As
filed with the Securities and Exchange Commission on June 15,
2010
Registration Number
333-167258
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
NO. 1
to
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CLEVELAND
BIOLABS, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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20-0077155
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(State or other jurisdiction of
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(I.R.S. Employer
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|
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incorporation or organization)
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Identification No.)
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73 High
Street
Buffalo,
New York 14203
(716)
849-6810
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Dr.
Michael Fonstein
Chief
Executive Officer & President
Cleveland
BioLabs, Inc.
73 High
Street
Buffalo,
New York 14203
(716)
849-6810
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copy
to:
Robert
J. Wild, Esq.
Katten
Muchin Rosenman LLP
525
West Monroe Street
Chicago,
Illinois 60661
(312)
902-5200 / (312) 902-1061 (Telecopy)
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. o
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. o
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. o
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definition of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Securities Exchange Act.
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company x
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CALCULATION OF REGISTRATION
FEE
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Title of Each Class of Securities to
be Registered
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Amount
to be
Registered
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Proposed Maximum
Offering Price
Per Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
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||||||||||||
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Primary
Offering:
Common
Stock, par value
$0.005
per share
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(1)
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(1)
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(1)
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(1)
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||||||||||||
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Warrants
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(1)
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(1)
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(1)
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(1)
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||||||||||||
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Units
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(1)
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(1)
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(1)
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$
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(1)
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|||||||||||
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$
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90,000,000.00
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6,417.00
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||||||||||||||
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Secondary
Offering:
Common
Stock, par value
$0.005
per share
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462,654
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(3)
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$
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3.29
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(4)
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$
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1,522,131.66
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$
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108.53
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|||||||
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Secondary
Offering:
Common
Stock, par value
$0.005
per share
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170,000
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(5)
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$
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3.29
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(4)
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$
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559,300.00
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$
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39.88
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|||||||
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Total:
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-
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-
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$
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92,081,431.66
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$
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6,565.41
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(6)
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(1)
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With
respect to the primary offering, an indeterminate number of shares of
common stock and warrants, which may be sold separately or as units, are
registered for issuance by the registrant from time to time at
indeterminate prices. The aggregate offering price of common stock and
warrants offered by the registrant will not exceed
$90,000,000.
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(2)
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Calculated
pursuant to Rule 457(o) under the Securities Act of 1933, as amended
(the “Securities Act”).
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(3)
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Represents
462,654 shares of common stock issuable upon exercise of Series C Warrants
(which number of shares is calculated based on the current exercise price
of $6.35 per share).
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(4)
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Computed
in accordance with Rule 457(c) of the Securities Act of 1933, as amended.
The offering price of $3.29 represents the average of the high and low
prices, as reported on the Nasdaq Capital Market, for Cleveland BioLabs,
Inc.'s common stock on May 27,
2010.
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(5)
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Represents
170,000 shares of common stock issuable upon exercise of warrants issued
to designees of the underwriters in our initial public offering, which
warrants have an exercise price of $8.70 per
share.
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(6)
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A
registration fee of $6,565.41 was previously paid on June 2, 2010 in
connection with the initial filing of this registration
statement.
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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 of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The
information contained in this prospectus is not complete and may be changed.
These securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
PROSPECTUS
SUBJECT TO COMPLETION, DATED
JUNE 15,
2010
CLEVELAND
BIOLABS, INC.
$90,000,000
Common
Stock
Warrants
Units
632,654
Shares of Common Stock
Offered
by the Selling Stockholders
We may,
from time to time, offer and sell shares of our common stock, par value $0.005
per share, or warrants to purchase common stock, either separately or in units,
to or though one or more underwriters, dealers and agents, or directly to
purchasers, on a continuous or delayed basis, at prices and on terms to be
determined at the time of the offering, up to a total aggregate dollar amount of
$90,000,000. See “Plan of Distribution” beginning on page 8 in this prospectus.
We may also describe the plan of distribution for any particular offering of
these securities in any applicable prospectus supplement. If any agents,
underwriters or dealers are involved in the sale of any securities in respect of
which this prospectus is being delivered, we will disclose their names and the
nature of our arrangements with them in a prospectus supplement. The net
proceeds we expect to receive from any such sale will also be included in a
prospectus supplement.
In
addition, the selling stockholders identified in this prospectus may offer and
sell up to 632,654 shares of our common stock from time to time under this
prospectus and any prospectus supplement, which number represents (i) 462,654
shares of common stock issuable upon the exercise of Series C Warrants
(calculated based on the current exercise price of $6.35 per share), which were
issued in our private placement that closed on March 16, 2007, and (ii) 170,000
shares of common stock issuable upon the exercise of warrants issued to
designees of the underwriters in our initial public offering, which warrants
have an exercise price of $8.70 per share (the “$8.70 Warrants”). All of these
shares of common stock may be sold by the selling stockholders named in this
prospectus, or their respective transferees, pledgees, donees or
successors-in-interest. The selling stockholders will receive all proceeds from
the sale of the shares of our common stock being offered by the selling
stockholders in this prospectus. We will only receive the exercise price of the
Series C Warrants or the $8.70 Warrants upon the exercise in cash of the Series
C Warrants or the $8.70 warrants by the selling stockholders. We are registering
the offer and sale of the shares of common stock to satisfy registration rights
that we have granted. The shares of common stock to which this prospectus
relates may be offered and sold from time to time directly by the selling
stockholders or alternatively through ordinary brokerage transactions directly
to market makers of our shares or through any other means described in “Plan of
Distribution” beginning on page 8 in this prospectus. The shares of common stock
may be sold in one or more transactions, at fixed prices, at prevailing market
prices at the time of sale or at negotiated prices.
Our
common stock is listed on the Nasdaq Capital Market under the symbol
“CBLI.” The last reported sales price of our common stock on the Nasdaq Capital
Market on June 14, 2010 was $3.17 per share.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning
on page 2 in this prospectus and other information included and incorporated by
reference in this prospectus for a discussion of the factors you should
carefully consider before deciding to buy shares of our common stock or
warrants.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The date
of this prospectus is ____________, 2010.
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Page No.
