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As filed with the Securities and Exchange Commission on August 3, 2015
RegistrationNo. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORMS-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ContraFect Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 2834 | 39-2072586 | ||
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
28 Wells Avenue, Third Floor
Yonkers, New York 10701
(914) 207-2300
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Julia P. Gregory, Chief Executive Officer
ContraFect Corporation
28 Wells Avenue, Third Floor
Yonkers, New York 10701
(914) 207-2300
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Christopher M. Forrester
Shearman & Sterling LLP
1460 El Camino Real, 2nd Floor
Menlo Park, California 94025
+1 (650) 838-3600
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this registration statement is declared effective.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
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. ¨
If this form is apost-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. ¨
If this form is a registration statement pursuant to General Instruction I.D. or apost-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. ¨
If this form is apost-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. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, anon-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” inRule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | x | |||
Calculation of Registration Fee:
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Title of each class of securities to be registered | Amount to be registered (1)(2)(3) | Proposed maximum offering price per share (3) | Proposed aggregate maximum offering price (3)(4) | Amount of registration fee (3) | ||||
Common Stock, par value $0.0001 per share | 7,186,757 | $4.90 | $35,215,109.30 | $4,092.00 | ||||
Total | 7,186,757 | $4.90 | $35,215,109.30 | $4,092.00 | ||||
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| (1) | Consists of an aggregate of 4,728,128 shares of common stock and 2,458,629 shares of common stock that may be issued upon the exercise of outstanding warrants, all of which were acquired by the selling stockholders in private placement transactions. |
| (2) | Pursuant to Rule 416 under the Securities Act of 1933, this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction. |
| (3) | Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(c) under the Securities Act. The proposed maximum offering price per share and proposed maximum aggregate offering price are based upon the average of the high $4.99 and low $4.80 sales prices of the registrant’s common stock on July 27, 2015, as reported on the NASDAQ Capital Market. |
| (4) | Includes consideration to be received by us, if applicable, for registered securities that are issuable upon exercise, conversion or exchange of other registered securities. |
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, as amended, or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. The selling stockholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and the selling stockholders are not soliciting offers to buy these securities in any state where the offer or sale is not permitted.
Subject to completion, dated August 3, 2015
Shares of Common Stock
This prospectus covers the offer and sale, from time to time, by the selling stockholders identified herein of 7,186,757 shares of our common stock, par value $0.0001 per share (the “Shares”). This total maximum amount of Shares includes up to: (i) 4,728,128 Shares that the selling stockholders were issued in a private placement that closed on June 12, 2015 (the “PIPE Shares”); (ii) 2,364,066 Shares issuable upon exercise of warrants we issued to investors in conjunction with the sale of the PIPE Shares (the “Investor Warrants”); and (iii) 94,563 Shares issuable upon exercise of warrants we issued to a placement agent as additional compensation in connection with the issuance of the PIPE Shares and Investor Warrants (the “Placement Agent Warrants” and, together with the Investor Warrants, the “PIPE Warrants”). The PIPE Shares and the Shares issuable upon exercise of the PIPE Warrants are being registered herein under the terms of a registration rights agreement (the “Registration Rights Agreement”) executed in connection with the sale of such securities in a private placement transaction. To the extent the Shares offered by this prospectus are not issued pursuant to the terms of the PIPE Warrants, we will deregister them. We have agreed to pay all expenses in connection with the registration of the PIPE Shares and the Shares underlying the PIPE Warrants by the selling stockholders named herein. See “Selling Stockholders.”
The Shares, our Class A Warrants and our Class B Warrants are listed on the NASDAQ Capital Market under the symbols “CFRX”, “CFRXW” and “CFRXZ”, respectively.
The selling stockholders may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. See “Plan of Distribution” for additional information. We will not receive any proceeds from the sale of any securities by selling stockholders.
