corp. is controlled by Mr. Andrews and his family. Mr.
Andrews disclaims beneficial ownership of these shares, except to the extent of his pecuniary interest. Also includes 240,000
shares of common stock which are subject to vesting restrictions, 1,562,500 shares of common stock issuable upon exercise
of options exercisable within 60 days of January 3, 2019 and 3,163,724 shares of common stock held jointly by Mr. Andrews
and his wife.
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(4)
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Includes
9,246 shares of common stock held by BPW Holdings LLC, an entity of which Mr. Beaudette is a principal interest holder. Mr.
Beaudette disclaims beneficial ownership of these shares, except to the extent of his pecuniary interest. Also includes 15,000
shares of common stock which are subject to vesting restrictions and 172,000 shares of common stock issuable upon exercise
of options exercisable within 60 days of January 3, 2019.
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(5)
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Includes
15,000 shares of common stock which are subject to vesting restrictions and 80,000 shares of common stock issuable upon exercise
of options exercisable within 60 days of January 3, 2019. Excludes shares of common stock beneficially owned by Vector Group
Ltd., of which Mr. Beinstein serves as a director.
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(6)
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Includes
260,000 shares of common stock which are
subject to vesting restrictions
and
1,625,000 shares of common stock issuable upon exercise of options exercisable within 60 days of January 3, 2019.
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(7)
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Includes
15,000 shares of common stock which are subject to vesting restrictions and 115,000 shares of common stock issuable upon exercise
of options exercisable within 60 days of January 3, 2019.
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(8)
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Includes
2,975,000 shares of common stock issuable upon exercise of options held by Mr. Lampen exercisable within 60 days of January
3, 2019. Also includes 1,016,065 shares of common stock held by Mr. Lampen’s wife, as to which he disclaims beneficial
ownership. Excludes shares of common stock beneficially owned by Vector Group Ltd., of which Mr. Lampen serves as an executive
officer.
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(9)
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Includes
150,000 shares of common stock which are subject to vesting restrictions and 343,750 shares of common stock issuable upon
exercise of options exercisable within 60 days of January 3, 2019.
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(10)
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Includes
15,000 shares of common stock which are
subject to vesting restrictions and
240,000
shares of common stock issuable upon exercise of options exercisable within 60 days of January 3, 2019.
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(11)
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Includes
180,000 shares of common stock which are
subject to vesting restrictions and
627,500 shares of common stock issuable upon exercise of options exercisable within 60 days of January 3, 2019.
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(12)
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Includes
180,000 shares of common stock which are
subject to vesting restrictions
and
623,383 shares of common stock issuable upon exercise of options exercisable within 60 days of January 3, 2019.
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(13)
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Includes
15,000 shares of common stock which are subject to vesting restrictions and 160,000 shares of common stock issuable upon exercise
of options exercisable within 60 days of January 3, 2019.
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(14)
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Includes
(i) 8,592,133 shares of common stock issuable upon exercise of options exercisable within 60 days of January 3, 2019 and (ii)
1,100,000 shares of common stock which are subject to vesting restrictions.
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PROPOSAL
I
ELECTION
OF DIRECTORS
Eight
directors will be elected to hold office until the next annual meeting of shareholders or until their successors are duly elected
or their earlier death, resignation or removal. All of the nominees currently serve as directors.
The
proxies solicited by our board of directors will be voted FOR the election of these nominees unless other instructions are specified.
Our articles of incorporation do not provide for cumulative voting. Should any nominee become unavailable to serve, the proxies
may be voted for a substitute nominee designated by the board or the board may reduce the number of authorized directors. Information
regarding each director nominee is set forth below.
Mark
E. Andrews, III
, 68, our chairman of the board, founded our predecessor company, Great Spirits Company LLC, in 1998 and served
as its chairman of the board, president and chief executive officer from its inception until December 2003. Mr. Andrews has served
as our chairman of the board since December 2003 and served as our president from December 2003 until November 2005. Mr. Andrews
served as our chief executive officer from December 2003 until November 2008. Prior to founding our predecessor, Mr. Andrews founded
American Exploration Company, a company engaged in the exploration and production of oil and natural gas, in 1980. He oversaw
that company becoming publicly traded in 1983 and served as its chairman and chief executive officer until its merger with Louis
Dreyfus Natural Gas Corp. in October 1997. He also serves as a life trustee of The New York Presbyterian Hospital in New York
City. Mr. Andrews’ pertinent experience, qualifications, attributes and skills include financial literacy and expertise,
industry experience, managerial experience, and the knowledge and experience he has attained through his service as a director
and officer of publicly-traded corporations.
John
F. Beaudette,
62, has served as a director of our company since January 2004. Since 1995, Mr. Beaudette has been president
and chief executive officer of MHW, Ltd., a national beverage alcohol import, distribution and service company located in Manhasset,
New York. MHW, Ltd. provides U.S. import and distribution services to wineries, breweries, and distilleries throughout the world.
He serves as Vice Chairman of the board of directors of The National Association of Beverage Importers Inc. (NABI). Mr. Beaudette’s
pertinent experience, qualifications, attributes and skills include industry expertise, managerial experience and the knowledge
and experience he has attained through his service as a director of our company.
Henry
C. Beinstein
, 75, has served as a director of our company since January 2009. He has been a partner of Gagnon Securities,
LLC, a broker-dealer and a FINRA member firm, since January 2005 and has been a money manager and an analyst and registered representative
of such firm since August 2002. Mr. Beinstein has been a director of Vector Group Ltd., a New York Stock Exchange listed holding
company, since March 2004. Vector Group is engaged principally in the tobacco business through its Liggett Group LLC subsidiary
and in the real estate and investment business through its New Valley LLC subsidiary. New Valley owns more than 70% of Douglas
Elliman Realty, LLC, which operates the largest residential brokerage company in the New York metropolitan area. Since May 2001,
Mr. Beinstein has served as a director of Ladenburg Thalmann Financial Services Inc., a publicly-traded diversified financial
services company. Mr. Beinstein is a certified public accountant in New York and previously was a partner and national director
of finance and administration at Coopers & Lybrand. Mr. Beinstein’s pertinent experience, qualifications, attributes
and skills include financial literacy and expertise, managerial experience and the knowledge and experience he has attained through
his service as a director of publicly-traded corporations.
Phillip Frost, M.D.,
82, has served as a director of our company since
October 2008 and previously served as a director of our company from September 2005 to August 2007. Since March 2007, he has served
as chairman of the board and chief executive officer of OPKO Health, Inc., a multi-national biopharmaceutical and diagnostics
company. Dr. Frost also serves as a director for CoCrystal Pharma, Inc., a biotechnology company. He also serves as chairman of
Temple Emanu-El, as a member of the Florida Council of 100, as a trustee for each of the University of Miami, the Miami Jewish
Home for the Aged and the Mount Sinai Medical Center and as a member of the executive committee of the board of trustees of the
Phillip and Patricia Frost Museum of Science. From 1972 to 1990, Dr. Frost was the chairman of the Department of Dermatology at
Mt. Sinai Medical Center of Greater Miami, Miami Beach, Florida. Dr. Frost served as a director of Teva Pharmaceutical Industries
Ltd., a pharmaceutical company, from January 2006 until February 2015, served as chairman of the board of directors of Teva from
March 2010 until December 2014 and served as vice chairman of the board of directors from January 2006 when Teva acquired IVAX
Corporation until March 2010. Dr. Frost was chairman of the board of directors of Key Pharmaceuticals, Inc. from 1972 until its
acquisition by Schering Plough Corporation in 1986 and served as chairman of the board of directors and chief executive officer
of IVAX from 1987 to January 2006. Dr. Frost previously served as the chairman of the board of directors of Ladenburg Thalmann
Financial Services Inc. and PROLOR Biotech, Inc. (until it was acquired by OPKO Health, Inc.), vice chairman of the board
of directors of Cogint, Inc., as a director of Continucare Corp. (until its merger with Metropolitan Health Networks, Inc.), TransEnterix,
Inc. (formerly SafeStitch Medical, Inc.), and Sevion Therapeutics, Inc. (formerly Senesco Technologies, Inc.), and as governor
and co-vice-chairman of the American Stock Exchange (now NYSE American). Dr. Frost’s pertinent experience, qualifications,
attributes and skills include financial literacy and expertise, managerial experience, and the knowledge and experience he has
attained through his service as a director and officer of publicly-traded corporations. On December 27, 2018, Dr. Frost entered
into a settlement agreement with the SEC to resolve an action brought by the SEC against Dr. Frost, an affiliate of Dr. Frost
and others in SEC v. Honig et al., 18 Civ. 08175 (S.D.N.Y.). Without admitting or denying the SEC’s allegations, Dr. Frost
agreed to injunctions from violations of the Sections 5(a), 5(c), and 17(a)(2) of the Securities Act of 1933, as amended, which
we refer to as the Securities Act, and Section 13(d) of the Securities Exchange Act of 1934, as amended, which we refer to as
the Exchange Act, and Rule 13d-1(a) thereunder; approximately $5.5 million in penalty, disgorgement, and prejudgment interest;
and a prohibition, with certain exceptions, from trading in penny stocks. Without admitting or denying the SEC’s allegations,
Frost Gamma Investments Trust, of which Dr. Frost is Trustee. agreed to injunctions from violations of Section 17(a)(2) of the
Securities Act and a prohibition, with certain exceptions, from trading in penny stocks.
Dr.
Richard M. Krasno
, 77, has served as a director of our company since March 2015 and as our lead independent director since
May 2018. Dr. Krasno has served as a director of Ladenburg Thalmann Financial Services Inc. since 2006 and has served as its lead
director since November 2014. Since October 2016, Dr. Krasno has served as a director of BioCardia, Inc., a clinical-stage regenerative
medicine company. Since February 2017, Dr. Krasno has served as a director of OPKO Health, Inc. From 1999 to 2014, he served as
the executive director of the William R. Kenan, Jr. Charitable Trust and, from 1999 to 2010, as president of the four affiliated
William R. Kenan, Jr. Funds. Prior to joining the Trust, Dr. Krasno was the president of the Monterey Institute of International
Studies in Monterey, California. From 2004 to 2012, Dr. Krasno also served as a director of the University of North Carolina Health
Care System and served as chairman of the board of directors from 2009 to 2012. From 1981 to 1998, he served as president and
chief executive officer of the Institute of International Education in New York. He also served as Deputy Assistant Secretary
of Education in Washington, D.C. from 1979 to 1980. Dr. Krasno’s pertinent experience, qualifications, attributes and skills
include financial literacy and expertise, managerial experience and the knowledge and experience he has attained through his service
as a director of publicly-traded corporations.
Richard
J. Lampen
, 65, has served as our president and chief executive officer and as a director of our company since October 2008.
Mr. Lampen has served as executive vice president of Vector Group Ltd. since July 1996. Since September 2006, he has served as
president and chief executive officer of Ladenburg Thalmann Financial Services Inc. Mr. Lampen has served as a director of Ladenburg
Thalmann Financial Services Inc. since January 2002 and as chairman of the board of directors since September 2018. Mr. Lampen
previously served as chairman of the board of directors of the Financial Services Institute, an advocacy organization for independent
broker-dealers and their affiliated independent financial advisors, and currently serves as a director. From January 1997
until January 2014, Mr. Lampen served as a director of SG Blocks, Inc. Mr. Lampen’s pertinent experience, qualifications,
attributes and skills include his knowledge and experience in our company attained through his service as a director of our company
and as president and chief executive officer since 2008, and his managerial experience and the knowledge and experience he has
attained through his service as a director and officer of publicly-traded corporations.