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PROSPECTUS SUMMARY
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1
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RISK
FACTORS
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2
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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3
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USE
OF PROCEEDS
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3
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SELLING
STOCKHOLDERS
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3
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PLAN
OF DISTRIBUTION
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8
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DESCRIPTION
OF OUR COMMON STOCK
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9
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DESCRIPTION
OF OUR WARRANTS
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11
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DESCRIPTION
OF OUR UNITS
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12
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LEGAL
MATTERS
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12
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EXPERTS
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12
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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13
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WHERE
YOU CAN FIND MORE INFORMATION
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14
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PROSPECTUS
SUMMARY
This
summary does not contain all of the information you should consider before
buying shares of our common stock or warrants. We urge you to read carefully
this entire prospectus, the documents incorporated by reference in this
prospectus and all applicable prospectus supplements before making an investment
decision. In this prospectus, unless the context otherwise requires, the terms
“CBLI”, “company”, “we”, “us”, and “our” refer to Cleveland BioLabs, Inc., a
Delaware corporation, and, unless the context otherwise requires, “common stock”
refers to the common stock, par value $0.005 per share, of Cleveland BioLabs,
Inc.
About
this Prospectus
This
prospectus is part of a registration statement that we filed with the U.S.
Securities and Exchange Commission (the “SEC”) using a “shelf” registration
process. Under this shelf process, we may sell shares of our common stock or
warrants to purchase common stock, either separately or in units, in one or more
offerings up to a total dollar amount of $90,000,000, and the selling
stockholders may from time to time sell up to 632,654 shares of common stock
issuable upon exercise of outstanding warrants in one or more offerings. This
prospectus provides you with a general description of the securities we or the
selling stockholders may offer. Each time we sell shares of our common stock or
warrants, we will provide a prospectus supplement that will contain specific
information about the securities being offered and the terms of that offering.
The prospectus supplement may also add to, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with the additional information described under
the heading “Where You Can Find More Information” carefully before making an
investment decision.
Our
Company
We are a
biotechnology, or biotech, company focused on developing biodefense, tissue
protection and cancer treatment drugs based on the concept of modulation of cell
death for therapeutic benefit. Our goal is to identify and develop new types of
drugs for protection of normal tissues from exposure to radiation and other
stresses, such as toxic chemicals and for cancer treatment. Our initial target,
and most promising opportunity, is to develop a drug to protect humans from the
effects of exposure to radiation, whether as a result of military or terrorist
acts or as a result of a nuclear accident. Recent acts of terrorism and the
proliferation of nuclear weapons programs in rogue states have created a more
immediate demand for further research and development, or R&D, in this area.
Other potential applications of our drug candidates include reducing the side
effects of cancer treatment, destroying tumor cells and generating adult stem
cells.
Our
development efforts are based on discoveries made in connection with the
investigation of the cell-level process known as apoptosis. Apoptosis is a
highly specific and tightly regulated form of cell death that can occur in
response to external events such as exposure to radiation or toxic chemicals or
to internal stresses. Apoptosis is a major determinant of tissue damage caused
by a variety of medical conditions including cerebral stroke, heart attack or
acute renal failure. Conversely, however, apoptosis also is an important
protective mechanism that allows the body to shed itself of defective cells,
which otherwise can cause cancerous growth.
Research
has demonstrated that apoptosis is sometimes suppressed naturally. For example,
most cancer cells develop resistance to apoptotic death caused by drugs or
natural defenses of the human body. Our research is geared towards identifying
the means by which apoptosis can be affected and manipulated depending on the
need.
If the
need is to protect healthy tissues against an external event such as exposure to
nuclear radiation, we attempt to suppress apoptosis in those healthy tissues,
thereby imitating the apoptotic-resistant tendencies displayed by cancer cells.
A drug with this effect would also be useful in ameliorating the often severe
side effects of anticancer drugs and radiation that cause collateral damage to
healthy tissues during cancer treatment. Because the severe side effects of
anticancer drugs and radiation often limit their dosage in cancer patients, an
apoptosis suppressant drug may enable a more aggressive treatment regimen using
anticancer drugs and radiation and thereby increase their
effectiveness.
1
On the
other hand, if the need is to kill cancerous cells, we focus our research
efforts on restoring apoptotic mechanisms that are suppressed in tumors so that
those cancerous cells will once again become vulnerable to apoptotic death. In
this regard, we believe that our drug candidates could have significant
potential for improving and becoming vital to the treatment of cancer
patients.
Our
Products and Technology
Through
our R&D, and our strategic partnerships, we have established a technological
foundation for the development of new pharmaceuticals and their rapid
preclinical evaluation. We have acquired rights to develop and commercialize the
following prospective drugs:
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·
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Protectans are modified proteins
of microbes and tumors that protect cells from apoptosis, and which
therefore have a broad spectrum of potential applications. These potential
applications include both non-medical applications such as protection from
exposure to radiation, whether as a result of military or terrorist action
or as a result of a nuclear accident, as well as medical applications such
as reducing cancer treatment
toxicities.
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·
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Curaxins are small molecules
designed to kill tumor cells by simultaneously targeting two regulators of
apoptosis. Initial test results indicate that curaxins can be effective
against a number of malignancies, including hormone-refractory prostate
cancer, renal cell carcinoma, or RCC (a highly fatal form of kidney
cancer), and soft-tissue
sarcoma.
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In the
area of radiation protection, we have achieved high levels of protection in
animal models. With respect to cancer treatment, the biology of cancer is such
that there is no single drug that can be successfully used to treat 100% or even
50% of all cancer patients. This means that there likely will be a need for
additional anticancer drugs for each type of cancer.
These
drug candidates demonstrate the value of our scientific foundation. Based on the
expedited approval process currently available for non-medical applications such
as protection from exposure to radiation, our most advanced drug candidate,
Protectan CBLB502, may be approved for such applications within 18-24 months.
Another drug candidate, Curaxin CBLC102, demonstrated activity and safety in a
Phase IIa clinical trial concluded in late 2008.
RISK
FACTORS
An
investment in our securities is highly speculative, involves a high degree of
risk, and should be made only by investors who can afford a complete loss. You
should carefully consider and evaluate all of the information included and
incorporated by reference in this prospectus and any applicable prospectus
supplement, including the risk factors incorporated by reference from our most
recent Annual Report on Form 10-K for the fiscal year ended December 31, 2009,
filed with the SEC on March 22, 2010, as updated by our Quarterly Reports on
Form 10-Q and our other filings with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), filed after such Annual Report. Any of the risks we have described could
materially adversely affect our business, financial condition or operating
results and could result in a partial or complete loss of your investment.