This prospectus describes some of the general terms that may apply to these securities and the general manner in which they may be offered. The specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in a supplement to this prospectus. You should read this prospectus and each applicable prospectus supplement carefully before you invest.
See the “Risk Factors” section of this prospectus on page 5, our filings with the SEC and the applicable prospectus supplement for certain risks that you should consider before investing in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities nor passed upon the accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2015.
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This document is called a prospectus and is part of a registration statement that we have filed with the Securities and Exchange Commission (“SEC”) using a “shelf” registration process. Under this shelf registration process, the selling stockholders may, from time to time, sell the securities described in this prospectus in one or more offerings in amounts that will be determined from time to time.
We urge you to carefully read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading “Incorporation of Certain Information by Reference,” before buying any of the securities being offered.
You should rely only on the information provided in this prospectus or documents incorporated by reference into this prospectus. We have not, and the selling stockholders have not, authorized anyone to provide you with different information. This prospectus covers offers and sales of our securities only in jurisdictions in which such offers and sales are permitted.
Neither the delivery of this prospectus nor any sale made under it implies that there has been no change in our affairs or that the information in this prospectus is correct as of any date after the date of this prospectus. You should assume that the information in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front cover of the document and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security.
The registration statement containing this prospectus, including exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus and any prospectus supplement. We have filed, and plan to continue to file, other documents with the SEC that contain information about us and our business. Also, we will file legal documents that control the terms of the securities offered by this prospectus as exhibits to the reports that we file with the SEC. The registration statement and other reports can be read at the SEC Internet site or at the SEC offices mentioned under the heading “Available Information.”
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Available Information.”
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We have filed with the SEC a registration statement onForm S-3 under the Securities Act of 1933, as amended (“Securities Act”), with respect to the securities covered by this prospectus. This prospectus, which is a part of such registration statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules filed therewith. For further information with respect to us and the securities covered by this prospectus, please see the registration statement and the exhibits filed with the registration statement. A copy of the registration statement and the exhibits filed with the registration statement may be inspected without charge at the Public Reference Room maintained by the SEC, located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at1-800-SEC-0330 for more information about the operation of the Public Reference Room. The SEC also maintains an Internet website that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. The address of the website is http://www.sec.gov.
We are subject to the information and periodic reporting requirements of the Securities Exchange Act of 1934, as amended (“Exchange Act”), and, in accordance therewith, we file periodic reports, proxy statements and other information with the SEC. Such periodic reports, proxy statements and other information are available for inspection and copying at the Public Reference Room and website of the SEC referred to above. We maintain a website at http://www.contrafect.com. You may access our Annual Reports onForm 10-K, Quarterly Reports onForm 10-Q, Current Reports onForm 8-K and amendments to those reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act with the SEC free of charge at our website as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. Our website and the information contained on that site, or connected to that site, are not incorporated into and are not a part of this prospectus.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC’s rules allow us to incorporate by reference information into this prospectus. This means that we can disclose important information to you by referring you to another document. Any information referred to in this way is considered part of this prospectus from the date we file that document. Any reports filed by us with the SEC after the date of this prospectus and before the date that the offering of the securities by means of this prospectus is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus.
We incorporate by reference into this prospectus the following documents or information filed with the SEC (other than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules):
| • | Our Annual Report onForm 10-K for the year ended December 31, 2014; |
| • | The information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2014 from our definitive proxy statement on Schedule 14A (other than information furnished rather than filed), which was filed on March 26, 2015; |
| • | Our Quarterly Report onForm 10-Q for the quarter ended March 31, 2015 filed on May 14, 2015; |
| • | Our Current Reports onForm 8-K filed with the SEC on April 15, 2015, May 22, 2015, June 12, 2015 and June 17, 2015; and |
| • | The description of our common stock contained in our Registration Statement onForm 8-A filed with the SEC on July 28, 2014. |
Additionally, all documents filed by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after (i) the date of the initial registration statement and prior to effectiveness of the registration statement, and (ii) the date of this prospectus and before the termination or completion of any offering hereunder, shall be deemed to be incorporated by reference into this prospectus from the respective dates of filing of such documents, except that we do not incorporate any document or portion of a document that is “furnished” to the SEC, but not deemed “filed.”
