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As filed with the Securities and Exchange Commission on April 16, 1999.
Registration No. 33-88134
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 3
ON
FORM S-3
TO FORM SB-2
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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SEL-LEB MARKETING, INC.
(Exact name of registrant as specified in its charter)
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New York 495 River Street 11-3180295
(State or other Paterson, New Jersey 07524 (IRS employer
jurisdiction of (973) 225-9880 identification
incorporation or (Address, including zip code, and number)
organization) telephone number, including area
code, of registrant's principal
executive offices)
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Jan S. Mirsky
Sel-Leb Marketing, Inc.
495 River Street
Paterson, NJ 07524
(973) 225-9880
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
James Martin Kaplan, Esq.
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 885-5000
Facsimile: (212) 885-5001
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_| ____
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| _____
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Proposed Proposed
Maximum Maximum Amount of
Title of each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Security Offering Price Fee
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<S> <C> <C> <C> <C>
Common stock, $.01 par value
per share(1) 677,785 (2) $16.00 $10,844,560 $3,014.79 (3)
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</TABLE>
(1) Issuable upon exercise of outstanding publicly traded redeemable
warrants.
(2) Pursuant to Rule 416 of the Securities Act, there are also being
registered hereunder such additional shares as may be issued to the
holders of warrants because of any future stock dividends, stock
distributions, stock splits or similar capital readjustments.
(3) Previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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The information in this Prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
Prospectus
Subject to completion, dated April 16, 1999.
SEL-LEB MARKETING, INC.
677,785 Shares of Common Stock
This prospectus covers 677,785 shares of common stock, $.01 par value,
of Sel-Leb Marketing, Inc. issuable upon exercise of publicly traded redeemable
common stock purchase warrants which were sold in our company's 1995 initial
public offering. Holders of public warrants are entitled to purchase, until July
12, 1999, one share of common stock by exercising eight warrants at an aggregate
exercise price of $16.00, subject to adjustment. Holders of warrants are not
entitled to exercise their warrants for fractional shares of common stock.
Sel-Leb's common stock is traded on the Nasdaq SmallCap Market System,
under the symbol "SELB". On April 15, 1999, the last sale price of our common
stock as reported on the Nasdaq SmallCap Market System was $8.875 per share.
An investment in Sel-Leb's common stock is speculative and involves a
high degree of risk. See "Risk Factors" beginning on page 4.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the
contrary is a criminal offense.
This prospectus is included in the Registration Statement that was
filed by Sel-Leb with the Securities and Exchange Commission. Unless their
shares are included on a previously filed and effective Registration Statement,
holders of the public warrants cannot sell their common stock upon exercise of
the warrants until that Registration Statement becomes effective. This
prospectus is not an offer to sell the securities or the solicitation of an
offer to buy the securities in any state where an offer to sell or the
solicitation of an offer to buy is not permitted.
The date of this Prospectus is _____ ___, 1999
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SPECIAL INFORMATION REGARDING FORWARD LOOKING STATEMENTS
Certain statements in this prospectus or in the documents incorporated
by reference herein constitute "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. Such forward-looking
statements involve certain known and unknown risks, uncertainties and other
factors which may cause our actual results, performance or achievements to be
materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among others, the factors set forth below under "Risk Factors." The words
"believe," "expect," "anticipate," "intend" and "plan" and similar expressions
identify forward-looking statements. We caution you not to place undue reliance
on these forward-looking statements, which speak only as of the date the
statement was made. See "Risk Factors."
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from the SEC's web site at
"http://www.sec.gov".
We have filed with the SEC an amendment on Form S-3 to a Sel-Leb
registration statement to register the shares of our common stock that will be
issued upon the exercise of our public warrants. This Prospectus is part of that
registration statement and, as permitted by the SEC's rules, does not contain
all the information included in the registration statement. For further
information with respect to us and our common stock and warrants, you may refer
to the registration statement and to the exhibits and schedules filed as part of
that registration statement. You can review and copy the registration statement
and its exhibits and schedules at the public reference facilities maintained by
the SEC as described above. The registration statement, including its exhibits
and schedules, is also available on the SEC's web site.
This Prospectus may contain summaries of contracts or other documents.
Because they are summaries, they will not contain all of the information that
may be important to you. If you would like complete information about a contract
or other document, you should read the copy filed as an exhibit to the
registration statement.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this Prospectus, and information that we file later
with the SEC will automatically update or supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
(a) Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1998;
and
(b) The description of our common stock and warrants
contained in our Registration Statement on Form 8-A
declared effective July 13, 1995, together with any
amendment or report filed with the SEC for the
purpose of updating such description.
You may request a copy of these filings, at no cost, by contacting us
at Sel-Leb Marketing, Inc., 495 River Street, Paterson, New Jersey 07524,
telephone (973) 225-9880, Attention: Jan S. Mirsky.
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THE COMPANY
The following is only a summary. You should carefully read the more
detailed information contained elsewhere in this prospectus and incorporated by
reference in this prospectus, including our financial statements and the notes
to such statements. Investing in the common stock of our company involves risk.
Therefore, carefully consider the information under the heading "Risk Factors"
beginning on page 4. We urge you to read this prospectus in its entirety. Unless
otherwise indicated, "we," "us," "our" and similar terms, as well as references
to "our company" and "Sel-Leb" refer to Sel-Leb Marketing, Inc. and its
subsidiary, Ales Signature, Ltd.