Further, the risks and uncertainties we have described are not the only ones we
face. Additional risks and uncertainties not currently known to us, or that we
currently believe are not material, could also materially adversely affect our
business, financial condition or operating results.
2
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus
contain forward-looking statements. These forward-looking statements include
information about possible or assumed future results of our business, financial
condition, liquidity, results of operations, plans and objectives. The words
“may,” “should,” “expect,” “anticipate,” “intend,” “plan,” “continue,”
“believe,” “seek,” “project,” “estimate” and similar expressions used in this
prospectus or incorporated in this prospectus by reference that do not relate to
historical facts are intended to identify forward-looking statements. These
statements are only predictions. You should not place undue reliance on these
forward-looking statements. By way of example, statements regarding the
following subjects are forward-looking by their nature:
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·
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statements as to the anticipated
timing of clinical tests and other business
developments;
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·
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statements as to the development
of new products and the commercialization of
products;
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·
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expectations as to the adequacy
of our cash balances to support our operations for specified periods of
time and as to the nature and level of cash expenditures;
and
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·
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expectations as to the market
opportunities for our drug candidates as well as our ability to take
advantage of those
opportunities.
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The
forward-looking statements are based on management’s beliefs, plans,
expectations and assumptions and on information available to us as of the time
such statements were made. These beliefs, plans, expectations and assumptions
can change as a result of many possible events or factors, not all of which are
known to us. Neither we nor any other person assumes responsibility for the
accuracy or completeness of these statements. If a change occurs, our business,
financial condition, liquidity and results of operations may vary materially
from those expressed in our forward-looking statements.
The
forward-looking statements in this prospectus or incorporated in this prospectus
by reference are not representations or guarantees of future performance and
involve certain risks, uncertainties and assumptions. Such risks, uncertainties
and assumptions include, but are not limited to, any risk factors set forth in
our other filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act or in any supplement to this prospectus. Many of such factors
are beyond our control and are difficult to predict. As a result, our future
actions, financial position and results of operations could differ materially
from those expressed in any forward-looking statements made by us. Readers are
therefore cautioned not to place undue reliance on forward-looking statements.
We also do not intend to publicly update any forward-looking statements that may
be made from time to time by us or on our behalf, whether as a result of new
information, future events or otherwise.
USE
OF PROCEEDS
We
currently intend to use the net proceeds from the sale of the shares of our
common stock and warrants and the exercise of our warrants for working capital
and general corporate purposes. We will not receive any of the proceeds from the
sale of our common stock by the selling stockholders. We will, however, receive
the exercise price of the Series C Warrants and the $8.70 Warrants upon the
exercise in cash of the Series C Warrants and the $8.70 Warrants by the selling
stockholders. Any proceeds received by us from the exercise of the Series C
Warrants or $8.70 Warrants will be used for working capital and general
corporate purposes.
SELLING
STOCKHOLDERS
The
shares of common stock being offered by the selling stockholders are issuable
upon exercise of the Series C Warrants and the $8.70 Warrants. We are
registering the shares of common stock to satisfy registration rights that we
have granted to the selling stockholders, and in order to permit the selling
stockholders to offer the shares for resale from time to time.
3
The
Series C Warrants were issued on March 16, 2007 to Sunrise Securities Corp.
(“SSC”) and its designees as partial compensation for SSC’s services as lead
placement agent in connection with our private placement of Series B Convertible
Preferred Stock and Series B Warrants for an aggregate purchase price of
approximately $30,000,000. The Series C Warrants, which had an
initial exercise price of $11.00 per share and were originally exercisable for
267,074 shares of common stock, now have a current exercise price of $6.35 per
share and are exercisable for 462,654 shares of common stock as a result of
adjustments required by the antidilution provisions of the Series C
Warrants. The Series C Warrants were issued pursuant to the exemption
from the registration requirements of the Securities Act of 1933, as amended
(the “Securities Act”), available pursuant to Rule 506 under the Securities
Act.
The $8.70
Warrants were issued on July 26, 2006 upon the consummation of our initial
public offering for an aggregate purchase price of $100 to designees of SSC and
Roth Capital Partners, the underwriters in our initial public offering. The
number of shares underlying the $8.70 Warrants was calculated to equal an
aggregate of 10% of the number of shares sold in our initial public offering,
excluding the over-allotment option. The $8.70 Warrants do not have
antidilution provisions. The $8.70 Warrants were issued pursuant to the Section
4(2) exemption from the registration requirements of the Securities
Act.
The table
below lists the selling stockholders and other information regarding the
beneficial ownership of the shares of common stock by each of the selling
stockholders. The column titled “Shares of Common Stock Owned Before the
Offering” lists the number of shares of common stock owned by each selling
stockholder as of June 14, 2010, assuming conversion of all preferred stock and
exercise of all warrants and options, including exercise of all Series C
Warrants and $8.70 Warrants held by the selling stockholders on that date,
without regard to any limitations on conversions or exercise. The column titled
“Shares of Common Stock Being Offered” lists the shares of common stock being
offered pursuant to this prospectus by the selling stockholders (i.e., the
shares of common stock underlying their Series C Warrants and $8.70 Warrants).
The column titled “Shares of Common Stock Owned Upon Completion of the Offering”
lists the shares of common stock owned by each selling stockholder, assuming the
shares of common stock underlying the Series C Warrants and the $8.70 Warrants
have been sold, and the column titled “Percentage of Common Stock Outstanding
Upon Completion of the Offering” provides the percentage owned by each selling
stockholder of all shares of common stock outstanding, assuming the
same.
This
prospectus covers the resale of 462,654 shares of common stock issuable upon
exercise of Series C Warrants (at the current exercise price of $6.35 per share)
and 170,000 shares of common stock issuable upon exercise of $8.70 Warrants.
Because the number of shares underlying the Series C Warrants is subject to
adjustment for dilutive issuances, and because the number of shares underlying
the Series C Warrants and $8.70 Warrants is subject to adjustment for stock
splits, stock dividends, reclassifications or similar events, the number of
shares of common stock that will actually be issued upon exercise of the Series
C Warrants and $8.70 Warrants may be more or less than the number of shares
being offered by this prospectus.
