As filed with the Securities and Exchange Commission on May 10, 2018
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ContraFect Corporation
(Exact name of Registrant as specified in its charter)
|
|
|
|
|
Delaware
|
|
39-2072586
|
|
(State or other jurisdiction of
Incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
28 Wells Avenue, Third Floor
Yonkers, New York 10701
(914)
207-2300
(Address of principal executive offices) (Zip code)
ContraFect Corporation 2014 Omnibus Incentive Plan
(Full title of the plans)
Natalie Bogdanos, Esq.
General Counsel and Corporate Secretary
ContraFect Corporation
28 Wells Avenue, Third Floor
Yonkers, New York 10701
(914)
207-2300
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
With copies to:
Peter N. Handrinos, Esq.
Latham & Watkins LLP
John Hancock Tower
200
Clarendon Street
Boston, MA 02116
(617)
948-6060
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule
12b-2
of the Exchange Act.
|
|
|
|
|
|
|
|
|
Large accelerated filer
|
|
☐
|
|
Accelerated filer
|
|
☒
|
|
|
|
|
|
|
Non-accelerated filer
|
|
☐ (Do not check if a smaller reporting company)
|
|
Smaller reporting company
|
|
☐
|
|
|
|
|
|
|
|
|
|
|
Emerging growth company
|
|
☒
|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for comply with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☒
CALCULATION
OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
Title of Securities
to be Registered
|
|
Amount
to be
Registered(1)
|
|
Proposed
Maximum
Offering Price
per Share
|
|
Proposed
Maximum
Aggregate
Offering Price
|
|
Amount of
Registration
Fee
|
|
Common Stock, par value $0.0001 per share
|
|
2,946,240(2)
|
|
$1.53(3)
|
|
$4,507,747.20
|
|
$562
|
|
|
|
|
|
(1)
|
In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar transactions.
|
|
(2)
|
Consists of an additional 2,946,240 shares issuable under the ContraFect Corporation 2014 Omnibus Incentive Plan (the “2014 Plan”) pursuant to the terms of such plan.
|
|
(3)
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of
the ContraFect Corporation’s (the “Registrant”) common stock as reported on The Nasdaq Capital Market on May 3, 2018.
|
EXPLANATORY NOTE
This Registration Statement on
Form S-8
is being filed for the purpose of registering an
additional 2,946,240 shares of the Registrant’s common stock to be issued pursuant to the 2014 Plan and for which a Registration Statement of the Registrant on
Form S-8
relating to the same employee
benefit plan is effective.
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENTS ON
FORM S-8
The contents of the Registration Statements on Form
S-8
(File Nos. 333-199046 and 333-217943), filed with the Securities and Exchange Commission, relating to the 2014 Plan, are incorporated herein by reference.
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation of the Registrant, dated August
1, 2014, as amended by the Certificate of Amendment, dated May 9, 2016 and Certificate of Amendment, dated May
2, 2017 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form
8-K
(File No. 001-36577) filed on May 3, 2017)
|
|
|
|
|
4.2
|
|
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form
8-K
(File No. 001-36577) filed on May 10, 2016)
|
|
|
|
|
5.1*
|
|
Opinion of Latham & Watkins LLP
|
|
|
|
|
23.1*
|
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
|
|
|
|
|
23.2*
|
|
Consent of Latham & Watkins LLP (included in Exhibit 5.1)
|
|
|
|
|
24.1*
|
|
Power of Attorney (included on signature page)
|
|
|
|
|
99.1
|
|
ContraFect Corporation 2014 Omnibus Incentive Plan (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement
on Form S-8 (Reg. No. 333-217943) filed on May 12, 2017)
|
|
|
|
|
99.2
|
|
ContraFect Corporation 2014 Omnibus Incentive Plan Form of Stock Option Grant Notice, Option Agreement and Notice of Exercise (incorporated by
reference to Exhibit 99.3 to the Registrant’s Registration Statement on Form S-8 (Reg. No. 333-199046) filed on September 30, 2014)
|
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on
Form S-8
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Yonkers, State of
New York, on May 10, 2018.