Our Business
Sel-Leb is primarily engaged in the distribution and marketing of
consumer merchandise to retail sellers such as mass merchandisers, discount
chain stores and food, drug and electronic retailers. Our company's business
consists of the following activities:
o developing, marketing and selling Sel-Leb's own proprietary
brands of budget-line health, beauty aid and cosmetic
products, which are manufactured for us by contract
manufacturers;
o opportunistic purchasing and secondary sourcing, which
involves the distribution of merchandise on a wholesale basis
outside of normal distribution channels to retail merchants,
of a broad range of name-brand and off-brand products such as
health and beauty aids, cosmetics, fragrances, kitchen items
and other household items; and
o developing, marketing and selling, or otherwise facilitating
the development, marketing or sale of, products to be
promoted by celebrity spokespersons or which are related to
specific television shows, and are sold to mass merchandise
retailers.
Our Strategy
Our strategy is to capitalize on increased consumer demand for value
and convenience resulting from the increased acceptance by consumers of mass
merchandisers, electronic retailers and other mass marketing retail outlets, as
well as on the popularity of consumer products endorsed by celebrity
spokespersons.
We are also seeking to capitalize on the increased popularity of
internet-based shopping services, and are currently in the process of developing
a "shopping cart" web-site. As currently proposed, this web site would allow our
customers to purchase our health, beauty aid and cosmetic products through
credit card purchases over the internet. We currently anticipate that this web
site will become operational during the summer of 1999. However, due to the fact
that we are in a preliminary stage of our web site development, we cannot assure
you as to the actual timing of the launch of the proposed site or, once
launched, the success of the site.
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Our principal executive offices are located at 495 River Street,
Paterson, New Jersey 07524 and our telephone number is (973) 225-9880.
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RISK FACTORS
An investment in our common stock involves a high degree of risk. You
should carefully consider the risks and uncertainties described below and the
other information in this prospectus before deciding whether to exercise the
warrants and invest in shares of our common stock. If any of the following risks
actually occur, our business, financial condition or results of operations could
be materially adversely affected. This could cause the trading price of our
securities to decline, and you may lose part or all of your investment.
We may need additional financing to fund our operations.
Our capital requirements are significant. Based on our current
operations, we anticipate that our working capital, together with anticipated
cash flow from operations, will be sufficient to satisfy our contemplated cash
requirements for at least 12 months. In the event that our operating results are
worse then expected, or if our plans change or our other assumptions prove to be
inaccurate (due to unanticipated expenses or other difficulties), we could be
required to seek additional financing sooner than anticipated. Moreover, we will
need to raise additional capital to implement our expansion plans.
We may not be able to obtain financing when needed.
We have no current arrangements with respect to, or potential sources
of, additional financing, other than our new credit facility with Merrill Lynch
Business Financial Services, Inc., which expires on October 31, 2000.
Consequently, any additional financing may not be available to us when needed,
on commercially reasonable terms, or at all. Any inability to obtain additional
financing when needed would have a material adverse effect on us. In addition,
any additional equity financing may involve substantial dilution to the
interests of our then-existing stockholders.
We are dependent on certain key customers.
Our ten largest customers accounted for approximately 70.3% of our
company's net sales during the year ended December 31, 1998, and approximately
60.0% of our net sales for the year ended December 31, 1997. During the year
ended December 31, 1998, BJ's Wholesale Club accounted for approximately 26.0%
of our sales, ACI, Inc. accounted for approximately 20.0% of our sales and Hills
Department Stores accounted for approximately 12.7% of our sales. We believe
that we have good relationships with our customers, and that, as a consequence
of our strong and, in many instances, long-term relationships with many of our
customers, they will continue to do business with our company. However, we have
no long-term contracts with any of our customers, all of which purchase products
from us pursuant to individually placed purchase orders, and we cannot assure
you that our customers, including any of our largest customers, will continue to
purchase merchandise from us in the future. The loss of a significant volume of
purchases from a number of our customers could have a material adverse effect on
our company's business and results of operations.
We may not be able to locate customers for all of our opportunistic merchandise.
In connection with our opportunistic purchasing business, we acquire
merchandise in negotiated purchases either directly from consumer goods
manufacturers or from wholesalers, retailers, financially distressed businesses,
duty-free distributors and other secondary sources. Typically, we purchase this
merchandise before we have located customers for the merchandise. Although we
have sold substantially all of the merchandise acquired by us through our
opportunistic purchases in each of the last three fiscal
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years, we cannot assure you that we will be able to obtain customers for all
such merchandise acquired by us in the future, or that, if we are able to secure
such customers, sales to such customers will yield acceptable profit margins.
Our opportunistic business is dependent on the availability of merchandise from
third-party suppliers.
We make our opportunistic purchases of merchandise through
individually placed purchase orders and do not have any contracts with any of
the suppliers of such merchandise. We depend, instead, on our ongoing
relationships and prior dealings with such suppliers to obtain merchandise at
favorable prices when it becomes available for sale to secondary suppliers.
Although we believe that our relationships with our suppliers are good and that
we would be able to locate other sources of merchandise in the event of the loss
of one or more of our suppliers, we cannot assure you that our company will not
experience delays or other difficulties in obtaining merchandise, which could
have a material adverse effect on our business and results of operations.
We rely upon third-party manufacturers and suppliers for our health, beauty aid
and cosmetic merchandise.
All of our health, beauty aid and cosmetic products, whether sold
under our own proprietary brand names or in connection with our
celebrity-endorsed and television-related promotion business, are manufactured
and supplied by third parties in accordance with specifications provided by us.
We purchase all materials for our products (including raw materials and
packaging) through individually placed purchase orders to various suppliers.
Typically, materials purchased by us are delivered by the suppliers to our
warehouse facilities. We then deliver such materials, on an as-needed basis, to
our contract manufacturers, which are engaged by us to provide filling services
and perform quality control with respect to the finished products. During the
year ended December 31, 1998, one such contract manufacturer, LPD Packaging,
Inc., accounted for approximately 75% of our filling services. Although we
believe that our manufacturers have the capacity to produce volumes of our
products sufficient to meet our foreseeable needs, we cannot assure you that
these manufacturers will provide us with adequate supplies of merchandise.