Under the
terms of the Series C Warrants and the $8.70 Warrants, a selling stockholder may
not exercise the Series C Warrants or the $8.70 Warrants to the extent such
exercise would cause such selling stockholder, together with its affiliates, to
beneficially own a number of shares of common stock that exceeds 9.99% of our
then outstanding shares of common stock following such exercise. The entries in
the table below do not reflect this limitation. The selling
stockholders may sell all, some or none of their shares in this
offering. See “Plan of Distribution.”
4
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Name and Address of
Selling Stockholder
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Shares of
Common
Stock Owned
Before the
Offering
|
Shares of
Common
Stock Being
Offered
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Shares of
Common
Stock
Owned
Upon
Completion
of the
Offering (1)
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Percentage of
Common
Stock
Outstanding
Upon
Completion of
the Offering
(2)
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||||||||||||
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Sunrise
Securities Corp. (3)
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
647,134
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83,150
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563,984
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2.06
|
%
|
|||||||||||
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Amnon
Mandelbaum (4)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
378,624
|
130,675
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247,949
|
*
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||||||||||||
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David
Goodfriend (5)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
21,513
|
14,520
|
6,993
|
*
|
||||||||||||
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Eric
Abitbol (6)
201
E. 69 St. #6-O
New
York, New York 10021
|
3,773
|
671
|
3,102
|
*
|
||||||||||||
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Jeffrey
Meyerson (7)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
43,282
|
6,248
|
37,034
|
*
|
||||||||||||
|
Lucy
DaRita (8)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
1,733
|
1,733
|
0
|
-
|
||||||||||||
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Marcia
Kucher (9)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
5,450
|
3,950
|
1,500
|
*
|
||||||||||||
|
Nathan
Low (10)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
352,839
|
251,762
|
101,077
|
*
|
||||||||||||
|
Paul
Scharfer (11)
1364
Biscaya Drive
Surfside,
FL 33154
|
35,307
|
23,402
|
11,905
|
*
|
||||||||||||
|
Peter
Weprin (12)
225
5th Ave. Apt. 11K
New
York, New York 10010
|
420
|
278
|
142
|
*
|
||||||||||||
5
|
Robert
Fuchs (13)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
335
|
222
|
113
|
*
|
||||||||||||
|
Sam
Berger (14)
c/o
Sunrise Securities Corp.
641
Lexington Avenue, 25th Floor
New
York, New York 10022
|
38,021
|
25,218
|
12,803
|
*
|
||||||||||||
|
Roth
Capital Partners, LLC (15)
24
Corporate Plaza
Newport
Beach, California 92660
|
82,250
|
82,250
|
0
|
-
|
||||||||||||
|
Richard
B. Stone (16)
44
W. 77th Street
New
York, NY 10024
|
1,794
|
1,794
|
0
|
-
|
||||||||||||
|
Serge
Moyal (17)
532
Spring Gate Blvd.
Thornhill,
Ontario L4J5B7
Canada
|
3,876
|
1,281
|
2,595
|
*
|
||||||||||||
|
David
Filer (18)
165
East 32nd St., #2F
New
York, New York 10016
|
4,400
|
4,400
|
0
|
-
|
||||||||||||
|
National
Securities (19)
1001
4th Ave., 22nd Floor
Seattle,
Washington 98154
|
1,100
|
1,100
|
0
|
-
|
|
*
|
Less than 1% of outstanding
shares.
|
|
(1)
|
We do not know when or in what
amounts the selling stockholders may offer common stock for sale. The
stockholders may not sell any or all of the shares of common stock offered
by this prospectus. Because the stockholders may offer all or some of the
shares pursuant to this offering, and because there are currently no
agreements, arrangements or understandings with respect to the sale of any
of the shares, we cannot estimate the number of the shares that will be
held by the stockholders after completion of the offering. However, for
purposes of this table, we have assumed that, after completion of the
offering, none of the shares covered by this prospectus will be held by
the stockholders.
|
|
(2)
|
Based on 26,803,712 shares of our
common stock outstanding as of June 14,
2010.
|
|
(3)
|
Shares of common stock owned
before the offering includes 45,119 shares of common stock underlying a
Series B Warrant owned by Sunrise Securities Corp., 83,150 shares of
common stock underlying a Series C Warrant owned by Sunrise Securities
Corp., and 518,865 shares of common stock underlying a Series B warrant
owned by Sunrise Equity Partners, LP. Level Counter LLC is the general
partner of Sunrise Equity Partners, LP. The three managing members of
Level Counter LLC are Nathan Low, the sole stockholder of Sunrise
Securities Corp. and its president, Amnon Mandelbaum, one of the Managing
Directors of Investment Banking at Sunrise Securities Corp., and Marilyn
Adler, who is otherwise unaffiliated with Sunrise Securities Corp., and a
unanimous vote of all three persons is required to dispose of the
securities of Sunrise Equity Partners, LP. Accordingly, each of such
persons may be deemed to have shared beneficial ownership of the
securities owned by Sunrise Equity Partners, LP. Such persons disclaim
such beneficial ownership. As a result of the relationship of Mr. Low and
Mr. Mandelbaum to Sunrise Securities Corp., Sunrise Equity Partners,
LP may be deemed to beneficially own the securities owned by Sunrise
Securities Corp. and/or Sunrise Securities Corp. may be deemed to
beneficially own the securities owned by Sunrise Equity Partners, LP.