We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon his or her written or oral request, a copy of any or all documents referred to above which have been or may be incorporated by reference into this prospectus excluding exhibits to those documents unless they are specifically incorporated by reference into those documents. Written or telephone requests should be directed to ContraFect Corporation, Attn: General Counsel, 28 Wells Avenue, 3rd Floor, Yonkers, NY 10701; telephone +1 (914) 207-2300.
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This prospectus, including the documents we incorporate by reference into it, containsforward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. Such statements include, without limitation, statements regarding our expectations, hopes or intentions regarding the future. These forward looking statements can often be identified by their use of words such as “expect,” “believe,” “anticipate,” “outlook,” “could,” “target,” “project,” “intend,” “plan,” “seek,” “estimate,” “should,” “may” and “assume,” as well as variations of such words and similar expressions referring to the future.
Forward-looking statements involve certain risks and uncertainties, many of which are beyond our control. If any of those risks and uncertainties materialize, actual results could differ materially from those discussed in any suchforward-looking statement. Among the factors that could cause actual results to differ materially from those discussed inforward-looking statements are those discussed under the heading “Risk Factors” below, those discussed under the heading “Risk Factors” and in other sections of our Annual Report onForm 10-K for the year ended December 31, 2014, as well as in our other reports filed from time to time with the SEC that are incorporated by reference into this prospectus. See “Available Information” and “Incorporation of Certain Information by Reference” for information about how to obtain copies of those documents.
Allforward-looking statements in this prospectus and the documents incorporated by reference into it are made only as of the date of the document in which they are contained, based on information available to us as of the date of that document, and we caution you not to place undue reliance onforward-looking statements in light of the risks and uncertainties associated with them. Except as required by law, we undertake no obligation to update anyforward-looking statements, whether as a result of new information, future events or otherwise.
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Investing in our securities involves significant risks. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in, or incorporated into, the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference herein or therein. Each of the referenced risks and uncertainties could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.
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We are a clinical-stage biotechnology company focused on discovering and developing therapeutic protein and antibody products for life-threatening, drug-resistant infectious diseases, particularly those treated in hospital settings. Due to drug-resistant and newly emerging pathogens, hospital acquired infections are currently the fourth leading cause of death in the United States, following heart disease, cancer and stroke. We intend to address drug-resistant infections using our therapeutic product candidates from our lysin and monoclonal antibody platforms to target conserved regions of either bacteria or viruses. Lysins are enzymes that are produced in the life cycle stage of a bacteriophage, a virus that infects and kills bacteria. Lysins digest bacterial cell walls and are fundamentally different than antibiotics because they kill bacteria immediately upon contact. We believe the properties of our lysins make them suitable for the treatment of antibiotic-resistant organisms that can cause serious infections such as Staph aureus bacteremia, pneumonia and osteomyelitis, and the treatment of biofilm-related indications for infected prosthetic joints, indwelling devices and catheters. In addition to our lysins, we are exploring therapies using monoclonal antibodies that block and disarm virulence factors of bacteria and viruses, rendering them vulnerable to the body’s natural immune response.
We were incorporated under the laws of the State of Delaware in March 2008. Our principal executive offices are located at 28 Wells Avenue, 3rd Floor, Yonkers, NY 10701, and our telephone number is (914) 207-2300. Our website address is www.contrafect.com. The information contained on our website is not incorporated by reference into this prospectus, and you should not consider any information contained on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase our securities. Our securities trade on the NASDAQ Capital Market under the symbols “CFRX,” “CFRXW” and “CFRXZ.”