Furthermore, although we believe that we have a good relationship with our
manufacturers and that we will continue to obtain finished products from such
manufacturers in the foreseeable future, we do not have written contracts with
the manufacturers and we cannot assure you that they will continue their
relationships with us in the future. In the event we experience difficulties
with or the loss of services of our present manufacturers, we believe that we
would be able to retain the services of other manufacturers; however, we cannot
assure you that such services could be retained on a timely basis or on terms as
favorable as those with our present manufacturers. Likewise, although we have
experienced no difficulty in obtaining necessary products, supplies and
packaging from our suppliers and believe that we could obtain items of the same
quantity and quality from other suppliers, in the event we were to experience
difficulties with any of our present suppliers, we might be unable to obtain
such items on a timely basis, or on terms as favorable as those with our present
suppliers. The loss of any of our present manufacturers or suppliers, or any
significant delays in obtaining other manufacturers or suppliers in the event of
any such loss, could have an adverse effect on our business and results of
operations.
We are subject to various risks associated with trends in the retail industry.
The retail industry is significantly affected by many factors,
including changes in the national economy or in regional and local economies,
changes in consumer preferences and confidence in the overall economy, increases
in the number of retail operations and intense competition in the retail
industry generally. In addition, factors such as inflation may have a greater
effect on the retail industry
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than on other industries. Furthermore, several retail firms, including some of
our retail customers, have filed for bankruptcy protection and we cannot assure
you of their continued existence or of the continued existence of any of our
retail customers. During the past three years, our company has written off an
immaterial amount of receivables as a result of these bankruptcies. The loss of
any of our substantial customers could have a material adverse effect on the
business and results of operations of our company. In addition, store chain
consolidations in the markets served by Sel-Leb may adversely affect our
business by increasing the relative buying power of our retail customers, and
thereby potentially limiting our flexibility to negotiate favorable business
terms.
Our operations would be interrupted if we sustain a casualty or other loss at
our warehouse.
We currently warehouse substantially all of the raw materials used in
connection with our proprietary brand name health, beauty aid and cosmetics
products, as well as the finished products, at our warehouse. We also warehouse
at our facility substantially all of the merchandise we acquire in connection
with our opportunistic business. Accordingly, we are subject to the risk of the
loss of all or a portion of such inventory, either as a result of theft, fire or
otherwise. Although we maintain insurance which would cover any such losses
(including losses associated with business interruptions) and believe that, in
the event of a complete or significant loss, we would be able to replace such
inventory within a period of approximately four to six months, we are subject to
the risk of loss of customers during such period.
We may not be able to successfully expand our operations.
As part of our strategy of taking advantage of the growth in mass
merchandising and value retailing, we will seek to expand our existing brand
name product lines and introduce new brand name health, beauty aid and cosmetic
products, thereby providing us with an ongoing supply of products and making us
less reliant on third party and/or opportunistic sources of merchandise. The
success of our expansion plan is dependent upon our ability to identify and
develop products that can be successfully sold to retail chains and other mass
merchandisers at acceptable profit margins. We cannot assure you that we will be
able to successfully develop and introduce new products under our own brand
names or that any such products will meet with consumer acceptance in the
marketplace or be sold at acceptable profit margins. In addition, we may also
seek to expand our operations either by acquisition or through licensing or
other arrangements. However, we cannot assure you that any such acquisition
opportunities will become available or, if available, that we would be
successful in acquiring any such rights on favorable terms or that we would be
successful in marketing and selling any product lines so acquired by us.
We are also seeking to expand the celebrity-endorsed and
television-related product area of our business The success of our expansion
plan with respect to this area of our business is dependent on our ability to
retain the services of celebrities and to enter into agreements with respect to
the sale of TV- related products, as well as on our ability to develop products
for celebrity and television-related promotional activities which will meet with
consumer acceptance.
We will be subject to risks relating to the creation and operation of a web
site.
We are currently in the process of developing a "shopping cart" web
site which will enable consumers to make online purchases of our products. Once
developed, the satisfactory performance, reliability and availability of our web
site, and of the transaction-processing system and network infrastructure
supporting such site, will be critical to our reputation and our ability to
attract visitors to our web site and maintain adequate customer service levels.
We anticipate that revenues will become partially
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dependent on the number of visitors who shop on our web site. Accordingly, any
system interruptions that result in the unavailability of our web site could
adversely affect consumer perception of our company and web site, which could
have a material adverse effect on our company.
We may not be able to compete successfully in our different areas of business.
The areas of business in which we engage are highly competitive. We
believe that we compete with the following:
o In the opportunistic purchasing area of our business, we
compete with other secondary sourcers, as well as with
wholesale distributors and retailers, with respect to our
ability to obtain merchandise. In addition, with respect to
sales of such merchandise to our customers, we compete with
other secondary suppliers, as well as with manufacturers who
sell directly to retail merchandisers.
o In the proprietary brand name area of our business, we
compete at the retail level with other manufacturers of
budget-line health, beauty aid and cosmetic products for
shelf space and promotional space.
o In connection with our celebrity-endorsed products business,
we compete with manufacturers and marketing organizations
that seek out celebrities to endorse products and assist in
marketing programs for their merchandise, as well as with
celebrity agents who can negotiate directly with retailers in
order to secure marketing contracts for the celebrities they
represent. In addition, with respect to any TV-related
products developed by us, such products will compete with
other products sold in the retail market which relate to
characters or themes of television shows or movies.
Many of our existing or potential competitors are well established companies and
have or will have substantially greater financial, marketing and other resources
than us. We believe that our company competes on the basis of value, product
assortment and availability, service to customers and reputation, as well as on
the basis of our long-standing and well-established relationships with both our
suppliers and customers. However, we cannot assure you that we will be able to
compete successfully in any areas of our business.
