As filed with the Securities and
Exchange Commission on August 27, 2009
Registration
Number 333-160648
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 jurisdiction
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(I.R.S.
Employer
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of
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)
Copies
to:
Ram
Padmanabhan, 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, as determined
by the selling stockholders.
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
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated
filer o
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Accelerated
filer o
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Non-accelerated filer o
(Do not check if a smaller reporting
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Smaller reporting
company x
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company)
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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
AUGUST 27,
2009
4,070,238
Shares
CLEVELAND
BIOLABS, INC.
Common
Stock, $0.005 Par Value
This
prospectus relates to up to 4,070,238 shares of our common
stock that may be offered for sale from time to time by the selling stockholders
named in this prospectus. This number represents shares of common stock issuable
upon the conversion or exercise of Series D Convertible Preferred Stock, par
value $0.005 per share (the “Series D Preferred”) and Common Stock Purchase
Warrants (the “Series D Warrants”), which were issued in our private placement
that closed on each of February 13, 2009, March 20, 2009, and March 27, 2009. Of
these 4,070,238 shares of
common stock:
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3,855,951 shares
are issuable upon conversion of the Series D Preferred (which number of
shares is calculated based on the current conversion price of the Series D
Preferred of $1.33); and
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214,287 shares
are issuable upon exercise of Series D
Warrants.
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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 in this prospectus. 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 14. 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 quoted on the Nasdaq Capital Market under the symbol “CBLI.” The
last reported sales price of our common stock on the Nasdaq Capital Market on
August 24, 2009 was $4.35 per share.
Investing
in our common stock involves a high degree of risk. See “Risk Factors” on page 6
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.
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 ____________, 2009.
TABLE
OF CONTENTS
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Page No.
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PROSPECTUS SUMMARY
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3 | |||
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RISK FACTORS
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6 | |||
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SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
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6 | |||
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USE OF PROCEEDS
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6 | |||
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SELLING STOCKHOLDERS
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PLAN OF DISTRIBUTION
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14 | |||
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LEGAL MATTERS
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EXPERTS
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INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
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WHERE YOU CAN FIND MORE
INFORMATION
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You
should only rely on the information contained in this prospectus. We have not
authorized anyone to provide you with information different from that contained
in this prospectus. If anyone provides you with different or inconsistent
information, you should not rely on it. The information contained in, or that
can be accessed through, our website is not a part of this prospectus. The
selling stockholders will only sell shares of our common stock and seek offers
to buy shares of our common stock in jurisdictions where offers and sales are
permitted. The information contained in this prospectus is accurate only as of
the date of the prospectus, regardless of the time of delivery of this
prospectus or any sale of the common stock.
2
PROSPECTUS
SUMMARY
This
summary does not contain all of the information you should consider before
buying shares of our common stock. We urge you to read carefully this entire
prospectus, the documents incorporated by reference in this prospectus and all
applicable prospectus supplements relating to our common stock 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.
Our
Company
Our
company is engaged in drug discovery. 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.
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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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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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 24 months.
Another drug candidate, Curaxin CBLC102, demonstrated activity and safety in a
Phase IIa clinical trial concluded in late 2008.
3
Our
Industry
CBLI is a
biotechnology, or biotech, company focused on developing cancer treatment,
tissue protection and biodefense drugs. Historically, biotech was defined by
newly discovered “genetic engineering” technology, which was first developed in
universities and new startup biotech companies in the mid-1970s. Later, other
technologies (based on a constant flow of discoveries in the field of biology)
started playing a leading role in biotech development. Medicine, and
specifically drug development, is a lucrative field for use of these
technologies. Large pharmaceutical, or Pharma, companies joined the biotech
arena through licensing, sponsored research, and corporate agreement
relationships. Today biotech is a $296 billion industry (based on total market
capitalization) and includes large companies such as Amgen, Inc. and Genentech,
Inc.
The
traditional biotech business model is a derivative of the long drug development
process. Typical biotech companies go through the following stages:
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During
the first stage, biotech companies fund their development through equity
or debt financings while conducting R&D, which culminates in phased
drug trials.
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During
the second stage, when their lead drug candidates enter the drug trials,
biotech companies may start licensing their drug candidates to Pharma
companies in order to (1) generate revenue, (2) gain access to additional
expertise, and (3) establish relations with Pharma companies in the market
who can eventually take a leading role in distributing successful
drugs.
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At
the most advanced stage, biotech companies generate revenues by selling
drugs or other biotech products to consumers or through alliances of
equals.
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The
Project BioShield Act, which was signed into law in July 2004, allocated $5.6
billion over ten years to fund the research, development and procurement of
drugs, biological products or devices to treat or prevent injury from exposure
to biological, chemical, radiological or nuclear agents as a result of a
military, terrorist or nuclear attack. The legislation provides for a more
expedited approval process by allowing for approval based on Phase I safety
studies in humans and efficacy studies in two animal species (rodents and
non-human primates) instead of Phase II and III human clinical trials. With the
Project BioShield Act, biotech companies now have greater access to grants and
contracts with the U.S. government. Several biotech companies have secured
grants and contracts from the U.S. government to develop drugs and vaccines as
medical countermeasures against potential terrorist attacks. For biotech
companies focused on these types of drugs and vaccines, this type of funding,
together with the modified Food and Drug Administration, or FDA, approval
process, are major departures from the traditional biotech business model. The
principal provisions of this law are to:
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Facilitate
R&D efforts of biomedical countermeasures by the National Institutes
of Health;
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Provide
for the procurement of needed countermeasures through a special reserve
fund of $5.6 billion over ten years;
and
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Authorize,
under limited circumstances, the emergency use of medical products that
have not been approved by the
FDA.