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We will not receive any of the proceeds from any sale or other disposition of the Shares covered by this prospectus. We will receive proceeds upon any exercise of the Investor Warrants for which underlying Shares of common stock are being registered hereunder. Assuming full exercise of the Investor Warrants, we will receive proceeds of approximately $18.9 million. We currently intend to use the proceeds from any such warrant exercise for working capital and general corporate purposes. The amount and timing of our actual use of proceeds may vary significantly depending upon numerous factors, including the actual amount of proceeds we receive and the timing of when we receive such proceeds. In addition, the Placement Agent Warrants provide that they may be exercised on a cashless basis according to their terms. We will not receive any proceeds as a result of Placement Agent Warrants that are exercised on a cashless basis.
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The registration statement of which this prospectus forms a part has been filed to permit certain selling stockholders to resell to the public their PIPE Shares and authorized but unissued Shares underlying the PIPE Warrants from time to time, as well as any common stock that we may issue or may be issuable by reason of any stock split, stock dividend or similar transaction involving these securities. We will pay all registration expenses (other than underwriting discounts and commissions and transfer taxes) for such sales.
Each Investor Warrant represents the right of the holder to purchase Shares at a price of $8.00 per Share. The Investor Warrants are exercisable, in whole or in part, at any time prior to June 12, 2018. Each Placement Agent Warrant represents the right of the holder to purchase Shares at a price of $4.65 per Share. The Placement Agent Warrants are exercisable, in whole or in part, at any time prior to June 12, 2020. The PIPE Warrants provide for certain adjustments that may be made to the exercise price and the number of Shares issuable upon exercise due to future corporate events or otherwise. In the case of certain fundamental transactions affecting us, the holders of the PIPE Warrants, upon exercise of the PIPE Warrants after such fundamental transaction, have the right to receive, in lieu of the Shares, the same amount and kind of securities, cash or property such holder would have been entitled to receive upon the occurrence of the fundamental transaction had the PIPE Warrants been exercised immediately prior to such fundamental transaction. The Placement Agent Warrants contain a “cashless exercise” feature that allows the holders to exercise the Placement Agent Warrants without a cash payment to us upon the terms set forth therein.
The Shares being offered by the selling stockholders are the PIPE Shares and those issuable to the selling stockholders pursuant to the terms of the PIPE Warrants. Except for (i) the ownership of the PIPE Shares and PIPE Warrants and (ii) the holders of the Placement Agent Warrants being a placement agent in connection with the issuance of the PIPE Shares and Investor Warrants, the selling stockholders holding the PIPE Shares and PIPE Warrants have not had any material relationship with us within the past three years and were not beneficial owners of our common stock prior to the date of this prospectus.
The table below sets forth certain information known to us with respect to the beneficial ownership of the Shares held by the selling stockholders as of August 3, 2015. The column titled “Shares Beneficially Owned Prior to this Offering” below lists the number of Shares beneficially owned by each selling stockholder, based on its ownership of the PIPE Shares and PIPE Warrants as of August 3, 2015, assuming the exercise of all such warrants held by the selling stockholders on that date, without regard to any limitations on conversion, amortization, redemption or exercise. For the purposes of the table below, we assume that each selling stockholder will sell all of his or her Shares. However, because the selling stockholders may sell, transfer or otherwise dispose of all, some or none of the Shares covered by this prospectus, we cannot determine the actual number of such Shares, if any, that will be sold, transferred or otherwise disposed of by the selling stockholders, or the amount or percentage of Shares that will be held by the selling stockholders upon termination of any particular offering. See “Plan of Distribution.” When we refer to the selling stockholders in this prospectus, we mean the persons listed in the table below, as well as their pledgees, donees, assignees, transferees and successors in interest.
We have based our calculation of beneficial ownership on 25,079,729 Shares issued and outstanding as of August 3, 2015.
Beneficial ownership is determined in accordance with SEC rules. These rules generally attribute beneficial ownership of securities to persons who possess sole or shared voting power or investment power with respect to those securities.