We may not be able to adequately protect our proprietary rights.
We believe that our trademarks have significant value and are
important to our marketing efforts. However, we cannot assure you that our marks
do not or will not violate the proprietary rights of others or that our marks
would be upheld, or that we would not be prevented from using our marks, if
challenged. Any of the foregoing could have an adverse effect on our company. In
addition, we rely on trade secrets and proprietary know-how, and employ various
methods, to protect our ideas, concepts and customer database. However, such
methods may not afford us complete protection. Others may independently develop
similar know-how or obtain access to our know-how, ideas, concepts and database.
In the event competitors independently develop or otherwise obtain access to our
know-how, concepts, trade secrets or database, our company may be adversely
affected.
We are dependent upon our key executives and personnel.
Our success is largely dependent on the personal efforts of Harold
Markowitz, our company's chairman of the board, Paul Sharp, our company's
president and chief executive officer, Jan Mirsky, our
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company's executive vice president-finance, Jack Koegel, our company's vice
chairman and chief operating officer, and Jorge Lazaro, our company's executive
vice president. In particular, the future success of our celebrity products line
of business is dependent on the efforts of Mr. Markowitz. We have entered into
an employment agreement with each of Messrs. Markowitz, Sharp, Mirsky, Koegel
and Lazaro. However, the loss of services of any of such individuals could have
a material adverse effect on our business and prospects.
Our management has significant control over stockholder matters.
Messrs. Markowitz, Sharp, Mirsky, Koegel and Lazaro, each of whom is
an officer and director of our company, beneficially own, in the aggregate,
approximately 52.2% of the outstanding common stock (assuming no exercise of
options or warrants held by persons other than Messrs. Markowitz, Sharp, Mirsky,
Koegel and Lazaro). Accordingly, in the event such shareholders were to act in
concert with respect to our operations, they would be in a position to
significantly affect any vote relating to an increase in the authorized capital
or the dilution, merger or sale of assets of our company, and would be in a
position to generally control the affairs of our company.
The nature of our business subjects us to potential claims for personal injury.
While no material product liability claims have been made against us
in the past, as a distributor of merchandise, including health and beauty aids,
cosmetics, fragrances and household items, we could be exposed to possible
liability claims from others for personal injury or property damage due to
design or manufacturing defects or otherwise. We maintain a product liability
insurance policy that has a $1,000,000 per occurrence limit and a $2,000,000
aggregate limit, and a $4,000,000 umbrella liability insurance policy to cover
claims in excess of the limits of its products liability insurance. In addition,
we believe that the suppliers from whom we purchase such merchandise, including
manufacturers, maintain adequate levels of product liability insurance. We
cannot assure you that our product liability insurance coverage is adequate. We
maintain other insurance, including insurance relating to property and personal
injury, which we believe is similar to that maintained by comparable retail
businesses and in amounts which we currently consider adequate. Nevertheless, a
partially or completely uninsured claim against us, if successful and of
sufficient magnitude, could have a material adverse effect on our company.
Our company's supply of prestige fragrances may be limited or eliminated in the
future.
In connection with our opportunistic business, we act as a wholesale
distributor of prestige, designer fragrances. Typically, we purchase these
fragrances from other secondary sources such as export and import companies,
duty-free distributors and department stores which are liquidating their excess
inventory. We believe that a portion of the prestige fragrances purchased by us
may include trademarked products manufactured in foreign countries and
trademarked products manufactured in the United States that may have been sold
to foreign distributors. From time to time, United States trademark owners and
their licensees and trade associations have initiated litigation or
administrative agency proceedings seeking to halt the importation into the
United States of such foreign manufactured or previously exported trademarked
products. Our company is not the subject of any such legal or administrative
actions, and is not aware of any such threatened legal or administrative
actions. However, we cannot assure you that our business activities will not
become the subject of such actions in the future, or that future judicial,
legislative or administrative agency action will not limit or eliminate some or
all of the secondary sources of supply of prestige fragrances used by us.
Although we believe that any future limitation on, or elimination of, our
sources of supply of prestige fragrances for sale to our customers would not
have a material adverse effect on our company, we cannot assure you that our
business would not be negatively impaired.
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The Year 2000 risk may adversely affect us.
We have recognized the need to assure that our operations will not be
adversely impacted by Year 2000 software failures. We have already begun to
identify the revisions needed to be made to ensure that our company will be able
to process information beyond 1999 without disruption. The impact on our
operations continues to be evaluated. New hardware and software has been
purchased and our accounting programs are presently being upgraded and revised
to reduce the possibility of Year 2000 failure. The installation and testing of
the new programs and systems should be completed by the third quarter 1999. We
are also assessing the Year 2000 status of our major suppliers to reduce the
likelihood of Year 2000 failure. Year 2000 compliance is not anticipated to have
any material adverse effect on our financial position or results of operations.
If our computer systems fail with respect to the Year 2000 issue, our
internal and external reporting process could be affected, causing a material
adverse effect on the business and financial condition of our company. In
addition, we cannot assure you that the systems of the other companies upon
which our company's systems rely will be converted or that a failure to convert
by another company would not have a material adverse effect on the business and
financial condition of our company.
We do not anticipate paying dividends in the foreseeable future.
We have not paid any dividends to date, other than a dividend paid in
1995 to those individuals who constituted our company's shareholders prior to
our initial public offering. The 1995 dividend was paid in connection with the
termination of our company's status as an S Corporation. It is our intention to
retain earnings, if any, to finance the operation and expansion of our business
and, therefore, we do not expect to pay cash dividends in the foreseeable
future. The declaration and payment of future dividends, if any, will be at the
sole discretion of the board of directors and will depend upon our
profitability, financial condition, cash requirements, future prospects, and
other factors deemed relevant by the board of directors.