Sunrise Equity Partners, LP disclaims any beneficial ownership of the
securities owned by Sunrise Securities Corp. and Sunrise Securities Corp.
disclaims any beneficial ownership of the securities owned by Sunrise
Equity Partners, LP.
|
6
|
(4)
|
Shares of common stock owned
before the offering includes 185,019 shares of common stock, 62,930 shares
of common stock underlying a Series B Warrant, 103,996 shares of common
stock underlying a Series C Warrant, and 26,679 shares of common stock
underlying an $8.70 Warrant
|
|
(5)
|
Shares of common stock owned
before the offering includes 6,993 shares of common stock underlying a
Series B Warrant, 11,555 shares of common stock underlying a Series C
Warrant, and 2,965 shares of common stock underlying an $8.70
Warrant.
|
|
(6)
|
Shares of common stock owned
before the offering includes 2,904 shares of common stock, 198 shares of
common stock underlying a Series B Warrant, 389 shares of common stock
underlying a Series C Warrant, and 282 shares of common stock underlying
an $8.70 Warrant.
|
|
(7)
|
Shares of common stock owned
before the offering includes 3,300 shares of common stock, 33,734 shares
of common stock underlying Series B Warrants, 5,599 shares of common stock
underlying a Series C Warrant, and 649 shares of common stock underlying
an $8.70 Warrant.
|
|
(8)
|
Shares of common stock owned
before the offering includes 1,733 shares of common stock underlying a
Series C Warrant.
|
|
(9)
|
Shares of common stock owned
before the offering includes 1,500 shares of common stock, 3,465 shares of
common stock underlying a Series C Warrant, and 485 shares of common stock
underlying an $8.70 Warrant.
|
|
(10)
|
Shares of common stock owned
before the offering includes 101,077 shares of common stock underlying a
Series B Warrant, 203,698 shares of common stock underlying Series C
Warrants, and 48,064 shares of common stock underlying an $8.70
Warrant.
|
|
(11)
|
Shares of common stock owned
before the offering includes 11,905 shares of common stock underlying a
Series B Warrant and 23,402 shares of common stock underlying a Series C
Warrant.
|
|
(12)
|
Shares of common stock owned
before the offering includes 142 shares of common stock underlying a
Series B Warrant, and 278 shares of common stock underlying a Series C
Warrant.
|
|
(13)
|
Shares of common stock owned
before the offering includes 113 shares of common stock underlying a
Series B Warrant and 222 shares of common stock underlying a Series C
Warrant.
|
|
(14)
|
Shares of common stock owned
before the offering includes 12,803 shares of common stock underlying a
Series B Warrant, 25,167 shares of common stock underlying a Series C
Warrant, and 51 shares of common stock underlying an $8.70
Warrant.
|
|
(15)
|
Shares of common stock owned
before the offering includes 82,250 shares of common stock underlying an
$8.70 Warrant. Byron Roth, Chief Executive Officer of Roth Capital
Partners, LLC, owns 81.2% of CR Financial Holdings Inc., which owns 100%
of Roth Capital Partners, LLC. Accordingly, Byron Roth exercises voting
and dispositive control over these shares. Byron Roth disclaims beneficial
ownership of the securities held by Roth Capital Partners, LLC. Gordon
Roth, Chief Financial Officer of Roth Capital Partners, LLC, owns 5.5% of
CR Financial Holdings Inc.
|
|
(16)
|
Shares of common stock owned
before the offering includes 1,794 shares of common stock underlying an
$8.70 Warrant.
|
7
|
(17)
|
Shares of common stock owned
before the offering includes 2,595 shares of common stock underlying a
Series B Warrant, and 1,281 shares of common stock underlying an $8.70
warrant.
|
|
(18)
|
Shares of common stock owned
before the offering includes 4,400 shares of common stock underlying an
$8.70 Warrant.
|
|
(19)
|
Shares of common stock owned
before the offering includes 1,100 shares of common stock underlying an
$8.70 Warrant. Leo Satriawan is the Chief Financial Officer of National
Securities and exercises voting and dispositive control over these shares.
Mr. Satriawan disclaims beneficial ownership of the securities held by
National Securities.
|
PLAN
OF DISTRIBUTION
We or the
selling stockholders may sell all or a portion of the securities offered through
this prospectus through one or more underwriters, broker-dealers or agents. If
the securities are sold through underwriters or broker-dealers, we or the
selling stockholders will be responsible for underwriting discounts or
commissions or agent's commissions. The securities may be sold in one
or more transactions at fixed prices, at prevailing market prices at the time of
the sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may
involve crosses or block transactions,
|
·
|
on any national securities
exchange or quotation service on which the securities may be listed or
quoted at the time of sale;
|
|
·
|
in the over-the-counter
market;
|
|
·
|
in transactions otherwise than on
these exchanges or systems or in the over-the-counter
market;
|
|
·
|
through the writing of options,
whether such options are listed on an options exchange or
otherwise;
|
|
·
|
ordinary brokerage transactions
and transactions in which the broker-dealer solicits
purchasers;
|
|
·
|
block trades in which the
broker-dealer will attempt to sell the securities as agent but may
position and resell a portion of the block as principal to facilitate the
transaction;
|
|
·
|
purchases by a broker-dealer as
principal and resale by the broker-dealer for its
account;
|
|
·
|
an exchange distribution in
accordance with the rules of the applicable
exchange;
|
|
·
|
privately negotiated
transactions;
|
|
·
|
short
sales;
|
|
·
|
sales pursuant to Rule
144;
|
|
·
|
broker-dealers may agree with the
selling stockholders to sell a specified number of such shares at a
stipulated price per share;
|
|
·
|
a combination of any such methods
of sale; and
|
|
·
|
any other method permitted
pursuant to applicable law.
|
8
If the
selling stockholders effect such transactions by selling shares of common stock
to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the selling stockholders or commissions from
purchasers of the shares of common stock for whom they may act as agent or to
whom they may sell as principal (which discounts, concessions or commissions as
to particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection with
sales of the shares of common stock or otherwise, the selling stockholders may
enter into hedging transactions with broker-dealers, which may in turn engage in
short sales of the shares of common stock in the course of hedging in positions
they assume. The selling stockholders may also sell shares of common
stock short and deliver shares of common stock covered by this prospectus to
close out short positions created after the effective date of the registration
statement of which this prospectus is a part and to return borrowed shares in
connection with such short sales. The selling stockholders may also
loan or pledge shares of common stock to broker-dealers that in turn may sell
such shares.
The
selling stockholders may pledge or grant a security interest in some or all of
the shares of common stock owned by them and, if they default in the performance
of their secured obligations, the pledgees or secured parties may offer and sell
the shares of common stock from time to time pursuant to this prospectus or any
supplement to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act amending, if necessary, the list of selling stockholders
to include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also may
transfer and donate the shares of common stock in other circumstances in which
case the transferees, donees, pledgees or other successors in interest will be
the selling beneficial owners for purposes of this prospectus.