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Series
D Private Placement
In a
series of closings on each of February 13, 2009, March 20, 2009, and March 27,
2009, we consummated a transaction with various accredited investors in which we
agreed to sell to the investors, in a private placement, Series D Preferred
originally convertible into an aggregate of 3,877,386 shares of common stock,
and Series D Warrants originally exercisable for an aggregate of 3,877,386
shares of our common stock. The transaction was consummated pursuant to
Securities Purchase Agreements entered into on February 13, 2009, March 20,
2009, and March 27, 2009. The current conversion price of the Series D Preferred
is $1.33 per share and the current exercise price of the Series D Warrants is
$1.60 per share. As discussed in more detail below, the conversion price of the
Series D Preferred is subject to certain automatic adjustments that will
periodically increase the number of shares of common stock issuable upon
conversion of the Series D Preferred. The aggregate purchase price paid by the
investors for the Series D Preferred and the Series D Warrants was approximately
$5,428,307. After related fees and expenses, we received net proceeds of
approximately $4,460,000. We intend to use the proceeds for working capital
purposes.
Garden
State Securities, Inc., or GSS, served as exclusive placement agent for the
transaction. In consideration for its services, GSS and its designees (including
designees of GSS’s sub-agents) received Common Stock Purchase Warrants (“Agent
Warrants”) to purchase 387,736 shares of common stock. GSS and its sub-agents
also received cash compensation equal to 10% of the aggregate offering amount in
the transaction.
In the
aggregate, the Series D Preferred, the Series D Warrants, and the Agent Warrants
issued in the transaction were convertible into and exercisable for, as of the
date of the final closing on March 27, 2009, 8,142,508 shares of common stock
(subject to certain automatic adjustments with respect to the Series D
Preferred, and certain other adjustments with respect to the Series D Preferred,
the Series D Warrants, and the Agent Warrants for events such as stock splits,
stock dividends, reclassifications or similar events). Nasdaq Marketplace Rule
5635(d) (formerly Nasdaq Marketplace Rule 4350(i)(1)(D)(ii)) requires that, for
the sale, issuance or potential issuance by us of common stock (or securities
convertible into or exercisable for common stock) equal to 20% or more of the
common stock outstanding before the issuance, for less than the greater of book
or market value of the common stock, we must obtain stockholder approval for the
issuance. Accordingly, the conversion of the Series D Preferred and the exercise
of the Series D Warrants and Agent Warrants into common stock by their
respective holders was submitted for approval and was approved by our
stockholders at our 2009 annual stockholders meeting on June 25, 2009. Our
stockholders also approved an amendment to our certificate of incorporation to
increase the number of authorized shares of common stock from 40,000,000 to
80,000,000, which was filed with the Secretary of State of Delaware on June 25,
2009.
4
The
conversion price of the Series D Preferred is subject to automatic adjustments
pursuant to Section 6(b) of the Certificate of Designation of Preferences,
Rights and Limitations of Series D Convertible Preferred Stock (the “Series D
Certificate of Designation”), which provides that (i) on the six month
anniversary of the original issue date (i.e., August 13, 2009, or the “Initial
Adjustment Date”), the conversion price of $1.40 reduced to equal 95% of the
then conversion price (i.e., $1.40 * 0.95 = $1.33), and (ii) on each three month
anniversary of the Initial Adjustment Date until maturity of the Series D
Preferred, the then conversion price shall be reduced by the product of (a) the
initial conversion price of the Series D Preferred ($1.85) and (b) 2.5%, thus
equating to a reduction of $0.05 (i.e., $1.85 * .025) on each three month
anniversary of the Initial Adjustment Date. The
references to conversion prices of $1.40 and $1.85 in the foregoing calculations
related to the fact that the conversion price of the Series D Preferred was
reduced from $1.85 to $1.40 between the time of the first closing on February
13, 2009 and the time of the second closing on March 20, 2009. The
reduction of the conversion price of the Series D Preferred from $1.40 to $1.33
on August 13, 2009 caused the number of shares of common stock underlying the
Series D Preferred to increase from 3,877,386 to 4,081,515 as of that date.
Based on this reduction in conversion price and conversions of Series D
Preferred that have occurred to date, there are 8,196,261 shares of common stock
underlying the Series D Preferred, Series D Warrants, and Agent Warrants as of
the date hereof.
Notwithstanding
the conversion rights and exercise rights of the holders of Series D Preferred,
Series D Warrants, and Agent Warrants, we may not issue any shares of common
stock in conversion of the Series D Preferred or in exercise of any Series D
Warrant or Agent Warrant if the conversion or exercise would cause the
applicable holder to beneficially own a number of shares of common stock that
exceeds 9.99% of the number of shares of common stock outstanding after giving
effect to the conversion or exercise.
In
connection with obtaining stockholder approval of the foregoing issuances, on
February 13, 2009, we entered into a Voting Agreement with our directors,
executive officers and the Cleveland Clinic Foundation, a large stockholder, and
subsequently, on March 20, 2009, we entered into a Voting Agreement with certain
additional stockholders. Each of the counterparties to the Voting
Agreements agreed to vote in favor of authorizing the issuance of the shares of
common stock underlying all of the Series D Preferred, the Series D Warrants,
and the Agent Warrants. In the aggregate, these counterparties to the Voting
Agreements held approximately 33% of all votes entitled to be cast as of the
record date.
In
connection with the Securities Purchase Agreements, we also entered into
Registration Rights Agreements with the investors, dated as of February 13,
2009, March 20, 2009, and March 27, 2009 (the “Series D Registration Rights
Agreements”). Under the Series D Registration Rights Agreements, we granted the
investors certain registration rights with respect to common stock issuable upon
conversion of the Series D Preferred and exercise of the Series D Warrants. In
addition, pursuant to the Selling Agent Agreement (the “Agent Agreement”) we
entered into with GSS, recipients of the Agent Warrants could request to have
the shares underlying their Agent Warrants included in this registration
statement (but such shares were subject to cutbacks from registration prior to
the shares underlying the Series D Preferred and Series D Warrants if a
reduction in the registration was required by the Securities and Exchange
Commission). This registration statement is being filed to satisfy the
registration rights granted under the Series D Registration Rights Agreements
and the Agent Agreement, and with respect thereto, covers 4,070,238 shares
issuable upon conversion or exercise of Series D Preferred and Series D
Warrants.