Steven D. Rubin
,
58, has served as a director of our company since January 2009. Mr. Rubin has served as executive vice president - administration
since May 2007 and as a director of OPKO Health, Inc. since February 2007. Mr. Rubin currently serves on the board of directors
of Kidville, Inc., which operates large, upscale facilities, catering to newborns through five-year-old children and their families
and offers a wide range of developmental classes for newborns to five-year-olds, Non-Invasive Monitoring Systems, Inc., a medical
device company, Cocrystal Pharma, Inc., Eloxx Pharmaceuticals, Inc., a clinical-stage biopharmaceutical company discovering and
developing novel therapeutics to treat cystic fibrosis, cystinosis, inherited retinal disorders and other diseases caused by nonsense
mutations limiting production of functional proteins, Neovasc, Inc., a company developing and marketing medical specialty vascular
devices, ChromaDex Corp., an integrated, global nutraceutical company devoted to improving the way people age, and Red Violet,
Inc., a leading provider of information and analytical solutions. Mr. Rubin served as the senior vice president, general counsel
and secretary of IVAX Corporation from August 2001 until its merger with Teva in January 2006. Mr. Rubin previously served as
a director of VBI Vaccines, Inc., Cogint, Inc., Dreams, Inc., SafeStitch Medical, Inc. prior to its merger with TransEnterix,
Inc., and Tiger X Medical, Inc. prior to its merger with BioCardia, Inc. Mr. Rubin’s pertinent experience, qualifications,
attributes and skills include financial literacy and expertise, legal experience, managerial experience, and the knowledge and
experience he has attained through his service as a director and officer of publicly-traded corporations.
Mark
Zeitchick
, 53, has served as a director of our company since March 2014. Mr. Zeitchick has been executive vice president of
Ladenburg Thalmann Financial Services Inc. since September 2006 and has served as a director of Ladenburg Thalmann Financial Services
Inc. since 1999. From August 1999 until December 2003, Mr. Zeitchick served as an executive vice president of Ladenburg Thalmann
Financial Services Inc. and from September 2006 until December 2011, Mr. Zeitchick served as president and chief executive officer
of its subsidiary Ladenburg Thalmann & Co. Inc. Mr. Zeitchick has been a registered representative with Ladenburg Thalmann
& Co. Inc. since March 2001. Mr. Zeitchick’s pertinent experience, qualifications, attributes and skills include managerial
and financial experience and the knowledge and experience he has attained through his service as a director and officer of a publicly-traded
corporation.
Vote
Required
The
vote required to approve the proposal to elect the eight nominees listed above to serve as members of our board of directors is
the affirmative vote of a plurality of the votes cast at the meeting with respect to the proposal.
Our
board of directors recommends that you vote FOR each of the nominees named above. Unless otherwise indicated, all proxies will
be voted FOR the election of each of the nominees named above.
Executive
Officers
Our
executive officers serve until the appointment and qualification of their successors or until their earlier death, resignation
or removal by our board of directors. The following table lists the name, age and position of our executive officers:
Name
|
|
Age
|
|
Position
|
Richard
J. Lampen
|
|
65
|
|
President
and Chief Executive Officer
|
John
S. Glover
|
|
64
|
|
Executive
Vice President and Chief Operating Officer
|
T.
Kelley Spillane
|
|
56
|
|
Senior
Vice President — Global Sales
|
Alfred
J. Small
|
|
49
|
|
Senior
Vice President, Chief Financial Officer, Treasurer & Secretary
|
Alejandra
Peña
|
|
51
|
|
Senior
Vice President — Marketing
|
Listed
below are biographical descriptions of our current executive officers. For Mr. Lampen’s information, see the description
under “Election of Directors” above.
John
S. Glover
, our executive vice president and chief operating officer, joined us in February 2008. From February 2008 to October
2008, Mr. Glover served as our senior vice president - marketing, since October 2008, he has served as our chief operating officer
and since March 2017 he has served as our executive vice president. From June 2006 to February 2008, Mr. Glover served as senior
vice president - commercial management of Remy Cointreau USA. From January 2001 to June 2006, Mr. Glover served in various management
positions at Remy Cointreau in the United States and France. From January 1999 to January 2001, he was a managing director and
chief marketing officer for Bols Royal Distilleries in the Netherlands.
T.
Kelley Spillane
, our senior vice president - global sales, joined us in April 2000. From April 2000 to December 2003, Mr.
Spillane served as vice president - sales of Great Spirits Company, and was appointed executive vice president - U.S. sales in
December 2003. He has served as our senior vice president - global sales since June 2013. Prior to joining us, Mr. Spillane worked
at Carillon Importers Limited, a division of Grand Metropolitan PLC. Carillon developed and launched Absolut Vodka and Bombay
Sapphire Gin. At Carillon, Mr. Spillane served as assistant manager for its control states and duty free divisions and was promoted
to director of special accounts, focusing on expanding sales in national accounts.
Alfred
J. Small
, our senior vice president, chief financial officer, treasurer and secretary joined us in October 2004. Mr. Small
has served as our chief financial officer and treasurer since November 2007 and as our secretary since January 2009. He previously
served as our vice president-controller from March 2007 until November 2007 and has served as our principal accounting officer
since October 2006. Mr. Small is a certified public accountant.
Alejandra
Peña
, our senior vice president - marketing, joined us in September 2011. Prior to joining our company, Ms. Peña
most recently served as marketing vice president for liqueurs and spirits for Remy Cointreau USA, where she was responsible for
the marketing of Cointreau Liqueur and Mount Gay Rum in addition to other brands. Earlier in her career, she was employed with
Banfi and served as marketing director of Italian Estate Wines. Ms. Peña started her career as a strategic consultant and
is fluent in English, Spanish and Italian.
There
are no family relationships among any of our directors and executive officers.
Corporate
Governance Guidelines
Our
board of directors has adopted a code of conduct, which applies to all of our directors, executive officers and employees. The
code of conduct sets forth our commitment to conduct our business in accordance with the highest standards of business ethics
and to promote the highest standards of honesty and ethical conduct by our directors, executive officers and employees.
Our
board of directors has also adopted a nominating and corporate governance committee charter that sets forth (i) corporate governance
principles intended to promote efficient, effective and transparent governance and (ii) procedures for the identification and
selection of individuals qualified to become directors.
Among
other matters, our nominating and corporate governance committee charter and code of conduct set forth the following governing
principles:
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●
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A
majority of our directors should be “independent” as defined in the rules adopted by the SEC and the NYSE American.
|
|
|
|
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●
|
To
facilitate critical discussion, the independent directors are required to meet apart from other board members and management
representatives.
|
|
|
|
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●
|
Compensation
of our non-employee directors should include equity-based compensation. Employee directors are not paid for their board service
in addition to their regular employee compensation.
|
|
|
|
|
●
|
All
directors, executive officers and employees must act at all times in accordance with the requirements of our code of conduct.
This obligation includes adherence to our policies with respect to conflicts of interest; full, accurate and timely disclosure;
compliance with securities laws; confidentiality of our information; protection and proper use of our assets; ethical conduct
in business dealings; and respect for and compliance with applicable law. Any change to, or waiver of, the requirements of,
the code of conduct with respect to any director, principal financial officer, principal accounting officer or persons performing
similar functions may be granted only by the board of directors. Any such change or waiver will be promptly disclosed as required
by applicable law or regulations.
|
Our
code of conduct and our nominating and corporate governance committee charter are posted on our investor relations website at
http:/investor.castlebrandsinc.com
. We intend to post amendments to, or waivers from a provision of, our code of business
conduct that apply to our principal executive officer, principal financial officer, principal accounting officer, or persons performing
similar functions on our web site.
Shareholder
Nominations
There
have been no material changes to the procedures by which security holders may recommend nominees to our board of directors.
PROPOSAL
II
RATIFICATION
OF THE APPOINTMENT OF OUR INDEPENDENT
REGISTERED
PUBLIC ACCOUNTING FIRM FOR FISCAL 2019
We
ask that you ratify the appointment of EisnerAmper LLP as our independent registered public accounting firm for fiscal 2019.
Our
audit committee appointed EisnerAmper LLP as our independent registered public accounting firm for fiscal 2019. Representatives
of EisnerAmper LLP are expected to be present at the meeting with the opportunity to make a statement if they so desire and to
be available to respond to appropriate questions.
If
the appointment is not ratified, the adverse vote will be considered as an indication to our audit committee that it should consider
selecting another independent registered public accounting firm for the following fiscal year. Even if the selection is ratified,
our audit committee, in its discretion, may select a new independent registered public accounting firm at any time during the
year if it believes that such a change would be in our best interest.
Vote
Required
The
vote required to approve the proposal to ratify the appointment of EisnerAmper LLP as our independent registered public accounting
firm for fiscal 2019 is the affirmative vote of a majority of votes cast at the meeting with respect to the proposal.
Our
board of directors recommends that you vote FOR Proposal II, the ratification of the appointment of our independent registered
public registered public accounting firm for fiscal 2019.
PROPOSAL
III
APPROVAL,
ON AN ADVISORY BASIS, OF THE COMPENSATION
OF
OUR NAMED EXECUTIVE OFFICERS
(THE
SAY ON PAY VOTE)
As
required by Section 14A of the Exchange Act, we are seeking a non-binding advisory vote from our shareholders to approve the compensation
of our named executive officers as described in the “Compensation Discussion and Analysis” section and the executive
compensation tables, the footnotes to the tables and narrative information accompanying the tables in this proxy statement. This
proposal is also referred to as the say on pay vote.
We
have designed our compensation policies and programs to attract, retain and motivate talented executives who are critical for
our continued growth and success and to align the interests of these executives with those of our shareholders. We believe that
our compensation policies and programs are centered on a pay-for-performance philosophy. To achieve these objectives, besides
annual base salaries, our executive compensation program utilizes a combination of annual incentives through cash bonuses and
long-term incentives through equity-based compensation. In establishing overall executive compensation levels, the compensation
committee of our board of directors considers a number of criteria, including the executive’s scope of responsibilities,
prior and current period performance and attainment of individual and overall company performance objectives and retention concerns.
Our president and chief executive officer and our compensation committee believe that substantial portions of executive compensation
should be linked to the overall performance of our company, and that the contribution of individuals over the course of the relevant
period to the goal of building a profitable business and shareholder value will be considered in the determination of each executive’s
compensation. We believe that our compensation policies and programs are designed with the appropriate balance of risk and reward
consistent with our overall business strategy. In deciding how to vote on this proposal, we urge you to read the “Compensation
Discussion and Analysis” section of this proxy statement, together with the tables and footnotes that follow, for details
of our executive compensation policies and programs.
Shareholders
are being asked to vote on the following resolution:
“RESOLVED,
that the shareholders approve, on an advisory basis, the compensation of the Company’s named executive officers, as disclosed
in the proxy statement for the 2018 annual meeting, including the “Compensation Discussion and Analysis” section,
the executive compensation tables, the footnotes to the tables and the related narrative contained therein.”
Because
your vote is advisory, it will not be binding upon our board of directors. Accordingly, prior compensation determinations of the
board of directors will not be invalidated and the board of directors will not be required to adjust executive compensation programs
or policies as a result of the outcome of the vote. However, the board of directors values shareholders’ opinions and the
compensation committee will take into account the outcome of the vote when considering future executive compensation arrangements.
Vote
Required
The
vote required to approve the proposal regarding the advisory vote on the compensation of our named executive officers is the affirmative
vote of a majority of votes cast at the meeting with respect to the proposal.
Our
board of directors recommends that you vote FOR Proposal III, the advisory vote on the compensation of our named executive officers.
PROPOSAL
IV
ADVISORY
VOTE ON THE FREQUENCY OF HOLDING
THE SAY ON PAY VOTE IN THE FUTURE
Section
14A of the Exchange Act also requires us, at least once every six years, to provide our shareholders with the opportunity to cast
a non-binding advisory vote as to the frequency with which future non-binding advisory votes on say on pay should be held. Shareholders
may indicate their preference to hold the future advisory votes on say on pay every year, every two years, every three years or
may abstain from voting.
After
thoughtful consideration, our board of directors believes that holding an advisory vote on executive compensation every year is
the most appropriate policy for our company and shareholders at this time.
Continuing
to hold a say on pay vote every year would appropriately complement a number of effective mechanisms already available to shareholders
that allow them to communicate with our board of directors regarding executive compensation or any other matter. Shareholders
are encouraged to convey their compensation concerns to us on a real-time basis. Shareholders have a variety of corporate governance
mechanisms at their disposal for this purpose. These include annual elections of directors, shareholder approval requirements
for equity and cash compensation plans, shareholder proposals, letters to individual directors or the entire board and voicing
opinions at the annual meeting of shareholders. As with all of these practices, our board will monitor the effectiveness of an
annual advisory say on pay vote to ensure it remains a valuable tool for shareholders.
Prior
to voting on this proposal, we urge you to read the “Executive Compensation” section and the executive compensation
tables, the footnotes to the tables and narrative information accompanying the tables in this proxy statement, as well as the
section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” appearing
in our 2018 annual report that accompanies this proxy statement, which more thoroughly discuss our compensation policies and programs.
