NextCure, Inc S-3ASR, filed Aug 6, 2020

NextCure, Inc. (NXTC)

S-3ASR 2020-08-06

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	Delaware			47-5231247
	(State or other jurisdiction of incorporation or organization)			(I.R.S. Employer Identification Number)

	Large accelerated filer ☐						Accelerated filer ☐
	Non-accelerated filer ☐						Smaller reporting company ☒
							Emerging growth company ☒

CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered	Amount to be registered/proposed maximum offering price per unit/proposed maximum aggregate offering price/	Amount of registration fee
Common Stock	(1)(2)	(3)
Preferred Stock	(1)(2)	(3)
Debt Securities	(1)(2)	(3)
Warrants	(1)(2)	(3)
Units	(1)(2)	(3)

	Page
About this Prospectus		1
Where You Can Find More Information		2
Incorporation by Reference		3
The Company		4
Risk Factors		5
Special Note Regarding Forward-Looking Statements		6
Use of Proceeds		8
Description of Capital Stock		9
Description of Debt Securities		13
Description of Warrants		21
Description of Units		23
Plan of Distribution		24
Selling Securityholders		25
Legal Matters		25
Experts		25

			Amount to be Paid
SEC registration fee			$(1)(2)
FINRA filing fee			$(1)(2)
Printing and engraving expenses			$(1)(2)
Legal fees and expenses			$(1)(2)
Accounting fees and expenses			$(1)(2)
Transfer agent and registrar fees and expenses			$(1)(2)
Miscellaneous expenses			$(1)(2)
Total			$(1)(2)

	Exhibit Number			Description
	1.1*			Form of Underwriting Agreement.
	3.1			Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 filed with Registrant’s Current Report on 8-K filed with the Commission on May 13, 2019 (File No. 001-38905)).
	3.2			Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 filed with Registrant’s Current Report on 8-K filed with the Commission on May 13, 2019 (File No. 001-38905)).
	4.1			Amended and Restated Investors’ Rights Agreement, dated as of November 5, 2018, by and among the Company and the investors party thereto (incorporated by reference to Exhibit 4.1 filed with Registrant’s Registration Statement on Form S-1 filed with the Commission on April 12, 2019 (File No. 333-230837)).
	4.2*			Form of Preferred Stock Certificate and Certificate of Designation of Preferred Stock.
	4.3			Form of Indenture.
	4.4*			Form of Debt Security.
	4.5*			Form of Warrant.
	4.6*			Form of Warrant Agreement.
	4.7*			Form of Unit Agreement.
	5.1			Opinion of Hogan Lovells US LLP.
	23.1			Consent of Ernst & Young LLP, independent registered public accounting firm.
	23.2			Consent of Hogan Lovells US LLP (included in Exhibit 5.1).
	24.1			Powers of Attorney (incorporated by reference to the signature page hereto).
	25.1**			Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939.

Signature	Title	Date
/s/ Michael Richman Michael Richman	President, Chief Executive Officer and Director (Principal Executive Officer)	August 6, 2020
/s/ Steven P. Cobourn Steven P. Cobourn	Chief Financial Officer (Principal Financial and Accounting Officer)	August 6, 2020
/s/ David Kabakoff, Ph.D. David Kabakoff, Ph.D.	Chair of the Board	August 6, 2020
/s/ Elaine V. Jones, Ph.D. Elaine V. Jones, Ph.D.	Director	August 6, 2020
/s/ Chau Q. Khuong Chau Q. Khuong	Director	August 6, 2020
/s/ Judith J. Li Judith J. Li	Director	August 6, 2020

ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	1

Section 1.01 Definitions.	1
Section 1.02 Compliance Certificates and Opinions.	6
Section 1.03 Form of Documents Delivered to Trustee.	6
Section 1.04 Acts of Holders; Record Dates.	7
Section 1.05 Notices, Etc., to Trustee and Company.	8
Section 1.06 Notice to Holders; Waiver.	8
Section 1.07 Conflict with Trust Indenture Act.	9
Section 1.08 Effect of Headings and Table of Contents.	9
Section 1.09 Successors and Assigns.	9
Section 1.10 Separability Clause.	9
Section 1.11 Benefits of Indenture.	9
Section 1.12 Governing Law.	10
Section 1.13 Legal Holidays.	10
Section 1.14 Incorporators, Equityholders, Directors, Members, Managers, Officers and Employees of the Company Exempt from Individual Liability.	10
Section 1.15 WAIVER OF JURY TRIAL.	10

ARTICLE II. SECURITY FORM	10

Section 2.01 Forms Generally.	10
Section 2.02 Form of Legend for Global Securities.	11
Section 2.03 Form of Trustee’s Certificate of Authentication.	12

ARTICLE III. THE SECURITIES	12

Section 3.01 Amount Unlimited; Issuable in Series.	12
Section 3.02 Denominations.	15
Section 3.03 Execution, Authentication, Delivery and Dating.	15
Section 3.04 Temporary Securities.	16
Section 3.05 Registration; Registration of Transfer and Exchange.	17
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.	18
Section 3.07 Payment of Interest; Interest Rights Preserved.	19
Section 3.08 Persons Deemed Owners.	20
Section 3.09 Cancellation.	20
Section 3.10 Computation of Interest.	20
Section 3.11 CUSIP Numbers	20
Section 3.12 Original Issue Discount.	21

ARTICLE IV. SATISFACTION AND DISCHARGE	21

Section 4.01 Satisfaction and Discharge of Indenture.	21
Section 4.02 Application of Trust Money.	22