Our
Information
We were
incorporated in Delaware in June 2003. On July 21, 2006, our stock began
trading on the Nasdaq Capital Market under the symbol “CBLI”. Our principal
executive offices are located at 73 High Street, Buffalo, New York 14203 and our
telephone number is (716) 849-6810. Our website is located at
http://www.cbiolabs.com. Information contained on our website is not
incorporated by reference in this prospectus and you should not consider
information on our website as part of this prospectus.
5
RISK
FACTORS
An
investment in our common stock 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, 2008,
filed with the Securities and Exchange Commission, or SEC, on March 30, 2009, 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.
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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statements
as to the anticipated timing of clinical tests and other business
developments;
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statements
as to the development of new products and the commercialization of
products;
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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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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
All
proceeds from the sale of the shares offered by this prospectus will be received
by the selling stockholders, although we will receive proceeds from the exercise
in cash of the Series D Warrants and the Agent Warrants for common stock. We
intend to use the proceeds from the exercise of the Series D Warrants and the
Agent Warrants for working capital purposes.
6
SELLING
STOCKHOLDERS
The
shares of common stock being offered by the selling stockholders are issuable
upon conversion or exercise of the Series D Preferred and Series D Warrants. For
additional information regarding the issuance of the Series D Preferred, and the
issuance of the Series D Warrants and the Agent Warrants in connection
therewith, see the section titled “Series D Private Placement” under the
“Prospectus Summary” section of this prospectus. 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. Except for their ownership of the
Series D Preferred or Series D Warrants, or as otherwise set forth below, the
selling stockholders have not had any material relationship with us within the
past three years.
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 August 27, 2009, assuming conversion of all preferred stock
and exercise of all warrants and options, including conversion of all Series D
Preferred and exercise of all Series D 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 D Preferred or Series
D Warrants, as applicable). Unless the footnotes to the selling stockholders
table specifically provide otherwise, “Shares of Common Stock Being Offered”
only includes shares of common stock underlying Series D Preferred (and not
shares of common stock underlying Series D 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 D Preferred or Series D Warrants that are listed
under “Shares of Common Stock Being Offered” 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 3,855,951 shares of common stock
issuable upon conversion of the Series D Preferred at the current conversion
price of $1.33 per share, and 214,287 shares of common stock issuable upon
exercise of Series D Warrants.
The table
below has been prepared based upon information regarding the selling
stockholders as of August 27, 2009. Because the conversion price of the Series D
Preferred and the exercise prices of the Series D Warrants are subject to
adjustment for events such as dilutive issuances, stock splits, stock dividends,
reclassifications or similar events, the number of shares of common stock that
will actually be issued upon conversion of the Series D Preferred or exercise of
the Series D Warrants may be more or less than the number of shares being
offered by this prospectus.
Under the
terms of the Series D Certificate of Designation and the Series D Warrants, a
selling stockholder may not convert the Series D Preferred, or exercise the
Series D Warrants to the extent such conversion or 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 conversion or exercise, excluding for purposes of
such determination shares of common stock issuable upon conversion of the Series
D Preferred that have not been converted, shares of common stock issuable upon
exercise of the Series D Warrants or the Agent Warrants that have not been
exercised, and shares of common stock issuable upon conversion or exercise of
any other securities subject to an analogous limitation on conversion or
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."
|
Name and Address of
Selling Stockholder
|
Shares of
Common Stock
Owned Before the
Offering
|
Shares of
Common Stock
Being Offered
|
Shares of
Common Stock
Owned Upon
Completion of
the Offering
|
Percentage of
Common Stock
Outstanding Upon
Completion of the
Offering (1)
|
||||||||||||
|
Jan
Arnett (2)
7
Longwood Road
Sands
Point, New York 11050
|
109,964 | 56,391 | 53,573 | * | ||||||||||||
|
Berdon
Ventures LLC (3)
37
Westerleigh Road
Purchase,
New York 10577
|
472,177 | 225,564 | 246,613 | 1.48 | % | |||||||||||
|
Guy
Michael Dart (4)
834
Devon Avenue
Los
Angeles, California 90024
|
109,964 | 56,391 | 53,573 | * | ||||||||||||
|
Michael
N. Emmerman (5)
151
East 63rd Street
New
York, New York 10065
|
363,911 | 135,339 | 228,572 | 1.38 | % | |||||||||||
7
|
Jonathan
Kamen (6)
#1
Sunnyside Road
Greenville,
Delaware 19807
|
146,617 | 75,188 | 71,429 | * | ||||||||||||
|
Lindsay
E. Dart Separate
Property
Trust (7)
1080
Wisconsin Avenue NW
Washington,
D.C. 20007
|
73,309 | 37,594 | 35,715 | * | ||||||||||||
|
Lindsay
Dart Lincoln TTEE,
Lindsay
E. Dart Separate
Property
Trust (8)
1080
Wisconsin Avenue NW
Washington,
D.C. 20007
|
36,655 | 18,797 | 17,858 | * | ||||||||||||
|
Richard
and Arline McGowan,
JTWROS
(9)
25
Dawn Drive
Westport,
Connecticut 06880
|
624,450 | 278,196 | 346,254 | 2.07 | % | |||||||||||
|
Martin
H. Meyerson (10)
19500
Turnberry Way
Aventura,
Florida 33180
|
164,118 | 75,188 | 88,930 | * | ||||||||||||
|
J.S.A.