The
selling stockholders and any broker-dealer participating in the distribution of
the shares of common stock may be deemed to be "underwriters" within the meaning
of the Securities Act, and any commission paid, or any discounts or concessions
allowed to, any such broker-dealer may be deemed to be underwriting commissions
or discounts under the Securities Act. At the time a particular
offering of the shares of common stock is made, a prospectus supplement, if
required, will be distributed which will set forth the aggregate amount of
shares of common stock being offered and the terms of the offering, including
the name or names of any broker-dealers or agents, any discounts, commissions
and other terms constituting compensation from the selling stockholders and any
discounts, commissions or concessions allowed or reallowed or paid to
broker-dealers.
Under the
securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers. In
addition, in some states the shares of common stock may not be sold unless such
shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied
with.
There can
be no assurance that any selling stockholder will sell any or all of the shares
of common stock registered pursuant to the shelf registration statement, of
which this prospectus forms a part.
The
selling stockholders and any other person participating in such distribution
will be subject to applicable provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, including, without
limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the shares of common stock by the selling
stockholders and any other participating person. Regulation M may
also restrict the ability of any person engaged in the distribution of the
shares of common stock to engage in market-making activities with respect to the
shares of common stock. All of the foregoing may affect the
marketability of the shares of common stock and the ability of any person or
entity to engage in market-making activities with respect to the shares of
common stock.
Once sold
under the registration statement, of which this prospectus forms a part, the
shares of common stock will be freely tradable in the hands of persons other
than our affiliates.
DESCRIPTION
OF OUR COMMON STOCK
The
following summary describes the material terms of our common stock. It
summarizes material provisions of our certificate of incorporation and by-laws
and is subject to, and qualified in its entirety by, our certificate of
incorporation and by-laws that are included as exhibits to certain of the
documents incorporated by reference herein. If we offer shares of our common
stock for sale under this prospectus, we will provide a prospectus supplement
that describes the terms of the offering, including the number of shares offered
and the offering price.
9
General
Our
certificate of incorporation authorizes us to issue 80,000,000 shares of common
stock, par value $.005 per share. As of June 14, 2010, 26,803,712
shares of common stock were issued and outstanding with 2,912,597 shares of
common stock reserved for issuance upon exercise of issued and outstanding
options and 9,910,763 shares of common stock reserved for issuance upon
exercise of issued and outstanding warrants.
Voting
Holders
of our common stock are entitled to one vote per share. All actions submitted to
a vote of stockholders will be voted on by holders of our common
stock.
Dividends
Holders
of common stock are entitled to receive cash dividends equally on a per share
basis, as if and when the dividends are declared by the board of directors from
legally available funds.
Liquidation
After
satisfaction of the liquidation preferences of all securities ranking senior to
the common stock, the holders of common stock will share with each other on an
equal basis in any net assets available for distribution to holders of shares of
capital stock upon liquidation.
Other
Terms
The
rights, preferences and privileges of holders of common stock will be subject
to, and may be adversely affected by, the rights of the holders of shares of any
series of preferred stock which we may designate and issue in the
future.
Common
Stockholders
As of
June 14, 2010, we had 71 holders of record of our common
stock.
Listing
of Stock
Our
common stock is listed on the NASDAQ Capital Market under the trading
symbol “CBLI”.
Transfer
Agent and Registrar
The
transfer agent and registrar for the common stock is Continental Stock Transfer
& Trust Company.
Anti-Takeover
Effects of Our Certificate of Incorporation and our By-laws
The
authorized but unissued shares of our common stock and our preferred stock will
be available for future issuance with limited requirements for the vote or
approval of our stockholders. These additional shares may be utilized
for a variety of corporate purposes, including future offerings to raise
additional capital or corporate acquisitions. The existence of
authorized but unissued shares of our common stock and our preferred stock could
render more difficult or discourage an attempt to obtain control over us by
means of a proxy contest, tender offer, merger or otherwise.
10
Our
certificate of incorporation requires that any action required or permitted to
be taken by our stockholders must be effected at a duly called annual or special
meeting of stockholders and may not be effected by a consent in
writing. Our certificate of incorporation also requires that special
meetings of stockholders be called only by our chairman of our board of
directors or the board of directors as a whole. In addition, our
by-laws provide that candidates for director may be nominated and other business
brought before an annual meeting only by the board of directors or by a
stockholder who gives written notice to us no later than 90 days prior to nor
earlier than 120 days prior to the first anniversary of the last annual meeting
of stockholders. These provisions may have the effect of deterring
hostile takeovers or delaying changes in control of our management, which could
depress the market price of our common stock.
Directors’
Limitation of Liability
Our
certificate of incorporation and by-laws include provisions to indemnify the
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law, including circumstances under which indemnification is
otherwise discretionary. We believe that these provisions are necessary to
attract and retain qualified persons as directors and officers. We
have also obtained directors and officers liability insurance in amounts
commensurate with those of similarly situated companies.
Insofar
as indemnification for liability arising under the Securities Act may be
permitted to our directors, officers and controlling persons as stated in the
foregoing provisions or otherwise, we have been advised that, in the opinion of
the SEC, this indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
DESCRIPTION
OF OUR WARRANTS
General
The
following outlines some of the general terms and provisions of the warrants we
may offer. Further terms of the warrants and the applicable warrant agreement
will be stated in the applicable prospectus supplement. The following
description and any description of the warrants in a prospectus supplement may
not be complete and is subject to and qualified in its entirety by reference to
the terms and provisions of the relevant warrant agreement.
Warrants
may be issued by us independently or together with any other securities and may
be attached or separate from such securities. We may issue each series of
warrants under a separate warrant agreement to be entered into between us and a
warrant agent. If we designate a warrant agent, such warrant agent will act
solely as our agent in connection with the warrants of such series and will not
assume any obligation or relationship of agency for or with holders or
beneficial owners of warrants.