Because
your vote is advisory, it will not be binding upon our board of directors. Regardless, our board of directors and the compensation
committee values the opinions expressed by our shareholders and expects to implement the frequency which receives the greatest
level of support from our shareholders. While we believe that a vote once every year is the best choice for our company and shareholders,
you are not voting to approve or disapprove our recommendation of an annual vote, but rather to make your own choice among a vote
once every one year, every two years or every three years. You may also abstain from voting on this proposal.
Shareholders
are being asked to vote on the following resolution:
“RESOLVED,
that the Company’s shareholders advise the Company to include a non-binding, advisory vote on the compensation of the Company’s
named executive officers pursuant to Section 14A of the Securities Exchange Act of 1934, as amended, every:
|
●
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one
year;
|
|
|
|
|
●
|
two
years; or
|
|
|
|
|
●
|
three
years.”
|
Vote
Required
The
vote required to approve the proposal regarding the advisory vote on the frequency of holding the say on pay vote in the future
is the affirmative vote of a majority of votes cast at the meeting with respect to the proposal.
Our
board of directors recommends that you vote FOR continuing to hold the say on pay vote every ONE YEAR.
CORPORATE
GOVERNANCE MATTERS
Independence
of Directors
We
follow the NYSE American rules in determining if a director is independent. Our board of directors also consults with our counsel
to ensure that the board’s determination is consistent with those rules and all other relevant laws and regulations regarding
director independence. Consistent with these considerations, our board of directors has determined that Messrs. Beaudette, Beinstein,
Krasno, Rubin and Zeitchick are independent directors. The other remaining directors may not be deemed independent under the NYSE
American rules because they currently have relationships with us that may result in them being deemed not “independent.”
All members of our audit, compensation and nominating and corporate governance committees are independent. The members of our
audit committee are also independent under Rule 10A-3 under the Exchange Act and under the NYSE American rules for audit committee
independence.
Board
Leadership Structure
Non-Executive
Board Chair
We
believe that effective board leadership structure can depend on the experience, skills, and personal interaction between persons
in leadership roles, and the needs of our company at any point in time. We currently maintain separate roles between the chief
executive officer and chairman of the board in recognition of the differences between the two responsibilities. Our chief executive
officer is responsible for setting our strategic direction and for leadership of our management team and the performance of our
company. Our chairman of the board provides input to the chief executive officer, sets the agenda for board meetings, and presides
over meetings of the full board of directors, as well as executive sessions of the board of directors.
Lead
Independent Director
Our
corporate governance guidelines also provide that the independent directors of our board may designate a lead independent director
to perform certain duties designated by the board. In May 2018, Dr. Richard M. Krasno was appointed as our lead independent director.
The functions of our lead independent director include serving as the principal liaison between our independent directors, our
chairman and our chief executive officer, reviewing and providing input to the agenda for each meeting of our board, and approving
the schedule of, developing the agenda for, and presiding at executive sessions of, our independent directors. We believe that
having a lead independent director provides for effective checks and balances and enhances the ability of our independent directors
to work effectively in the board setting. Our board adopted a charter of the lead independent director in May 2018, a copy of
which is available at
http://investor.castlebrandsinc.com/corporate-governance
.
Board
Role in Risk Oversight
The
board of directors is also responsible for oversight of our risk management practices, while management is responsible for the
day-to-day risk management processes. This division of responsibilities is the most effective approach for addressing the risks
facing our company, and our company’s board leadership structure supports this approach. The board of directors receives
periodic reports from management regarding the most significant risks facing our company. Also, our audit committee assists the
board of directors in its oversight role by receiving periodic reports regarding our company’s risk and control environment.
Board
Committee Membership and Information
The
following table shows the current members of each board committee, the directors our board of directors has determined to be independent
and the number of meetings held by each committee in fiscal 2018.
Director
|
|
Independent
|
|
Audit
|
|
Compensation
|
|
Nominating
and Corporate Governance
|
Mark
Andrews
|
|
|
|
|
|
|
|
|
John
F. Beaudette
|
|
X
|
|
X
|
|
X
|
|
|
Henry
C. Beinstein
|
|
X
|
|
X
|
|
|
|
X
|
Phillip
Frost, M.D.
|
|
|
|
|
|
|
|
|
Dr.
Richard M. Krasno
|
|
X
|
|
|
|
X
|
|
X
|
Richard
J. Lampen
|
|
|
|
|
|
|
|
|
Steven
D. Rubin
|
|
X
|
|
X
|
|
X
|
|
X
|
Mark
Zeitchick
|
|
X
|
|
|
|
|
|
X
|
Number
of meetings held in fiscal 2018
|
|
1
|
|
4
|
|
1
|
|
1
|
Our
board of directors met four times during fiscal 2018. During fiscal 2018, each of our directors attended at least 75% of the aggregate
number of meetings of the board of directors and of each committee of which he was a member held during the period for which he
was a director or member, as applicable. We expect our directors to attend all board and committee meetings and to spend the time
needed and meet as frequently as necessary to properly discharge their responsibilities. Although we do not have any formal policy
regarding director attendance at annual shareholder meetings, we attempt to schedule our annual meetings so that all of our directors
can attend. Two directors attended our 2017 annual meeting.
Executive
Sessions
We
regularly schedule executive sessions during which our independent directors meet without the presence of or participation by
management.
Nominating
and Corporate Governance Committee
Messrs.
Beinstein, Rubin and Zeitchick and Dr. Krasno currently comprise our nominating and corporate governance committee. Our nominating
and corporate governance committee identifies, researches and recommends to the board of directors qualified candidates to serve
as directors on our board of directors.
Our
nominating and corporate governance committee is responsible for, among other things:
|
●
|
recommending
to our board of directors the slate of nominees of directors to be proposed for election by the shareholders and individuals
to be considered by our board of directors to fill vacancies;
|
|
|
|
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●
|
establishing
criteria for selecting new directors; and
|
|
|
|
|
●
|
reviewing
and assessing annually the performance of the nominating and corporate governance committee and the adequacy of the nominating
and corporate governance committee charter.
|
Our
nominating and corporate governance committee will consider candidates suggested by our shareholders pursuant to written applications
submitted to the nominating and corporate governance committee, in care of our Corporate Secretary at 122 East 42nd Street, Suite
5000, New York, New York 10168 for the submission of shareholder proposals.
Besides
considering candidates suggested by shareholders, our nominating and corporate governance committee also accepts recommendations
from our directors, members of management and others familiar with, and experienced in, the beverage alcohol industry. Our nominating
and corporate governance committee establishes criteria for the selection of nominees and reviews the appropriate skills and characteristics
required of board members. In evaluating candidates, the committee considers issues of independence, diversity and expertise in
numerous areas, including experience in the premium branded spirits industry, finance, marketing, international experience and
culture. Our nominating and corporate governance committee selects individuals of the highest personal and professional integrity
who have demonstrated exceptional ability and judgment in their field and who would work effectively with the other directors
and nominees to the board of directors. Our nominating and corporate governance committee also monitors and reviews the committee
structure of our board of directors, and each year it recommends to our board of directors for its approval directors to serve
as members of each committee. The nominating and corporate governance committee conducts an annual review of the adequacy of the
nominating and corporate governance committee charter, and recommends proposed changes. Our nominating and corporate governance
committee charter is posted on our investor relations website at
http://investor.castlebrandsinc.com
.
The
persons to be elected at our annual meeting are the current directors standing for re-election.
Compensation
Committee
Messrs.
Beaudette and Rubin and Dr. Krasno currently comprise our compensation committee. None of these individuals has ever served as
an officer of ours or of any of our subsidiaries. The compensation committee does not have a charter. More information regarding
the role and policies of the compensation committee is included below under the headings “Executive Compensation”
and “Director Compensation.”
Audit
Committee Information and Report
Our
audit committee was established in accordance with Section 3(a)(58)(A) of the Exchange Act. Our audit committee assists the board
of directors in monitoring:
|
●
|
the
integrity of our financial statements;
|
|
|
|
|
●
|
our
independent auditor’s qualifications and independence;
|
|
|
|
|
●
|
the
performance of our independent auditor; and
|
|
|
|
|
●
|
our
compliance with legal and regulatory requirements.
|
The
audit committee also reviews and approves all related-party transactions. Our audit committee charter is posted on our investor
relations website at
http://investor.castlebrandsinc.com.
As
required by applicable SEC and NYSE American rules, our board of directors has determined that each audit committee member is
financially literate and that Mr. Beinstein, who chairs the committee, is an audit committee financial expert as defined by SEC
rules.
Fees
to Independent Registered Public Accounting Firm for Fiscal 2018 and 2017
EisnerAmper
LLP billed us the following amounts for professional services rendered for fiscal 2018 and 2017:
|
|
2018
|
|
|
2017
|
|
Audit
Fees
|
|
$
|
549,500
|
|
|
$
|
572,400
|
|
Audit-Related
Fees
|
|
|
—
|
|
|
|
—
|
|
Tax
Fees
|
|
|
—
|
|
|
|
—
|
|
All
Other Fees
|
|
|
—
|
|
|
|
—
|
|
Total
|
|
$
|
549,500
|
|
|
$
|
572,400
|
|
Audit
Fees
This
category includes the audit of our annual financial statements, reviews of financial statements included in our quarterly reports
on Form 10-Q, and services that are normally provided by the independent registered public accounting firm in connection with
statutory and regulatory filings or engagements, including the audit of our internal control over financial reporting. This category
also includes fees for advice on accounting matters that arose during, or as a result of, the annual audit or the reviews of interim
financial statements.
Audit-Related
Fees
This
category would include assurance and related services provided by EisnerAmper LLP that are reasonably related to the performance
of the audit or review of our financial statements and are not reported above under “Audit Fees.”
Tax
Fees
This
category would include fees for professional services rendered by EisnerAmper LLP for tax compliance, tax advice and tax planning.
All
Other Fees
This
category would consist of fees for other miscellaneous items.
Pre-Approval
Policies and Procedures
In
accordance with its charter, our audit committee reviews and approves in advance on a case-by-case basis each engagement, including
the fees and terms thereof, by us of accounting firms that will perform permissible non-audit services or audit, review or attestation
services for us. Our audit committee is authorized to establish detailed pre-approval policies and procedures for pre-approval
of such engagements without a meeting of the audit committee, but our audit committee has not established any such pre-approval
procedures at this time.
Our
audit committee pre-approved all fees of our principal independent accounting firm, EisnerAmper LLP, for fiscal 2018.
Audit
Committee Report
Under
its written charter, our audit committee’s responsibilities include, among other things:
|
●
|
appointing,
replacing, overseeing and compensating the work of our independent registered public accounting firm;
|
|
|
|
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●
|
reviewing
and discussing with management and our independent registered public accounting firm our quarterly financial statements and
discussing with management our earnings releases;
|
|
|
|
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●
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pre-approving
all auditing services and permissible non-audit services provided by our independent registered public accounting firm;
|
|
|
|
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●
|
engaging
in a dialogue with our independent registered public accounting firm regarding relationships that may adversely affect the
independence of the independent registered public accounting firm and, based on such review, assessing the independence of
our independent registered public accounting firm;
|
|
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|
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●
|
providing
the audit committee report to be filed with the SEC in our annual proxy statement;
|
|
|
|
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●
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reviewing
with our independent registered public accounting firm the adequacy and effectiveness of the internal controls over our financial
reporting;
|
|
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|
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●
|
establishing
procedures for the receipt, retention and treatment of complaints regarding accounting, internal accounting controls or auditing
matters, including the confidential anonymous submission by our employees of concerns regarding questionable accounting or
auditing matters;
|
|
|
|
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●
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reviewing
and pre-approving related-party transactions;
|
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|
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●
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reviewing
and discussing with management and our independent registered public accounting firm management’s annual assessment
of the effectiveness of the internal controls and our independent registered public accounting firm’s attestation;
|
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|
|
|
●
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appointing
or replacing the independent auditor;
|
|
|
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●
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reviewing
and discussing with management and our independent registered public accounting firm the adequacy and effectiveness of our
internal controls including any significant deficiencies in the design or operation of our internal controls or material weaknesses
and any fraud, whether or not material, that involves our management or other employees who have a significant role in our
internal controls and the adequacy and effectiveness of our disclosure controls and procedures; and
|
|
|
|
|
●
|
reviewing
and assessing annually the adequacy of the audit committee charter.
|
Our
audit committee has met and held discussions with management and EisnerAmper LLP, our independent auditors. Management represented
to the audit committee that our consolidated financial statements were prepared in accordance with generally accepted accounting
principles, and the audit committee has reviewed and discussed the consolidated financial statements with management and the independent
auditors. The audit committee discussed with EisnerAmper LLP the matters required to be discussed by Auditing Standard No. 1301
(Communications with Audit Committees), as adopted by the Public Company Accounting Oversight Board, which requires the independent
registered public accounting firm to provide the audit committee with information regarding the scope and results of its audit
of the company’s financial statements, including information with respect to the firm’s responsibilities under auditing
standards generally accepted in the United States, significant accounting policies, management judgments and estimates, any significant
audit adjustments, any disagreements with management and any difficulties encountered in performing the audit.