All of the Shares reflected in the table are shares of our common stock held or issuable upon the exercise of warrants and all persons listed below have sole voting and investment power with respect to the Shares beneficially owned by them, except to the extent authority is shared by spouses under applicable law. The information is not necessarily indicative of beneficial ownership for any other purpose.
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| Shares Beneficially Owned Prior to the Offering | Shares Beneficially Owned After the Offering | |||||||||||||||
Name of Beneficial Owner | Number | Percent | Number | Percent | ||||||||||||
Angela Dong(1) | 3,000 | * | 0 | 0 | ||||||||||||
Benjamin Small(2) | 17,730 | * | 0 | 0 | ||||||||||||
Birchview Fund LLC(3) | 177,305 | * | 0 | 0 | ||||||||||||
Broadfin Healthcare Master Fund LTD(4) | 2,127,659 | 8.3 | 0 | 0 | ||||||||||||
Brookline Group, LLC(5) | 21,513 | * | 0 | 0 | ||||||||||||
Cormorant Global Healthcare Master Fund LTD(6) | 354,609 | 1.4 | 0 | 0 | ||||||||||||
Harris R.L. Lydon Jr.(7) | 23,350 | * | 0 | 0 | ||||||||||||
Jack W. Schuler(8) | 2,127,659 | 8.3 | 0 | 0 | ||||||||||||
Matthew W. Strobeck(9) | 505,319 | 2.0 | 0 | 0 | ||||||||||||
Oracle Institutional Partners LP(10) | 364,609 | 1.4 | 0 | 0 | ||||||||||||
Oracle Partners LP(11) | 1,418,439 | 5.6 | 0 | 0 | ||||||||||||
Richard McCormick(12) | 8,865 | * | 0 | 0 | ||||||||||||
Scott A. Katzmann(13) | 23,350 | * | 0 | 0 | ||||||||||||
William B. Buchanan(14) | 23,350 | * | 0 | 0 | ||||||||||||
| * | Represents beneficial ownership of less than one percent of our outstanding common stock. |
| (1) | Represents Shares beneficially owned in the form of Placement Agent Warrants to purchase 3,000 Shares. |
| (2) | Represents Shares beneficially owned in the form of 11,820 PIPE Shares and Investor Warrants to purchase 5,910 Shares. |
| (3) | Represents Shares beneficially owned in the form of 118,203 PIPE Shares and Investor Warrants to purchase 59,102 Shares. |
| (4) | Represents Shares beneficially owned in the form of 1,418,439 PIPE Shares and Investor Warrants to purchase 709,220 Shares. |
| (5) | Represents Shares beneficially owned in the form of Placement Agent Warrants to purchase 21,513 Shares. |
| (6) | Represents Shares beneficially owned in the form of 236,406 PIPE Shares and Investor Warrants to purchase 118,203 Shares. |
| (7) | Represents Shares beneficially owned in the form of Placement Agent Warrants to purchase 23,350 Shares. |
| (8) | Represents Shares beneficially owned in the form of 1,418,439 PIPE Shares and Investor Warrants to purchase 709,220 Shares. |
| (9) | Represents Shares beneficially owned in the form of 336,879 PIPE Shares and Investor Warrants to purchase 168,440 Shares. |
| (10) | Represents Shares beneficially owned in the form of 236,406 PIPE Shares and Investor Warrants to purchase 118,203 Shares. |
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| (11) | Represents Shares beneficially owned in the form of 945,626 PIPE Shares and Investor Warrants to purchase 472,813 Shares. |
| (12) | Represents Shares beneficially owned in the form of 5,910 PIPE Shares and Investor Warrants to purchase 2,955 Shares. |
| (13) | Represents Shares beneficially owned in the form of Placement Agent Warrants to purchase 23,350 Shares. |
| (14) | Represents Shares beneficially owned in the form of Placement Agent Warrants to purchase 23,350 Shares. |
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The selling stockholders, which includes such selling stockholders’ donees, pledgees, transferees or other successors-in-interest, may sell the securities through underwriters or dealers, through agents, directly to one or more purchasers, through a rights offering, or otherwise. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale or at negotiated prices. We will describe the terms of any offering of the securities in a prospectus supplement, information incorporated by reference or a related free writing prospectus, including:
| • | the purchase price of the securities and the proceeds received from the sale of the securities; |
| • | any underwriting discounts and other items constituting underwriters’ compensation; |
| • | any public offering or purchase price and any discounts or commissions allowed or re-allowed or paid to dealers; |
| • | any commissions allowed or paid to agents; |
| • | any other offering expenses; |
| • | any securities exchanges on which the securities may be listed; |
| • | the method of distribution of the securities; |
| • | the terms of any agreement, arrangement or understanding entered into with the underwriters, brokers or dealers; and |
| • | any other information we think is important. |
Only underwriters we name in the prospectus supplement, information incorporated by reference or a related free writing prospectus are underwriters of the securities offered thereby.