Article V. REMEDIES	22

Section 5.01 Events of Default.	22
Section 5.02 Acceleration of Maturity; Rescission and Annulment.	23
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.	24
Section 5.04 Trustee May File Proofs of Claim.	24

Section 5.05 Trustee May Enforce Claims Without Possession of Securities.	25
Section 5.06 Application of Money Collected.	25
Section 5.07 Limitation on Suits.	25
Section 5.08 Unconditional Right of Holders to Receive Principal Premium and Interest and to Convert Securities.	26
Section 5.09 Restoration of Rights and Remedies.	26
Section 5.10 Rights and Remedies Cumulative.	26
Section 5.11 Delay or Omission Not Waiver.	26
Section 5.12 Control by Holders.	26
Section 5.13 Waiver of Past Defaults.	27
Section 5.14 Undertaking for Costs.	27
Section 5.15 Waiver of Usury, Stay or Extension Laws.	27

ARTICLE VI. THE TRUSTEE	27

Section 6.01 Certain Duties and Responsibilities.	27
Section 6.02 Notice of Defaults.	28
Section 6.03 Certain Rights of Trustee.	28
Section 6.04 Not Responsible for Recitals or Issuance of Securities.	29
Section 6.05 May Hold Securities.	30
Section 6.06 Money Held in Trust.	30
Section 6.07 Compensation and Reimbursement.	30
Section 6.08 Conflicting Interests.	30
Section 6.09 Corporate Trustee Required, Eligibility.	31
Section 6.10 Resignation and Removal, Appointment of Successor.	31
Section 6.11 Acceptance of Appointment by Successor.	32
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.	33
Section 6.13 Preferential Collection of Claims Against Company.	33
Section 6.14 Appointment of Authenticating Agent.	33

ARTICLE VII. HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY	34

Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.	34
Section 7.02 Preservation of Information; Communications to Holders.	34
Section 7.03 Reports by Trustee.	35
Section 7.04 Reports by Company.	35

ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	35

Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.	35
Section 8.02 Successor Substituted.	36

ARTICLE IX. SUPPLEMENTAL INDENTURES	36

Section 9.01 Supplemental Indentures Without Consent of Holders.	36
Section 9.02 Supplemental Indentures With Consent of Holders.	37
Section 9.03 Execution of Supplemental Indentures.	38
Section 9.04 Effect of Supplemental Indentures.	38
Section 9.05 Conformity with Trust Indenture Act.	38
Section 9.06 Reference in Securities to Supplemental Indentures.	38

Article X. COVENANTS	39

Section 10.01 Payment of Principal, Premium and Interest.	39
Section 10.02 Maintenance of Office or Agency.	39

Section 10.03 Money for Securities Payments to Be Held in Trust.	39
Section 10.04 Statement by Officers as to Default.	40
Section 10.05 Existence.	40
Section 10.06 Waiver of Certain Covenants.	40

ARTICLE XI. REDEMPTION OF SECURITIES	41

Section 11.01 Applicability of Article.	41
Section 11.02 Election to Redeem; Notice to Trustee.	41
Section 11.03 Selection by Trustee of Securities to Be Redeemed.	41
Section 11.04 Notice of Redemption.	42
Section 11.05 Deposit of Redemption Price.	42
Section 11.06 Securities Payable on Redemption Date.	43
Section 11.07 Securities Redeemed in Part.	43

ARTICLE XII. SINKING FUNDS	43

Section 12.01 Applicability of Article.	43
Section 12.02 Satisfaction of Sinking Fund Payments with Securities.	43

ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE	44

Section 13.01 Company’s Option to Effect Defeasance or Covenant Defeasance.	44
Section 13.02 Defeasance and Discharge.	44
Section 13.03 Covenant Defeasance.	44
Section 13.04 Conditions to Defeasance or Covenant Defeasance.	45
Section 13.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.	46
Section 13.06 Reinstatement.	46

Trust Indenture Act Section		Indenture Section

310(a)(1)		6.09
(a)(2)		6.09
(a)(3)		N.A.
(a)(4)		N.A.
(a)(5)		6.09
(b)		6.08, 6.10
(c)		N.A.
311(a)		6.13
(b)		6.13
(c)		N.A.
312(a)		7.01, 7.02
(b)		7.02
(c)		7.02
313(a)		7.03
(b)(1)		N.A.
(b)(2)		7.03
(c)		7.03
(d)		7.03
314(a)		7.04
(a)(4)		1.04, 10.04
(b)		N.A.
(c)(1)		1.02
(c)(2)		1.02
(c)(3)		N.A.
(d)		N.A.
(e)		1.02
(f)		N.A.
315(a)		6.01
(b)		6.02
(c)		6.01
(d)		6.01
(e)		5.14
316(a)(last sentence)		1.06
(a)(1)(A)		5.02, 5.12
(a)(1)(B)		5.13
(a)(2)		N.A.
(b)		5.08

Trust Indenture Act Section		Indenture Section

(c)		1.04
317(a)(1)		5.03
(a)(2)		5.04
(b)		10.03
318(a)		1.07
(b)		N.A.
(c)		1.07

[ ], as Trustee

By:			, as
	Authenticating Agent

	By:
		Authorized Signatory

	NEXTCURE, INC.

	By:
	Name:
	Title:

	[ ], as Trustee

	By:
	Name:
	Title:

	[ ],
	As Trustee

	By:

	Authorized Signatory