EisnerAmper
LLP also provided the audit committee with the written disclosures and letter regarding independence required by the Public Company
Accounting Oversight Board regarding the independent auditors’ communication with the audit committee regarding independence.
The audit committee discussed with EisnerAmper LLP and management the auditors’ independence, including with regard to fees
for services rendered during the 2018 fiscal year and for all other professional services rendered by EisnerAmper LLP.
Based
upon the audit committee’s discussion with management and the independent auditors and the audit committee’s review
of our audited financial statements, the representations of management and the report of the independent auditors to the audit
committee, the audit committee recommended that our board of directors include the audited consolidated financial statements in
our annual report on Form 10-K for the fiscal year ended March 31, 2018, as amended, filed with the SEC on June 14, 2018.
The
Members of the Audit Committee
John
F. Beaudette
Henry
C. Beinstein
Steven
D. Rubin
EXECUTIVE
COMPENSATION
Compensation
Discussion and Analysis
This
“Compensation Discussion and Analysis” section discusses the compensation programs and policies for our executive
officers and the compensation committee’s role in the design and administration of these programs and policies in making
specific compensation decisions for our executive officers, including our “named executive officers.”
Our
compensation committee has the sole authority and responsibility to review and determine, or recommend to our board of directors
for determination, the compensation package of our chief executive officer and each of our other named executive officers, each
of whom is identified in the Summary Compensation Table below. Our compensation committee also considers the design and effectiveness
of the compensation programs for our other executive officers and approves the final compensation package, employment agreements,
and stock awards and option grants for all of our executive officers. Our compensation committee is composed entirely of independent
directors who have never served as officers of our company.
Our
compensation committee may engage outside advisors, experts and others to assist it in determining executive compensation. Our
compensation committee engaged GK Partners, Inc. to provide services in connection with its compensation review for the fiscal
year ended March 31, 2018. In particular, GK Partners reviewed the terms of the new employment agreements entered into in April
2017 for our named executive officers (other than Mr. Lampen who does not have an employment agreement with our company) and provided
other consulting services to the compensation committee throughout the fiscal year. The compensation committee, considering all
relevant factors, including those set forth in Rule 10C-1(b)(4)(i) through (vi) under the Exchange Act and applicable NYSE American
rules, is not aware of any conflict of interest that has been raised by the work performed by GK Partners. Other than the services
for which the compensation committee directly engaged GK Partners, GK Partners provided no services to us for the fiscal year
ended March 31, 2018.
Set
forth below is a discussion of the policies and decisions that shape our executive compensation programs, including the specific
objectives and elements. Information regarding director compensation is included under the heading “Director Compensation”
below.
General
Executive Compensation Objectives and Philosophy
The
objective of our executive compensation programs is to attract, retain and motivate talented executives who are critical for our
continued growth and success and to align the interests of these executives with those of our shareholders. To achieve this objective,
in addition to competitive annual base salaries, our executive compensation program utilizes a combination of annual incentives
(cash bonuses) and long-term incentives through equity-based compensation. Our compensation committee believes that cash bonuses
should reward our named executive officers for their personal performance, as well as our company’s overall business performance,
and that equity-based compensation should align the long-term financial interests of our named executive officers with that of
our shareholders. Long-term equity-based compensation for our named executive officers is typically subject to time-based vesting
over a period of four years. We do not have specific policies for allocating between annual and long-term compensation or between
cash and non-cash compensation. Such amounts are determined by our compensation committee on an annual basis as described below.
In
establishing overall executive compensation levels, our compensation committee considers a number of criteria, including the executive’s
scope of responsibilities, his or her prior and current contributions, attainment of individual and overall company performance
objectives and key employee retention concerns. Our president and chief executive officer and our compensation committee believe
that substantial portions of executive compensation should be linked to the overall performance of our company, and that the contributions
of individuals over the course of the relevant performance period toward the goal of building a profitable business and shareholder
value should be considered in the determination of each executive’s compensation. We do not use benchmarking against a peer
group or otherwise.
Generally,
our compensation committee reviews and, as appropriate, modifies compensation arrangements for executive officers in the first
quarter of each fiscal year, subject to the terms of existing employment agreements with our named executive officers, as discussed
below. Annual equity awards, if any, are typically granted in the first quarter of each fiscal year as well. For the fiscal year
ended March 31, 2018, except with respect to our president and chief executive officer’s compensation, our compensation
committee considered our president and chief executive officer’s executive compensation recommendations, which were presented
at the time of our compensation committee’s annual compensation review. In making its management pay determinations, the
compensation committee considered the overall performance of each executive and their individual contributions to the growth of
our company and its products as well as the company’s overall business performance and achievements. Specifically, the compensation
committee considered each executive officer’s contributions to brand growth, operating cash flows, cost management and long-term
value creation for our shareholders for the fiscal year ended March 31, 2018, as well as the retention of our executive officers.
For
the fiscal year ended March 31, 2018, we granted a $120,000 cash bonus to Mr. Glover; a $77,000 cash bonus to Mr. Spillane; a
$77,000 cash bonus to Mr. Small; and a $66,000 cash bonus to Ms. Peña.
In
April 2017, we granted 130,000 restricted shares of common stock to Mr. Glover, 120,000 restricted shares of common stock to Mr.
Andrews, 90,000 restricted shares of common stock to each of Mr. Spillane and Mr. Small and 75,000 restricted shares of common
stock to Ms. Peña. The foregoing restricted shares vest in four equal annual installments beginning on the first anniversary
of the grant date, subject to certain exceptions. In lieu of a restricted stock grant to Mr. Lampen, in June 2017, Mr. Lampen
received a retention award of $400,000, which vests in two equal installments on March 31, 2018 and March 31, 2019. Under the
terms of the retention award, Mr. Lampen was required to return 100% of the retention award after taxes if he voluntarily terminated
his employment with us or was terminated with “Cause” (as defined in the retention award) prior to March 31, 2018.
Mr. Lampen is required to return 50% of the retention award after taxes if he voluntarily terminates his employment with us or
is terminated with “Cause” (as defined in the retention award) during the period from April 1, 2018 through March
31, 2019. The retention award will be reported in the Summary Compensation Table during the years in which it vests based on his
continued service.
In
April 2018, we granted 130,000 restricted shares of common stock to Mr. Glover, 120,000 restricted shares of common stock to Mr.
Andrews, 90,000 restricted shares of common stock to each of Mr. Spillane and Mr. Small and 75,000 restricted shares of common
stock to Ms. Peña. The foregoing restricted shares will vest in four equal annual installments beginning on the first anniversary
of the grant date, subject to certain exceptions. In lieu of a restricted stock grant to Mr. Lampen, in May 2018 Mr. Lampen received
a retention award of $500,000, which vests in two equal installments on March 31, 2019 and March 31, 2020. Under the terms of
the retention award, Mr. Lampen is required to return 100% of the retention award after taxes if he voluntarily terminates his
employment with us or is terminated with “Cause” (as defined in the retention award) prior to March 31, 2019. Mr.
Lampen is required to return 50% of the retention award after taxes if he voluntarily terminates his employment with us or is
terminated with “Cause” (as defined in the retention award) during the period from April 1, 2019 through March 31,
2020. The retention award will be reported in the Summary Compensation Table during the years in which it vests based on his continued
service.
Risk
Considerations in our Compensation Programs
We
have reviewed our compensation structures and policies as they pertain to risk and have determined that our compensation programs
do not create or encourage the taking of risks that are reasonably likely to have a material adverse effect on our company.
Material
Tax Implications of Our Compensation Policy
Section
162(m) of the Internal Revenue Code of 1986, as amended, limits the deductibility on our tax return of compensation over $1 million
to any of our named executive officers unless, in general, the compensation is paid under a plan which is performance-related,
non-discretionary and has been approved by our shareholders. Our compensation committee’s policy with respect to section
162(m) is to make every reasonable effort to ensure that compensation is deductible to the extent permitted while simultaneously
providing our executives with appropriate compensation for their performance. We did not pay any compensation during fiscal 2018
that would be subject to the limitations set forth in section 162(m). The exemption from section 162(m)’s deduction limit
for performance-based compensation was repealed in December 2017, such that compensation paid to our named executive officers
in excess of $1 million will not be deductible unless it qualifies for transition relief.
Consideration
of Our Most Recent Shareholder Advisory Vote on Executive Compensation
Last
year, at our 2017 Annual Meeting, our shareholders cast an advisory vote on executive compensation, referred to as a “say-on-pay
proposal”, as required by Section 14A of the Exchange Act. At the 2017 Annual Meeting, 98% of the total votes cast were
in favor of the say-on-pay proposal, and we have considered such approval an endorsement of our executive compensation philosophy
and programs. Therefore, our executive compensation philosophy and programs have been confirmed and remain substantially unchanged
since last year. The next say-on-pay proposal is included in this proxy statement for our 2018 Annual Meeting.
Compensation
Committee Interlocks and Insider Participation
Each
of John F. Beaudette, Dr. Richard M. Krasno and Steven D. Rubin served on our compensation committee during fiscal 2018, with
Dr. Richard M. Krasno serving as chairman. No member of the compensation committee during fiscal 2018 was an officer, employee
or former officer of ours or any of our subsidiaries or had any relationship that would be considered a compensation committee
interlock and would require disclosure pursuant to SEC rules and regulations. None of our executive officers served as a member
of a compensation committee or a director of another entity under the circumstances requiring disclosure pursuant to SEC rules
and regulations.
Compensation
Committee Report
The
information contained in this Compensation Committee Report shall not be deemed “soliciting material” or “filed”
with the SEC, nor shall such information be incorporated by reference into any document we file with the SEC, or subject to the
liabilities of Section 18 of the Exchange Act, except to the extent that such report is specifically stated to be incorporated
by reference into such document.
In
fulfilling our role, we met and held discussions with our company’s management and reviewed and discussed the Compensation
Discussion and Analysis contained in this proxy statement. Based on the review and discussions with management and our business
judgment, we recommended to the board of directors that the Compensation Discussion and Analysis be included in this proxy statement
for filing with the SEC.
Submitted
by the Compensation Committee of the Board of Directors:
John
F. Beaudette
Dr. Richard M. Krasno, Chair
Steven D. Rubin
Summary
Compensation Table
The
following table shows the compensation paid to our named executive officers for our 2018, 2017 and 2016 fiscal years.
Name
and Principal Position
|
|
Year
|
|
|
Salary
|
|
|
Bonus
|
|
|
Stock
Awards
(1)
|
|
|
Option
Awards
(1)
|
|
|
All
Other Compensation
(2)
|
|
|
Total
|
|
Richard
J. Lampen
|
|
|
2018
|
|
|
$
|
-
|
|
|
$
|
200,000
|
(3)
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
200,000
|
|
President
and chief executive officer
|
|
|
2017
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
342,000
|
|
|
|
-
|
|
|
|
342,000
|
|
|
|
|
2016
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
550,000
|
|
|
|
-
|
|
|
|
550,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
S. Glover
|
|
|
2018
|
|
|
|
333,117
|
|
|
|
120,000
|
|
|
|
219,414
|
|
|
|
-
|
|
|
|
22,139
|
|
|
|
694,670
|
|
Executive
vice president and
|
|
|
2017
|
|
|
|
323,415
|
|
|
|
105,000
|
|
|
|
-
|
|
|
|
185,250
|
|
|
|
21,184
|
|
|
|
634,849
|
|
chief
operating officer
|
|
|
2016
|
|
|
|
313,995
|
|
|
|
100,000
|
|
|
|
-
|
|
|
|
275,000
|
|
|
|
19,421
|
|
|
|
708,416
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
T.
