S-8

As filed with the Securities and Exchange Commission on May 23, 2022

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, a 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	☒	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.  ☐

EXPLANATORY NOTE

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 1,573,309 shares of ContraFect Corporation’s (the “Registrant”) common stock that became available for issuable pursuant to the ContraFect Corporation 2014 Omnibus Incentive Plan (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. 333-256569, 333-246340, 333-231439, 333-224834, 333-217943 and 333-199046), filed with the Securities and Exchange Commission, relating to the 2014 Plan, are incorporated herein by reference.

Item 8. Exhibits

Exhibit Number	Description
4.1	Amended and Restated Certificate of Incorporation of ContraFect Corporation, dated August  1, 2014, and Certificate of Amendment, dated May 9, 2016, Certificate of Amendment dated May 2, 2017, and Certificate of Amendment dated February  3, 2020 (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K (File No. 001-36577) filed on March  18, 2020)
4.2	Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-36577) filed on November 13, 2020)
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)
107.1*	Filing Fee Table.

* Filed herewith.

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 23, 2022.

CONTRAFECT CORPORATION
By:	/s/ Roger J. Pomerantz, M.D., F.A.C.P.
	Roger J. Pomerantz, M.D., F.A.C.P.
	Chief Executive Officer, President and
	Chairman of the Board

POWER OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints Roger J. Pomerantz, M.D., F.A.C.P., 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/ Roger J. Pomerantz, M.D., F.A.C.P.	Chief Executive Officer, President and Chairman of the Board (Principal Executive Officer)	May 23, 2022
Roger J. Pomerantz, M.D., F.A.C.P.
/s/ Michael Messinger	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	May 23, 2022
Michael Messinger
/s/ Steven C. Gilman, Ph.D.	Vice Chairman of the Board	May 23, 2022
Steven C. Gilman, Ph.D.
/s/ Sol J. Barer, Ph.D.	Lead Independent Director	May 23, 2022
Sol J. Barer, Ph.D.
/s/ Lishan Aklog, M.D.	Director	May 23, 2022
Lishan Aklog, M.D.
/s/ Jane F. Barlow, M.D., M.P.H., M.B.A.	Director	May 23, 2022
Jane F. Barlow, M.D., M.P.H., M.B.A.
/s/ David N. Low, Jr.	Director	May 23, 2022
David N. Low, Jr.
/s/ Michael J. Otto, Ph.D.	Director	May 23, 2022
Michael J. Otto, Ph.D.
/s/ Cary W. Sucoff, J.D.	Director	May 23, 2022
Cary W. Sucoff, J.D.

EX-5.1

Exhibit 5.1

	200 Clarendon Street
	Boston, Massachusetts 02116
	Tel: +1.617.948.6000 Fax: +1.617.948.6001
	www.lw.com
	FIRM / AFFILIATE OFFICES
	Austin	Moscow
	Beijing	Munich
	Boston	New York
	Brussels	Orange County
May 23, 2022	Century City	Paris
	Chicago	Riyadh
	Dubai	San Diego
	Düsseldorf	San Francisco
	Frankfurt	Seoul
	Hamburg	Shanghai
	Hong Kong	Silicon Valley
	Houston	Singapore
ContraFect Corporation 28 Wells Avenue, Third Floor Yonkers, New York 10701	London	Tel Aviv
	Los Angeles	Tokyo
	Madrid	Washington, D.C.
	Milan

Re: Registration Statement on Form S-8; 1,573,309 shares of Common Stock, par value $0.0001 per share, of ContraFect Corporation

To the addressee set forth above:

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 1,573,309 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 recipients thereof, 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 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.

May 23, 2022

Page 2

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.

Sincerely,

/s/ Latham & Watkins LLP

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the ContraFect Corporation 2014 Omnibus Incentive Plan of ContraFect Corporation of our report dated March 24, 2022, with respect to the consolidated financial statements of ContraFect Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.

/s/ Ernst & Young

Hartford, Connecticut

May 23, 2022

EX-FILING FEES

Exhibit 107.1

Calculation of Filing Fee Tables

Form S-8

(Form Type)

ContraFect Corporation

(Exact Name of Registrant as Specified in its Charter)

Table 1—Newly Registered Securities

Security Type	Security Class Title	Fee Calculation Rule	Amount to be Registered (1)	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common stock, $0.0001 par value per share	Rule 457(c) and Rule 457(h)	1,573,309 (2)	$3.50 (3)	$5,506,582	$92.70 per $1,000,000	$511
Total Offering Amounts					$5,506,582		$511
Total Fee Offsets (4)							$—
Net Fee Due							$511

(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 1,573,309 shares of common stock issuable under the ContraFect Corporation 2014 Omnibus Incentive Plan (the “2014 Plan”) pursuant to the terms of the 2014 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 ContraFect Corporation’s (the “Registrant”) common stock as reported on The Nasdaq Capital Market on May 20, 2022.

(4) The Registrant does not have any fee offsets.