The
applicable prospectus supplement will describe the terms of any warrants that we
may offer, including the following:
• the
title of the warrants;
• the
total number of warrants;
• the
price or prices at which the warrants will be issued;
• if
applicable, the currency or currencies investors may use to pay for the
warrants;
• the
number of shares of common stock and other rights to be delivered to
warrantholders upon exercise of the warrants;
• if
applicable, the price at which and the currency or currencies, including
composite currencies, in which investors may purchase the underlying securities
or other rights purchasable upon exercise of the warrants;
• if
applicable, any anti-dilution provisions;
• the
date on which the right to exercise the warrants will commence and the date on
which the right will expire;
11
• whether
the warrants will be issued in registered form or bearer form;
•
information with respect to book-entry procedures, if any;
• if
applicable, the minimum or maximum amount of warrants which may be exercised at
any one time;
• if
applicable, the date on and after which the warrants and the related underlying
securities will be separately transferable;
• if
applicable, a discussion of material U.S. federal income tax
considerations;
• the
identity of the warrant agent, if any;
• the
procedures and conditions relating to the exercise of the warrants;
and
• any
other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants.
DESCRIPTION
OF OUR UNITS
We may
issue units comprised of the securities described in this prospectus. Each unit
will be issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any time before a
specified date. The applicable prospectus supplement may describe:
|
|
•
|
the designation and terms of the
units and of the securities comprising the units, including whether and
under what circumstances those securities may be held or transferred
separately;
|
|
|
•
|
any provisions for the issuance,
payment, settlement, transfer or exchange of the units or of the
securities comprising the
units;
|
|
|
•
|
the terms of the unit agreement
governing the units;
|
|
|
•
|
United States federal income tax
considerations relevant to the
units; and
|
|
|
•
|
whether the units will be issued
in fully registered global
form.
|
This
summary of certain general terms of units and any summary description of units
in the applicable prospectus supplement do not purport to be complete and are
qualified in their entirety by reference to all provisions of the applicable
unit agreement and, if applicable, collateral arrangements and depositary
arrangements relating to such units. The forms of the unit agreements and other
documents relating to a particular issue of units will be filed with the SEC
each time we issue units, and you should read those documents for provisions
that may be important to you.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon for us
by Katten Muchin Rosenman LLP, Chicago, Illinois.
EXPERTS
The
financial statements as of and for the years ended December 31, 2009 and 2008,
incorporated in this prospectus by reference to our Annual Report on Form 10-K
for the year ended December 31, 2009, have been so incorporated in reliance on
the report of Meaden & Moore, Ltd., an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and
accounting.
12
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
In this
prospectus, we “incorporate by reference” the information we file with the SEC,
which means that we can disclose important business, financial and other
information to you in this prospectus by referring you to the documents
containing this information. The information incorporated by reference is
considered to be part of this prospectus, and information that we file with the
SEC after the date of this prospectus will automatically update and supersede
this information. However, any information contained herein shall modify or
supersede information contained in documents we filed with the SEC before the
date of this prospectus.
We
incorporate by reference in this prospectus the documents listed below and any
other documents we file with the SEC in the future (other than, in all cases,
the portions of those documents deemed to be “furnished” to, and not “filed”
with, the SEC) under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until
the offering of all the securities that may be offered by this prospectus is
completed:
|
|
·
|
our Annual Report on Form 10-K
for the year ended December 31, 2009, filed with the SEC on March 22, 2010
(including the portions of our definitive Proxy Statement on Schedule 14A
incorporated therein by
reference);
|
|
|
·
|
our Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 2010, filed with the SEC on May 14,
2010;
|
|
|
·
|
our Current Report on Form 8-K,
filed with the SEC on January 5,
2010;
|
|
|
·
|
our Current Report on Form 8-K,
filed with the SEC on February 2,
2010;
|
|
|
·
|
our Current Report on Form 8-K,
filed with the SEC on February 16,
2010;
|
|
|
·
|
our Current Report on Form 8-K,
filed with the SEC on February 26,
2010;
|
|
|
·
|
our Current Report on Form 8-K/A,
filed with the SEC on February 26,
2010;
|
|
|
·
|
our Current Report on Form 8-K,
filed with the SEC on June 9, 2010;
and
|
|
|
·
|
the description of our common
stock in Form 8-A, filed with the SEC on July 20,
2006.
|
13
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. Our SEC filings are available over the Internet at the SEC’s web
site at http://www.sec.gov. You may also read and copy any document we file with
the SEC at its public reference facility:
Public
Reference Room
100 F
Street, N.E.
Room
1580
Washington,
DC 20549
You may
also obtain copies of the documents at prescribed rates by writing to the Public
Reference Room of the SEC at the above address. Please call 1-800-SEC-0330 for
further information on the operations of the Public Reference Room and copying
charges.
We will
furnish without charge to each person to whom a copy of this prospectus is
delivered, upon written or oral request, a copy of the information that has been
incorporated in this prospectus by reference but not delivered with the
prospectus (except exhibits, unless they are specifically incorporated in this
prospectus by reference). You should direct any requests for copies
to:
Cleveland
BioLabs, Inc.
73 High
Street
Buffalo,
New York 14203
Phone:
(716) 849-6810
Attention:
John A. Marhofer, Jr., Chief Financial Officer
14
CLEVELAND
BIOLABS, INC.
$90,000,000
Common
Stock
Warrants
Units
632,654
Shares of Common Stock
Offered
by the Selling Stockholders
PROSPECTUS
____________,
2010
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
following table sets forth the expenses payable by the company in connection
with the filing of the registration statement. All amounts are estimates except
the SEC registration fee.
|
SEC
registration fee
|
$
|
6,565.41
|
||
|
Printing
and engraving expenses
|
$
|
3,000.00
|
||
|
Legal
fees and expenses
|
$
|
25,000.00
|
||
|
Accounting
fees and expenses
|
$
|
5,000.00
|
||
|
Miscellaneous
expense
|
$
|
5,434.59
|
||
|
Total
|
$
|
45,000.00
|
ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section
102 of the General Corporation Law of the State of Delaware (the “DGCL”) allows
a corporation to eliminate the personal liability of directors to a corporation
or its stockholders for monetary damages for a breach of a fiduciary duty as a
director, except where the director breached his duty of loyalty, failed to act
in good faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase or
redemption in violation of Delaware corporate law or obtained an improper
personal benefit. As permitted by Section 102(b)(7) of the DGCL, CBLI’s
Certificate of Incorporation contains a provision eliminating the personal
liability of a director to CBLI or its stockholders to the fullest extent
permitted by the DGCL.