|
|
|
|
|
CONTRAFECT CORPORATION
|
|
|
|
|
By:
|
|
/s/ Steven C. Gilman, Ph.D.
|
|
|
|
Steven C. Gilman, Ph.D.
|
|
|
|
Chief Executive Officer, President and
Chairman of the Board
|
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Steven C. Gilman, Michael Messinger and Natalie Bogdanos, or
each of them singly, with full power to act without the other, such person’s true and lawful
attorneys-in-fact
and agents, with full power of substitution and
re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this registration statement and any and all amendments, including post-effective amendments to this registration statement, and to file the
same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in connection therewith as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or any of them, or their or his or her substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Steven C. Gilman, Ph.D.
Steven C. Gilman, Ph.D.
|
|
Chief Executive Officer, President and
Chairman of the Board
(Principal
Executive Officer)
|
|
May 10, 2018
|
|
|
|
|
|
/s/ Michael Messinger
Michael Messinger
|
|
Senior Vice President, Finance
(Principal Financial Officer and Principal Accounting Officer)
|
|
May 10, 2018
|
|
|
|
|
|
/s/ Sol J. Barer, Ph.D.
Sol J. Barer, Ph.D.
|
|
Lead Independent Director
|
|
May 10, 2018
|
|
|
|
|
|
/s/ Isaac Blech
Isaac Blech
|
|
Director
|
|
May 10, 2018
|
|
|
|
|
|
/s/ David N. Low, Jr.
David N. Low, Jr.
|
|
Director
|
|
May 10, 2018
|
|
|
|
|
|
/s/ Michael J. Otto, Ph.D.
Michael J. Otto, Ph.D.
|
|
Director
|
|
May 10, 2018
|
|
|
|
|
|
/s/ Roger J. Pomerantz, M.D., F.A.C.P.
Roger J. Pomerantz, M.D., F.A.C.P.
|
|
Vice Chairman of the Board
|
|
May 10, 2018
|
|
|
|
|
|
/s/ Cary W. Sucoff
Cary W. Sucoff
|
|
Director
|
|
May 10, 2018
|
Exhibit 5.1
ContraFect Corporation
28 Wells
Avenue, Third Floor
Yonkers, New York 10701
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Re:
|
|
|
Registration Statement on Form
S-8;
2,946,240 shares of Common Stock, par value $0.0001 per share, of ContraFect Corporation
|
Ladies and Gentlemen:
We have acted as special counsel to ContraFect Corporation, a Delaware corporation (the “
Company
”), in connection with the
preparation and filing by the Company with the Securities and Exchange Commission of a registration statement on Form S–8 (the “
Registration Statement
”) under the Securities Act of 1933, as amended (the “
Securities
Act
”), relating to the issuance of up to 2,946,240 shares of the Company’s common stock, par value $0.0001 per share (the “
Shares
”), which may be issued pursuant to the ContraFect Corporation 2014 Omnibus Incentive
Plan (the “
Plan
”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation
S-K
under the Securities Act, and no opinion is expressed herein as to
any matter pertaining to the contents of the Registration Statement or the prospectus forming a part thereof, other than as expressly stated herein with respect to the issuance of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter.
With your consent, we have relied upon the foregoing and upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein only as to
the General Corporation Law of the State of Delaware, as amended (the “
DCGL
”), and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have
been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the
Plan, assuming in each case that the individual grants or awards under the Plan are duly authorized by all necessary corporate action and duly granted or awarded and exercised in
May 10, 2018
Page
2
accordance with the requirements of law and the Plan
(and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid
and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely
upon it pursuant to the applicable provisions of the Securities Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby 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 Securities and Exchange Commission thereunder.
Very truly yours,
/s/ LATHAM & WATKINS LLP