Investments, LLC (11)
19500
Turnberry Way
Aventura,
Florida 33180
|
245,910 | 37,594 | 208,316 | 1.25 | % | |||||||||||
|
William
F. Quirk Jr. (12)
10
Water Witch Crossing
Savannah,
Georgia 31411
|
439,851 | 225,564 | 214,287 | 1.29 | % | |||||||||||
|
Lorin
Wels (13)
133
Lakeview Drive
Old
Tappan, New Jersey 07675
|
149,221 | 76,542 | 72,679 | * | ||||||||||||
|
Iroquois
Master Fund Ltd. (14)
641
Lexington Avenue, 26th Floor
New
York, New York 10022
|
263,851 | 71,429 | 192,422 | 1.16 | % | |||||||||||
|
Greenwich
Growth Fund Limited (15)
P.O.
Box HM 2257
Hamilton
HM JX, Bermuda
|
146,617 | 75,188 | 71,429 | * | ||||||||||||
|
Cranshire
Capital, L.P. (16)
31
Dundee Road, Suite 703
Northbrook,
Illinois 60062
|
285,234 | 142,858 | 142,376 | * | ||||||||||||
|
JPMCC
FBO Stuart Schapiro
JPMCC
Master Defined Cont
Money
Purchase Pension Plan (17)
41
Winged Foot Drive
Larchmont,
New York 10538
|
80,309 | 37,594 | 42,715 | * | ||||||||||||
|
Marschall-Cook-Critchley
Family
Ventures, F.L.P. (18)
P.O.
Box 1039
Grantham,
New Hampshire 03753
|
36,655 | 18,797 | 17,858 | * |
8
|
George
L. Black Jr. Trust (19)
4631
Lane Road
Zephyrhills,
Florida 33541
|
29,324 | 15,038 | 14,286 | * | ||||||||||||
|
Brad
DeHaan (20)
1605
Vandyk Road
Lynden,
Washington 98264
|
13,601 | 6,993 | 6,608 | * | ||||||||||||
|
Frank
C. Heyman (21)
8458
Jardin Way
Sandy,
Utah 84093
|
37,974 | 19,474 | 18,500 | * | ||||||||||||
|
Michael
Silver and Lori Silver
JT
TEN (22)
216
Maison Court
Elmhurst,
Illinois 60126
|
29,324 | 15,038 | 14,286 | * | ||||||||||||
|
Steven
E. Slawson (23)
19
Sawmill Road
Lebanon,
New Jersey 08833
|
73,309 | 37,594 | 35,715 | * | ||||||||||||
|
Old
Kings Capital LP (24)
9
Old King's Highway South
Dorien,
Connecticut 06820
|
58,081 | 29,775 | 28,306 | * | ||||||||||||
|
Vertical
Partners LP (25)
9
Old King's Highway South
Dorien,
Connecticut 06820
|
157,305 | 80,677 | 76,628 | * | ||||||||||||
|
Zanett
Opportunity Fund Ltd. (26)
635
Madison Avenue, 15th Floor
New
York, New York 10022
|
175,047 | 75,188 | 99,859 | * | ||||||||||||
|
Robert
Brous (27)
4
Kings Terrace Road
Kings
Point, New York 11024
|
70,948 | 30,076 | 40,872 | * | ||||||||||||
|
CRCK
IV, LLC (28)
101
Park Avenue, 23rd Floor
New
York, New York 10178
|
1,466,166 | 751,880 | 714,286 | 4.16 | % | |||||||||||
|
Entrust
NE FBO Walter
Schenker
A/C 1374 (29)
13
Rockland Terrace, Suite 300
Verona,
New Jersey 07044
|
73,309 | 37,594 | 35,715 | * | ||||||||||||
|
Susan
Schenker (30)
105
Windsor Drive
Pine
Brook, New Jersey 07058
|
73,309 | 37,594 | 35,715 | * | ||||||||||||
|
Walter
Schenker (31)
105
Windsor Drive
Pine
Brook, New Jersey 07058
|
73,309 | 37,594 | 35,715 | * | ||||||||||||
|
TCMP3
Partners (32)
7
Century Drive, Suite 201
Parsippany,
New Jersey 07054
|
476,345 | 112,782 | 363,563 | 2.16 | % |
9
|
James
W. Harpel (33)
1102
North Ocean Boulevard
Palm
Beach, Florida 33480
|
645,114 | 330,828 | 314,286 | 1.87 | % | |||||||||||
|
James
W. Harpel, Jr. Trust 40 (34)
1102
North Ocean Boulevard
Palm
Beach, Florida 33480
|
58,648 | 30,076 | 28,572 | * | ||||||||||||
|
Anthony
C. Harpel Trust 40 (35)
1102
North Ocean Boulevard
Palm
Beach, Florida 33480
|
102,632 | 52,632 | 50,000 | * | ||||||||||||
|
Jed
F. Fisher (36)
3925
Savannah Pass
Mishawaka,
Indiana 46545
|
18,328 | 9,399 | 8,929 | * | ||||||||||||
|
Ronald
Lukas (37)
135
Pueblo Court
Frankfort,
Illinois 60423
|
121,693 | 62,407 | 59,286 | * | ||||||||||||
|
Frank
Decarolis IRA FCC as
Custodian
(38)
5
Hill Drive
Oyster
Bay, New York 11771
|
29,324 | 15,038 | 14,286 | * | ||||||||||||
|
Robert
H. Cohen (39)
2
Hickory Lane
Scarsdale,
New York 10583
|
955,836 | 375,940 | 579,896 | 3.42 | % | |||||||||||
|
John
G. Manos Living Trust
U/A/D
- 7/21/04 (40)
85
Prospect Street
South
Easton, Massachusetts 02375
|
51,316 | 26,316 | 25,000 | * | ||||||||||||
|
Philip
Patt and Maxine Patt
JTWROS
(41)
938
Stoney Run Drive
West
Chester, Pennsylvania 19382
|
176,266 | 75,188 | 101,078 | * | ||||||||||||
|
Thomas
R. Ulie (42)
P.O.
