EX-5.1 14 v047011_ex5-1.htm


 
525 W. Monroe Street
Chicago, IL 60661-3693
312.902.5200 tel
312.902.1061 fax....

July 10, 2006

Cleveland BioLabs, Inc.
11000 Cedar Avenue
Suite 290
Cleveland, Ohio 44106


Re:
Cleveland BioLabs, Inc.
Registration on Form SB-2
 
Ladies and Gentlemen:

We have acted as counsel to Cleveland BioLabs, Inc., a Delaware corporation (the “Company”), in connection with the initial public offering by the Company of an aggregate of 1,700,000 shares (the “Primary Shares”) of the Company’s Common Stock, $0.005 par value per share (the “Common Stock”), and the sale by the Selling Stockholders (as defined below) of an aggregate of 600,000 shares of Common Stock (including 300,000 shares subject to an over-allotment option, the “Secondary Shares”). The Primary Shares and the Secondary Shares are collectively referred to herein as the “Shares”.

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-B under the Securities Act of 1933, as amended (the “Act”).

In connection with this opinion, we have relied as to matters of fact, without investigation, upon certificates of public officials and others and upon affidavits, certificates and written statements of directors, officers and employees of, and the accountants for, the Company. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such instruments, documents and records as we have deemed relevant and necessary to examine for the purpose of this opinion, including (i) the Registration Statement on Form SB-2 (File No. 333-131918) as filed with the Securities and Exchange Commission (the “Commission”) on February 17, 2006 under the Act, and Amendments No. 1 through 3 thereto, filed on April 25, 2006, May 31, 2006 and July, 2006, respectively (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”); (ii) the form of the Underwriting Agreement (the “Underwriting Agreement”) proposed to be entered into by and between the Company, as issuer, the selling stockholders named therein (the “Selling Stockholders”), and Sunrise Securities Corporation and Roth Capital Partners, LLC, as representatives of the Underwriters named therein (the “Underwriters”), filed as an exhibit to the Registration Statement; (iii) a specimen certificate representing the Common Stock; (iv) the Certificate of Incorporation of the Company, as presently in effect; (v) the By-Laws of the Company, as presently in effect; (vi) certain resolutions of the Board of Directors of the Company and drafts of certain resolutions (the “Draft Resolutions”) of the Pricing Committee of the Board of Directors (the “Pricing Committee”) relating to the issuance and sale of the Shares and related matters; (vii) stock records and certificates relating to the Secondary Shares; (viii) the Stock Purchase Agreement between the Company and the purchasers party thereto, dated as of March 15, 2005, (ix) the Convertible Promissory Note of the Company to Children’s Cancer Institute Australia for Medical Research, dated October 18, 2004, and (x) the Convertible Promissory Note of the Company to Haber Norris Pty ATF Haber Norris Superannuation Fund, dated November 23, 2004 (collectively with the documents listed in (viii) and (x) above, the “Purchase Documents”).
 

 
 
In connection with this opinion, we have assumed the legal capacity of all natural persons, the accuracy and completeness of all documents and records that we have reviewed, the genuineness of all signatures, the due authority of the parties signing such documents, the authenticity of the documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed or reproduced copies. In making our examination of documents executed or to be executed by parties other than the Company, we have assumed that such parties had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. In connection with the opinion set forth in paragraph 2 below, we have assumed that the Company received the amount of the consideration contemplated by the Purchase Documents relating to the initial purchase from the Company of the Secondary Shares.

Based upon and subject to the foregoing, it is our opinion that:

1. When (i) the Registration Statement becomes effective; (ii) the price at which the Shares are to be sold to the Underwriters pursuant to the Underwriting Agreement and other matters relating to the issuance and sale of the Shares have been approved by the Pricing Committee in accordance with the Draft Resolutions; (iii) the Underwriting Agreement has been duly executed and delivered; and (iv) certificates representing the Primary Shares in the form of the specimen certificates examined by us have been manually signed by an authorized officer of the transfer agent and registrar for the Common Stock or registered and issued electronically through the Depository Trust Company, registered by such transfer agent and registrar for the Common Stock, and delivered to, and paid for by, the Underwriters as contemplated by the Underwriting Agreement, will have been duly authorized, the Primary Shares will be validly issued, fully paid and nonassessable; and

2. The Secondary Shares have been validly issued and are fully paid and nonassessable.

 
 
 
Our opinions expressed above are limited to the General Corporation Law of the State of Delaware, the applicable provisions of the Delaware constitution and the reported judicial decisions interpreting such laws, and we do not express any opinion concerning any other law. This opinion is given as of the date hereof and we assume no obligation to advise you of changes that may hereafter be brought to our attention.

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also consent to the reference to our firm under the caption “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
 
       
      Very truly yours,
   
       
     
KATTEN MUCHIN ROSENMAN LLP