Section
145 of the DGCL empowers a Delaware corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The indemnity may include
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. A Delaware corporation may indemnify directors, officers, employees
and other agents of such corporation in an action by or in the right of a
corporation under the same conditions against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection with the
defense and settlement of such action or suit, except that no indemnification is
permitted without judicial approval if the person to be indemnified has been
adjudged to be liable to the corporation. Where a present or former director or
officer of the corporation is successful on the merits or otherwise in the
defense of any action, suit or proceeding referred to above or in defense of any
claim, issue or matter therein, the corporation must indemnify such person
against the expenses (including attorneys’ fees) which he or she actually and
reasonably incurred in connection therewith. CBLI’s Certificate of Incorporation
contains provisions that provide for indemnification of officers and directors
and each person who is or was serving at the request of CBLI as a director,
officer, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise to the full extent permitted by the
DGCL.
Section
174 of the DGCL provides, among other things, that a director who willfully or
negligently approves of an unlawful payment of dividends or an unlawful stock
purchase or redemption, may be held liable for such actions. A director who was
either absent when the unlawful actions were approved or dissented at the time,
may avoid liability by causing his or her dissent to such actions to be entered
into the books containing the minutes of the meetings of the board of directors
at the time such action occurred or immediately after such absent director
receives notice of the unlawful acts.
II-1
Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or controlling persons, 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.
CBLI
maintains, at its expense, a policy of insurance which insures its directors and
officers, subject to exclusions and deductions as are usual in these kinds of
insurance policies, against specified liabilities which may be incurred in those
capacities.
ITEM
16. EXHIBITS.
A list of
exhibits filed herewith or incorporated by reference is contained in the Exhibit
Index, which is incorporated herein by reference.
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:
(A)
to include any prospectus
required by Section 10(a)(3) of the Securities Act;
(B)
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 end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(C)
to include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however, that paragraphs (A), (B) and (C) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
II-2
(B)
Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by Section 10(a) of
the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
(5) for
purposes of determining liability of the registrant under the Securities Act to
any purchaser in the initial distribution of the securities:
in a
primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to the purchaser: (i) any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to be
filed pursuant to Rule 424; (ii) any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant; (iii) the portion of any other free
writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and (iv) any other communication that is an offer in
the offering made by the undersigned registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act, each filing
of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 Securities and Exchange 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.
II-3
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Buffalo, State of New York, on the 15th day of June,
2010.
|
CLEVELAND
BIOLABS, INC.
|
|||
|
By:
|
/s/ Michael Fonstein
|
||
|
Michael
Fonstein
Chief
Executive Officer and President
|
|||
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
Title
|
Date
|
||
|
/s/
Michael Fonstein
|
Chief
Executive Officer, President and Director
|
June
15, 2010
|
||
|
Michael
Fonstein
|
(Principal
Executive Officer)
|
|||
|
/s/
John A. Marhofer, Jr.*
|
Chief
Financial Officer
|
June
15, 2010
|
||
|
John
A. Marhofer, Jr.
|
(Principal
Financial and Accounting Officer)
|
|||
|
/s/
James J. Antal*
|
Director
|
June
15, 2010
|
||
|
James
J. Antal
|
||||
|
/s/
Paul E. DiCorleto*
|
Director
|
June
15, 2010
|
||
|
Paul
E. DiCorleto
|
||||
|
/s/
Andrei Gudkov*
|
Chief
Scientific Officer and Director
|
June
15, 2010
|
||
|
Andrei
Gudkov
|
||||
|
/s/
Bernard L. Kasten*
|
Director,
Chairman of the Board
|
June
15, 2010
|
||
|
Bernard
L. Kasten
|
||||
|
/s/
Yakov Kogan*
|
Chief
Operating Officer, Secretary and Director
|
June
15, 2010
|
||
|
Yakov
Kogan
|
||||
|
/s/
H. Daniel Perez*
|
Director
|
June
15, 2010
|
||
|
H.
Daniel Perez
|
*
By: /s/ Michael
Fonstein
Michael
Fonstein
Attorney-in-fact
II-4
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
3.1
|
Restated
Certificate of Incorporation filed with the Secretary of State of Delaware
on March 18, 2010*******
|
|
|
3.2
|
Second
Amended and Restated By-Laws****
|
|
|
4.1
|
Form
of Specimen Common Stock Certificate*
|
|
|
4.2
|
Form
of Warrants issued to underwriters ($8.70 Warrants)**
|
|
|
4.3
|
Form
of Series B Warrant***
|
|
|
4.4
|
Form
of Series C Warrant***
|
|
|
4.5
|
Form
of Common Stock Purchase Warrant (Series D
transaction)*****
|
|
|
4.6
|
Form
of Common Stock Purchase Warrant******
|
|
|
4.7
|
Form
of Warrant Agreement********
|
|
|
4.8
|
Form
of Warrant (included in Exhibit 4.7)
|
|
|
4.9
|
Form
of Unit Agreement ********
|
|
|
5.1
|
Opinion
of Katten Muchin Rosenman LLP
|
|
|
23.1
|
Consent
of Meaden & Moore, Ltd.
|
|
|
23.2
|
Consent
of Katten Muchin Rosenman LLP (included in Exhibit 5.1)
|
|
|
24.1
|
Power
of Attorney (included on signature
page)
|
|
*
|
Incorporated
by reference to Amendment No. 1 to Registration Statement on Form SB-2 as
filed on April 25, 2006 (File No. 333-131918).
|
|
**
|
Incorporated
by reference to Amendment No. 3 to Registration Statement on Form SB-2 as
filed on July 10, 2006 (File No. 333-131918).
|
|
***
|
Incorporated
by reference to Form 8-K as filed on March 19, 2007.
|
|
****
|
Incorporated
by reference to Form 8-K as filed on December 5, 2007.
|
|
*****
|
Incorporated
by reference to Form 8-K as filed on March 30, 2009.
|
|
******
|
Incorporated
by reference to Form 8-K/A as filed on February 26,
2010.
|
|
*******
|
Incorporated
by reference to Form 10-K as filed on March 22, 2010.
|
|
********
|
To
be filed by amendment or pursuant to a Form
8-K.
|