Box 814
Mercer
Island, Washington 98040
|
219,925 | 112,782 | 107,143 | * | ||||||||||||
|
Miriam
Koryn (43)
2406
Theall Road
Rye,
New York 10580
|
73,309 | 37,594 | 35,715 | * | ||||||||||||
|
Michael
B. Pisani (44)
1290
Club House Road
Gladwyne,
Pennsylvania 19035
|
20,527 | 10,527 | 10,000 | * |
*
Less than 1%.
|
(1)
|
Except as otherwise required by
Rule 13d-3 under the Exchange Act, this percentage ownership is based on
16,457,598 shares of common stock outstanding as of August 24,
2009.
|
10
|
(2)
|
Shares
of common stock owned before the offering includes 56,391 shares of common
stock underlying Series D Preferred and 53,573 shares of common stock
underlying Series D Warrants.
|
|
(3)
|
Shares
of common stock owned before the offering includes (i) 32,327 shares of
common stock underlying a warrant to purchase common stock (a “Series B
Warrant”), issued in connection with our sale of Series B Convertible
Preferred Stock (“Series B Preferred”), held by F Berdon Co. LP, and (ii)
225,564 shares of common stock underlying Series D Preferred and 214,286
shares of common stock underlying a Series D Warrant held by Berdon
Ventures LLC. Frederick Berdon exercises voting and dispositive control
over these shares.
|
|
(4)
|
Shares of common stock owned
before the offering includes 56,391 shares of common stock underlying
Series D Preferred and 53,573 shares of common stock underlying Series D
Warrants.
|
|
(5)
|
Shares of common stock owned
before the offering includes 100,000 shares of common stock, 135,339
shares of common stock underlying Series D Preferred, and 128,572 shares
of common stock underlying a Series D
Warrant.
|
|
(6)
|
Shares of common stock owned
before the offering includes 75,188 shares of common stock underlying
Series D Preferred and 71,429 shares of common stock underlying a Series D
Warrant.
|
|
(7)
|
Shares of common stock owned
before the offering includes 37,594 shares of common stock underlying
Series D Preferred and 35,715 shares of common stock underlying a Series D
Warrant. Lindsay Dart Lincoln exercises voting and dispositive control
over these shares.
|
|
(8)
|
Shares of common stock owned
before the offering includes 18,797 shares of common stock underlying
Series D Preferred and 17,858 shares of common stock underlying a Series D
Warrant. Lindsay Dart Lincoln exercises voting and dispositive control
over these shares.
|
|
(9)
|
Shares of common stock owned
before the offering includes 81,968 shares of common stock, 278,196 shares
of common stock underlying Series D Preferred, and 264,286 shares of
common stock underlying a Series D
Warrant.
|
|
(10)
|
Shares of common stock owned
before the offering includes 7,500 shares of common stock, 75,188 shares
of common stock underlying Series D Preferred and 71,430 shares of common
stock underlying Series D Warrants owned by Martin H. Meyerson, and 10,000
shares of common stock owned by Martin H. Meyerson
IRA.
|
|
(11)
|
Shares of common stock owned
before the offering includes 40,000 shares of common stock, 30,238 shares
of common stock underlying Series B Preferred, 92,363 shares of common
stock underlying Series B Warrants, 37,594 shares of common stock
underlying Series D Preferred, and 35,715 shares of common stock
underlying a Series D Warrant owned by J.S.A. Investments, LLC, and 10,000
shares of common stock owned by J.A. Meyerson IRA. J.A. Meyerson exercises
voting and dispositive control over these
shares.
|
|
(12)
|
Shares of common stock owned
before the offering includes 225,564 shares of common stock underlying
Series D Preferred and 214,287 shares of common stock underlying Series D
Warrants.
|
|
(13)
|
Shares of common stock owned
before the offering includes 76,542 shares of common stock underlying
Series D Preferred and 72,679 shares of common stock underlying a Series D
Warrant.
|
|
(14)
|
Shares of common stock owned
before the offering includes 192,422 shares of common stock underlying a
Series B Warrant and 71,429 shares of common stock underlying a Series D
Warrant. Shares of common stock being offered includes the 71,429 shares
of common stock underlying a Series D Warrant. Joshua Silverman has voting
and investment control over the shares held by Iroquois Master Fund Ltd.
Mr. Silverman disclaims beneficial ownership of these
shares.
|
|
(15)
|
Shares of common stock owned
before the offering includes 75,188 shares of common stock underlying
Series D Preferred and 71,429 shares of common stock underlying a Series D
Warrant. Don Dunstan, Deborah Paterson and J.P. Furey exercise voting and
dispositive control over these
shares.
|
|
(16)
|
Shares of common stock owned
before the offering includes 67,188 shares of common stock, 75,188
shares of common stock underlying Series D Preferred and 142,858 shares of
common stock underlying Series D Warrants. Shares of common stock being
offered includes the 142,858 shares of common stock underlying Series D
Warrants. Downsview Capital, Inc. (“Downsview”) is the general partner of
Cranshire Capital, L.P. (“Cranshire”) and consequently has voting control
and investment discretion over securities held by Cranshire. Mitchell P.
