S-8

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

CLEVELAND BIOLABS, INC.

(Exact name of registrant as specified in its charter)

Delaware	20-0077155
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

73 High Street

Buffalo, New York 14203

(Address, including zip code, of Registrant’s principal executive offices)

Cleveland BioLabs, Inc. Equity Incentive Plan

(Full Title of the Plan)

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)

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.

Large accelerated filer ¨	Accelerated filer ¨
Non-accelerated filer ¨	Smaller reporting company x

CALCULATION OF REGISTRATION FEE

Title of Securities To Be Registered	Amount To Be Registered	Proposed Maximum Offering Price Per Share	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Common Stock, par value $0.005 per share	2,000,000 (1)	$6.10 (2)	$12,200,000.00	$479.46

(1)	Represents additional shares of Common Stock reserved for issuance under the Cleveland BioLabs, Inc. 2006 Equity Incentive Plan, pursuant to the amendment and restatement of the plan effective April 29, 2008.
(2)	Computed in accordance with Rule 457(h) of the Securities Act of 1933, as amended. The offering price of $6.10 represents the average of the high and low prices, as reported on the NASDAQ Global Market, for Cleveland BioLabs, Inc.’s Common Stock on April 23, 2008.

INTRODUCTION

This Registration Statement on Form S-8 (the “Registration Statement”) registers additional securities of the same class as other securities for which a registration statement on Form S-8 relating to the Cleveland BioLabs, Inc. 2006 Equity Incentive Plan is effective. In accordance with General Instruction E to Form S-8, Cleveland BioLabs, Inc. (the “Registrant”) incorporates by reference the contents of the Company's registration statement on Form S-8, File No. 333-140687, filed with the Securities and Exchange Commission (the “Commission”) on February 14, 2007.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8. Exhibits.

Exhibit
No.	Description
5.1	Opinion of Katten Muchin Rosenman LLP
23.1	Consent of Katten Muchin Rosenman LLP (included in Exhibit 5.1)
23.2	Consent of Meaden & Moore, Ltd.
24.1	Power of Attorney (included in the signature pages hereto)

Item 9. 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:

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.

(2) That, for the purpose of determining any liability under the Securities Act of 1933 (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.

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The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (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.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Buffalo, State of New York, on April 30, 2008.

CLEVELAND BIOLABS, INC.
By:	/s/    MICHAEL FONSTEIN
	Name: Michael Fonstein
	Title: Chief Executive Officer & President

POWER OF ATTORNEY

We, the undersigned directors and officers of Cleveland BioLabs, Inc., a Delaware corporation, do hereby constitute and appoint Michael Fonstein and John A. Marhofer, Jr., and each of them individually, our true and lawful attorney-in-fact and agent, to do any and all acts and things in our names and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our name in the capacities indicated below, which said attorney and agent may deem necessary or advisable to enable said Registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereof; and we do hereby ratify and confirm all that said attorneys and agents shall do or cause to be done by virtue thereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on April 30, 2008.

Signature	Title		Date
/s/    Michael Fonstein Michael Fonstein	Chief Executive Officer, President, and Director (Principal Executive Officer)	April 30, 2008
/s/    John A. Marhofer, Jr. John A. Marhofer, Jr.	Chief Financial Officer (Principal Financial and Accounting Officer)	April 30, 2008
/s/    James Antal James Antal	Director	April 30, 2008
/s/    Paul DiCorleto Paul DiCorleto	Director	April 30, 2008
/s/    Andrei Gudkov Andrei Gudkov	Chief Scientific Officer, and Director	April 30, 2008
/s/    Bernard L. Kasten Bernard L. Kasten	Director	April 30, 2008
/s/    Yakov Kogan Yakov Kogan	Chief Operating Officer, and Director	April 30, 2008
/s/    H. Daniel Perez H. Daniel Perez	Director	April 30, 2008

EXHIBIT INDEX

Exhibit
No.	Description
5.1	Opinion of Katten Muchin Rosenman LLP
23.1	Consent of Katten Muchin Rosenman LLP (included in Exhibit 5.1)
23.2	Consent of Meaden & Moore, Ltd.
24.1	Power of Attorney (included in the signature pages hereto)

EX-5.1

 

Exhibit 5.1

April 30, 2008

Cleveland BioLabs, Inc.

73 High Street

Buffalo, New York 14203

Re: Registration Statement on Form S-8

Dear Ladies and Gentlemen:

We have acted as counsel for Cleveland BioLabs, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-8 (the “Registration Statement”) for the registration under the Securities Act of 1933, as amended (the “Act”), of up to an additional 2,000,000 shares (the “Shares”) of the Company’s Common Stock, $0.005 par value per share (the “Common Stock”), that may be issued pursuant to the Cleveland BioLabs Inc. Equity Incentive Plan, as amended and restated (the “Plan”). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.

We have examined and relied upon originals, or copies certified or otherwise identified to our satisfaction, of such documents and corporate and public records as we deemed necessary as a basis for the opinion hereinafter expressed, including the Company’s Certificate of Incorporation, the Company’s Amended and Restated By-Laws, the Plan, the form of award agreements under the Plan, a specimen stock certificate for the Common Stock, and resolutions of the Company’s Board of Directors (the “Board”) and the Compensation Committee of the Board (the “Compensation Committee”) relating to the Plan. 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 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. We have also assumed that, at the time of issuance of the Shares, (i) any and all agreements related to the issuance of the Shares will have been executed and delivered by the Company and the recipient, and (ii) to the extent applicable, cash consideration payable to the Company in connection with issuance and sale of the Shares will be not less than par value of the Common Stock.

Based upon and subject to the foregoing, we are of the opinion that, when (i) certificates representing the Shares 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 or the Direct Registration System, (ii) the Board or Compensation Committee has approved the issuance of specific awards of Shares under the Plan, and (iii) such Shares are issued and delivered by the Company (and, to the extent applicable, paid for) in accordance with the terms of the Plan, and, to the extent applicable, the award agreements under the Plan, the Shares issuable under the Plan and covered by the Registration Statement will be validly issued, fully paid and non-assessable.

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Our opinion expressed above is 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 herein concerning any other laws. We assume no obligation to advise you of changes that may hereafter be brought to our attention. In connection therewith, we hereby consent to the use of this opinion for filing as Exhibit 5.1 to 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 related rules and regulations thereunder.

	Very truly yours,
By:	/s/ Katten Muchin Rosenman LLP
	KATTEN MUCHIN ROSENMAN LLP

 

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EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of

Cleveland BioLabs, Inc.:

We consent to the use of our report dated March 13, 2008 with respect to the balance sheets of Cleveland BioLabs, Inc. (the “Company”) as of December 31, 2007 and 2006, and the related statements of operations, stockholders’ equity and comprehensive loss, and cash flows for each of the years in the three-year period ended December 31, 2007, incorporated herein by reference in this Registration Statement of the Company on Form S-8 (relating to the registration of an additional 2,000,000 shares of the Company’s Common Stock in connection with the amendment and restatement of the Cleveland BioLabs, Inc. 2006 Equity Incentive Plan).

/s/ Meaden & Moore, Ltd.

Cleveland, Ohio

April 30, 2008