Kelley Spillane
|
|
|
2018
|
|
|
|
320,481
|
|
|
|
77,000
|
|
|
|
151,902
|
|
|
|
-
|
|
|
|
32,936
|
|
|
|
582,319
|
|
Senior
vice president - global
|
|
|
2017
|
|
|
|
311,147
|
|
|
|
70,000
|
|
|
|
-
|
|
|
|
114,000
|
|
|
|
29,666
|
|
|
|
526,228
|
|
sales
|
|
|
2016
|
|
|
|
302,084
|
|
|
|
55,000
|
|
|
|
-
|
|
|
|
165,000
|
|
|
|
26,894
|
|
|
|
550,393
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alfred
J. Small
|
|
|
2018
|
|
|
|
286,867
|
|
|
|
77,000
|
|
|
|
151,902
|
|
|
|
-
|
|
|
|
31,521
|
|
|
|
547,290
|
|
Senior
vice president, chief financial
|
|
|
2017
|
|
|
|
278,512
|
|
|
|
70,000
|
|
|
|
-
|
|
|
|
114,000
|
|
|
|
30,141
|
|
|
|
492,653
|
|
officer,
treasurer & secretary
|
|
|
2016
|
|
|
|
264,983
|
|
|
|
65,000
|
|
|
|
-
|
|
|
|
165,000
|
|
|
|
27,619
|
|
|
|
522,602
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alejandra
Peña
|
|
|
2018
|
|
|
|
210,058
|
|
|
|
66,000
|
|
|
|
126,585
|
|
|
|
-
|
|
|
|
25,364
|
|
|
|
428,007
|
|
Senior
vice president - marketing
|
|
|
2017
|
|
|
|
203,940
|
|
|
|
60,000
|
|
|
|
-
|
|
|
|
96,900
|
|
|
|
23,225
|
|
|
|
384,065
|
|
|
|
|
2016
|
|
|
|
198,000
|
|
|
|
50,000
|
|
|
|
-
|
|
|
|
137,500
|
|
|
|
24,117
|
|
|
|
409,617
|
|
(1)
|
Represents
the aggregate grant date fair value of restricted stock granted for the fiscal year ended March 31, 2018 and the aggregate
grant date fair value of stock options granted for each of the two fiscal years ended March 31, 2017 and 2016 as determined
in accordance with ASC 718 “Compensation - Stock Compensation” (“ASC 718”), rather than an amount
paid to or realized by the named executive officer. Under SEC rules, the amounts shown exclude the impact of estimated forfeitures
relating to service-based or time-based vesting conditions. See note 12 to our consolidated financial statements for the fiscal
year ended March 31, 2018 included in our annual report on Form 10-K, filed with the SEC on June 14, 2018, regarding the assumptions
underlying the valuation of these grants. The ASC 718 amounts from these grants may never be realized by the named executive
officer.
|
(2)
|
Represents
health, dental and life insurance premiums paid by us.
|
(3)
|
Represents
$200,000 of the $400,000 in retention awards paid in fiscal 2018, which vested on March 31, 2018.
|
Narrative
Disclosure to Summary Compensation Table
Material
Terms of Named Executive Officers’ Employment Agreements
The
material terms of Messrs. Glover’s, Spillane’s and Small’s and Ms. Peña’s employment agreements
are described in the table below. Mr. Lampen, our president and chief executive officer, does not receive a salary or benefits
from us in connection with his service. Instead, we are party to a management services agreement with Vector Group Ltd., a more
than 5% shareholder, under which Vector Group Ltd. agreed to make available to us Mr. Lampen’s services. For a discussion
of this agreement, see “Certain Relationships and Related Transactions — Related Party Transactions — Agreement
with Vector Group Ltd.” below.
Certain
Material Terms of Employment Agreements with Named Executive Officers
Named
Executive
Officer
|
|
Date
of
Agreement
|
|
|
Current
Annual Base Salary under the Agreement
(1)
|
|
|
Performance
Bonus Eligibility (as
Percentage of
Annual Base
Salary)
|
|
|
Expiration
Date of Agreement
(2)
|
|
|
Duration
of Severance Payments
(3)
|
|
Richard
J. Lampen
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
John
S. Glover
|
|
|
4/7/2017
|
|
|
$
|
343,111
|
|
|
|
0-60
|
%
|
|
|
3/30/2020
|
|
|
|
24
months
|
|
T.
Kelley Spillane
|
|
|
4/7/2017
|
|
|
|
330,096
|
|
|
|
0-60
|
%
|
|
|
3/30/2020
|
|
|
|
24
months
|
|
Alfred
J. Small
|
|
|
4/7/2017
|
|
|
|
295,473
|
|
|
|
0-60
|
%
|
|
|
3/30/2020
|
|
|
|
24
months
|
|
Alejandra
Peña
|
|
|
4/7/2017
|
|
|
|
216,360
|
|
|
|
0-30
|
%
|
|
|
3/30/2020
|
|
|
|
12
months
|
|
|
(1)
|
Increases
in Messrs. Glover’s, Spillane’s and Small’s and Ms. Peña’s base salaries are at the compensation
committee’s sole discretion.
|
|
|
|
|
(2)
|
The
agreements automatically renew for successive one (1) year terms, unless either party gives written notice of such party’s
intention not to renew no later than sixty (60) days prior to the end of each such term.
|
|
|
|
|
(3)
|
Please
see “Potential Payments Upon Termination or Change in Control” below for a full description of these severance
obligations.
|
Annual
Incentives to Named Executive Officers
We
paid cash bonuses to our named executive officers for fiscal 2018 as follows: Mr. Glover - $120,000, Mr. Spillane - $77,000, Mr.
Small - $77,000 and Ms. Peña - $66,000. We paid cash bonuses to our named executive officers for fiscal 2017 as follows:
Mr. Glover - $105,000, Mr. Spillane - $70,000, Mr. Small - $70,000 and Ms. Peña - $60,000. We paid cash bonuses to our
named executive officers for fiscal 2016 as follows: Mr. Glover - $100,000, Mr. Spillane - $55,000, Mr. Small - $65,000 and Ms.
Peña - $50,000. These bonus payments are included in the Summary Compensation Table above under the heading “Bonus.”
Mr.
Lampen did not receive a cash bonus for fiscal 2018, 2017 or 2016. In May 2018, Mr. Lampen received a retention award of $500,000
in lieu of a restricted stock grant and in June 2017, Mr. Lampen received a retention award of $400,000 in lieu of a restricted
stock grant. These retention awards will be reported in the Summary Compensation Table during the years in which they vest based
on his continued service.
Grants
of Plan-Based Awards in Fiscal 2018
The
following table shows grants made to our named executive officers in fiscal 2018. The grant date fair value of restricted stock
awards may not be realized by the named executive officers.
Name
|
|
Grant
Date
|
|
|
All
Other Stock
Awards:
Number of
Shares of Stock
(#)
|
|
|
Grant
Date Fair
Value of Stock
Awards
(1)
($)
|
|
Richard
Lampen
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
John
S. Glover
|
|
|
4/26/2017
|
|
|
|
130,000
|
|
|
$
|
219,414
|
|
T.
Kelley Spillane
|
|
|
4/26/2017
|
|
|
|
90,000
|
|
|
$
|
151,902
|
|
Alfred
J. Small
|
|
|
4/26/2017
|
|
|
|
90,000
|
|
|
$
|
151,902
|
|
Alejandra
Peña
|
|
|
4/26/2017
|
|
|
|
75,000
|
|
|
$
|
126,585
|
|
|
(1)
|
Represents
the estimated grant date fair value of the restricted stock awards computed in accordance with ASC 718. Under SEC rules, the
amounts shown exclude the impact of estimated forfeitures relating to service-based and time-based vesting conditions. See
note 12 to our consolidated financial statements for the fiscal year ended March 31, 2018 included in our annual report on
Form 10-K, filed with the SEC on June 14, 2018, regarding the assumptions underlying the valuation of these grants.
|
Outstanding
Equity Awards at March 31, 2018 Fiscal Year End
The
following table summarizes the outstanding option awards and unvested awards of restricted stock held by our named executive officers
at March 31, 2018.
|
|
Option
Awards
|
|
|
Stock
Awards
|
|
Named
Executive Officer
|
|
Number
of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
|
|
Number
of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
|
|
Option
Exercise
Price
($)
|
|
|
Option
Expiration
Date
|
|
|
Number
of
shares or
Units of Stock
That Have
Not
Vested
(#)
|
|
|
Market
Value of
Shares or
Units of Stock
That Have
Not
Vested
($)(5)
|
|
Richard J.
Lampen
|
|
|
700,000
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
11/3/2018
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
400,000
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
6/11/2020
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
500,000
|
|
|
|
-
|
|
|
$
|
0.33
|
|
|
|
6/20/2021
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
500,000
|
|
|
|
-
|
|
|
$
|
0.31
|
|
|
|
6/8/2022
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
500,000
|
|
|
|
-
|
|
|
$
|
0.38
|
|
|
|
6/5/2023
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
375,000
|
|
|
|
125,000
|
(1)
|
|
$
|
1.00
|
|
|
|
5/28/2024
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
250,000
|
|
|
|
250,000
|
(2)
|
|
$
|
1.67
|
|
|
|
6/2/2025
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
150,000
|
|
|
|
450,000
|
(3)
|
|
$
|
0.90
|
|
|
|
6/3/2026
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
S. Glover
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,400
|
|
|
|
-
|
|
|
$
|
0.21
|
|
|
|
6/9/2018
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
50,000
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
6/22/2019
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
225,000
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
6/11/2020
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
250,000
|
|
|
|
-
|
|
|
$
|
0.33
|
|
|
|
6/20/2021
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
250,000
|
|
|
|
-
|
|
|
$
|
0.31
|
|
|
|
6/8/2022
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
250,000
|
|
|
|
-
|
|
|
$
|
0.38
|
|
|
|
6/5/2023
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
187,500
|
|
|
|
62,500
|
(1)
|
|
$
|
1.00
|
|
|
|
5/28/2024
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
125,000
|
|
|
|
125,000
|
(2)
|
|
$
|
1.67
|
|
|
|
6/2/2025
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
81,250
|
|
|
|
243,750
|
(3)
|
|
$
|
0.90
|
|
|
|
6/3/2026
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
130,000
|
(4)
|
|
$
|
161,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
|
|
T.
Kelley Spillane
|
|
|
33,900
|
|
|
|
-
|
|
|
$
|
0.21
|
|
|
|
6/9/2018
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
35,000
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
6/22/2019
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
65,000
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
6/11/2020
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
17,100
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
12/7/2020
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
44,650
|
|
|
|
-
|
|
|
$
|
0.31
|
|
|
|
6/15/2021
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
20,800
|
|
|
|
-
|
|
|
$
|
0.26
|
|
|
|
12/19/2021
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
43,333
|
|
|
|
-
|
|
|
$
|
0.28
|
|
|
|
6/13/2022
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
85,000
|
|
|
|
-
|
|
|
$
|
0.38
|
|
|
|
6/5/2023
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
75,000
|
|
|
|
25,000
|
(1)
|
|
$
|
1.00
|
|
|
|
5/28/2024
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
75,000
|
|
|
|
75,000
|
(2)
|
|
$
|
1.67
|
|
|
|
6/2/2025
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
50,000
|
|
|
|
150,000
|
(3)
|
|
$
|
0.90
|
|
|
|
6/3/2026
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
90,000
|
(4)
|
|
$
|
111,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alfred
J. Small
|
|
|
25,000
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
6/22/2019
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
65,000
|
|
|
|
-
|
|
|
$
|
0.35
|
|
|
|
6/11/2020
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
65,000
|
|
|
|
-
|
|
|
$
|
0.33
|
|
|
|
6/20/2021
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
75,000
|
|
|
|
-
|
|
|
$
|
0.31
|
|
|
|
6/8/2022
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
85,000
|
|
|
|
-
|
|
|
$
|
0.38
|
|
|
|
6/5/2023
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
75,000
|
|
|
|
25,000
|
(1)
|
|
$
|
1.00
|
|
|
|
5/28/2024
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
75,000
|
|
|
|
75,000
|
(2)
|
|
$
|
1.67
|
|
|
|
6/2/2025
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
50,000
|
|
|
|
150,000
|
(3)
|
|
$
|
0.90
|
|
|
|
6/3/2026
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
90,000
|
(4)
|
|
$
|
111,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alejandra
Peña
|
|
|
25,000
|
|
|
|
-
|
|
|
$
|
0.26
|
|
|
|
9/6/2021
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
20,000
|
|
|
|
-
|
|
|
$
|
0.31
|
|
|
|
6/8/2022
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
50,000
|
|
|
|
-
|
|
|
$
|
0.38
|
|
|
|
6/5/2023
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
52,500
|
|
|
|
17,500
|
(1)
|
|
$
|
1.00
|
|
|
|
5/28/2024
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
62,500
|
|
|
|
62,500
|
(2)
|
|
$
|
1.67
|
|
|
|
6/2/2025
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
42,500
|
|
|
|
127,500
|
(3)
|
|
$
|
0.90
|
|
|
|
6/3/2026
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
75,000
|
(4)
|
|
$
|
93,000
|
|
(1)
|
This
option vests in four equal annual installments with the first installment vested on May 28, 2015.
|
(2)
|
This
option vests in four equal annual installments with the first installment vested on June 2, 2016.
|
(3)
|
This
option vests in four equal annual installments with the first installment vested on June 3, 2017.
|
(4)
|
These
shares of restricted stock vest in four equal annual installments with the first installment vested on April 28, 2018.
|
(5)
|
The
amounts in this column are based on the closing price of our common stock on March 29, 2018 of $1.24.
|
Option
Exercises and Stock Vested
During
fiscal 2018, none of our named executive officers acquired shares upon exercise of stock options or vesting of stock awards.
