Attached files
file | filename |
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8-K - Statera Biopharma, Inc. | v206740_8k.htm |
EX-10.1 - Statera Biopharma, Inc. | v206740_ex10-1.htm |
EX-10.2 - Statera Biopharma, Inc. | v206740_ex10-2.htm |
EX-10.3 - Statera Biopharma, Inc. | v206740_ex10-3.htm |
EX-99.1 - Statera Biopharma, Inc. | v206740_ex99-1.htm |
EXHIBIT
5.1
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Chrysler
Center
666
Third Avenue
New
York, NY 10017
212-935-3000
212-983-3115
fax
www.mintz.com
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December
29, 2010
Cleveland
BioLabs, Inc.
73 High
Street
Buffalo,
New York 14203
Ladies
and Gentlemen:
This
opinion is furnished to you in connection with a Prospectus Supplement, dated
December 23, 2010 (the “Prospectus Supplement”), to a
Registration Statement on Form S-3 (File No. 333-167258) (the “Registration Statement”) filed
by Cleveland BioLabs, Inc. (the “Company”) with the Securities
and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”), relating to
the sale of an aggregate of 1,400,000 shares of its common stock, par value
$0.005 per share, in a “registered direct” offering, pursuant to a placement
agent agreement, dated December 23, 2010 (the “Placement Agent Agreement”),
by and between the Company and HFP Capital Markets, LLC and the subscription
agreement, dated December 23, 2010 (the “Subscription Agreement”),
between the Company and the purchaser of the Shares. The Placement
Agent Agreement and the form of Subscription Agreement have been filed as
exhibits 10.1 and 10.2, respectively, to a Current Report on Form 8-K filed with
the Commission on the date hereof.
In
connection with this opinion, we have examined and relied upon the Company’s
Restated Certificate of Incorporation and the Company’s Second Amended and
Restated Bylaws, each as currently in effect; the minutes of all pertinent
meetings of directors of the Company relating to the Prospectus Supplement and
the transactions contemplated thereby; such other records of the corporate
proceedings of the Company and certificates of the Company’s officers as we
deemed relevant for the purposes of rendering the opinions set forth in this
letter; the Registration Statement and the exhibits filed thereto with the
Commission; the Prospectus Supplement; the Placement Agent Agreement; and the
Subscription Agreement.
In our
examination, we have assumed: (i) the authenticity of original documents
and the genuineness of all signatures; (ii) the conformity to the originals
of all documents submitted to us as copies; (iii) the truth, accuracy and
completeness of the information, representations and warranties contained in the
records, documents, instruments and certificates we have reviewed; (iv) the
legal capacity of natural persons; and (v) the due execution and delivery
of all documents, where due execution and delivery are a prerequisite to the
effectiveness thereof.
Based
upon the foregoing, and subject to the limitations set forth below, we are of
the opinion that: the Shares, when issued by the Company and delivered by the
Company against payment therefor as contemplated by the Placement Agent
Agreement and the Subscription Agreement, will be duly and validly issued, fully
paid and non-assessable.
Mintz
Levin Cohn Ferris Glovsky and Popeo P.C.
New
York | Washington | Boston | Stamford | Los Angeles | Palo Alto | San
Diego | London
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
December
29, 2010
Our
opinion that any document is legal, valid and binding is qualified as
to:
(a) limitations
imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance, moratorium or other laws relating to or affecting the rights of
creditors generally;
(b) rights
to indemnification and contribution, which may be limited by public policy,
applicable law or equitable principles; and
(c) general
principles of equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, and the possible unavailability of
specific performance or injunctive relief and limitation of rights of
acceleration, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
Our
opinions are limited to the General Corporation Laws of the State of Delaware
(including the applicable provisions of the Delaware Constitution and the
reported judicial decisions interpreting such laws) and the United States
federal laws, and we express no opinion with respect to the laws of any other
jurisdiction. No opinion is expressed herein with respect to the qualification
of the Shares under the securities or blue sky laws of any state or any foreign
jurisdiction. To the extent that any applicable document is stated to be
governed by the laws of another jurisdiction, we have assumed, for purposes of
this opinion letter, that the laws of such jurisdiction are identical to the
state laws of the State of Delaware.
Please
note that we are opining only as to the matters expressly set forth herein, and
no opinion should be inferred as to any other matters. This opinion letter is
based upon currently existing statutes, rules, regulations and judicial
decisions, and we disclaim any obligation to advise you of any change in any of
these sources of law or subsequent legal or factual developments which might
affect any matters or opinions set forth herein.
We hereby
consent to the filing of this opinion in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act with the
Commission as an exhibit to the Current Report on Form 8-K to be filed by the
Company in connection with the issue and sale of the Shares and to the use of
our name in the above-referenced Prospectus Supplement under the caption “Legal
Matters.” In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Very
truly yours,
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/s/
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.
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