Our company's certificate of incorporation generally eliminates liability of
directors and officers.
Our company's certificate of incorporation eliminates the liability of
a director for monetary damages for breach of duty as a director, subject to
certain exceptions. In addition, the Certificate of Incorporation provides for
our company to indemnify, under certain conditions, directors and officers of
our company against all expenses, liabilities and losses reasonably incurred by
such persons in connection therewith. These provisions may reduce the likelihood
of derivative litigation against directors and may discourage or deter
shareholders or management from suing directors for breaches of their duty of
care, even though such an action, if successful, might otherwise benefit our
company and its shareholders.
The number of shares eligible for future sales could depress the market for our
common stock.
The possibility that substantial amounts of common stock may be sold
in the public market may adversely affect the prevailing market price for our
common stock and could impair our ability to raise capital through the sale of
our equity securities. As of April 15, 1999, we had 1,128,259 shares of common
stock outstanding, of which 609,097 shares were freely tradable without
restriction or further registration under the Securities Act of 1933. All of the
remaining 519,162 shares of common stock outstanding are "restricted
securities," as that term is defined under Rule 144 promulgated under the
Securities Act. However, all of such restricted shares are eligible for sale,
pursuant to Rule 144. We cannot predict the effect, if any, that sales of shares
of common stock or even the availability of such shares for sale will have on
the market prices prevailing from time to time.
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<PAGE>
The significant number of outstanding options and warrants could depress the
market price of our common stock and could interfere with our ability to raise
capital.
There are 721,096 shares reserved for issuance upon exercise of
warrants, including the 677,785 shares which are covered by this prospectus. An
additional 494,080 shares may be issued upon exercise of options granted or
available for grant under our option plans. To the extent that outstanding
options and warrants are exercised, dilution to the percentage ownership of our
stockholders will occur, and any sales in the public market of the shares
underlying such warrants and options may adversely affect prevailing market
prices for our common stock. Moreover, the terms upon which we will be able to
obtain additional equity may be adversely affected since the holders of the
outstanding warrants and options can be expected to exercise them at a time when
we would, in all likelihood, be able to obtain capital on terms more favorable
to us than those provided by such securities.
The market price of our securities is volatile.
The market price of our common stock and public warrants have
experienced significant fluctuations since our initial public offering in 1995.
Our common stock and public warrants are quoted on the Nasdaq SmallCap Market
System, which market has experienced, and may experience in the future,
significant price and volume fluctuations which could adversely affect the
market price of the common stock and public warrants without regard to our
operating performance. In addition, the trading price of our common stock and
warrants could be subject to significant fluctuations in response to actual or
anticipated variations in our operating results, announcements by us or our
competitors, factors affecting the retail industry generally, changes in
national or regional economic conditions, changes in securities analysts'
estimates or general economic or market conditions.
If we are unable to meet the continuing requirements for listing our securities
on the Nasdaq Small-Cap Market, the market price and liquidity of our
securities may be adversely affected.
Our common stock and public warrants are listed on Nasdaq. If, at any
time, we are unable to maintain the requirements for continued listing on
Nasdaq, our common stock and warrants will no longer be traded on Nasdaq and
trading in our securities would thereafter be conducted in the non-Nasdaq
over-the-counter market. If the common stock were to cease to be listed on
Nasdaq and the trading price of the common stock were to fall below $5.00 per
share, trading in the common stock would become subject to the Securities and
Exchange Commission's "penny stock" rules. The penny stock rules require
additional disclosure by broker-dealers in connection with any trades involving
a penny stock. The additional burdens imposed upon broker-dealers by such
requirements could, in the event the common stock were deemed to be a penny
stock, discourage broker-dealers from effecting transactions in the common
stock, which could severely limit the market liquidity of the common stock and
the ability of purchasers in this offering to sell the common stock in the
secondary market.
Our redemption of the public warrants may be disadvantageous to the holders of
such warrants.
The publicly traded warrants are subject to redemption by us at any
time upon notice of not less than 30 days, at a price of $.0167 per warrant.
Redemption of the warrants could force the holders to exercise the warrants and
pay the exercise price at a time when it may be disadvantageous for the holders
to do so, to sell the warrants at the then current market price when they might
otherwise wish to hold the warrants, or to accept the redemption price, which
may be substantially less than the market value of the warrants at the time of
redemption.
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<PAGE>
Because holders of public warrants may not be able to exercise such warrants
without additional "blue sky" qualification, the market for the warrants may be
limited.
You, as a holder of public warrants, may not be able to exercise the
public warrants under state blue sky laws. You will have the right to exercise
the warrants to purchase shares of our common stock only if such shares qualify
for sale or are exempt from qualification under state securities or "blue sky"
laws of the states in which you then reside. We intend to use our reasonable
efforts to qualify the common stock for sale in each state so as to permit your
exercise of the warrants, but we cannot assure you that we will be able to do
so. The warrants may lose some or all of their value if the underlying shares
are not, or cannot be, qualified in a particular state. You should contact us at
(973) 225-9880 to determine whether you can exercise the warrants.
We may be unable to maintain a current prospectus for the shares issuable upon
exercise of the public warrants.
A current prospectus covering the common stock issuable upon exercise
of the public warrants must be in effect before we may accept warrant exercises
even in jurisdictions in which such exercises have been qualified or an
exemption from qualification exists. We may not be able to keep this prospectus
current, notwithstanding our commitment to use our best efforts to do so.
Our common stock has historically been relatively illiquid.