The distribution of securities may be effected, from time to time, in one or more transactions, including:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| • | in transactions on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; |
| • | in transactions in the over-the-counter market; |
| • | in block transactions in which the broker or dealer so engaged will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction, or in crosses, in which the same broker acts as an agent on both sides of the trade; |
| • | 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; |
| • | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
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| • | broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; |
| • | a combination of any such methods of sale; and |
| • | any other method permitted by applicable law. |
The consideration may be cash or another form negotiated by the parties. Agents, underwriters orbroker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received from the purchasers of the securities. We will not receive any proceeds from the sale of securities by selling stockholders. Dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act. If such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act.
Agents may, from time to time, solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement, document incorporated by reference or a related free writing prospectus, as applicable, any agent involved in the offer or sale of the securities and set forth any compensation payable to the agent. Unless otherwise indicated, any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities.
If underwriters are used in an offering, securities will be acquired by the underwriters for their own account and may be resold, from time to time, in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for the sale is reached. The applicable prospectus supplement will set forth the managing underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering price, if applicable. The prospectus, and the applicable prospectus supplement and any applicable free writing prospectus, will be used by the underwriters to resell the securities.
If a dealer is used in the sale of the securities, the selling stockholders or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement, document incorporated by reference or a related free writing prospectus, as applicable, the name of the dealer and the terms of the transactions.
The selling stockholders may directly solicit offers to purchase the securities and may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the prospectus supplement, document incorporated by reference or a related free writing prospectus, as applicable, will describe the terms of any such sales, including the terms of any bidding or auction process, if used.
Agents, underwriters and dealers may be entitled under agreements which may be entered into with us and the selling stockholders to indemnification against specified liabilities, including liabilities incurred under the Securities Act, or to contribution to payments they may be required to make in respect of such liabilities. If required, the prospectus supplement, document incorporated by reference or a related free writing prospectus, as applicable, will describe the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers or their affiliates may be customers of, engage in transactions with or perform services for us or our affiliates in the ordinary course of business.
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Under the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers. In addition, in some states the Shares may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.
Any person participating in the distribution of securities registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of our securities by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our securities to engage inmarket-making activities with respect to our securities. These restrictions may affect the marketability of our securities and the ability of any person or entity to engage inmarket-making activities with respect to our securities.
We have advised the selling stockholders that the anti-manipulation rules of Regulation M under the Securities Exchange Act may apply to sales of Shares and to the activities of the selling stockholders and their affiliates. In addition, to the extent applicable, we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions involving the sale of Shares against certain liabilities, including liabilities arising under the Securities Act.
The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the Shares owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the Shares, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors-in-interest as selling stockholders under this prospectus. The selling stockholders also may transfer the Shares in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our Shares 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 our common stock short 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 the creation of 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). Certain other persons participating in an offering may engage inover-allotment, stabilizing transactions,short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act that stabilize, maintain or otherwise affect the price of the Shares. If any such activities will occur, they will be described in the applicable prospectus supplement.