Kopin (“Mr. Kopin”), President of Downsview, has voting control over
Downsview. As a result of the foregoing, each of Mr. Kopin and Downsview
may be deemed to have beneficial ownership (as determined under Section
13(d) of the Securities Exchange Act of 1934, as amended) of the shares of
common stock beneficially owned by
Cranshire.
|
|
(17)
|
Shares of common stock owned
before the offering includes 7,000 shares of common stock, 37,594 shares
of common stock underlying Series D Preferred, and 35,715 shares of common
stock underlying a Series D Warrant. Stuart Schapiro exercises voting and
dispositive control over these
shares.
|
11
|
(18)
|
Shares of common stock owned
before the offering includes 18,797 shares of common stock underlying
Series D Preferred and 17,858 shares of common stock underlying a Series D
Warrant. June Louise Critchley exercises voting and dispositive control
over these shares.
|
|
(19)
|
Shares of common stock owned
before the offering includes 15,038 shares of common stock underlying
Series D Preferred and 14,286 shares of common stock underlying a Series D
Warrant. George L. Black Jr. exercises voting and dispositive control over
these shares.
|
|
(20)
|
Shares of common stock owned
before the offering includes 6,993 shares of common stock underlying
Series D Preferred and 6,608 shares of common stock underlying a Series D
Warrant.
|
|
(21)
|
Shares of common stock owned
before the offering includes 19,474 shares of common stock underlying
Series D Preferred and 18,500 shares of common stock underlying a Series D
Warrant.
|
|
(22)
|
Shares
of common stock owned before the offering includes 15,038 shares of common
stock underlying Series D Preferred and 14,286 shares of common stock
underlying a Series D Warrant.
|
|
(23)
|
Shares of common stock owned
before the offering includes 37,594 shares of common stock underlying
Series D Preferred and 35,715 shares of common stock underlying a Series D
Warrant.
|
|
(24)
|
Shares of common stock owned
before the offering includes 29,775 shares of common stock underlying
Series D Preferred and 28,306 shares of common stock underlying a Series D
Warrant. Goodnow Investment Group (“Goodnow”) is the investment manager of
Old Kings Capital LP. Peter J. Gavey, in his role as Chief Compliance
Officer of Goodnow, exercises voting and dispositive control
over these shares.
|
|
(25)
|
Shares of common stock owned
before the offering includes 80,677 shares of common stock underlying
Series D Preferred and 76,628 shares of common stock underlying a Series D
Warrant. Goodnow is the investment manager of Vertical Partners LP. Peter
J. Gavey, in his role as Chief Compliance Officer of Goodnow,
exercises voting and dispositive control
over these shares.
|
|
(26)
|
Shares of common stock owned
before the offering includes 28,430 shares of common stock, 75,188 shares
of common stock underlying Series D Preferred, and 71,429 shares of common
stock underlying a Series D Warrant. Zachary McAdoo, President and
Director of Zanett Opportunity Fund, Ltd., exercises voting and
dispositive control over these
shares.
|
|
(27)
|
Shares of common stock owned
before the offering includes 12,300 shares of common stock, 30,076 shares
of common stock underlying Series D Preferred, and 28,572 shares of common
stock underlying Series D
Warrants.
|
|
(28)
|
Shares of common stock owned
before the offering includes 751,880 shares of common stock underlying
Series D Preferred and 714,286 shares of common stock underlying a Series
D Warrant. Paul P. Tanico, Ellen H. Adams, and Maria Lamari Burden
exercise voting and dispositive control over these
shares.
|
|
(29)
|
Shares of common stock owned
before the offering includes 37,594 shares of common stock underlying
Series D Preferred and 35,715 shares of common stock underlying a Series D
Warrant. Walter Schenker exercises voting and dispositive control over
these shares.
|
|
(30)
|
Shares of common stock owned
before the offering includes 37,594 shares of common stock underlying
Series D Preferred and 35,715 shares of common stock underlying a Series D
Warrant.
|
|
(31)
|
Shares
of common stock owned before the offering includes 37,594 shares of common
stock underlying Series D Preferred and 35,715 shares of common stock
underlying a Series D Warrant.
|
|
(32)
|
Shares of common stock owned
before the offering includes 22,324 shares of common stock, 78,618 shares
of common stock underlying Series B Preferred, 155,478 shares of common
stock underlying Series B Warrants, 112,782 shares of common stock
underlying Series D Preferred and 107,143 shares of common stock
underlying a Series D Warrant. Walter Schenker and Steven Slawson exercise
voting and dispositive control over these
shares.
|
|
(33)
|
Shares of common stock owned
before the offering includes 330,828 shares of common stock underlying
Series D Preferred and 314,286 shares of common stock underlying Series D
Warrants.
|
|
(34)
|
Shares of common stock owned
before the offering includes 30,076 shares of common stock underlying
Series D Preferred and 28,572 shares of common stock underlying a Series D
Warrant. James W. Harpel, trustee, exercises voting and dispositive
control over these shares.
|
|
(35)
|
Shares of common stock owned
before the offering includes 52,632 shares of common stock underlying
Series D Preferred and 50,000 shares of common stock underlying a Series D
Warrant. James W. Harpel, trustee, exercises voting and dispositive
control over these shares.
|
12
|
(36)
|
Shares of common stock owned
before the offering includes 9,399 shares of common stock underlying
Series D Preferred and 8,929 shares of common stock underlying a Series D
Warrant.
|
|
(37)
|
Shares of common stock owned
before the offering includes 62,407 shares of common stock underlying
Series D Preferred and 59,286 shares of common stock underlying a Series D
Warrant.
|
|
(38)
|
Shares of common stock owned
before the offering includes 15,038 shares of common stock underlying
Series D Preferred and 14,286 shares of common stock underlying a Series D
Warrant. Frank Decarolis exercises voting and dispositive control over
these shares.
|
|
(39)
|
Shares of common stock owned
before the offering includes 59,785 shares of common stock, 107,990 shares
of common stock underlying Series B Preferred, 54,978 shares of common
stock underlying a Series B Warrant, 375,940 shares of common stock
underlying Series D Preferred and 357,143 shares of common stock
underlying a Series D
Warrant.
|
|
(40)
|
Shares of common stock owned
before the offering includes 26,316 shares of common stock underlying
Series D Preferred and 25,000 shares of common stock underlying a Series D
Warrant. Each of Dorothy Mason and John Manos have the individual
authority to exercise voting and dispositive control over these
shares.