Historically, our common stock has been only thinly traded on the
Nasdaq SmallCap Market. Our common stock is relatively illiquid and should only
be purchased by investors that can afford to lose their entire investment. We
cannot assure you as to the prices at which our common stock will trade or that
such prices will not be significantly below the book value per share of the
common stock. Until an orderly market develops (if at all), the prices at which
our common stock trade may fluctuate significantly. Prices for the common stock
will be determined in the marketplace and may be influenced by many factors,
including the depth and liquidity of the market, investor perception of us and
the industry in which we participate, and general economic and market
conditions.
USE OF PROCEEDS
The net proceeds to us from the exercise of the public warrants are
estimated to be approximately $10,759,560 assuming all the warrants are
exercised. However, we cannot assure you as to the number of warrants, if any,
that will be exercised. We expect to use the proceeds from this offering for
sales and marketing activities, general corporate purposes and working capital.
In addition, depending on the amount of proceeds from this offering, we may use
all or part of such proceeds to repay any indebtedness which may be outstanding
under our credit facility at the time such proceeds become available to us.
Pending such uses, we intend to invest the net proceeds of this offering in
short-term, investment-grade, interest-bearing instruments.
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<PAGE>
DESCRIPTION OF SECURITIES
General
Our authorized capital stock consists of 40,000,000 shares of common
stock, par value $.01 per share, and 10,000,000 shares of preferred stock, par
value $.01 per share. As of April 15, 1999, 1,128,259 shares of common stock
were issued and outstanding, which were held of record by approximately 39
shareholders. No shares of preferred stock are outstanding.
Common Stock
Holders of common stock are entitled to one vote for each share held
on all matters submitted to a vote of shareholders, including the election of
directors. Accordingly, holders of a majority of the shares of common stock
entitled to vote in any election of directors may elect all of the directors.
Holders of common stock will be entitled to share in all dividends, if any, that
the board of directors, in its discretion, declares from legally available
funds. In any liquidation, dissolution or winding up of Sel-Leb, each
outstanding share entitles its holders to participate pro rata in all assets
that remain after payment of liabilities.
Holders of common stock have no preemptive, subscription or redemption
rights. All outstanding shares of common stock are, and any common stock to be
issued upon exercise of the public warrants, upon issuance and sale, will be,
fully paid and nonassessable.
Preferred Stock
Under our certificate of incorporation, we are authorized to issue up
to 10,000,000 shares of preferred stock, from time to time and in one or more
series, upon authorization by our board of directors. The Board of Directors,
without further approval of the shareholders, is authorized to fix the dividend
rights and terms, conversion rights, voting rights, redemption rights and terms,
liquidation preferences, and other rights, preferences, privileges and
restrictions applicable to each series of preferred stock. The issuance of
preferred stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes could, among other things, adversely
affect the voting power of the holders of common stock and, under certain
circumstances, make it more difficult for a third party to gain control of our
company, prevent or substantially delay a change of control, discourage bids for
our common stock at a premium or otherwise adversely affect the market price of
the common stock.
Redeemable Warrants
Holders of public warrants are entitled to purchase one share of
common stock by exercising eight public warrants at an aggregate exercise price
of $16.00, subject to adjustment in certain circumstances, until 5:00 p.m.,
Eastern Time, on July 12, 1999. Holders of warrants are not entitled to exercise
their warrants for fractional shares of common stock.
The warrants are redeemable by us at any time, upon notice of not less
than 30 days, at a price of $.0167 per warrant. The warrant holders have the
right to exercise their warrants until the close of business on the business day
immediately preceding the date fixed for redemption. The exercise price and
number of shares of common stock or other securities issuable on exercise of the
warrants are subject to adjustment in certain
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<PAGE>
circumstances, including in the event of a stock dividend, recapitalization,
reorganization, merger or consolidation of our company. In addition, the
warrants are subject to adjustment for issuances of common stock at prices below
the market price of a share of common stock on Nasdaq. All descriptions of the
warrants are qualified in their entirety by reference to the warrant agreement
which is included as an exhibit to the Registration Statement of which this
Prospectus is a part.
The warrants may be exercised upon surrender of the warrant
certificate on or prior to the expiration date at the offices of the warrant
agent, with the exercise form on the reverse side of the warrant certificate
completed and executed as indicated, accompanied by full payment of the exercise
price (by certified check or bank draft payable to our company) to the warrant
agent for the number of warrants being exercised. The warrant holders do not
have the rights or privileges of holders of common stock.
No warrants will be exercisable unless at the time of exercise we have
filed a current registration statement with the Securities and Exchange
Commission covering the shares of common stock issuable upon exercise of such
warrants and such shares have been registered or qualified or deemed to be
exempt from registration or qualification under the securities laws of the state
of residence of the holder of such warrant. We will use our reasonable efforts
to have all such shares so registered or qualified under state securities laws
on or before the exercise date and will use our best efforts to maintain a
current prospectus relating thereto until the expiration of the warrants,
subject to the terms of the warrant Agreement. While it is our intention to do
so, we cannot assure you that we will be able to do so. The warrants may lose
some or all of their value if the underlying shares are not, or cannot be,
qualified in an applicable state. You should contact us at 973-225-9880 to
determine whether you can exercise the warrants in your particular state. If we
are unable to qualify for sale the common stock underlying the warrants in the
sates in which the various holders of the warrants then reside, a holder of the
warrants may have no choice but to let the warrants expire.
If you are one of our affiliates, you can sell the shares of common
stock once you exercise the warrants only if you comply with Rule 144 of the
Securities Act of 1933. Under this rule, you will be subject to certain volume
limitations and requirements relating to manner of sale, notice and availability
of current public information about us. "Affiliate" is defined under the
Securities Act of 1933 as a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, an issuer, and in our case, would include our directors, executive
officers and major stockholders. You should contact us at 973-225-9880 if you
think you are one of our affiliates.
No fractional shares will be issued upon exercise of the warrants.