Pension
Benefits
We
do not provide pension benefits to our named executive officers.
Nonqualified
Deferred Compensation
We
do not maintain defined contribution or other plans providing for the deferral of compensation on a basis that is not tax qualified.
Timing
of Equity Grants
For
all of our employees, including our named executive officers, grants of equity-based compensation are effective on the date that
our compensation committee approves them. All stock option grants to employees, including our named executive officers, are made
with an exercise price at least equal to the fair market value of the underlying stock on the grant date. Our compensation committee
does not grant equity compensation awards in anticipation of the release of material nonpublic information. Similarly, we do not
time the release of material nonpublic information based on equity award grant dates.
Severance
and Change in Control Benefits
We
provide certain severance and change in control benefits to Messrs. Glover, Spillane and Small and Ms. Peña. Information
about these benefits is listed below under the heading “Potential Payments Upon Termination or Change in Control.”
Perquisites
and Other Benefits
We generally provide health
and welfare benefits to all of our full-time employees, including our named executive officers, including health and dental coverage,
disability insurance, and paid holidays and other paid time off. We maintain a 401(k) retirement savings plan for the benefit
of all of our full-time employees, including our named executive officers.
We
pay all medical, dental and basic life insurance premiums for our named executive officers (except for Mr. Lampen). In addition,
since September 2018, we have provided a monthly automobile allowance for Messrs. Glover, Spillane and Small. See the Summary
Compensation Table for details regarding the value of perquisites received by our named executive officers.
Indemnification
Our
articles of incorporation, as amended, and bylaws require us to indemnify our directors and officers to the fullest extent permitted
by Florida law. We also have entered into indemnity agreements with each of our directors and named executive officers.
Potential
Payments Upon Termination or Change in Control
The
following describes the potential payments upon termination or a change in control for our named executive officers.
Termination
Without Cause
Each
of Messrs. Glover, Spillane and Small and Ms. Peña has an employment agreement with us that provides for potential payments
in the event of their termination.
Under
Messrs. Glover, Spillane and Small’s employment agreements, if we terminate the executive’s employment without “cause,”
we have agreed to pay the executive his annual base salary, a bonus equal to the bonus paid for the period immediately prior to
the termination and to provide benefits, including medical insurance, for 24 months following termination. Under Ms. Peña’s
employment agreement, if we terminate her employment without “cause,” we have agreed to pay her annual base salary,
a bonus equal to the bonus paid for the period immediately prior to the termination and to provide benefits, including medical
insurance, for 12 months following termination.
Also,
if we terminate any of the executives without “cause,” then such executive is entitled to accelerated vesting or other
treatment of some or all of the equity awards granted to such executive under the terms of such executive’s employment agreement.
Subject
to their compliance with the terms of their respective employment agreements, for Messrs. Glover, Spillane and Small, any tranche
of unvested shares or options held by the executive that would have vested during the 24 month period following termination will
accelerate and vest without any further action of any kind by our company or the executive. Further, any stock option held by
the executive that is vested at the time of the executive’s termination will be exercisable until the earlier to occur of
(i) the expiration date of such option pursuant to its terms and (ii) 24 months following the date of termination. Subject to
her compliance with the terms of her employment agreement, for Ms. Peña, any tranche of unvested shares or options held
by her that would have vested during the 12 month period following termination will accelerate and vest without any further action
of any kind by our company or Ms. Peña. Further, any stock option held by Ms. Peña that is vested at the time of
her termination will be exercisable until the earlier to occur of (i) the expiration date of such option pursuant to its terms
and (ii) 12 months following the date of termination.
Per
the employment agreements, “cause” is defined as the executive’s (i) having committed in the performance of
his or her duties under the agreement one or more acts or omissions constituting fraud, dishonesty, or willful injury to our company
which results in a material adverse effect on the business, financial condition or results of operations of our company, (ii)
having committed one or more acts constituting gross neglect or willful misconduct which results in a material adverse effect
on the business, financial condition or results of operations of our company, (iii) breach of his or her fiduciary duties, (iv)
failure to substantially perform assigned duties relating to executive’s performance under the agreement (other than any
such failure owing to the executive becoming disabled as reasonably determined by a majority of our compensation committee, after
consultation with our chief executive officer, (v) conviction of, or the entry by the executive of any plea of guilty or nolo
contendere to, any felony, or (vi) material breach of any provision of the employment agreement as reasonably determined by our
compensation committee, after consultation with our chief executive officer, subject to a thirty (30) day cure period.
Non-Renewal
of Employment Agreement
If
we do not renew the employment agreements with Messrs. Glover, Spillane or Small, then such executive is entitled to receive his
annual base salary, a bonus equal to the bonus paid for the period immediately prior to the termination and benefits, including
medical insurance, for 24 months following termination. If we do not renew the employment agreement with Ms. Peña, then
she is entitled to receive her annual base salary, a bonus equal to the bonus paid for the period immediately prior to the termination
and benefits, including medical insurance, for 12 months following termination.
Termination
Due to Death or Disability
The
employment agreements of Messrs. Glover, Spillane and Small and Ms. Peña each provide that, in each case, if we terminate
such executive due to a “disability,” or if such executive’s employment is terminated as a result of such executive’s
death, the executive will be entitled to any salary owed to the executive through the date of termination, bonus for the year
in which the termination occurred, and base salary for the duration of such executive’s severance period (24 months in the
case of Messrs. Glover, Spillane and Small and 12 months in the case of Ms. Peña). Further, all stock options and restricted
stock awards held by the executive will fully vest and be exercisable for a period of two (2) years from date of termination for
death or disability in the case of Messrs. Glover, Spillane and Small and one (1) year in the case of Ms. Peña. For each
of our named executive officers, a “disability” is defined in the employment agreements as the executive becoming
physically or mentally disabled or incapacitated to the extent that the executive has been or will be unable to perform the duties
under the employment agreement on account of such disabilities or incapacitation for a continuous period of six (6) months as
determined by a qualified independent physician or group of physicians selected by our company and approved by the executive or
his or her representative.
Termination
by Employee with Good Reason
Each
of Messrs. Glover’s, Spillane’s and Small’s employment agreements provides that if he terminates his employment
for “good reason,” we will pay the executive his annual base salary, a bonus equal to the bonus paid for the period
immediately prior to the termination and to provide benefits, including medical insurance, for 24 months following termination.
Under Ms. Peña’s employment agreement, if she terminates her employment for “good reason,” we have agreed
to pay her annual base salary, a bonus equal to the bonus paid for the period immediately prior to the termination and to provide
benefits, including medical insurance, for 12 months following termination.
Subject
to their compliance with the terms of their respective employment agreements, for Messrs. Glover, Spillane and Small, any tranche
of unvested shares or options held by the executive that would have vested during the 24 month period following termination for
“good reason” will accelerate and vest without any further action of any kind by our company or the executive. Further,
any stock option held by the executive that is vested at the time of the executive’s termination for “good reason”
will be exercisable until the earlier to occur of (i) the expiration date of such option pursuant to its terms and (ii) 24 months
following the date of termination. Subject to her compliance with the terms of her employment agreement, for Ms. Peña,
any tranche of unvested shares or options held by her that would have vested during the 12 month period following termination
for “good reason” will accelerate and vest without any further action of any kind by our company or Ms. Peña.
Further, any stock option held by Ms. Peña that is vested at the time of her termination for “good reason”
will be exercisable until the earlier to occur of (i) the expiration date of such option pursuant to its terms and (ii) 12 months
following the date of termination.
Per
the agreements, “good reason” means a termination by executive of such executive’s employment within sixty (60)
days after (i) any material diminution in the nature, title, base salary, target incentive bonus opportunity as a percentage of
base salary or status of such executive’s job responsibilities from those in effect on the effective date of executive’s
employment agreement or the most recent anniversary thereof, (ii) relocation by our company of the executive’s office to
any location not within fifty (50) miles from executive’s principal place of employment in New York City as of the effective
date of the executive’s employment agreement or (iii) our company’s material breach of any provision of the executive’s
employment agreement which is not cured within thirty (30) days after written notice thereof from executive to our company.
Any
severance payments to Messrs. Glover, Spillane and Small and Ms. Peña described above under “Termination Without
Cause,” “Non-Renewal of Employment Agreement,” “Termination Due to Death or Disability” and “Termination
by Employee with Good Reason” are in consideration of the non-compete provisions contained in such named executive officer’s
employment agreement.
Each
of Messrs. Glover, Spillane and Small is prohibited from, during the term of his employment and for 18 months thereafter, (i)
soliciting employees to terminate their employment, (ii) soliciting business from our customers or (iii) ownership of, or employment
or consultation with, competing companies. Ms. Peña is prohibited from, during the term of her employment and for 12 months
thereafter, (i) soliciting employees to terminate their employment, (ii) soliciting business from our customers or (iii) ownership
of, or employment or consultation with, competing companies.
Change
in Control
If
any of Messrs. Glover, Spillane or Small or Ms. Peña is terminated within two years after any “change of control”
(as defined below), either by the executive for “good reason” or by our company or its successor without “cause,”
the executive will be paid a lump sum payment equal to two times such executive’s base salary and bonus (in the case of
Messrs. Glover, Spillane and Small) or one time such executive’s base salary and bonus (in the case of Ms. Peña).
The executive will also be entitled to participate in all benefit plans during such executive’s severance period. Unvested
shares or options held by each executive would accelerate as described above under “Termination by Employee with Good Reason”
or “Termination Without Cause,” as applicable.
For
Messrs. Glover, Spillane and Small and Ms. Peña, a “change of control” is defined as: (i) any person (as such
term is used in Section 13(d) of the Exchange Act), other than Dr. Phillip Frost, any member of his immediate family, and any
“person” or “group” (as used in Section 13(d)(3) of the Exchange Act) that is controlled by Dr. Frost
or any member of his immediate family, any beneficiary of the estate of Dr. Frost, or any trust, partnership, corporate or other
entity controlled by any of the foregoing, becomes the “beneficial owner” (as determined pursuant to Rule 13d-3 of
the Exchange Act), directly or indirectly, of securities of our company representing more than thirty-five percent (35%) of the
aggregate voting power of our company’s then outstanding securities, other than by acquisition directly from our company;
(ii) there has been a merger or equivalent combination involving our company after which forty-nine percent (49%) or more of the
voting stock of the surviving corporation is held by persons other than former shareholders of our company; (iii) during any period
of two consecutive years, individuals who at the beginning of such period were members of our board of directors cease for any
reason to constitute at least a majority thereof (unless the appointment, election, or the nomination for election by our stockholders,
of each director elected during such consecutive two-year period was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such period); or (iv) our company sells or disposes of all or substantially
all of its assets.
Also,
certain of our option and restricted stock agreements contain clauses that provide that in the event of a change in control of
our company, or upon the death or disability of the grantee or upon the termination of the grantee without cause or for good reason,
all stock options or shares of restricted stock under such an agreement become fully vested. The unrealized value of in-the-money
unvested stock options and unvested restricted stock subject to accelerated vesting are shown below as potential payments to the
named Executive Officers.