The aggregate proceeds to the selling stockholders from the sale of the Shares offered by them will be the purchase price of the Shares less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of Shares to be made directly or through agents. We will not receive any of the proceeds from any sales by selling stockholders. Upon any exercise of any warrants specified herein by payment of cash, however, we will receive the exercise price of the warrants. See “Use of Proceeds.”
The selling stockholders also may resell all or a portion of the Shares in open market transactions in reliance upon Rule 144 under the Securities Act (“Rule 144”), provided that they meet the criteria and conform to the requirements of that rule.
The selling stockholders and any underwriters, broker-dealers or agents that participate in the sale of the Shares or interests therein may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the Shares may be underwriting discounts and commissions under the Securities Act. Selling stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act.
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To the extent required, the Shares to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any agent, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
We have agreed to indemnify the selling stockholders against certain liabilities, including liabilities under the Securities Act and state securities laws, relating to the registration of the Shares offered by this prospectus.
With respect to the PIPE Shares and PIPE Warrants, we have agreed with the selling stockholders to keep this registration statement effective until the earliest of (1) two years from the date of effectiveness, (2) such time as all of the PIPE Shares and PIPE Warrants have been publicly sold and (3) the date that all PIPE Shares and PIPE Warrants covered by this registration statement may be sold by non-affiliates without volume or manner-of-sale restrictions under Rule 144, without the requirement for us to be in compliance with the current public information requirements under Rule 144 as determined by our counsel pursuant to a written opinion letter to such effect, addressed and delivered to, and reasonably acceptable to, the transfer agent.
To the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution.
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Shearman & Sterling LLP will pass upon the validity of the securities offered pursuant to this prospectus for us.
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Ernst & Young LLP, an independent registered public accounting firm, has audited our financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2014, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
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PART II. INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses to be paid by the Registrant, other than estimated underwriting discounts and commissions. Other than the SEC registration fee and the FINRA filing fee, all amounts shown are estimates.
Fee | Total | |||
SEC registration fee | $ | 4,092.00 | ||
FINRA filing fee | 5,782.27 | |||
Nasdaq listing fee | * | |||
Printing | * | |||
Legal fees and expenses | * | |||
Accounting fees and expenses | * | |||
Transfer agent and registrar fees | * | |||
Miscellaneous | * | |||
|
| |||
Total | $ | 9,874.27 | ||
|
| |||
| * | Fees and expenses (other than the SEC registration fee and the FINRA filing fee) will depend on the securities offered, the number of issuances and the nature of the offerings, and cannot be estimated at this time. |
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the 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 in violation of Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation provides for this limitation of liability.
Section 145 of the DGCL (“Section 145”) provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in right of such corporation), by reason of the fact that such person is or was an officer, director, 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 or 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 such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
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Our amended and restated certificate of incorporation provides that to the fullest extent permitted by the DGCL, none of our directors shall be liable to our company or our stockholders for monetary damages arising from a breach of fiduciary duty owed to our company or our stockholders. In addition, our amended and restated bylaws provide that we must indemnify our directors and officers to the fullest extent authorized by the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately that such person is not entitled to be indemnified under this section or otherwise.
We have entered into indemnification agreements with each of our directors and executive officers in which we have agreed to indemnify, defend and hold harmless, and also advance expenses as incurred, to the fullest extent permitted under applicable law, from damage arising from the fact that such person is or was an officer or director of our company or our subsidiaries.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, our amended and restated certificate of incorporation, our amended and restated bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise.
We expect to maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
The Registrant has purchased and intends to maintain insurance on behalf of the Registrant and any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in that capacity, subject to certain exclusions and limits of the amount of coverage.
