|200 Clarendon Street|
|Boston, Massachusetts 02116|
|Tel: +1.617.948.6000 Fax: +1.617.948.6001|
|FIRM / AFFILIATE OFFICES|
|Century City||Orange County|
|March 19, 2021||London||Singapore|
28 Wells Avenue, Third Floor
Yonkers, New York 10701
Registration Statement on Form S-3 (No. 333-246359); 11,500,000 shares of Common Stock, par value $0.0001 per share
Ladies and Gentlemen:
We have acted as special counsel to ContraFect Corporation, a Delaware corporation (the Company), in connection with the proposed issuance of up to 11,500,000 shares (the Shares) of common stock, $0.0001 par value per share (the Common Stock), including up to 1,500,000 shares of Common Stock issuable upon exercise of the underwriters option to purchase additional shares. The Shares are included in a registration statement on Form S-3 under the Securities Act of 1933, as amended (the Act), filed with the Securities and Exchange Commission (the Commission) on August 14, 2020 (Registration No. 333-246359) (the Registration Statement), a base prospectus dated August 31, 2020 (the Base Prospectus) and a prospectus supplement dated March 17, 2021 filed with the Commission pursuant to Rule 424(b) under the Act (together with the Base Prospectus, the Prospectus). The Shares are being sold pursuant to an underwriting agreement dated March 17, 2021 by and between SVB Leerink LLC and Cantor Fitzgerald & Co., as representatives of the several underwriters listed on Schedule A thereto, and the Company (the Underwriting Agreement). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus, other than as expressly stated herein with respect to the issue of the Shares.
March 19, 2021
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 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 as to the General Corporation Law of the State of Delaware (the DGCL), and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction, or, in the case of the State of Delaware, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state.
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 against payment therefor (not less than par value) in the circumstances contemplated by the Underwriting Agreement, 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 Act. We consent to your filing this opinion as an exhibit to the Companys Form 8-K dated March 19, 2021, and to the reference to our firm in the Prospectus under the heading Legal Matters. 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 Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ LATHAM & WATKINS LLP