However, if a warrant holder exercises all warrants then owned by him, our
company will pay to such warrant holder, instead of a fractional share which is
otherwise issuable, an amount in cash based on the market value of the common
stock on the last trading day prior to the exercise date.
Dividends
Other than the distribution paid in 1995 in connection with the
termination of Sel-Leb's status as an S Corporation, we have not declared or
paid a dividend on our common stock since our inception. It is our intention to
retain earnings, if any, to finance the operation and expansion of our business
and, therefore, we do not expect to pay cash dividends in the foreseeable
future. The declaration and payment of future dividends, if any, will be at the
sole discretion of the board of directors and will depend upon our
profitability, financial condition, cash requirements, future prospects, and
other factors deemed relevant by the board of directors.
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<PAGE>
Transfer Agent and Registrar
Our company's Transfer Agent and Registrar is Continental Stock
Transfer & Trust Company, 2 Broadway, New York, New York 10004.
Other Existing Warrants
There are currently outstanding non-public warrants to purchase an
aggregate of 43,311 shares of common stock at an exercise price of $2.50 per
share which are exercisable until March 31, 2000. Pursuant to certain
registration rights granted to the holder of these warrants, Sel-Leb has
registered under the Securities Act of 1933 the shares of common stock to be
issued upon exercise of such warrants.
INDEMNIFICATION
Our certificate of incorporation provides that our company shall
indemnify its directors and officers to the fullest extent permitted by the New
York Business Corporation Law. The New York Business Corporation Law provides
that no director or officer of our company shall be personally liable to our
company or our shareholders for damages for breach of any duty owed to our
company or our shareholders, except for liability of any director if a judgment
or other final adjudication establishes that (i) the director's acts or
omissions were in bad faith or involved intentional misconduct or a knowing
violation of law, (ii) the director personally gained in fact a financial profit
or other advantage to which he was not legally entitled or (iii) the director's
acts involved an unlawful payment of a dividend, an unlawful stock repurchase or
redemption or an unlawful distribution of assets after dissolution of our
company in violation of the New York Business Corporation Law.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted for our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by our company of expenses incurred or paid by a director, officer or
controlling person of our company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933, as
amended, and will be governed by the final adjudication of such issue.
LEGAL MATTERS
The legality of the securities offered hereby was passed upon for
Sel-Leb by Tenzer Greenblatt LLP, New York, New York.
EXPERTS
The financial statements incorporated in this Prospectus by reference
from Sel-Leb's Annual Report on Form 10-KSB for the year ended December 31, 1998
have been audited by J. H. Cohn LLP, independent public accountants, as stated
in their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
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<PAGE>
================================================================================
We have not authorized any dealer, sales person or any other person to give
any information or to represent anything not contained in this prospectus. You
must not rely on any unauthorized information. This prospectus does not offer to
sell or buy any securities in any jurisdiction where it is unlawful.
TABLE OF CONTENTS
Page
Special Information Regarding
Forward Looking Information ........................................... 2
Where You Can Find More
Information About Us .................................................. 2
The Company ............................................................. 3
Risk Factors ............................................................ 4
Use of Proceeds ......................................................... 11
Description of Securities ............................................... 12
Indemnification ......................................................... 14
Legal Matters ........................................................... 14
Experts ................................................................. 14
================================================================================
677,785 Shares of Common Stock
SEL-LEB MARKETING, INC.
-------------
PROSPECTUS
-------------
, 1999
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution*.
The following are the estimated expenses of the issuance and
distribution of the securities being registered, all of which will be paid by
the Registrant:
SEC registration fee..................................... $ 0.00
Blue Sky fees and expenses..................................... 30,000.00
Printing expenses............................................... 5,000.00
Legal fees and expenses........................................ 40,000.00
Accounting fees and expenses.................................... 2,000.00
Registrar and transfer agent fees and expenses.................. 3,000.00
Miscellaneous .......................................... 5,000.00
--------------
Total............................................. $ 85,000.00
==============
- -------------------
* All amounts are estimated except the first item.
Item 15. Indemnification of Directors and Officers.
Section 402(b) of the New York Business Corporation Law permits a
provision in the certificate of incorporation of each corporation organized
thereunder eliminating or limiting, with certain exceptions, the personal
liability of a director to the corporation or its stockholders for monetary
damages for certain breaches of fiduciary duty as a director. The Certificate of
Incorporation of the Registrant eliminates the personal liability of directors
to the fullest extent permitted by the Business Corporation Law.
Section 722 of the Business Corporation Law (Section 722), in summary,
empowers a New York corporation, within certain limitations, to indemnify its
officers and directors against judgments, fines, amounts paid in settlement and
reasonable expenses (including attorneys' fees) actually and necessarily
incurred by them in connection with any nonderivative suit or proceeding if they
acted, in good faith, for a purpose they reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to a criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful.
With respect to derivative actions, Section 722 permits a corporation
to indemnify its officers and directors against amounts paid in settlement and
reasonable expenses (including attorneys' fees) actually and necessarily
incurred in connection with the defense or settlement of such action, or in
connection with an appeal therein, provided such person meets the standard of
conduct described in the preceding paragraph, except that no indemnification is
permitted in respect of (i) a threatened action, or a pending action which is
settled or otherwise disposed of or (ii) any claim where such person has been
found liable to the corporation, unless the court in which the action was
brought approves such indemnification and determines that such person is fairly
and reasonably entitled to be indemnified.
Reference is made to Article Seventh of the certificate of
incorporation of the Registrant for the provisions which the Registrant has
adopted relating to indemnification of officers and directors.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act of 1993, as amended (the "Securities Act") may be permitted to
directors, officers and controlling persons of the Registrant pursuant to any
charter provision, by-law, contract, arrangement, statute or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Item 16. Exhibits
(a) Exhibits
Exhibit Number Description
3.1 Certificate of Incorporation of the Company, as
amended (incorporated by reference to Exhibit 3.1 to
the Company's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1995).