ITEM 16. EXHIBITS
Exhibits
Exhibit | Description | |
| 1.1* | Form of Underwriting Agreement with respect to Common Stock | |
| 3.1 | Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of ContraFect Corporation’s FormS-1/A filed with the SEC on July 25, 2014) | |
| 3.2 | Amended and Restated Bylaws (incorporated by reference to Exhibit 3.4 of ContraFect Corporation’s FormS-1/A filed with the SEC on July 3, 2015) | |
| 4.1 | Form of Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 of ContraFect Corporation’s FormS-1/A filed with the SEC on July 3, 2015) | |
| 5.1 | Opinion of Shearman & Sterling LLP | |
| 23.1 | Consent of Shearman & Sterling LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Ernst & Young LLP | |
| 24.1 | Powers of Attorney (included on applicable signature pages to this registration statement) | |
| * | To be filed as an amendment or as an exhibit to a document filed under the Exchange Act and incorporated by reference into this registration statement. |
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ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, apost-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recentpost-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 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 the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in apost-effective amendment by those paragraphs is contained in 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 the 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, each suchpost-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 initialbona fide offering thereof.
(3) To remove from registration by means of apost-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.Provided,however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(5) That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 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 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 initialbona fide offering thereof.
(6) (i) To use its best efforts to distribute prior to the opening of bids, to prospective bidders, underwriters, and dealers, a reasonable number of copies of a prospectus which at that time meets the requirements of Section 10(a) of the Act, and relating to the securities offered at competitive bidding, as contained in the registration statement, together with any supplements thereto, and (ii) to file an amendment to the registration statement reflecting the results of bidding, the terms of the reoffering and related matters to the extent required by the applicable form, not later than the first use, authorized by the issuer after the opening of bids, of a prospectus relating to the securities offered at competitive bidding, unless no further public offering of such securities by the issuer and no reoffering of such securities by the purchasers is proposed to be made.
(7) That, insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on August 3, 2015.
| CONTRAFECT CORPORATION | ||
| By: | /s/ Julia P. Gregory | |
Julia P. Gregory Chief Executive Officer | ||
Each person whose signature appears below appoints JULIA P. GREGORY and MICHAEL MESSINGER, and each of them, any of whom may act without the joinder of the other, as his true and lawfulattorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (includingpost-effective amendments) to this registration statement and any registration statement (including any amendment thereto) that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto saidattorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that saidattorneys-in-fact and agents or any of them of their or his substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
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/ Julia P. Gregory | Chief Executive Officer and Director (Principal Executive Officer) (Principal Financial Officer) | August 3, 2015 | ||
| Julia P. Gregory | ||||
/s/ Michael Messinger | Vice President, Finance and Chief Accounting Officer (Principal Accounting Officer) | August 3, 2015 | ||
| Michael Messinger | ||||
/s/ Steven C. Gilman, Ph.D. | Executive Chairman | August 3, 2015 | ||
| Steven C. Gilman, Ph.D. | ||||
/s/ Sol Barer, Ph.D. | Lead Independent Director | August 3, 2015 | ||
| Sol Barer, Ph.D. | ||||
/s/ Isaac Blech | Director | August 3, 2015 | ||
| Isaac Blech | ||||
/s/ David N. Low, Jr. | Director | August 3, 2015 | ||
| David N. Low, Jr. | ||||
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/s/ Michael J. Otto, Ph.D. | Director | August 3, 2015 | ||
| Michael J. Otto, Ph.D. | ||||
/s/ Roger Pomerantz, M.D., F.A.C.P. | Director, Vice Chairman | August 3, 2015 | ||
| Roger Pomerantz, M.D., F.A.C.P. | ||||
/s/ David A. Scheinberg, M.D., Ph.D. | Director | August 3, 2015 | ||
| David A. Scheinberg, M.D., Ph.D. | ||||
/s/ Cary W. Sucoff | Director | August 3, 2015 | ||
| Cary W. Sucoff | ||||
/s/ Lawrence Tian | Director | August 3, 2015 | ||
| Lawrence Tian | ||||
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