The
following table quantifies for each named executive officer the estimated potential severance payments and benefits that would
be provided, if each termination circumstance set forth below occurred on March 31, 2018.
Named
Executive Officer
|
|
Severance
Payment
(1)
|
|
|
Estimated
Value
of
Benefits
(2)
|
|
|
Benefit
of
Acceleration
for
Vesting of
Option
and Restricted Stock
Awards
(3)
|
|
Richard
J. Lampen
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
without cause/with good reason
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Non-renewal
of employment agreement
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Termination
due to death/disability
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Change
in control
|
|
|
-
|
|
|
|
-
|
|
|
$
|
102,000
|
|
John
S. Glover
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
without cause/with good reason
|
|
$
|
926,221
|
|
|
$
|
44,167
|
|
|
|
257,775
|
|
Non-renewal
of employment agreement
|
|
|
926,221
|
|
|
|
44,167
|
|
|
|
257,775
|
|
Termination
due to death/disability
|
|
|
806,221
|
|
|
|
N/A
|
|
|
|
257,775
|
|
Change
in control
|
|
|
926,221
|
|
|
|
44,167
|
|
|
|
257,775
|
|
T.
Kelley Spillane
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
without cause/with good reason
|
|
|
814,192
|
|
|
|
62,931
|
|
|
|
167,700
|
|
Non-renewal
of employment agreement
|
|
|
814,192
|
|
|
|
62,931
|
|
|
|
167,700
|
|
Termination
due to death/disability
|
|
|
737,192
|
|
|
|
N/A
|
|
|
|
167,700
|
|
Change
in control
|
|
|
814,192
|
|
|
|
62,931
|
|
|
|
167,700
|
|
Alfred
J. Small
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
without cause/with good reason
|
|
|
744,947
|
|
|
|
62,931
|
|
|
|
167,700
|
|
Non-renewal
of employment agreement
|
|
|
744,947
|
|
|
|
62,931
|
|
|
|
167,700
|
|
Termination
due to death/disability
|
|
|
667,947
|
|
|
|
N/A
|
|
|
|
167,700
|
|
Change
in control
|
|
|
744,947
|
|
|
|
62,931
|
|
|
|
167,700
|
|
Alejandra
Peña
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
without cause/with good reason
|
|
|
282,360
|
|
|
|
31,465
|
|
|
|
139,800
|
|
Non-renewal
of employment agreement
|
|
|
282,360
|
|
|
|
31,465
|
|
|
|
139,800
|
|
Termination
due to death/disability
|
|
|
276,058
|
|
|
|
N/A
|
|
|
|
139,800
|
|
Change
in control
|
|
|
282,360
|
|
|
|
31,465
|
|
|
|
139,800
|
|
(1)
|
Severance
payments (including bonus) would be paid out over the duration of the severance period, except in the case of a change in
control wherein payment would be made in a lump sum.
|
(2)
|
Estimated
using the value of COBRA payments at the rates in effect on March 31, 2018.
|
(3)
|
With
respect to option awards, the estimated amount of benefit was calculated by multiplying the number of options that would accelerate
vesting upon the termination circumstance indicated by the difference between the closing price of our common stock on March
29, 2018, which was $1.24, and the exercise price of the stock option. This column shows a benefit for each of Messrs. Lampen,
Glover, Spillane and Small and Ms. Peña due to the accelerated vesting of option awards and restricted stock awards
granted to each such named executive officer.
|
Pay
Ratio Disclosure
Pursuant
to Item 402(u) of Regulation S-K and Section 953(b) of the Dodd-Frank Act, presented below is the ratio of the annual total compensation
of Richard J. Lampen, our chief executive officer, to the annual total compensation of our median employee (excluding the chief
executive officer).
The
ratio presented below is a reasonable estimate calculated in a manner consistent with Item 402(u). The SEC’s rules for identifying
the median employee and calculating the pay ratio based on that employee’s annual total compensation allow companies to
adopt a variety of methodologies, to apply certain exclusions, and to make reasonable estimates and assumptions that reflect their
employee populations and compensation practices. As a result, the pay ratio reported by other companies may not be comparable
to the pay ratio reported below, as other companies have different employee populations and compensation practices and may utilize
different methodologies, exclusions, estimates, and assumptions in calculating their own pay ratios.
We
identified our median employee from all full-time, part-time, and temporary workers who were included as employees on our payroll
records as of a determination date of March 31, 2018, based on fiscal 2018 base salaries (excluding the chief executive officer).
For employees hired during the year, their compensation was annualized to reflect a full year of wages. For international employees,
their pay was converted to US dollar equivalents using exchange rates as of the determination date.
The
fiscal 2018 annual total compensation as determined under Item 402 of Regulation S-K for our chief executive officer was $200,000,
as reported in the Summary Compensation Table of this proxy statement. The fiscal 2018 annual total compensation as determined
under Item 402 of Regulation S-K for our median employee was $98,000. The ratio of our chief executive officer’s annual
total compensation to our median employee’s annual total compensation for fiscal year 2018 is 2 to 1.
Director
Compensation
The
following table summarizes compensation paid to directors during our 2018 fiscal year.
Fiscal
2018 Director Compensation
Name
|
|
Fees
Earned or
Paid in Cash
|
|
|
Restricted
Stock
Awards
(1)
|
|
|
Total
|
|
Mark
E. Andrews, III
|
|
|
-
|
(2)
|
|
$
|
202,536
|
(2)
|
|
$
|
202,536
|
|
John
Beaudette
|
|
$
|
15,000
|
|
|
|
17,850
|
(3)
|
|
|
32,850
|
|
Henry
C. Beinstein
|
|
|
17,500
|
|
|
|
17,850
|
(4)
|
|
|
33,350
|
|
Phillip
Frost, M.D.
|
|
|
10,000
|
|
|
|
17,850
|
(5)
|
|
|
27,850
|
|
Dr.
Richard M. Krasno
|
|
|
17,500
|
|
|
|
17,850
|
(6)
|
|
|
33,350
|
|
Richard
J. Lampen
|
|
|
-
|
(7)
|
|
|
-
|
|
|
|
-
|
|
Steven
D. Rubin
|
|
|
20,000
|
|
|
|
17,850
|
(8)
|
|
|
37,850
|
|
Mark
Zeitchick
|
|
|
12,500
|
|
|
|
17,850
|
(9)
|
|
|
30,350
|
|
(1)
|
Represents
the estimated grant date fair value of restricted stock granted for the fiscal year ended March 31, 2018 in accordance with
ASC 718, rather than the amount paid to or realized by the director. Under SEC rules, the amounts shown exclude the impact
of estimated forfeitures relating to service-based vesting conditions. The ASC 718 amounts from these grants may never be
realized.
|
(2)
|
Mr.
Andrews, our chairman, receives an annual salary of $100,000. We do not pay any additional cash compensation for his services
as a director. As of March 31, 2018, Mr. Andrews held options to purchase 1,775,000 shares of our common stock and 120,000
shares of restricted common stock.
|
(3)
|
As
of March 31, 2018, Mr. Beaudette held options to purchase 160,000 shares of our common stock and 15,000 shares of restricted
common stock.
|
(4)
|
As
of March 31, 2018, Mr. Beinstein held options to purchase 80,000 shares of our common stock and 15,000 shares of restricted
common stock.
|
(5)
|
As
of March 31, 2018, Dr. Frost held options to purchase 80,000 shares of our common stock and 15,000 shares of restricted common
stock.
|
(6)
|
As
of March 31, 2018, Dr. Krasno held options to purchase 140,000 shares of our common stock and 15,000 shares of restricted
common stock.
|
(7)
|
Mr.
Lampen, our president and chief executive officer, receives no additional compensation for his services as a director.
|
(8)
|
As
of March 31, 2018, Mr. Rubin held options to purchase 240,000 shares of our common stock and 15,000 shares of restricted common
stock.
|
(9)
|
As
of March 31, 2018, Mr. Zeitchick held options to purchase 160,000 shares of our common stock and 15,000 shares of restricted
common stock.
|
Our
board of directors believes that compensation for our non-employee directors should be a combination of cash and equity-based
compensation. Employee directors are not paid for their service on the board of directors and only receive compensation as employees.
In
December 2008, effective with the 2008 annual meeting, our board of directors approved the payment of annual compensation of our
non-employee directors comprised of cash and options granted under our stock incentive plans. In March 2018, our board of directors
approved a change in the annual compensation of our non-employee directors by replacing the initial and annual option grants with
grants of restricted shares of our common stock. Compensation of our non-employee directors for our 2018 fiscal year was as set
forth in the following table:
Type
of Compensation
|
|
Amount
|
|
Annual
director retainer (paid quarterly)
|
|
$
|
10,000
|
|
Additional
annual retainer for committee participants, except chairs (paid quarterly)
|
|
$
|
2,500
|
|
Additional
annual retainer for committee chairs (paid quarterly)
|
|
$
|
5,000
|
|
Grant
of restricted shares of our common stock upon initial election
|
|
|
50,000
shares
|
|
Grant
of restricted shares of our common stock for board service (per director, per year)
|
|
|
15,000
shares
|
|
Reimbursement
of expenses related to board attendance
|
|
|
Reasonable
expenses
reimbursed
as incurred
|
|
In
May 2018, our board of directors approved (i) the payment of an annual fee of $25,000 to the lead independent director and (ii)
effective as of April 1, 2018, an increase in the annual director retainer from $10,000 to $25,000.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Related
Party Policy
Our
code of conduct requires us to avoid related party transactions that could result in actual or potential conflicts of interest,
except under guidelines approved by our board of directors or audit committee. Related-party transactions are defined as transactions
in which:
|
●
|
the
aggregate amount involved is expected to exceed $120,000 in any calendar year;
|
|
|
|
|
●
|
we
or any of our subsidiaries is a participant; and
|
|
|
|
|
●
|
any
(a) executive officer, director or director nominee, (b) 5% or greater beneficial owner of our common stock or (c) immediate
family member, of the persons listed in clauses (a) and (b), has or will have a material interest (other than solely as a
result of being a director or a less than 10% beneficial owner of another entity).
|
A
conflict of interest can arise when a person takes actions or has interests that may make it difficult for such person to perform
his or her work objectively and effectively. Conflicts of interest may also arise if a person, or a member of his or her family,
receives improper personal benefits as a result of his or her position. Our audit committee, under its charter, reviews and approves
related-party transactions to the extent we enter into such transactions.
The
audit committee considers all relevant factors when determining whether to approve a related party transaction, including:
|
●
|
whether
the transaction is on terms no less favorable to us than terms generally available to an unaffiliated third-party under the
same or similar circumstances; and
|
|
|
|
|
●
|
the
extent of the related party’s interest in the transaction.
|
A
director may not participate in the approval of any transaction in which he or she is a related party, but must provide the audit
committee with all material information concerning the transaction. Also, we require each of our directors and executive officers
to complete a directors’ and officers’ questionnaire annually that elicits information about related-party transactions.
These procedures are intended to determine whether any such related party transaction impairs the independence of a director or
presents a conflict of interest on the part of a director, employee or officer.
Related
Party Transactions
Agreement
with Ladenburg Thalmann Financial Services Inc.
In
November 2008, we entered into an agreement to reimburse Ladenburg Thalmann Financial Services Inc. for its costs in providing
certain administrative, legal and financial services to us. Mr. Lampen, our president and chief executive officer and a director,
is the president and chief executive officer and a director of Ladenburg Thalmann Financial Services Inc. Dr. Frost, one of our
directors and our principal shareholder, is the former chairman and a former principal shareholder of Ladenburg Thalmann Financial
Services Inc. Mr. Beinstein and Dr. Krasno, two of our directors, are directors of Ladenburg Thalmann Financial Services Inc.
Mr. Zeitchick, one of our directors, is an executive vice president and a director of Ladenburg Thalmann Financial Services Inc.
For the fiscal year ended March 31, 2018, Ladenburg Thalmann Financial Services Inc. was paid $182,875 under this agreement.
Agreement
with Vector Group Ltd.