|
|
(41)
|
Shares of common stock owned
before the offering includes 29,648 shares of common stock, 75,188 shares
of common stock underlying Series D Preferred and 71,430 shares of common
stock underlying Series D
Warrants.
|
|
(42)
|
Shares of common stock owned
before the offering includes 112,782 shares of common stock underlying
Series D Preferred and 107,143 shares of common stock underlying a Series
D Warrant.
|
|
(43)
|
Shares of common stock owned
before the offering includes 37,594 shares of common stock underlying
Series D Preferred and 35,715 shares of common stock underlying a Series D
Warrant.
|
|
(44)
|
Shares of common stock owned
before the offering includes 10,527 shares of common stock underlying
Series D Preferred and 10,000 shares of common stock underlying a Series D
Warrant.
|
13
PLAN
OF DISTRIBUTION
Each
selling stockholder of the common stock and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock covered hereby on the Nasdaq Capital Market or any other stock
exchange, market or trading facility on which the shares are traded or in
private transactions. These sales may be at fixed or negotiated
prices. A selling stockholder may use any one or more of the
following methods when selling shares:
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares 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;
|
|
|
·
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
|
|
|
·
|
in
transaction through broker-dealers that agree with the selling
stockholders to sell a specified number of such shares at a stipulated
price per share;
|
|
|
·
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
|
|
·
|
a
combination of any such methods of sale;
or
|
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the selling stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this Prospectus, in the case of an
agency transaction, not in excess of a customary brokerage commission in
compliance with FINRA NASD Rule 2440; and in the case of a principal
transaction, a markup or markdown in compliance with NASD IM-2440.
In
connection with the sale of the common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of the common stock short after the effective
date of the registration statement of which this prospectus is a part and
deliver these securities to close out their short positions, or loan or pledge
the common stock to broker-dealers that in turn may sell these
securities. The selling stockholders may also enter into option or
other transactions with broker-dealers or other financial institutions or create
one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
The
selling stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each selling
stockholder has informed the Company that it does not have any written or oral
agreement or understanding, directly or indirectly, with any person to
distribute the Common Stock. In no event shall any broker-dealer receive fees,
commissions and markups which, in the aggregate, would exceed eight percent
(8%).
The
Company is required to pay certain fees and expenses incurred by the Company
incident to the registration of the shares. The Company has agreed to
indemnify the selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because
selling stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act including Rule 172 thereunder. The selling
stockholders have advised us that there is no underwriter or coordinating broker
acting in connection with the proposed sale of the resale shares by the selling
stockholders.
14
We agreed
to keep this prospectus effective until the earlier of (i) the date on which the
shares may be resold by the selling stockholders without registration and
without regard to any volume or manner-of-sale limitations by reason of Rule
144, without the requirement for the Company to be in compliance with the
current public information under Rule 144 under the Securities Act or any other
rule of similar effect or (ii) all of the shares have been sold pursuant to this
or another prospectus or Rule 144 under the Securities Act or any other rule of
similar effect. The resale shares will be sold only through
registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale shares of common
stock covered hereby may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to the common stock for the applicable restricted
period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the selling stockholders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases and
sales of shares of the common stock by the selling stockholders or any other
person. We will make copies of this prospectus available to the
selling stockholders and have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
The
validity of the common stock 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, 2008 and 2007,
incorporated in this prospectus by reference to our Annual Report on Form 10-K
for the year ended December 31, 2008, 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.
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, 2008, filed
with the SEC on March 30, 2009 (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, 2009,
filed with the SEC on May 14, 2009;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2009,
filed with the SEC on August 13,
2009;
|
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on February 17,
2009;
|
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on March 23,
2009;
|
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on March 30,
2009;
|
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on April 9,
2009;
|
|
|
·
|
our
Current Report on Form 8-K, filed with the SEC on June 26, 2009;
and
|
|
|
·
|
the
description of our common stock contained on Form 8-A, filed with the SEC
on July 20, 2006.
|
THE
INFORMATION CONTAINED ON OUR WEBSITE DOES NOT CONSTITUTE A PART OF, AND IS NOT
INCORPORATED BY REFERENCE IN, THIS PROSPECTUS.
15
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
16
4,070,238 Shares
CLEVELAND
BIOLABS, INC.
Common
Stock, $0.005 Par Value
PROSPECTUS
____________,
2009
17
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
The
following table sets forth the costs and expenses. All amounts are estimates
except the SEC registration fee.
|
SEC
registration fee
|
$
|
2,310.91
|
||
|
Printing
and engraving expenses
|
$
|
|||
|
Legal
fees and expenses
|
$
|
|||
|
Accounting
fees and expenses
|
$
|
|||
|
Miscellaneous
expense
|
$
|
|
||
|
Total
|
$
|
|
INDEMNIFICATION
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.
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.
II-1
EXHIBITS
|
Exhibit
No.