3.2 Amended and Restated By-Laws of the Company
(incorporated by reference to Exhibit 3.2 to the
Company's Quarterly Report on Form 10-QSB for the
quarterly period ended June 30, 1995).
4.1 Form of Certificate for Common Stock (incorporated
by reference to Exhibit 4.1 to Amendment No. 2 to
the Company's Registration Statement on Form SB-2
(Registration No. 33-88134), as filed with the
Securities and Exchange Commission on June 28, 1995
("Amendment No. 2")).
4.2 Warrant Agreement dated as of July 20, 1995 with
respect to the Registrant's public warrants
(incorporated by reference to Exhibit 4.1 to the
Company's Quarterly Report on Form 10-QSB for the
quarterly period ended June 30, 1995).
4.3 Form of public warrant certificate (incorporated by
reference to Exhibit 4.3 to Amendment No. 2).
5 Opinion of Tenzer Greenblatt LLP as to the legality
of the securities being registered.
23.1 Consent of J. H. Cohn LLP.
23.2 Consent of Tenzer Greenblatt LLP (included in
opinion filed as Exhibit 5).
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
II-2
<PAGE>
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act; and
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 and Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) that, for purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) that, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) that, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, in the City of
Paterson, State of New Jersey, on the 16th day of April, 1999.
SEL-LEB MARKETING, INC.
By: /s/ Harold Markowitz
----------------------------------------
Harold Markowitz, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 was signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/ Harold Markowitz Chairman of the Board and Director April 16, 1999
- ----------------------------------------
Harold Markowitz
/s/ Paul Sharp President, Chief Executive Officer and April 16, 1999
- ---------------------------------------- Director (principal executive officer)
Paul Sharp
/s/ Jan S. Mirsky Executive Vice President - Finance and April 16, 1999
- ---------------------------------------- Director (principal financial and
Jan S. Mirsky accounting officer)
/s/ Jack Koegel Vice Chairman of the Board, Chief April 16, 1999
- ---------------------------------------- Operating Officer and Director
Jack Koegel
/s/ Jorge Lazaro Executive Vice President, Secretary April 16, 1999
- ---------------------------------------- and Director
Jorge Lazaro
* Director April 16, 1999
- ----------------------------------------
Stanley R. Goodman
* Director April 16, 1999
- ----------------------------------------
Edward C. Ross
* Director April 16, 1999
- ----------------------------------------
L. Douglas Bailey
</TABLE>
* By: /s/ Jan S. Mirsky
--------------------------
Jan S. Mirsky
Attorney-in-Fact
II-4
<PAGE>
[Letterhead of Tenzer Greenblatt LLP] Exhibit 5.1
April 16, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Sel-Leb Marketing, Inc.
Post-Effective Amendment No. 3 on Form S-3
to Registration Statement on Form SB-2
(Registration No. 33-88134)
------------------------------------------
Gentlemen:
We have acted as counsel to Sel-Leb Marketing, Inc., a New York
corporation (the "Company"), in connection with the preparation and filing of
the Company's Post-Effective Amendment No. 3 on Form S-3 to Registration
Statement on Form SB-2 (Registration No. 33-88134) (the "Registration
Statement"), relating to the registration under the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations thereunder, of the sale by
the Company of up to 677,785 shares (the "Warrant Shares") of the Company's
common stock, par value $.01 per share ("Common Stock"), issuable upon the
exercise of redeemable warrants (each, a "Warrant") issued in connection with
the Company's July 1995 initial public offering of securities (the "IPO").
Holders of Warrants are entitled to purchase one share of Common Stock by
exercising eight (8) Warrants at an aggregate exercise price of $16.00.
We have examined the proceedings taken in connection with the
incorporation of the Company under the laws of the State of New York, including
the articles of incorporation of the Company and any amendments thereto which
have been filed. We have also examined (i) the by-laws of the Company, and any
amendments thereto, (ii) the Registration Statement and (iii) the Warrant
Agreement, dated as of July 20, 1995 (the "Warrant Agreement"), with respect to
the Warrants.
Based upon the foregoing, and subject to the qualifications stated
herein (and assuming that the securities referred to herein will be issued or
sold according to the Registration Statement at a time when such is effective
and that they will be in compliance with all applicable securities laws involved
in those states in which said securities may be sold), we are of the opinion
that the Warrant Shares have been duly authorized and, when issued and paid for
upon exercise of the Warrants in accordance with the terms of the Warrant
Agreement, will be validly issued, fully-paid and non-assessable.
We are admitted to practice law only in the State of New York and we
are expert in, and express opinions only as to, the laws of the State of New
York and federal laws of the United States.
We consent to the use and filing of this opinion in connection with the
Registration Statement and to the use of our name in the Registration Statement
under the caption "Legal Matters".
Very truly yours,
/s/Tenzer Greenblatt LLP
TENZER GREENBLATT LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders
Sel-Leb Marketing, Inc.
We hereby consent to the incorporation by reference in this Post-Effective
Amendment No. 3 on Form S-3 to Registration Statement (No. 33-88134) on Form
SB-2 of our report dated March 25, 1999 related to the financial statements of
Sel-Leb Marketing, Inc. as of December 31, 1998 and for the years ended December
31, 1998 and 1997, which report appears in the Annual Report on Form 10-KSB for
the fiscal year ended December 31, 1998 previously filed by Sel-Leb Marketing,
Inc. We also consent to the reference to our firm under the caption "Experts" in
the Prospectus of this Registration Statement.
J. H. COHN LLP
Roseland, New Jersey
April 15, 1999