In
November 2008, we entered into a management services agreement with Vector Group Ltd., a more than 5% shareholder of ours, under
which Vector Group agreed to make available to us the services of Mr. Lampen, Vector Group’s executive vice president, effective
October 11, 2008 to serve as our president and chief executive officer and to provide certain other financial and accounting services,
including assistance with corporate taxes and complying with Section 404 of the Sarbanes-Oxley Act of 2002. In consideration for
such services, we agreed to pay Vector Group an annual fee of $100,000, plus any direct, out-of-pocket costs, fees and other expenses
incurred by Vector Group or Mr. Lampen in connection with providing such services, and to indemnify Vector Group for any liabilities
arising out of the provision of the services. The agreement is terminable by either party upon 30 days’ prior written notice.
During the fiscal year ended March 31, 2018, we paid Vector Group $108,928 under this agreement. Mr. Beinstein, a director of
our company, is also a director of Vector Group and Dr. Frost, a director of ours and our principal shareholder, is a principal
shareholder of Vector Group.
Loans
from Certain Executive Officers, Directors and Shareholders
In
October 2013, we issued an aggregate principal amount of $2.1 million of unsecured 5% convertible subordinated notes (the “Convertible
Notes”). As of March 31, 2018, we had $50,000 of Convertible Notes outstanding. We used a portion of the proceeds to finance
the acquisition of additional bourbon inventory in support of the growth of our Jefferson’s bourbon brand. The Convertible
Notes bore interest at a rate of 5% per annum and matured on December 15, 2018. The Convertible Notes, and accrued but unpaid
interest thereon, were convertible in whole or in part from time to time at the option of the holders thereof into shares of our
common stock, par value $0.01 per share, at a conversion price of $0.90 per share (the “Conversion Price”). The Convertible
Note purchasers included certain related parties of ours, including an affiliate of Dr. Frost ($500,000), Mr. Andrews ($50,000),
an affiliate of Mr. Lampen ($50,000), and Vector Group ($200,000).
In
the year ended March 31, 2018, the related party holders of the Convertible Notes described above, converted an aggregate $804,750
of the outstanding principal and interest balances of their Convertible Notes into 894,167 shares of our common stock, pursuant
to the terms of the Convertible Notes.
In
August 2015, we entered into amendments (together, the “Amendments”) to our Amended and Restated Loan and Security
Agreement (the “Amended Loan Agreement”) with ACF FinCo I LP (“ACF”). The Amendments provided for a sublimit
to our revolving credit facility in the maximum principal amount of $7.0 million to permit us to acquire aged whiskey inventory
(the “Purchased Inventory Sublimit”), subject to certain conditions set forth in the Amended Loan Agreement. The Purchased
Inventory Sublimit replaced a term loan of $2.5 million with the predecessor entity of ACF, which was paid in full in May 2015
in the normal course of business. The interest rate applicable to the Purchased Inventory Sublimit is the rate that, when annualized,
is the greatest of (a) the Prime Rate plus 4.25%, (b) the LIBOR Rate plus 6.75% and (c) 7.50%. The Purchased Inventory Sublimit
currently bears interest at 7.50%.
ACF
required as a condition to entering into an amendment to the Amendments that ACF enter into a participation agreement with certain
related parties of ours, including Frost Gamma Investments Trust, an entity affiliated with Dr. Frost ($150,000), Mark E. Andrews,
III ($50,000), Richard J. Lampen ($100,000), Brian L. Heller, our general counsel and assistant secretary ($42,500), and Alfred
J. Small, our senior vice president, chief financial officer, treasurer & secretary ($15,000), to allow for the sale
of participation interests in the Purchased Inventory Sublimit and the inventory purchased with the proceeds thereof. The participation
agreement provides that ACF’s commitment to fund each advance of the Purchased Inventory Sublimit will be limited to seventy
percent (70%), up to an aggregate maximum principal amount for all advances equal to $4.9 million. Under the terms of the participation
agreement, the participants receive interest at the rate of 11% per annum. We are not a party to the participation agreement.
However, we and our wholly-owned subsidiary, Castle Brands (USA) Corp. (“CB-USA”), are party to a fee letter with
the junior participants (including the related party junior participants) pursuant to which we and CB-USA were obligated to pay
the junior participants a closing fee of $18,000 on the effective date of the Amendment and are obligated to pay a commitment
fee of $18,000 on each anniversary of the effective date until the junior participants’ obligations are terminated pursuant
to the participation agreement. During the fiscal year ended March 31, 2018, we paid the following amounts of principal to related
parties under the participation agreement: an affiliate of Dr. Frost ($41,500), Mr. Andrews ($13,833), an affiliate of Mr. Lampen
($27,667), Mr. Heller ($11,758) and Mr. Small ($4,150). During the fiscal year ended March 31, 2018, we paid the following amounts
of interest to related parties under the participation agreement: an affiliate of Dr. Frost ($16,658), Mr. Andrews ($5,553), an
affiliate of Mr. Lampen ($11,105), Mr. Heller ($4,720) and Mr. Small ($1,666).
In
October 2017, we acquired $1.3 million in aged bulk bourbon purchased under the Purchased Inventory Sublimit. Certain related
parties, including an affiliate of Dr. Frost ($51,500), Mr. Lampen ($34,333), Mr. Andrews ($17,167), Mr. Heller ($14,592) and
Mr. Small ($5,150), were junior participants in the Purchased Inventory Sublimit with respect to such purchase.
In
December 2017, we acquired $1.0 million in aged bulk bourbon purchased under the Purchased Inventory Sublimit. Certain related
parties, including an affiliate of Dr. Frost ($45,021), Mr. Lampen ($30,014), Mr. Andrews ($15,007), Mr. Heller ($12,756) and
Mr. Small ($4,502), were junior participants in the Purchased Inventory Sublimit with respect to such purchase.
In
April 2018, we acquired $2.0 million in aged bulk bourbon purchased under the Purchased Inventory Sublimit. Certain related parties,
including an affiliate of Dr. Frost ($100,050), Mr. Lampen ($66,700), Mr. Andrews ($33,350), Mr. Heller ($28,348) and Mr. Small
($10,005), were junior participants in the Purchased Inventory Sublimit with respect to such purchase.
In
June 2018, we acquired $1.0 million in aged bulk bourbon under the Purchased Inventory Sublimit. Certain related parties, including
an affiliate of Dr. Frost ($51,750), Mr. Lampen ($34,500), Mr. Andrews ($17,250), Mr. Heller ($14,663), and Mr. Small ($5,175),
were junior participants in the Purchased Inventory Sublimit with respect to such purchase.
In
November 2018, we acquired $1.0 million in aged bulk bourbon under the Purchased Inventory Sublimit. Certain related parties,
including an affiliate of Dr. Frost ($48,448), Mr. Lampen ($32,298), Mr. Andrews ($16,149), Mr. Heller ($13,727), and Mr. Small
($4,845), were junior participants in the Purchased Inventory Sublimit with respect to such purchase.
In
March 2017, we issued a promissory note to Frost Nevada Investment Trust, an affiliate of Dr. Frost (the “Subordinated Note”)
in the aggregate principal amount of $20 million. In April 2018, we entered into a first amendment to the Subordinated Note to
extend the maturity date on the Subordinated Note from March 15, 2019 until September 15, 2020. No other provisions of the Subordinated
Note were amended. The purpose of the Subordinated Note was to finance the acquisition of an additional 20.1% of Gosling-Castle
Partners, Inc. The Subordinated Note, as amended, bears interest quarterly at the rate of 11% per annum. The principal and interest
accrued thereon is due and payable in full on September 15, 2020. All claims of the holder of the Subordinated Note to principal,
interest and any other amounts owed under the Subordinated Note are subordinated in right of payment to all indebtedness of the
Company existing as of the date of the Subordinated Note. The Subordinated Note contains customary events of default and may be
prepaid by the Company, in whole or in part, without penalty, at any time.
OTHER
MATTERS
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Exchange Act requires our officers, directors and persons who beneficially own more than ten percent of our common
stock to file reports of ownership and changes in ownership with the SEC. These reporting persons are also required to furnish
us with copies of all Section 16(a) forms they file. To our knowledge, based solely on our review of the copies of these forms
furnished to us and representations made to us that no other reports were required, we are not aware of any late or delinquent
filings required under Section 16(a) with respect to the fiscal year ended March 31, 2018.
Independent
Auditors
EisnerAmper
LLP was our independent auditor for fiscal 2018 and will serve in that capacity for the 2019 fiscal year unless our audit committee
deems it advisable to make a substitution. Representatives of EisnerAmper LLP are expected to be present at our 2018 annual meeting.
The representatives of EisnerAmper LLP will have the opportunity to make statements and will be available to respond to appropriate
questions from shareholders.
Solicitation
of Proxies
We
are paying the cost of soliciting proxies. Besides the use of the mails, we may solicit proxies by personal interview, telephone
or similar means. No director, officer or employee will be specially compensation for these activities. We will reimburse banks,
brokerage firms and other custodians, nominees and fiduciaries for expenses incurred in sending proxy material to beneficial owners
of our stock.
Submission
of Future Shareholder Proposals
Shareholder
proposals to be presented at our 2019 annual meeting of shareholders must be received by us no later than September 27, 2019 and
must otherwise comply with applicable SEC requirements to be considered for inclusions in the proxy statement and proxy for the
2019 annual meeting. Each proposal should include the exact language of the proposal, a brief description of the matter and the
reasons for the proposal, the name and address of the shareholder making the proposal and the disclosure of that shareholder’s
number of shares of common stock owned, length of ownership of the shares, representation that the shareholder will continue to
own the shares through the shareholder meeting, intention to appear in person or by proxy at the shareholder meeting and material
interest, if any, in the matter being proposed.
Shareholders
who do not wish to submit a proposal for inclusion in our proxy materials relating to our 2019 annual meeting in accordance with
SEC Rule 14a-8 may submit a proposal for consideration at the 2019 annual meeting in accordance with our bylaws. Such shareholders
must provide timely notice in writing in accordance with the laws of the State of Florida. To be timely under such laws, a shareholder’s
notice must be delivered to or mailed and received at our principal executive offices not less than 60 days nor more than 90 days
prior to the anniversary date of the meeting. Accordingly, for our 2019 annual meeting, proposals must be received at our principal
executive offices not earlier than November 29, 2019 and not later than December 29, 2019. However, if the 2019 annual meeting
is called for a date that is not within 30 days before or after the anniversary date of the meeting, notice by the shareholder
in order to be timely must be received not later than the close of business on the tenth day following the date on which notice
of the date of the 2019 annual meeting is mailed to shareholders or made public, whichever first occurs. Our bylaws also specify
requirements as to the form and content of a shareholder’s notice. These provisions may preclude shareholders from bringing
matters before an annual meeting of shareholders.
Shareholder
proposals should be addressed to Castle Brands Inc., Attention: Corporate Secretary, 122 East 42
nd
Street, Suite 5000,
New York, New York 10168.
Communications
with our Board of Directors
Any
shareholder or other interested party wishing to communicate with our board of directors may do so by sending written communications
addressed to the Corporate Secretary, Castle Brands Inc., 122 East 42
nd
Street, Suite 5000, New York, New York 10168
or by email to
info@castlebrandsinc.com
. Communications emailed to this address are automatically forwarded to all members
of the board of directors. Written communications received by the Corporate Secretary are reviewed for appropriateness. Our Corporate
Secretary, in accordance with company policy, at his discretion may elect not to forward items that are deemed commercial, frivolous
or otherwise inappropriate for consideration by the board of directors. In such cases, correspondence may be forwarded elsewhere
for review and possible response.
Discretionary
Voting of Proxies
Under
SEC Rule 14a-4, our management may exercise discretionary voting authority under proxies it solicits and obtains for our 2018
annual meeting of shareholders with respect to any proposal presented by a shareholder at such meeting, without any discussion
of the proposal in our proxy statement for such meeting, unless we receive notice of such proposal at our principal office in
New York, New York, a reasonable time before we send our proxy materials for the current year.
Important
Notice Regarding the Availability of Proxy Materials for the Shareholder Meeting To Be Held on February 27, 2019
This
proxy statement and our 2018 annual report are available at
https://materials.proxyvote.com/148435100.
Other
Business
We
are not aware of any other business to be presented at the meeting. If matters not described herein should properly come before
the meeting, the persons named in the accompanying proxy will use their discretion to vote on such matters in accordance with
their best judgment.
|
By
Order of the Board of Directors
|
|
|
|
|
|
Richard
J. Lampen,
|
|
President
and Chief Executive Officer
|
New
York, New York
January
25, 2019
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