|
Description
|
|
|
3.1
|
|
Certificate
of Incorporation filed with the Secretary of State of Delaware on June 5,
2003**
|
|
3.2
|
|
Certificate
of Amendment of Certificate of Incorporation filed with the Secretary of
State of Delaware on February 25, 2005**
|
|
3.3
|
|
Certificate
of Designation of Series A Participating Convertible Preferred Stock filed
with the Secretary of State of Delaware on March 8,
2005**
|
|
3.4
|
|
Second
Certificate of Amendment of Certificate of Incorporation filed with
Secretary of State of Delaware on June 30, 2006**
|
|
3.5
|
|
Third
Certificate of Amendment of Certificate of Incorporation filed with
Secretary of State of Delaware on June 25, 2009******
|
|
3.6
|
|
Certificate
of Designations, Preferences and Rights of Series B Convertible Preferred
Stock, dated March 16, 2007***
|
|
3.7
|
|
Certificate
of Designation of Preferences, Rights and Limitations of Series D
Convertible Preferred Stock, dated February 13,
2009*****
|
|
3.8
|
|
Second
Amended and Restated By-Laws****
|
|
4.1
|
|
Form
of Specimen Common Stock Certificate*
|
|
4.2
|
|
Form
of Warrants issues to designees of Sunrise Securities Corp., dated March
2005*
|
|
4.3
|
|
Form
of Warrants issued to underwriters**
|
|
4.4
|
|
Warrant
to Purchase Common Stock issued to ChemBridge Corporation, dated April 27,
2004*
|
|
4.5
|
Form
of Series B Warrant***
|
|
|
4.6
|
Form
of Series C Warrant***
|
|
|
4.7
|
Form
of Common Stock Purchase Warrant*****
|
|
|
5.1
|
|
Opinion
of Katten Muchin Rosenman LLPÆ
|
|
10.1
|
|
Selling
Agent Agreement, dated December 24, 2008, by and between Cleveland
BioLabs, Inc. and Garden State Securities, Inc., as amended by that
certain First Amendment thereto dated as of February 13, 2009, and as
further amended by that certain Second Amendment thereto dated March 12,
2009.
|
|
23.1
|
|
Consent
of Meaden & Moore, Ltd.
|
|
23.2
|
|
Consent
of Katten Muchin Rosenman LLP (included in Exhibit 5.1)Æ
|
|
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.
|
II-2
|
******
|
Incorporated
by reference to Form 8-K as filed on June 26, 2009.
|
|
Æ
|
To be filed by amendment. |
II-3
UNDERTAKINGS
The
undersigned Registrant hereby undertakes:
(a) (1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any
prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the
prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high 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 the
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 this Registration Statement;
(iii) To include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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 of 1933, as amended, 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.
(b) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be 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.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 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 SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer, or controlling person of the Registrant in the successful defense of
any such 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-4
SIGNATURES
In
accordance with 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 Buffalo, Erie County, State of New York, on the 27th day of August,
2009.
|
CLEVELAND
BIOLABS, INC.
|
||
|
By:
|
/s/ Michael Fonstein
|
|
|
Michael
Fonstein
|
||
|
Chief
Executive Officer and
President
|
||
II-5
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
|
August
27, 2009
|
||
|
Michael
Fonstein
|
(Principal
Executive Officer)
|
|||
|
/s/ John A. Marhofer, Jr.
|
Chief
Financial Officer
|
August 27, 2009
|
||
|
John A. Marhofer,
Jr.
|
(Principal Financial and Accounting Officer)
|
|||
|
*
|
Director
|
August
27, 2009
|
||
|
James
Antal
|
||||
|
*
|
Director
|
August
27, 2009
|
||
|
Paul
DiCorleto
|
||||
|
*
|
Chief
Scientific Officer and Director
|
August
27, 2009
|
||
|
Andrei
Gudkov
|
||||
|
*
|
Director,
Chairman of the Board
|
August
27, 2009
|
||
|
Bernard
L. Kasten
|
||||
|
*
|
Chief Operating Officer, Secretary and Director
|
August 27, 2009
|
||
|
Yakov
Kogan
|
||||
|
*
|
Director
|
August
27, 2009
|
||
|
H.
Daniel Perez
|
||||
|
*By: /s/ John A. Marhofer, Jr.
|
||||
|
John
A. Marhofer, Jr.
Attorney-in-fact
|
II-6
EXHIBIT
INDEX
|
Exhibit
No.
|
|
Description
|
|
3.1
|
|
Certificate
of Incorporation filed with the Secretary of State of Delaware on June 5,
2003**
|
|
3.2
|
|
Certificate
of Amendment of Certificate of Incorporation filed with the Secretary of
State of Delaware on February 25, 2005**
|
|
3.3
|
|
Certificate
of Designation of Series A Participating Convertible Preferred Stock filed
with the Secretary of State of Delaware on March 8,
2005**
|
|
3.4
|
|
Second
Certificate of Amendment of Certificate of Incorporation filed with
Secretary of State of Delaware on June 30, 2006**
|
|
3.5
|
|
Third
Certificate of Amendment of Certificate of Incorporation filed with
Secretary of State of Delaware on June 25, 2009******
|
|
3.6
|
|
Certificate
of Designations, Preferences and Rights of Series B Convertible Preferred
Stock, dated March 16, 2007***
|
|
3.7
|
|
Certificate
of Designation of Preferences, Rights and Limitations of Series D
Convertible Preferred Stock, dated February 13,
2009*****
|
|
3.8
|
|
Second
Amended and Restated By-Laws****
|
|
4.1
|
|
Form
of Specimen Common Stock Certificate*
|
|
4.2
|
|
Form
of Warrants issues to designees of Sunrise Securities Corp., dated March
2005*
|
|
4.3
|
|
Form
of Warrants issued to underwriters**
|
|
4.4
|
|
Warrant
to Purchase Common Stock issued to ChemBridge Corporation, dated April 27,
2004*
|
|
4.5
|
Form
of Series B Warrant***
|
|
|
4.6
|
Form
of Series C Warrant***
|
|
|
4.7
|
Form
of Common Stock Purchase Warrant*****
|
|
|
5.1
|
|
Opinion
of Katten Muchin Rosenman LLPÆ
|
|
10.1
|
|
Selling
Agent Agreement, dated December 24, 2008, by and between Cleveland
BioLabs, Inc. and Garden State Securities, Inc., as amended by that
certain First Amendment thereto dated as of February 13, 2009, and as
further amended by that certain Second Amendment thereto dated March
12, 2009.
|
|
23.1
|
|
Consent
of Meaden & Moore, Ltd.
|
|
23.2
|
|
Consent
of Katten Muchin Rosenman LLP (included in Exhibit 5.1)Æ
|
|
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 as filed on June 26, 2009.
|
|
Æ
|
To be filed by amendment. |